[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



                   DISTRICT OF COLUMBIA HOUSE VOTING 
                           RIGHTS ACT OF 2009

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

                                H.R. 157

                               __________

                            JANUARY 27, 2009

                               __________

                            Serial No. 111-1

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
LUIS V. GUTIERREZ, Illinois          JASON CHAFFETZ, Utah
BRAD SHERMAN, California             TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            STEVE KING, Iowa
TAMMY BALDWIN, Wisconsin             JIM JORDAN, Ohio
JOHN CONYERS, Jr., Michigan          LOUIE GOHMERT, Texas
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas

                David Lachmann, Majority Chief of Staff

                    Paul B. Taylor, Minority Counsel














                            C O N T E N T S

                              ----------                              

                            JANUARY 27, 2009

                                                                   Page

                                THE BILL

H.R. 157, the ``District of Columbia House Voting Rights Act of 
  2009''.........................................................     3

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     2
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     9

                               WITNESSES

The Honorable Steny Hoyer, a Representative in Congress from the 
  State of Maryland
  Oral Testimony.................................................    11
  Prepared Statement.............................................    14
The Honorable Jason Chaffetz, a Representative in Congress from 
  the State of Utah
  Oral Testimony.................................................    15
  Prepared Statement.............................................    16
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas
  Oral Testimony.................................................    18
  Prepared Statement.............................................    21
The Honorable Tom Davis, a former Representative in Congress
  Oral Testimony.................................................    26
  Prepared Statement.............................................    60
Mr. Wade Henderson, President & CEO, Leadership Conference on 
  Civil Rights
  Oral Testimony.................................................    71
  Prepared Statement.............................................    76
Ms. Yolanda O. Lee, U.S. Army Guard Captain, District of Columbia 
  National Guard
  Oral Testimony.................................................    82
  Prepared Statement.............................................    83
Mr. Jonathan Turley, J.B. & Maurice Shapiro Professor of Public 
  Interest Law, George Washington University Law School
  Oral Testimony.................................................    84
  Prepared Statement.............................................    87
Mr. Viet D. Dinh, Professor of Law, Georgetown University Law 
  Center
  Oral Testimony.................................................   178
  Prepared Statement.............................................   180

                                APPENDIX

Material Submitted for the Hearing Record........................   219

 
                   DISTRICT OF COLUMBIA HOUSE VOTING 
                           RIGHTS ACT OF 2009

                              ----------                              


                       TUESDAY, JANUARY 27, 2009

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Conyers, Nadler, Watt, Scott, 
Johnson, Baldwin, Cohen, Jackson Lee, Sensenbrenner, Rooney, 
Franks, King, Jordan, and Gohmert.
    Staff present: David Lachmann, Subcommittee Chief of Staff; 
Kanya Bennett, Majority Counsel; and Paul Taylor, Minority 
Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order. I want to welcome all of you to our first hearing in 
this Congress.
    We are joined by some Members who are new to this Committee 
and some who are new to the Congress. I look forward to working 
with each of you.
    Our Subcommittee has an extremely important jurisdiction. 
It includes amendments to the Constitution, civil rights, civil 
liberties, the Civil Rights Division of the Justice Department, 
the U.S. Commission on Civil Rights, and the Community 
Relations Service.
    Big debates in the Subcommittee have always been spirited--
an interesting word--as well they should be. It reflects the 
fact that the Members of this Subcommittee care very deeply 
about these fundamental issues and are not inclined to shrink 
from the difficult questions.
    Whatever our differences, that is something we all share.
    Our Ranking Member in this Congress is the former Chairman 
of the full Committee, the gentleman from Wisconsin, Mr. 
Sensenbrenner. He was first elected to Congress in 1978 and has 
previously chaired the Judiciary Committee and the Committee on 
Science.
    He has made many important contributions in the area of 
civil rights. As Chairman of the full Committee, he shepherded 
through the reauthorization of the Voting Rights Act. Of 
course, he also championed it in 1982.
    He has also been a tireless advocate for the rights of the 
disabled. He can be an effective partisan, an effective 
adversary, but he is also adept at working across the aisle to 
solve problems.
    I very much look forward to working with you, sir, during 
this Congress. Does the gentleman wish to make any opening 
remarks before we have opening statements on the hearing?
    Mr. Sensenbrenner. No, I will reserve my time and have an 
opening statement on the hearing.
    Mr. Nadler. Thank you very much.
    And I will make my opening statement on the hearing now.
    We now turn to the subject of the hearing. The Chair 
recognizes himself for 5 minutes for an opening statement.
    Today we returned to one of the great injustices in our 
Nation, the fact that the citizens of the District of Colombia 
do not have voting representation in Congress. After more than 
two centuries, the only word to describe this state of affairs 
is inexcusable.
    More than half a million Americans within sight of this 
capital are completely disenfranchised. The people who patrol 
the streets, put out the fires and provide emergency services, 
the people who operate the trains and buses, drive the cabs, 
even to people who work for the Members sitting up here on the 
dais, the people who work so hard to make sure we can do our 
jobs, do not have the simple voting rights we demand of other 
Nations.
    It is appropriate that this Committee, which produced the 
Voting Rights Act, showed as its first act of the new Congress 
consider legislation to secure the votes for the people of the 
District of Columbia.
    The current state of affairs is not without consequences. 
How else would this Congress decide a high profile issue for 
the District of Columbia? This body regularly interferes with 
the rights of D.C. residents in ways that none of our 
constituents would ever tolerate, yet Congress does it time and 
time again.
    How can Congress get away with it? Very simply. Because the 
people of the District of Columbia have no vote. They have what 
this Nation fought its revolution over: taxation without 
representation.
    The District is not without a voice. The District's 
delegate, Eleanor Holmes Norton, is a powerful and persuasive 
voice for the District of Columbia to Members of Congress. Even 
without a vote in the House, she has been an effective voice 
for the city. But she is effective in spite of her lack of full 
voting rights--no small matter.
    This legislation represents a carefully crafted bipartisan 
compromise. In 2007 it passed the House by a vote of 241 to 
177. The principle is clear, and I hope uncontroversial. The 
current state of affairs is repugnant to our system of 
government.
    For this reason I believe that Delegate Norton's must 
receive careful and thoughtful consideration. I hope the 111th 
Congress will be the one that finally rights this historic 
wrong. The citizens of the capital of this greatest democracy 
on earth must not be disenfranchised. It is time to remove this 
stain from our Nation's honor.
    I yield back the balance of my time, and I would now 
recognize the distinguished Ranking minority Member, the 
gentleman from Wisconsin, Mr. Sensenbrenner, for his opening 
statement.
    [The bill, H.R. 157, follows:]
    
    
    
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman. And I 
think it is significant that you have called the first 
legislative hearing of this Congress on this important issue.
    Let me state at the outset that I think that there is 
discrimination against residents of the District of Colombia.
    There are three ways to address this discrimination. Two of 
them are constitutional. One of them is of questionable 
constitutionality and which will result in litigation that will 
take years. And if H.R. 157 is determined to be 
unconstitutional, then we will go back to square one to address 
this issue.
    The two constitutional ways are first, to pass a 
constitutional amendment granting the residents of the District 
of Columbia the right to vote for voting representation in the 
Congress of the United States. That was tried once before. It 
failed ratification of the states. I think we ought to try it 
again and send it to the states for their consideration.
    The second is to retrocede the residential and 
nongovernment part of the District of Columbia back to the 
state of Maryland. That was done with the part of the District 
of Columbia across the river in 1846, when that area was 
retroceded to Virginia, even though it probably gave the 
Commonwealth of Virginia more tax dollars in which to fight a 
very unfortunate war a few years later.
    That is very clearly constitutional as well and can be done 
short of a constitutional amendment.
    The H.R. 157 is questionable. We know that there will be 
litigation. This promise might be a hollow promise, and it is 
very clear that while there is litigation, a court will then 
join the residents of the District of Columbia from holding an 
election to vote for and seat a voting representative in 
Congress.
    There is also one additional problem, and that is dealing 
with the extra seat for Utah that is contained in this bill. 
What this bill does is it grants an at-large seat for Utah. 
That means that Utah residents, unlike those anywhere else in 
the country, including the District of Columbia, will be able 
to vote for two representatives in Congress. The rest of us 
would just vote for one representative in Congress.
    As one who has championed the Voting Rights Act, the author 
of the 2006 extension and a facilitator of the 1982 extension, 
I am concerned by the precedent that is set in having mixed at-
large in single district elections.
    And that is one of the things that we tried to get rid of 
in the Voting Rights Act, because in certain jurisdictions that 
was used for invidious discrimination against minorities, where 
they could elect some representatives by district, but the at-
large election would ensure that a minority was not elected.
    There is one additional problem, and that is that this bill 
raises the number of representatives to 437. And that means 
when the 2011 reapportionment of seats in Congress takes place, 
granting the two extra seats will mean that two other states 
will end up losing seats in Congress.
    That is something that I don't think should happen as a 
result of additional seats being granted, but should happen as 
a result of population shifts.
    Frankly, this bill has got a lot of problems. It seems to 
me that to deal with this in a clearly constitutional way that 
does not raise these issues, we ought to consider the 
constitutional amendment route or the retrocession route, 
rather than going down the road of H.R. 157.
    I yield back the balance of my time.
    Mr. Nadler. I thank the gentleman.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules, I ask that other Members submit their 
statements for the record.
    I should note at this point that it is a custom in this 
Subcommittee that we would recognize the Chairman or the 
Ranking Member of the full Subcommittee for a statement and ask 
other Members to submit their statements to the record, but the 
Chairman has indicated he is willing not to have an opening 
statement this morning in the interests of speeding the 
proceedings.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record. 
Without objection, the Chair will be authorized to declare a 
recess of the hearing.
    We will now turn to our first panel of witnesses. I would 
normally at this point talk about our procedures for asking 
questions of witnesses, but it is the custom that in a panel of 
Members of the House, they are not asked questions, so I will 
skip that until the second panel.
    And now I would like to introduce our first panel.
    Congressman Steny Hoyer is the distinguished majority 
leader of the House of Representatives, a position he has held 
since 2006. More importantly for this hearing, he represents 
Maryland's 5th Congressional District.
    Now serving his 14th term in Congress, he also became the 
longest-serving Member of the U.S. House of Representatives 
from Maryland in history on June 4th, 2007.
    Congressman Jason Chaffetz--and I hope I have that 
pronunciation correctly--Congressman Jason Chaffetz is a 
freshman Member of the House. He represents Utah's 3rd 
Congressional District and is a Member of the Committee on the 
Judiciary.
    Mr. Chaffetz grew up in California, Arizona and Colorado. 
He is well-traveled. But he may be best known as BYU's star 
place-kicker in the mid-1980's, where he set two school 
records.
    Congressman Louie Gohmert began representing the 1st 
Congressional District of Texas on January 4, 2005. He is the 
Ranking Member of the Subcommittee on Crime, Terrorism, and 
Homeland Security, as well as a Member of this Subcommittee.
    He previously served three terms as District Judge in Smith 
County, Texas. He was later appointed by Texas Governor Rick 
Perry to complete a term as chief justice of the 12th Court of 
Appeals of the state of Texas.
    Former Congressman Tom Davis served 14 years in the U.S. 
House of Representatives, representing Virginia's 11th 
District. He retired just last year, prior to the conclusion of 
the 110th Congress.
    As the Chairman of the House Government Reform Committee, 
he worked with Congresswoman Eleanor Holmes Norton to develop 
the legislative proposal that we will consider today.
    I am pleased to welcome all of you, and your written 
statements will be made part of the record in its entirety. I 
would ask each of you to summarize your testimony in 5 minutes 
or less.
    To help you stay within that time, there is a timing light 
at your table. When 1 minute remains, the light will switch 
from green to yellow, if it is working properly, and then red 
when the 5 minutes are up.
    Mr. Leader, you may proceed.

  TESTIMONY OF THE HONORABLE STENY HOYER, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MARYLAND

    Mr. Hoyer. Thank you very much, Mr. Chairman. You heard me 
say thank you very much.
    Chairman Nadler, Chairman Conyers, Ranking Member 
Sensenbrenner, Mr. Rooney, Mr. King, Mr. Franks and Mr. Cohen, 
thank you very much for allowing me to testify here.
    We celebrated just a few days ago an extraordinary event in 
the history of our democracy to ensure that all peoples in 
America have the opportunity to serve in the highest office, 
but also that over the years we have celebrated that the 
inclusion not only of African-Americans, but women and those of 
18 years of age and voting for people who could make a 
difference by voting in their representative bodies.
    I thank you for inviting me to testify on issues that test 
every year our commitment to the democratic principle we voice 
here so often and with such certainty.
    As you know, these last few weeks have been a time for 
listening to and reading inaugural addresses--not just the most 
recent one, but if we want some context, the 55 that came 
before it.
    Together, they would add up to 500 pages, pages that 
historians--Ted Widmer--called the book of the republic.
    Last week I had a look at the biggest and most maligned 
chunk in the entire book, the address given by our ninth 
President, William Henry Harrison, which I am sure you know was 
delivered in a snowstorm, lasted almost 2 hours, and caused the 
death of the President, who was speaking.
    If I had been advising the President back then, I would 
have told him that he could throw out the entire speech except 
for this one passage.
    ``It is the District only where American citizens are to be 
found who are deprived of many important political privileges 
without any inspiring hope as to the future.'' That was William 
Henry Harrison.
    Are their rights alone not to be guaranteed, he went on, by 
the application of those great principles upon which all our 
constitutions are founded? That is the question this Committee, 
this Congress will answer.
    We are told that the commencement of the war of the 
Revolution, the most stupid men in England spoke of ``their 
American subjects.'' Are there indeed citizens of any of our 
states, who have dreamed that there are subjects in the 
District of Columbia?
    The people of the District of Columbia are not the subject 
of the people of the states, but free American citizens. So 
concluded William Henry Harrison
    That was over 170 years ago. And the residents of the 
District of Columbia have a representative who cannot vote in 
this democracy of which we are also proud--free American 
citizens.
    It has been obvious since President Harrison spoke those 
words in 1841, and in fact it has been obvious as long as 
America has had a constitution. In The Federalist Papers, James 
Madison wrote that Congress could not legitimately set aside a 
Federal district unless its people had, ``their voice in the 
election of the government which is to exercise authority over 
them.''
    Some of you are original constructionists. Some of you 
believe that our founding fathers, as all of us do, had a 
pretty good handle on what they intended to do: their voice in 
the election of the government which is to exercise authority 
over them.
    And that is some 600,000 of our fellow citizens do not have 
that right. But where is that equal voice to date? The people 
in the District were represented in the Congress under the 
Constitution until the capital moved here and their vote was 
taken from them.
    The Constitution says that no person shall be a 
representative who shall not obtain the age of 25 years and 
been 7 years a citizen of the United States and who shall not, 
when elected, be an inhabitant of that state in which he shall 
be chosen.
    I suggest to you that all of the citizens, as Mr. 
Sensenbrenner suggested, were in fact citizens of the several 
states--i.e., Maryland. These are not aliens from some far off 
land. They were Maryland citizens, and Maryland for the Nation 
gave a portion of its state for the capital of this great 
Nation and had no intent of depriving its people from a vote.
    I would like to debate some of the points that my good and 
dear friend, Mr. Sensenbrenner, raised. Time does not permit, 
but at some point we will have that debate.
    Today, out of all the world's democracies--think of this--
out of all the world's democracies, Washington, DC, the center 
of democracy, of which we are so proud, is the only capital in 
the free world who citizens do not have a voting member of 
their parliament.
    This bill is about setting that blight right. The people of 
the District have watched as Americans extended the right to 
vote over and over again, wondering when their time would come.
    Now in this time of change for America, we can succeed 
where so many before us failed. We can give the people of this 
city be equal vote they deserve, that equal say in the 
decisions that shape their lives every day.
    You are going to hear of young men, who fought for this 
country and its freedom and its liberty, but whose voting 
member is unable to vote in the capital of the Nation he 
defended.
    We cannot do it by giving them at last--we can do it by 
giving them a vote at last in this House. There are plausible 
legal arguments both for and against this bill. Mr. 
Sensenbrenner has raised some.
    Of course, I am convinced that it falls well within 
Congress' constitutional authority to ``exercise exclusive 
legislation in all cases whatsoever over the District.''
    That is why Tom Davis' Committee reported this out with an 
overwhelming vote. It never got to the floor in the 109th 
Congress, but in the 110th Congress it came to the floor, and 
Chairman Nadler has referenced the vote.
    Whichever side we come down on, however, I think we can 
agree that legal arguments are best sorted out in the courts.
    Mr. Chairman, at some point in time I will be for the Issa 
amendment, says that we will have an accelerated consideration 
of this in the courts. I think that makes sense.
    At this point in the debate, we should make our case on 
principle, however, not on technicalities. If you oppose the 
bill, you need to tell us. Just what does our country gain by 
treating the people of Washington, DC, differently from 
America's other 300 million people?
    In the same way, if you support this bill, we need to 
answer the question: Just what would one vote be worth--a vote 
that won't teach one child to read or subtract in the 
District's schools, a vote won't prevent a handgun murder or 
build a new park or attract a new business, a vote won't even 
tilt the balance in this House?
    But as our Nation's story tells us again and again, a vote 
that means dignity, respect, individual personhood and 
identity. A vote means that men, women and children from the 
city can walk down the national mall and know that they own it 
as much as any tourist off the bus from Indiana, New York or 
Georgia or Maryland owns it.
    And for the people of this city, a tremendous amount of 
good can come from that that small, critically important 
beginning.
    Mr. Chairman, I thank you for the opportunity to testify, 
and I would urge my colleagues to pass a bill giving the 
District of Columbia its vote. I know that one of the speakers 
on the panel--perhaps he will speak next--believes that this 
bill ought not pass.
    Very frankly, Utah is appended to this bill. I have a list 
here of the states that had been admitted to the union. My good 
friend Tom Davis once said, ``Well, normally we have two states 
admitted.''
    We normally had two states admitted after the 1840 Missouri 
Compromise, when one state was admitted as a free state and one 
state was admitted as a slave state.
    That practice has not been followed in recent years, 
thankfully--certainly after the Civil War--because we didn't 
admit slave states. And we said that former slaves ought to 
have the right to vote. It took them a long time to get it--
over 100 years.
    This Congress has a responsibility to the Constitution, to 
our democracy, and to the moral precepts we hold dear to give 
to our 600,000 fellow citizens of the District of Columbia the 
opportunity, the right to have their representatives of full 
voting Member of the House of Representatives.
    As majority leader, I tell you I intend to bring that bill 
to the floor in the very near term.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Hoyer follows:]
 Prepared Statement of the Honorable Steny Hoyer, a Representative in 
Congress from the State of Maryland, and Majority Leader, U.S. House of 
                            Representatives
Mr. Chairman:

    Thank you for inviting me to testify on an issue that tests, every 
year, our commitment to the democratic principles we voice here so 
often and with such certainty.
    As you know, these last few weeks have been a time for listening to 
and reading inaugural addresses--not just the most recent one, but, if 
we want some context, the 55 that came before it. Together they would 
add up to 500 pages, pages that historian Ted Widmer called ``the Book 
of the Republic.'' Last week, I had a look at the biggest and most 
maligned chunk in the entire Book: the address given by our ninth 
President, William Henry Harrison--which, I'm sure you know, was 
delivered in a snowstorm, lasted almost two hours, and caused the 
President's death from pneumonia.
    If I had been advising the President back then, I would have told 
him that he could throw out the entire thing, except for this one 
passage: ``It is in this District only where American citizens are to 
be found who . . . are deprived of many important political privileges, 
without any inspiring hope as to the future. . . . Are their rights 
alone not to be guaranteed by the application of those great principles 
upon which all our constitutions are founded? We are told . . . that at 
the commencement of the War of the Revolution the most stupid men in 
England spoke of `their American subjects.' Are there, indeed, citizens 
of any of our States who have dreamed of their subjects in the District 
of Columbia? . . . The people of the District of Columbia are not the 
subjects of the people of the States, but free American citizens.''
    Free American citizens. It's been obvious since President Harrison 
spoke those words in 1841. In fact, it's been obvious as long as 
America has had a Constitution. In the Federalist Papers, James Madison 
wrote that Congress could not legitimately set aside a federal District 
unless its people have ``their voice in the election of the government 
which is to exercise authority over them.''
    But where is that equal voice today? The people of the District 
were represented in Congress, under the Constitution, until the capital 
moved here and their vote was taken from them. Today, out of all of the 
world's democracies, there is only one national capital without full 
voting rights: this city full of monuments to democracy. The people of 
the District have watched as America extended the right to vote over 
and over again, wondering when their time would come.
    Now, in this time of change for America, we can succeed where so 
many before us failed. We can give the people of this city the equal 
vote they deserve, the equal say in the decisions that shape their 
lives every day. We can do it by giving them, at last, a vote in this 
House.
    There are plausible legal arguments both for and against this bill. 
Of course, I am convinced that it falls well within Congress's 
constitutional authority to ``exercise exclusive Legislation in all 
Cases whatsoever, over [the] District.'' But whichever side we come 
down on, I think we can agree that legal arguments are best sorted out 
in the courts. At this point in the debate, we should make our case on 
principle, not on technicalities. If you oppose this bill, you need to 
tell us: Just what does our country gain by treating the people of 
Washington, DC, differently from America's other 300 million?
    In the same way, if we support this bill, we need to answer the 
question: Just what would one vote be worth? A vote won't teach one 
child to read or subtract in the District's schools. A vote won't 
prevent a handgun murder, or build a new park, or attract a new 
business. A vote won't even tilt the balance in this House.
    But as our Nation's story tells us again and again, a vote means 
dignity. A vote means that men, women, and children from this city can 
walk down the National Mall and know that they own it--as much as any 
tourist off the bus from Indiana, New York, or Georgia owns it. And for 
the people of this city, a tremendous amount of good can come from that 
small beginning.
    Thank you for the opportunity to testify, and I urge my colleagues 
to pass this bill.
                               __________
    Mr. Nadler. Thank you, Mr. Leader. And I do understand that 
the majority leader is needed elsewhere. He is excused with our 
thanks.
    I must comment that his reference to the great compromise 
of Henry Clay--some of us think that in this era of partisan 
division, we could use Henry Clay's presence in the house 
today, but that is not to be.
    Mr. Hoyer. First day in the House, he became speaker.
    Mr. Nadler. First day--that is right. And then he went on 
to other things.
    Before we go on to the other witnesses in this panel, I 
have been neglectful. I should recognize the presence here with 
us today of the mayor of Washington, DC, Mayor Adrian Fenty.
    And we welcome you.
    And also the presence here of our colleague, the delegate 
from the District of Columbia, Eleanor Holmes Norton.
    And I will now recognize--after the leader went, we do have 
to--we are under some time constraints this morning, because 
there is a markup of the full Committee following this later 
today, so I am going to from this point on do what I normally 
don't do, which is try to fairly strictly enforce the 5-minute 
rule. And I am serving fair warning on everybody.
    So with that, Mr. Chaffetz, you are recognized for 5 
minutes.

TESTIMONY OF THE HONORABLE JASON CHAFFETZ, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF UTAH

    Mr. Chaffetz. Thank you, Mr. Chairman.
    Thank you, Members of this Subcommittee.
    It has been an honor and a privilege to serve, to represent 
the state of Utah. I am a freshman. It is my first such a 
meeting. And I appreciate the opportunity.
    It is very humbling to represent the people and to discuss 
the issues that affect so many Americans. I have submitted some 
written testimony. I ask that it be submitted to the record. 
And I just like to add a few--just like to add a few additional 
comments.
    There are many people that argue that principles should 
matter, and I totally agree. I totally agree. Taxation without 
representation is fundamentally flawed. I don't think there is 
any argument that you could make that would go the other 
direction.
    But how we remedy that, how we move forward is critically 
important. And even though my state, the state of Utah, stands 
to benefit, I still believe we need to stand on the principle 
that this bill, as currently written, is just simply 
unconstitutional.
    And we need to recognize the fact that there are other ways 
to tackle this difficult issue and remain within the spirit, 
the letter of the Constitution.
    Now, Utah is the next. We feel a bit slighted by the fact 
that we were not granted a fourth Congressional seat. That was 
presented to the Supreme Court, and we lost.
    As much as I would like to see us get a fourth seat sooner 
rather than later, we feel as a state that we were 
underrepresented and have been underrepresented for a number of 
years. I support the idea and the notion that Utah should get a 
fourth seat. I still don't think you can just run around the 
Constitution to try to get what you want.
    And so even though the state of Utah would benefit, I am 
here to say there are a good number of us in Utah that believe 
that the Constitution and the principles of the Constitution 
must come first.
    The reality of the situation is that in 1788, Alexander 
Hamilton put forward a possible amendment, and it was rejected.
    Now, there are several problems that I see with this bill. 
One of the things that I would point out is it does not abolish 
the current delegate, or there would actually be some double 
representation, particularly at the Committee level, in 
representation of Washington, DC.
    I also find it problematic that the fourth Congressional 
seat of the state of Utah would be a statewide seat, giving 
people of the state of Utah two representatives. I don't find 
that to be in the spirit or letter of what we should be doing 
as well.
    For me the bottom line is the Constitution cannot simply be 
amended by statute. There are ways to amend the Constitution, 
but you cannot amend it by statute.
    The founders clearly ratified the Constitution to deny 
congressional representation, but I think there is a better, 
smarter way to do this, whether it is the retrocession back to 
the state of Maryland.
    Whether there are other remedies and things that we can do, 
I stand fully committed to fight and support the idea and the 
notion that we need to fix this idea that there is taxation 
right now in the United States of America without 
representation.
    That is fundamentally flawed. I want to do what I can to do 
it, to fix it, but we cannot simply ignore and bypass the 
Constitution of the United States of America.
    I appreciate the Chairman and visibility and this 
opportunity to share some comments. And I yield back the 
remainder of my time. Thank you.
    [The prepared statement of Mr. Chaffetz follows:]
Prepared Statement of the Honorable Jason Chaffetz, a Representative in 
                    Congress from the State of Utah

                              Introduction

    Chairman Watt, Ranking Member Sensenbrenner, and distinguished 
members of the Subcommittee, I want first to thank you for the 
opportunity to testify today concerning an issue that clearly and 
significantly impacts not only the good people of the Third District of 
Utah, but our nation as a whole.
    I want to make clear from the outset that I, like all of you, want 
to see every voting citizen of these great United States receive equal 
representation in government. The people of Washington, DC, no less 
than the people of Utah or any other state, deserve to have a voice.
    But we must ensure that in our eagerness to provide equal 
representation and equal protection of the laws that we uphold and 
respect the principles our nation's founders enshrined in the 
Constitution. With all due respect to my colleagues and others who 
support this bill, my primary concern with the DC Voting Rights Act is 
that it is unconstitutional. And if we cannot resolve the issue of 
constitutionality, no amount of discussion about ``taxation without 
representation'' or how long Utah has deserved a fourth seat would 
permit us to move forward with this bill.
    Perhaps what I should say is that I believe there are other 
proposals, such as the bill offered by my distinguished colleague from 
Texas, which provide the District's residents the voting rights they 
deserve and which we seek to respect, but without the concerns of 
constitutional conflicts.
    I am concerned that this bill is not only unconstitutional, but is 
generally bad public policy. It sets a dangerous precedent. It creates 
uncertainties about the future of the District's voting representation. 
And while it gives the District's citizens a proportionately greater 
voice in the House than other Congressional districts, it gives them a 
diluted right to representation overall.

                      H.R. 157 Is Unconstitutional

    Washington, DC, is not a State of the United States of America, but 
a specially-created Federal District. This is made clear in the Twenty-
third Amendment to the Constitution, which refers to the number of 
electors the District would be entitled to have ``if it were a State.'' 
This is not a matter of playing semantic games, but an instance where 
real consequences are attached to the term we use. The question, then, 
is whether the District can constitutionally be treated like a State 
for purposes of representation in the House. The Supreme Court recently 
affirmed the decision of a federal district court here in DC, which 
stated ``We conclude from our analysis of the text that the 
Constitution does not contemplate that the District may serve as a 
state for purposes of the apportionment of congressional 
representatives.''
    The interpretation required by this bill's proponents asks too much 
of the plain language of the ``District Clause'' of the Constitution, 
found in Article I, Section 8, clause 17, which describes Congress' 
power to legislate in matters regarding Washington, DC. This clause 
gives Congress the power to ``exercise exclusive Legislation in all 
Cases'' over the District. ``Exclusive legislation,'' it seems to me, 
refers to this specially-created federal District being free from 
governance of the legislature of the state from which the land was 
ceded. This rationale is supported by comments made by the 
Constitution's primary author, James Madison, in Federalist Paper No. 
43. Otherwise the supremacy of the federal government would be in 
question, if the state in which the District sat could contend for 
power to govern it.
    I do not believe, as the proponents of H.R. 157 suggest, that the 
Constitution's Framers intended to give plenary power to Congress to 
give the District voting representatives in the House. A proposed 
amendment by Alexander Hamilton at the Constitutional Convention in New 
York would have given the District representation in Congress when its 
population grew sufficiently, but that amendment was rejected. In light 
of the specific and deliberate provisions the Founders provided for 
choosing members of Congress, and the rejection of Hamilton's 
amendment, I cannot accept that the Founders intended to give Congress 
power to amend that Constitutional process by a mere statute, and 
neglected to specify that belief. By this logic, there is no 
prohibition in the Constitution preventing H.R. 157 from giving the 
District two Senators, multiple representatives, or amending other 
provisions of the Constitution that refer to citizens of the District. 
If this is appropriate, why are we not providing the District with two 
Senators and other privileges normally reserved to States? If it is 
not, as I assert, then how can we provide even one voting 
Representative?
    Another provision of H.R. 157 that raises constitutional concerns 
is the designation of an ``at-large'' seat for the State of Utah. Under 
this bill each citizen of Utah will be represented by both their 
geographically designated representative as well as the at-large 
representative. While the allocation of an at-large representative to 
Utah may not present a ``one person, one vote'' problem in the 
traditional intrastate context, the at-large seat would likely result 
in a ``one person, one vote'' problem in the interstate context. In 
essence, the at-large seat results in Utah residents having 
disproportionately more representation in the House than citizens of 
other states.
    The Supreme Court acknowledged that Congress receives ``far more 
deference [in apportionment] than a state districting decision.'' 
However, the Court also made it clear that Congressional alterations of 
the apportionment formula ``remain open to challenge . . . at any 
time.'' Accordingly, I agree with Senator Hatch, who recently stated 
that an at-large seat proposal of this nature is unconstitutional, and 
that he would not support it.

                     H.R. 157 is Bad Public Policy

    Even setting aside the Constitutional concerns, this bill is bad 
public policy. First, it sets a dangerous precedent. If Congress has 
the power to seat voting Members for the District, is there any 
prohibition to prevent granting the District two, five, or even ten 
members? Will a future Congress take back those seats if the Members do 
not vote with the majority? Because one Congress cannot bind future 
Congresses, we are setting up ongoing contention, in which citizens of 
the District first receive and then have taken from them their voting 
representatives. We can do better than this.
    Second, H.R. 157 not only results in District residents being 
represented at a lesser level than they deserve, as I will discuss 
shortly, but perversely results in the District being represented at a 
higher level than other congressional districts. This bill would not 
abolish the position of Delegate for the District of Columbia. As a 
result, District residents would be represented by both member of 
Congress who could vote in committee and on the House floor, and a 
delegate who could vote in committee. Consequently, District residents 
would get more representation in congressional committees than other 
American citizens.
    Last, because this issue is so divided among constitutional law 
scholars we have every reason to believe H.R. 157 will be contested in 
the federal courts, and that every level of the federal courts is 
likely to strike down this legislation. But that process will likely 
take years, and at the end District residents will be exactly where 
they are now in their quest for Congressional representation--
frustratedly waiting. This legislation, and the rights of the citizens 
it impacts, is far too important to consign to this unsatisfactory and 
deferred resolution.

       H.R. 157 Gives the District's Citizens a Diluted Right to 
                             Representation

    Taxation without representation is fundamentally flawed. The 
question should be how we can respect District residents' rights of 
representation without sacrificing constitutional principles.
    Should H.R. 157 pass, District citizens will find themselves with 
one representative in the House, no representation in the Senate, and 
likely with years of uncertainty regarding whether their representation 
will be declared unconstitutional and taken away. Some might argue that 
granting the District representation in the Senate ameliorates these 
concerns, but doing so only compounds the constitutional problems 
discussed above.
    To ensure that the District's citizens receive their full rights of 
representation, while upholding the Constitution, we should consider 
plans that would allow District residents to vote with Maryland in 
federal elections, as they did before the rights we now seek to restore 
were taken. District residents will thus end up with full 
representation in both the House and Senate, and will not have to worry 
that years down the road their representation might be taken away by 
the Courts.

                               Conclusion

    In conclusion, I fully support the voting rights of the good people 
of Washington, DC. However, H.R. 157 is not the long-term solution that 
citizens of the District deserve. They deserve to enjoy full 
representation in Congress, as do the people of the several states. We 
can achieve this goal, while at the same time remaining true to the 
Constitution. This bill is neither constitutional nor the best of the 
proposed legislative solutions to the problem. A plan that would allow 
District residents to vote with Maryland in federal elections is 
constitutional, sound public policy, and avoids the problems implicated 
by H.R. 157. As I have said before, this is the far better course of 
action for District residents, Utah residents, and the Constitution. I 
urge this committee to carefully consider these things. We should do 
this in the right way now, and not be so caught up in our desire to 
ensure that District residents have a voice that we abandon 
constitutional principles that make that voice meaningful.
                               __________
    Mr. Nadler. I thank the gentleman.
    The gentleman from Texas, Mr. Gohmert, is now recognized 
for 5 minutes.

 TESTIMONY OF THE HONORABLE LOUIE GOHMERT, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Gohmert. Thank you, Mr. Nadler, Mr. Chairman.
    I have submitted written testimony, and I ask unanimous 
consent that that might be made a part of the record.
    Thank you, Mr. Chairman.
    Residents of Washington, DC, pay Federal income tax, but 
they don't have voting members of the House of Representatives. 
No one represents them that they vote for as a representative 
in the U.S. Congress.
    Article I, Section 2, Clause 1 of the United States 
Constitution says, ``The House of Representatives shall be 
composed of members chosen every second year by the people of 
the several states.''
    The Supreme Court has taken this up. They have said 
``states'' means states. That is what they said.
    Now, the founding fathers did not consider Washington, DC, 
a state under the Constitution, and that was evidenced by the 
fact that Alexander Hamilton offered an amendment to the 
convention, and that provision was rejected in July of 1788.
    Thomas Treadwell stated the same convention that planned 
for Washington, DC, departs from every principle of freedom, 
because it did not give residents of the District of Columbia 
full representation.
    Now, congressional supporters of Washington, DC, voting 
rights have agreed that Washington, DC, is not a state, as 
evidenced by a Democratic-controlled Congress in 1978 
attempting to amend the Constitution to provide them with that 
right.
    The House Judiciary Committee reported the resolution and 
stated, ``Statutory action alone will not suffice. It required 
a constitutional amendment.''
    We shouldn't just toss the Constitution over. We need to do 
things the right way. Proposals to grant Washington, DC, 
congressional representation will inevitably be challenged in 
court, and in all likelihood, the provision will fail, making 
the promises here rather hollow.
    Taxation without representation is not right. The people in 
D.C. are correct about that. But in 1847 there was a desire to 
allow the District of Columbia land across the Potomac not 
being used by the Federal Government to have its citizens vote 
for representatives.
    They ceded the land on the other side of the Potomac back 
to Virginia. They now have representatives and two senators.
    Now, accordingly, I have a bill that cedes the land. It 
draws a meets and bounds line description around the Federal 
property in Washington, DC, and cedes everything else back to 
Maryland, just like what was done in 1847. That can be done 
legislatively. It stands up.
    And that will get a representative. Six hundred thousand 
will get them their own representative, and it will also get 
them to senators they vote for that will have to come court 
them. That is the American way.
    Also, Representative Dana Rohrabacher has a bill that 
doesn't necessarily cede the land back, but does provision only 
require the District of Columbia residents to be considered and 
be voting in Maryland for two senators and for a 
representative.
    Now, American colonists increasingly resent it being levied 
taxes without actually having legislators seated and voting in 
Parliament in London. That is where the idea of taxation 
without representation gained a foothold, and it was a hallmark 
during the Revolution.
    The Organic Act of 1801 placed Washington, DC, under 
exclusive jurisdiction of the United States Congress, and 
people in the District were no longer considered residents of 
Virginia or Maryland.
    Many in Washington immediately opposed the idea of being 
taxed, and over the years other congressional leaders 
introduced constitutional amendments, but it hasn't happened 
yet.
    But in 1917, Puerto Rico became a territory, and all Puerto 
Rican citizens were granted citizenship. But since they have a 
delegate and not a representative, they were not required to 
pay Federal income tax.
    March 31st of 1917, the U.S. took possession of the Virgin 
Islands. In 1927 when their citizens were granted citizenship, 
they were not required to pay income tax.
    Guam was established as a territory of the United States, 
and since it does not have a representative--it has a 
delegate--it was not required to pay Federal income tax.
    The Commonwealth of North Mariana Islands was established 
in 1975, but because it has a delegate, and not representative, 
it was not required to pay Federal income tax.
    American Samoa, technically considered unorganized, but it 
has a delegate, but not a representative. It doesn't pay income 
tax.
    I have a bill I am filing this week. I would welcome all my 
colleagues joining in. Since this is not being done 
constitutionally and trying to legislatively change the 
Constitution, my bill says there shall be no taxation without 
representation in D.C.
    Mr. Sensenbrenner. Would the gentleman yield? Sign me on.
    Mr. Gohmert. Pardon?
    Mr. Sensenbrenner. Sign me on.
    Mr. Gohmert. Thank you. I sure will.
    No Federal income tax for the District of Columbia. That is 
legislatively correct. It takes care of the problem until our 
body is ready to do it constitutionally and give them a 
constitutional representative.
    I would welcome everyone else signing on to fix this great 
injustice.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Gohmert follows:]
Prepared Statement of the Honorable Louie Gohmert, a Representative in 
   Congress from the State of Texas, and Member, Subcommittee on the 
            Constitution, Civil Rights, and Civil Liberties



                               __________
    Mr. Nadler. I thank the gentleman.
    It now gives me great pleasure to recognize our former 
colleague, the gentleman from Virginia, Mr. Davis, for 5 
minutes.

 TESTIMONY OF THE HONORABLE TOM DAVIS, A FORMER REPRESENTATIVE 
                          IN CONGRESS

    Mr. Davis. Thank you. Before I begin, I would like to ask 
to insert in the record a testimony from Honorable Kenneth 
Starr and his legal brief supporting the constitutionality----
    Mr. Nadler. Without objection, so ordered.
    [The information referred to follows:]
    
    
    
                               __________
    Mr. Davis [continuing]. And also from Senator Orrin Hatch 
of Utah.
    Mr. Nadler. Without objection.
    [The information referred to follows:]
    
    
    
    
                               __________
    Mr. Davis. First of all, I want to recognize my former 
colleague, Eleanor Holmes Norton, and Mayor Fenty and the long 
march that we have had on this issue together, culminating in 
approval in the last Congress in the House of Representatives.
    We have taken great pains over the years to dispel some 
substantial myths surrounding the founding of Washington, DC. 
The idea of for the Federal district rose out of an incident 
that took place in 1783 while the Continental Congress was in 
session in Philadelphia.
    When a crowd of Revolutionary War soldiers, who had not 
been paid, gathered to protest outside the building, that 
Congress requested help from the Philadelphia militia. The 
state refused, and that Congress was forced to adjourn and 
reconvene in New Jersey.
    It was after that incident the framers concluded there was 
a need for a Federal district under solely Federal control for 
the protection of the Congress and the territorial integrity of 
the District.
    That is the limit of what the framers had to say about the 
Federal district in the Constitution, that there should be one, 
and it should be under congressional authority.
    After ratification of the Constitution, one of the first 
issues to face the new Congress was where to place the Federal 
district. Some wanted at a New York. Others wanted it in 
Philadelphia, and others on the banks of the Potomac.
    These factions started a fierce political battle to decide 
the matter, because they believed they were founding a great 
city, a new Rome. They expected that this new city to have all 
the benefits of the great capitals of Europe. They never once 
talked about denying the city's inhabitants the right to vote.
    Finally, Jefferson brokered a deal that allowed the city to 
be placed on the banks of the Potomac in exchange for Congress 
paying the Revolutionary War debt. New York got the debt paid. 
Philadelphia got the capital for 10 years, and then as now, 
political decisions were shaped by the issues of the day.
    In 1790 Congress passed the Residence Act, giving those 
people residing in the District of Columbia the right to vote 
for Congress. And they did. There was even a Member of 
Congress, who resided in the District during that time, the 
Virginia side voting with Virginia, the Maryland side of the 
District voting with Maryland.
    That continued until the seat of government formally 
shifted to Washington in 1800. Since no records survive, we may 
never know why Congress then passed a stripped down version of 
a bill offered by Virginia Congressman ``Light Horse Harry'' 
Lee, which simply stated that laws of Virginia and Maryland 
have been in effect, having been superseded in the District, 
would apply.
    But there is absolutely no evidence the founding fathers, 
who had just put their lives on the line to forge a 
representative government, then decided the only way to secure 
that government was to deny representation for some of their 
fellow citizens.
    One history aptly described the process as a ``rushed and 
improvised accommodation to political reality necessitated by 
the desperate logic of lame duck political maneuvering.'' But 
the inelegant compromise ultimately adopted left a decidedly 
undemocratic accident in its wake. District residents had no 
vote in Congress.
    After answering the political question and dispelling 
historical myth, we move on to address whether Congress, 
independent of a constitutional amendment, has the authority to 
give the city a right to vote.
    And I have put in the record testimony from Ken Starr and 
Orrin Hatch. You are going to hear from Viet Dinh from the Bush 
Justice Department later.
    Some legal scholars would disagree, but the courts have 
never struck down a congressional exercise of the District 
Clause in the Constitution. And there is no reason to think the 
courts would act now.
    Those opposing the bill ignore 200 years of case law and 
clear instruction from the courts that this is a congressional 
matter requiring congressional solution.
    When you read the Constitution, it says ``of the several 
states,'' as my friend has commented, but the Federal 
Government--if you go under that, the Federal Government would 
not be allowed to impose Federal taxes on District residents, 
because it says ``of the several states,'' but we did by 
statute.
    District residents have no right to a jury trial. You would 
have to be from a state to have that right, under the strict 
reading of the Constitution. D.C. residents would have no right 
to sue people from outside D.C., diversity jurisdiction in 
Federal courts. Only people ``of the states'' have that right 
under the written word.
    The full faith and credit clause would not apply to D.C. 
That applies only to states. And the District would be able to 
pass laws which interfere with interstate commerce, because the 
commerce clause only allows Congress to regulate commerce among 
the states.
    But because Congress used the District Clause over time and 
applied that to the District, there is no reason they couldn't 
do that for voting. In each of those cases the Supreme Court 
held that Congress can consider the district and state for 
purposes of applying these fundamental provisions.
    If Congress had the authority to do so regarding these 
granted rights and duties, there should be no question we have 
the same authority for the most sacred right of every American 
to live and participate in a representative republic.
    It is now essentially a matter of political will as to 
whether D.C. receives a voting Member of Congress are not. And 
I would add in Congresses that I have served in, we have 
stretched these limits on partial-birth abortion, line item 
veto and FISA.
    All these issues have gone up to the courts, where they 
were arguable--some cases struck down, because we thought it 
was the right thing to do. I hope this Congress will take the 
same step for the votes of the District of Columbia.
    [The prepared statement of Mr. Davis follows:]
            Prepared Statement of the Honorable Tom Davis, 
                  a former Representative in Congress
    Thank you, Chairman Nadler and Ranking Member Sensenbrenner, for 
inviting me to testify this morning on legislation near and dear to me. 
I also want to thank full Committee Chairman Conyers for his steadfast 
commitment to this legislation, and of course my friend, Delegate 
Eleanor Holmes Norton, with whom I've marched for D.C. voting rights 
for many years now.
    I think the bill before the Subcommittee continues to be a unique 
and creative legislation solution to a vexing and patently unjust 
problem. It's a solution that provides a win-win opportunity for the 
Congress, and I'm pleased the Subcommittee has decided to consider it 
again at the very start of the 111th Congress.
    For 207 years the citizens of the District of Columbia have been 
denied the right to elect their own fully empowered representative to 
the nation's legislature. This historical anomaly has happened for a 
number of reasons: inattention, misunderstanding, a lack of political 
opportunity, and a lack of will to compromise to achieve the greater 
good. I think the stars are aligning in a way that makes those reasons 
moot.
    I have long stated it is simply wrong for the District to have no 
directly elected national representation. How can you argue with a 
straight face that the Nation's Capital shouldn't have a voting Member 
of Congress? For more than two centuries, D.C. residents have fought in 
10 wars and paid billions of dollars in federal taxes. They have 
sacrificed and shed blood to bring democratic freedoms to people in 
distant lands. Today, American men and women continue fighting for 
democracy in Baghdad, but here in the Nation's Capital, residents lack 
the most basic democratic right of all.
    What possible purpose does this denial of rights serve? It doesn't 
make the federal district stronger. It doesn't reinforce or reaffirm 
congressional authority over D.C. affairs. In fact, it undermines it 
and offers political ammunition to tyrants around the world to fire our 
way.
    In spite of my concerns, I was long frustrated by the lack of a 
politically acceptable solution to this problem. That all changed after 
the 2000 census, when Utah missed picking up a new seat by less than a 
thousand people. Utah, as you know, contested this apportionment and 
lost in court. As I looked at the situation, I realized the 
predominance of Republicans in Utah and Democrats in the District 
offered the solution that had been evading us.
    The D.C. House Voting Rights Act would permanently increase the 
size of Congress by two Members. It's intended to be partisan-neutral. 
It takes political concerns off the table, or at least it should.
    We also took great pains over the years to dispel some substantial 
myths surrounding the founding of Washington, D.C. The idea for a 
federal district arose out of an incident that took place in 1783 while 
the Continental Congress was in session in Philadelphia. When a crowd 
of Revolutionary War soldiers, who had not been paid, gathered in 
protest outside the building, the Congress requested help from the 
Pennsylvania militia.
    The state refused, and the Congress was forced to adjourn and 
reconvene in New Jersey. After that incident, the Framers concluded 
there was a need for a Federal District, under solely federal control, 
for the protection of the Congress and the territorial integrity of the 
capital. So the Framers gave Congress broad authority to create and 
govern such a District. That is the limit of what the Framers had to 
say about a Federal District in the Constitution--that there should be 
one and that it should be under congressional authority.
    After ratification of the Constitution, one of the first issues to 
face the new Congress was where to place this Federal District. Some 
wanted it in New York. Others wanted it in Philadelphia, and others on 
the Potomac. These factions fought a fierce political battle to decide 
the matter because they believed they were founding a great city, a new 
Rome. They expected this new city to have all the benefits of the great 
capitals of Europe. They never once talked about denying that city's 
inhabitants the right to vote.
    Finally, Jefferson brokered a deal that allowed the city to be 
placed on the banks of the Potomac in exchange for Congress paying the 
Revolutionary War debt. New York got the debt paid and Philadelphia got 
the capital for ten years. Then as now, political decisions were shaped 
by the issues of the day.
    In 1790, Congress passed the Residence Act, giving those residing 
in the new District the right to vote. But while the capital was being 
established, those living here were permitted to continue voting where 
they had before, in Virginia or Maryland.
    That continued until the seat of government officially moved to 
Washington in 1800. Since no records survived, we may never know why 
Congress then passed a stripped down version of a bill authored by 
Virginia Congressman ``Light Horse'' Harry Lee, which simply stated the 
laws of Virginia and Maryland then in effect, having been superseded in 
the District, would still apply.
    But there is absolutely no evidence the Founding Fathers--who had 
just put their lives on the line to forge a representative government--
then decided the only way to secure that government was to deny 
representation to some of their fellow citizens. One historian aptly 
described the process as a ``rushed and improvised accommodation to 
political reality, necessitated by the desperate logic of lame duck 
political maneuvering.'' But the inelegant compromise ultimately 
adopted left a decidedly undemocratic accident in its wake. District 
residents had no vote in Congress.
    After answering the political question, and dispelling historical 
myths, we moved on to address whether Congress, independent of a 
constitutional amendment, had the authority to give the District a 
voting Member. Through hearing testimony and expert opinions, we have 
established the soundness of that congressional authority.
    As Ken Starr, a former appeals court judge here in the District, 
wrote and testified, the authority of Congress with respect to the 
District is ``awesome.'' We also received the expert opinion of Viet 
Dinh, the renowned Georgetown law professor and former Assistant 
Attorney General, asserting the power of Congress to do this 
legislatively. You will have the pleasure of hearing from Professor 
Dinh today.
    Some legal scholars will disagree, but the courts have never struck 
down a congressional exercise of the District Clause. There is no 
reason to think the courts would act differently in this case.
    By now, virtually every Member is aware of the constitutional 
arguments for and against. I ask that those who are new to this 
legislation--let's fact it, both chambers look a little different than 
they did when we started down this road--I ask that they think 
carefully about what they hear today, and moving forward. Every first 
year law student in the country learns that you can't just read the 
Constitution once-over to figure out what it means. But that's where 
the other side's argument usually stops and starts on this issue.
    Those opposing this bill ignore 200 years of case law and clear 
instruction from the court that this is a congressional matter 
requiring a congressional solution. Under opponents' reading of the 
Constitution:

          The federal government would not be allowed to impose 
        federal taxes on District residents--the Constitution says 
        direct taxes shall be apportioned among the several states;

          District residents would have no right to a jury 
        trial--you have to be from a state to have that right;

          D.C. residents would have no right to sue people from 
        outside D.C. in the federal courts--only people from states 
        have that right;

          The Full Faith and Credit clause would not apply to 
        D.C.--that applies only between the states; and,

          The District would be able to pass laws which 
        interfere with interstate commerce--the Commerce Clause only 
        allows Congress to regulate commerce among the several states.

    But in each of those cases the Supreme Court has held that Congress 
can consider the District a ``state'' for purposes of applying these 
fundamental provisions. If Congress has the authority to do so 
regarding those constitutionally granted rights and duties, there 
should be no question it has the same authority to protect the most 
sacred right of every American--to live and participate in a 
representative republic.
    It is now essentially a matter of political will as to whether D.C. 
receives a voting Member of Congress or not--whether the D.C. delegate 
becomes D.C.'s representatives. Six years after starting this effort 
with my friend, Eleanor Holmes Norton, and countless others, I think 
that will has reached critical mass. We've reached this point because, 
quite simply, it's the right and fair thing to do.
    Thank you again, Mr. Chairman and Members of the subcommittee, for 
giving this recently-retired Member of Congress an opportunity to 
testify, and thank you for giving this legislation the early hearing it 
deserves.
                               __________
    Mr. Conyers. [Presiding.] I thank the gentleman.
    And without objection, I ask for the following items to be 
placed in the record: the testimony of Congressman Dana 
Rohrabacher, the testimony of District of Columbia At-large 
Councilmember Kwame Brown, and a letter from the government of 
Utah, Jon Huntsman.
    Without objection, so ordered.
    [The information referred to follows:]
    
    
    
                               __________



                              ----------                              

    Mr. Conyers. Knowing that all of you have important 
commitments to get to, this Subcommittee excuses you with our 
thanks for being with us today. And I thank you.
    We will now proceed with our second panel. And I would ask 
the witnesses to take their places.
    And while they are taking their places, let me mention the 
following. As we ask questions of our witnesses on the second 
panel after their opening statements, the Chair will recognize 
Members in the order of their seniority on the Subcommittee, 
alternating between majority and minority, provided that the 
Member is present when his or her turn arrives.
    Members who are not present when they are turned begins 
will be recognized after the other Members have had the 
opportunity to ask their questions. The Chair reserves the 
right to accommodate a Member who is unavoidably late are only 
able to be with us for a short time.
    I would now like to introduce the distinguished witnesses 
of our second panel.
    Wayne Henderson is president and CEO of the Leadership 
Conference on Civil Rights. He is also professor of public 
interest law at the University of the District of Columbia 
School of Law, as well as a lifelong Washingtonian.
    Mr. Henderson and LCCR work with this Committee on numerous 
matters. We are happy to have him join us today on the issue of 
District of Columbia voting rights.
    U.S. Army Guard Captain Yolanda Lee began her military 
career when she enlisted in the District of Columbia National 
Guard on March 2nd, 1993. Captain Lee's military awards and 
decorations include the Bronze Star, the National Defense 
Service Medal, the Overseas Service Ribbon, and the Iraqi 
Campaign Medal. Captain Lee is a native Washingtonian.
    Professor Jonathan Turley joined the George Washington 
School of Law faculty in 1990 and serves as a professor of 
public interest law. He is also the director of the 
Environmental Law Advocacy Center and the executive director of 
the Project for Older Prisoners.
    Professor Turley has testified before the Judiciary 
Committee on this proposal in the last Congress, and I might 
add before this Committee on many other matters in the past, 
and we thank him for appearing before the Committee again 
today.
    Professor Viet Dinh is a professor of law at the Georgetown 
University Law Center and the founder and principal of Bankrupt 
Associates. He also served as U.S. assistant attorney general 
for legal policy at the U.S. Department of Justice from 2001 
until 2003.
    Professor Dinh has also appeared before the Judiciary 
Committee on this issue in the past.
    I am pleased to welcome all of you. Your witness statements 
will be made part of the record in its entirety. I would ask 
you--each of you--to summarize your testimony in 5 minutes or 
less.
    To help you stay within that time, there is a timing light 
at your table. When 1 minute remains, the light will switch 
from green to yellow, and then read what the 5 minutes are up.
    Mr. Henderson, you may proceed.

   TESTIMONY OF WADE HENDERSON, PRESIDENT & CEO, LEADERSHIP 
                   CONFERENCE ON CIVIL RIGHTS

    Mr. Henderson. Well, good morning and thank you, Chairman 
Nadler, Chairman Conyers, Ranking Member Sensenbrenner, Members 
of the Subcommittee. Thank you for the opportunity to speak 
today in support of the D.C. House Voting Rights Act.
    There is much to be said in support of the DCHVRA, but you 
will be pleased to note that I will not attempt to say it all 
today. Suffice it to say that from a policy standpoint, there 
is little that can overcome the contradiction of the world's 
greatest democracy denying the fundamental right to vote to the 
citizens of its Nation's capital.
    And yet as a native Washingtonian, as you have 
acknowledged, and on behalf of the many longtime residents of 
this great city, this bill means a great deal more to it than 
meets the eye. And so if you will indulge me briefly, I would 
like to speak about the DCHVRA in very personal terms.
    Now, as a civil rights advocate, I have devoted much of my 
life to speaking out on Capitol Hill on behalf of my fellow 
Americans. And throughout the course of my career, I have seen 
changes that have made our Nation a better, stronger place, a 
Nation that more fully is more fully aligned with its founding 
principles.
    Together, we continue to break down barriers to equality 
and opportunity for Americans from all walks of life.
    Late last year, for example, with the help of this 
Committee, Congress reauthorized the Americans with 
Disabilities Act, the equivalent of the Civil Rights Act of 
1964, to persons with disabilities.
    Just last week, for example, the Senate completed what the 
House began with the passage of the Lilly Ledbetter Fair Pay 
Act, a single accomplishment for which we should all be proud.
    And now more than ever, especially as evidenced by the 
profoundly moving and historic presidential inauguration of 
last Tuesday, our government at all levels continues to 
progress toward extending equal opportunity to all.
    Indeed, we have seen great progress in Washington, DC, as 
well. When I was born in the old Freedman's Hospital on Howard 
University's campus, the city's hospitals were segregated along 
racial lines by law. That is no longer the case.
    Ledroy Park, where I grew up in the shadow of the Capitol 
and where I now own a home, was once an all-Black neighborhood 
by law and by custom. Today, though, my neighbors include 
people of all races and from all around the world.
    Even the public accommodations in this city that we now 
take for granted--the hotels, the theaters, the restaurants, 
the private museums, the things that make Washington a 
wonderful city--were once off-limits to those of us born on the 
other side of the color line.
    Thankfully, and I say this quite proudly, we have moved 
beyond that time. Yes, Washington, DC, has become a great 
American city. Yet in spite of all of the progress we have 
seen, one thing still has yet to change, and it is something 
that brings us here today.
    I have never had an opportunity on Capitol Hill to have 
someone on Capitol Hill with the real ability to speak out on 
my own behalf. For over 200 years my hundreds of thousands of 
neighbors in this city and I have been mere spectators to 
American democracy.
    Even though we pay Federal taxes, fight courageously in 
wars, and fulfill all of the other obligations of citizenship, 
we still have no say when Congress makes decisions for the 
entire Nation on matters like war and peace, taxes and 
spending, health care, education, immigration policy or the 
environment.
    And while we D.C. residents understand the unique nature of 
our city and American government, and we recognize Congress' 
role, we are not even given the simple dignity of a single 
vote, even in decisions that affect only D.C. residents.
    Without as much as a single vote cast by any of us, 
Congress decides matters like which judges will hear purely 
local disputes under our city's laws or how our D.C. government 
will spend local tax revenues, and even the words that the city 
is allowed to print on the license plates of its residents' 
cars.
    We were not even able to cast a vote when Congress decided 
in recent years to prevent our city officials from using our 
own tax dollars to advocate for a meaningful voice in America's 
democracy. It is enough to drive people to jump crates of tea 
in the Potomac River.
    From a broader civil and human rights perspective, the 
continued disenfranchisement of D.C. residents before Congress 
stands out as one of the most blatant violations of the most 
important civil rights that Americans have: the right to vote.
    Without it, without the ability to hold our leaders 
accountable, all of our other rights are illusory. Our Nation 
has made great progress throughout its relatively young history 
in expanding the right to vote, and in the process it has 
become a genuine role model for the rest of the world.
    In addition to several constitutional amendments expanding 
the franchise, the Voting Rights Act of 1965 has long been the 
most effective law we have to enforce that right, and it has 
resulted in a presidency and the Congress that are undoubtedly 
more representative.
    Its overwhelmingly bipartisan renewal in 2006 under the 
then leadership of Chairman Sensenbrenner and Ranking Member 
Conyers stands out as one of Congress finest moments.
    But in spite of this progress, one thing remains painfully 
clear. Voting is the language of democracy. If you don't vote, 
you don't count. And until D.C. residents have a vote in 
Congress, from a purely political standpoint, they will not be 
substantially better off than African-Americans in the South 
were prior to 1965.
    I see, Mr. Chairman, my time is up, but I do want to make 
two additional points. And I will be very quick.
    First, I know that Professor Dinh is going to speak about 
the constitutional framework in support of this bill, so I 
won't dwell on that. I would like to include, however, in the 
record a letter from 25 additional constitutional scholars in 
support of this bill and its constitutionality.
    Mr. Nadler. [Presiding.] Without objection.
    [The information referred to follows:]
    
    
    
                               __________
    Mr. Henderson. I should also point out that under 
constitutional construction, the nature of a constitutional 
amendment itself is a rare step only to be taken when in fact 
all other considerations for amended or addressing an injustice 
have been tried.
    Surely, there has been no dispute here this morning on the 
nature of the injustice. The nature of the dispute is on the 
remedy to be required. And that is why we believe that the 
Federal courts should decide its constitutionality.
    And lastly, there is a poll, which you see beside me today. 
To the extent that public opinion does have some impact on the 
deliberations of this Committee, let me say that a Washington 
Post poll in 2007, considered to be one of the most objective 
ever taken, points to 61 percent of the American people 
supporting the notion of providing voting rights for D.C. 
residents by way of legislation.
    Thank you, Mr. Chairman, for the opportunity to be with you 
today.
    [The prepared statement of Mr. Henderson follows:]
                  Prepared Statement of Wade Henderson



                               __________
    Mr. Nadler. Thank you.
    And I now recognize Captain Lee for 5 minutes.

TESTIMONY OF YOLANDA O. LEE, U.S. ARMY GUARD CAPTAIN, DISTRICT 
                   OF COLUMBIA NATIONAL GUARD

    Captain Lee. Thank you, Chairman Nadler and Ranking Member 
Sensenbrenner, for permitting me to testify on the District of 
Columbia House Voting Rights Act.
    My name is Captain Yolanda Lee, and I have been a soldier 
in the D.C. Army National Guard for all of my adult life. I am 
here today to ask you to approve the D.C. Voting Rights Act 
that would allow me, my family and fellow soldiers and 
residents of my hometown to have a voting representative in the 
U.S. House of Representatives.
    I believe the best way to let you know how much the vote in 
the House means to me is to tell my story as a resident who was 
born and raised in the Nation's capital.
    My family are lifelong Washingtonians. I am a fourth 
generation resident on my father's side and a third generation 
through my mother. I attended D.C. public schools and graduated 
from Ballou Senior High School in Southeast Washington, DC, in 
1993.
    I am a graduate of the University of the District of 
Columbia, where I majored in criminal justice. During college, 
I served in the Army Reserve ROTC program through Howard--
Howard University Consortium Program, because UDC did not have 
a ROTC.
    Upon commissioning, I had the option of leaving the D.C. 
National Guard, but I chose to stay and serve as a part-time 
soldier for 2 years and then became a full-time Guardsman.
    I am proud to speak to you this morning as a career soldier 
for the last 15 years. In 2004, I was deployed to Iraq, where I 
served in-country from January 1, 2005, through November 20, 
2005.
    In Iraq, I was assigned to a Guard transportation unit from 
Minnesota, the 50th Main Support Battalion, which transported 
people, supplies and equipment.
    As a transportation unit in the middle of what, at the 
time, was called a civil war, we were an inviting target for 
enemy attacks. On June 28, 2005, I was the combat logistical 
patrol commander for a 17-vehicle convoy transporting concrete 
security barriers. The lead convoy vehicle was hit by a 
vehicle-borne improvised explosive device. At the same time, 
our convoy was attacked by small-arms fire.
    I gave the order to return fire on the target and sent a 
gun truck to capture the two enemy combatants believed to have 
been the trigger of the explosive device, who were attempting 
to run into a nearby village.
    While my unit was exchanging fire with the enemy, I ordered 
them to arrange their vehicles as to protect the soldiers in 
the vehicle that had been struck by the explosive device, which 
was then in flames, and I ordered soldiers to approach the 
vehicle and pull out the body of the gunner, who was dead, and 
a injured passenger, who survived.
    Our unit then surrounded the nearby village and took two 
enemy combatants. I was awarded a Bronze Star for my service in 
Iraq.
    One of the reasons we were sent to Iraq was to help bring 
democracy to that country. In the United States and all over 
the world, the right of all Iraqi citizens to vote in the new 
Iraqi legislature was taken to be the most important sign of 
the democracy that had come to the Iraqi people.
    In my first month in Iraq, on January 30, 2005, Iraq held 
its first free elections in 50 years. Iraqis were able to elect 
members of the transitional National Assembly.
    For Iraqis, the right to vote for the representatives who 
decided the most important issues for the Iraqi people and for 
their country was so important that Iraqis overseas, including 
those born in this country, were given the franchise to those 
elections.
    Iraqis who believed in the District of--excuse me--Iraqis 
who lived in the District of Columbia, even those who were born 
in this country had no right to a voting representative in the 
Nation's capital, were given the right to vote in that 
election, and continued to vote as well in the election of the 
permanent legislature, the Council of Representatives, that 
took place less than a month after I left Iraq.
    The first resident of the District of Columbia to die in 
the Iraq war was Specialist Daryl Dent, a 21-year old member of 
the D.C. National Guard. Specialist Dent gave his life in 
service to our country, but his sacrifice also helped Iraqi 
citizens get the voting representation he did not live to see 
for himself.
    After I came home to the District, I voted in the next 
national election. Although I was proud to see the Iraqis 
exercise their right to vote for voting representation in their 
new democracy, I could not vote for such a representative to 
the U.S. House of Representatives in our country.
    Four generations of my family have lived without this 
right. I am proud to be an American. I am proud to be a 
Washingtonian. And I am proud to be a soldier. That will never 
change.
    But I ask you to change my status as an American citizen, 
who pays taxes and serves in war and peace, but is entitled 
only to a non-voting delegate in the U.S. House of 
Representatives.
    I ask you to support the D.C. Voting Rights Act. Thank you.
    [The prepared statement of Captain Lee follows:]
                  Prepared Statement of Yolanda O. Lee
    Thank you Chairman Nadler and Ranking Member Sensenbrenner for 
permitting me to testify on the District of Columbia House Voting 
Rights Act. My name is Captain Yolanda Lee, and I have been a soldier 
in the D.C. National Guard for all of my adult life. I am here today to 
ask you to approve the D.C. House Voting Rights Act that would allow 
me, my family, my fellow soldiers, and the residents of my hometown to 
have a voting representative in the U.S. House of Representatives. I 
believe that the best way to let you know how much the vote in the 
House means to me is to tell you my story as a resident who was born 
and raised in the nation's capital. My family are life-long 
Washingtonians. I am a 4th generation resident on my father's side and 
3rd generation through my mother. I attended D.C. public schools, and 
graduated from Ballou Senior High School in Southeast Washington in 
1993. I am a graduate of the University of the District of Columbia 
(UDC), where I majored in criminal justice. During college, I served in 
the Army Reserve Officers' Training Corps (ROTC) through the Howard 
University Consortium Program, because UDC does not have a ROTC 
program. Upon commissioning, I had the option of leaving the D.C. 
National Guard, but I chose to stay and serve as a part-time soldier 
for two years and then became a full-time Guardsman. I am proud to 
speak to you this morning as a career soldier for the last 15 years.
    In 2004, I was deployed to Iraq, where I served in-country from 
January 1, 2005 through November 20, 2005. In Iraq, I was assigned to a 
Guard transportation unit from Minnesota, the 50th Main Support 
Battalion, which transported people, supplies and equipment. As a 
transportation unit in the middle of what, at the time, some called a 
civil war, we were an inviting target for enemy attacks. On June 28, 
2005, I was the combat logistical patrol commander for a 17-vehicle 
convoy transporting concrete security barriers. The lead convoy vehicle 
was hit by a vehicle-borne improvised explosive device. At the same 
time, our convoy was attacked by small-arms fire. I gave the order to 
return fire on the target and sent a gun truck to capture the two enemy 
combatants believed to have triggered the explosive device, who were 
attempting to run to a nearby village. While my unit was exchanging 
fire with the enemy, I ordered them to arrange their vehicles so as to 
protect the soldiers in the vehicle that had been struck by the 
explosive device, which was then in flames, and I ordered soldiers to 
approach that vehicle and pull out the body of the gunner, who was 
dead, and one injured passenger, who survived. Our unit then surrounded 
the nearby village and took two enemy combatants. I was awarded a 
Bronze Star for my service in Iraq.
    One of the reasons we were sent to Iraq was to help bring democracy 
to that country. In the United States and all over the world, the right 
of all Iraqi citizens to vote for the new Iraqi legislature was taken 
to be the most important sign that democracy had come to the Iraqi 
people. In my first month in Iraq, on January 30, 2005, Iraq held its 
first free elections in 50 years. Iraqis were able to elect members to 
the transitional National Assembly. For Iraqis, the right to vote for 
the representatives who decide the most important issues for the Iraqi 
people and for their country was so important that Iraqis overseas, 
including those born in this country, were given the franchise in those 
elections. Iraqis who lived in the District of Columbia, even those who 
were born in this country and had no right to a voting representative 
in the nation's capital, were given the right to vote in that election, 
and continued to vote as well in the election of the permanent 
legislature, the Council of Representatives, that took place less than 
a month after I left Iraq. The first resident of the District of 
Columbia to die in the Iraq war was Specialist Daryl Dent, a 21-year 
old member of the D.C. National Guard. Specialist Dent gave his life in 
service to our country, but his sacrifice also helped Iraqi citizens 
get the voting representation he did not live to see for himself.
    After I came home to the District, I voted in the next national 
election. Although I was proud to see the Iraqis exercise their right 
to vote for voting representatives in their new democracy, I could not 
vote for such a representative to the U.S. House of Representatives in 
our country. Four generations of my family have lived without this 
right. I am proud to be an American. I am proud to be a Washingtonian. 
And I am proud to be a soldier. That will never change. But I ask you 
to change my status as an American citizen who pays taxes and serves in 
war and peace, but is entitled only to a non-voting delegate in the 
U.S. House of Representatives. I ask for your support of the D.C. House 
Voting Rights Act.
                               __________
    Mr. Nadler. I thank you, Captain Lee.
    I now recognize Professor Turley for 5 minutes.

TESTIMONY OF JONATHAN TURLEY, J.B. & MAURICE SHAPIRO PROFESSOR 
OF PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Turley. Thank you, Chairman Nadler, Ranking Member 
Sensenbrenner, Members of the Committee.
    It is a great honor to appear before you today and to 
appear with Professor Henderson and Professor Dinh, and a 
particular honor to appear with Captain Lee.
    I have many friends on the other side of this debate, 
including, I am happy to say, Delegate Eleanor Holmes Norton, 
who has tirelessly and brilliantly represented this District. 
And regardless of the problems that I have with the 
constitutionality of this bill, it is to her credit and her 
effort that we have gotten so far.
    I think that we can all agree, and I think we have agreed, 
that a great wrong has been done to the District. As Westberry 
said--as the Supreme Court said in Westberry, there is no right 
more precious than the one we are speaking of today.
    But great wrongs are not righted by violating the 
Constitution. I have testified for both parties in this 
Committee on various subjects, various issues. Those issues are 
very often close questions.
    Despite my respect for the people on the other side of this 
argument, I do not believe this is a close question. I believe 
this law is flagrantly unconstitutional and represents a 
dangerous and destabilizing act for this institution and for 
our country.
    This is not a debate about the ends of the legislation, but 
the means. And in our system of law, in any system that is 
committed to the rule of law, it is often as important how we 
do something then what we do.
    But that doesn't mean that it is not frustrating. Our 
Constitution is very frustrating, particularly when great 
injustices demand quick action and our principles stand in the 
way of our passions.
    But standing the way they do here, because there is a way 
to do things, there is a way to get a vote for the District, 
this is not one of those ways, because in order to do what the 
Congress appears about to do, you will manipulate the 
definition of what is a voting member in the United States 
House of Representatives.
    There are very few acts quite as dangerous as that. More 
importantly, the framers specifically warned against what you 
are about to do, because the very stability of our system 
depends upon who votes within our Congress.
    Now, some may find this obnoxious. Some at the time did. 
But the framers did understand what they were doing when they 
created the Federal enclave. It certainly seems illogical. It 
seems un-American that you would create a country that has a 
capital that has unrepresented people.
    I share that view. But there were reasons, and they were 
clearly articulated.
    It is very much the case that the mutiny in 1783 caused a 
concern about the status of the capital, and indeed they fled 
to Princeton. They eventually ended up in New Jersey. And it 
was very much on their mind in Philadelphia in 1787. They did 
not want that to happen again, and they did not want the 
security of our Nation's legislature in doubt.
    James Madison and James Iredell spoke clearly about that, 
but it is not true that that was the last word the framers had 
on the subject. I respect Tom Davis a great deal, but it is 
simply not true that the framers said nothing more about the 
District. The record is filled with statements about the 
District, its status and these problems.
    Now, you may wish to ignore those in the sense that you 
view them as having very little weight. But you can't ignore 
the fact that the framers did articulate the vision, a vision 
that many of us now may find obnoxious.
    And there were other reasons. They didn't want it to be a 
state, because they were afraid of the influence that the state 
would have, as being the home of the capital. They didn't like 
the fact that one state or particular voting members would have 
the honor of representing the capital.
    They were afraid of the concentration of power. They were 
afraid of developing a capital like London. All of those things 
were discussed by the framers.
    Now, there is much talk about the District Clause, but this 
issue will be decided on the Composition Clause, not the 
District Clause.
    Article I, Section 2 states clearly what the composition of 
Congress will be. The District Clause was never meant to trump 
the Composition Clause. The Composition Clause is essential to 
the apparatus, to the structure of the House of 
Representatives.
    Now, states are mentioned about 120 times in the 
Constitution, and it is true that sometimes states have 
different meanings. But the vast majority of those references 
to states mean exactly what it says, a political unit known as 
a state.
    Now, between the time of my last testimony and the current 
testimony, I will note the Supreme Court has ruled on Heller. 
And in Heller, the Supreme Court said quite clearly in 
referencing the specific language of several states and each 
state, in quotations, that is found in this provision and 
saying that means a state unit.
    The issue at the heart of this debate was answered in 
Heller. And I know my time has expired, and what I will say is 
that I think that this is a truly Faustian bargain.
    We now have the votes to do something about the District 
residents. I think they should have full representation, not 
partial representation. But let us not lose this opening, this 
opportunity by going down the route of the most unpromising and 
ill-conceived litigation strategy.
    And I submit the rest of my statement for the record. Thank 
you.
    [The prepared statement of Mr. Turley follows:]
                 Prepared Statement of Jonathan Turley



                               ATTACHMENT



                               __________
    Mr. Nadler. Thank you, Professor. We appreciate you will 
submit the rest of your testimony for the record.
    And I recognize Professor Dinh for 5 minutes.

    TESTIMONY OF VIET D. DINH, PROFESSOR OF LAW, GEORGETOWN 
                     UNIVERSITY LAW CENTER

    Mr. Dinh. Thank you, Chairman Nadler, Ranking Member 
Sensenbrenner, Members of the Committee. It is an honor to be 
here with you again.
    The question we have been asking----
    Mr. Nadler. Sorry--are you using the mic?
    Mr. Dinh. I am, sir. I am, sir. I will speak louder.
    The question that we have been asked to consider today, the 
constitutionality of H.R. 157, I will admit is a difficult one, 
but one ultimately that I conclude in the affirmative, that 
Congress has ample authority to pass H.R. 157.
    And I, of course, am not alone. Judge Starr, Judge Wald, 25 
other constitutional lawyers and law professors, not the least 
of which I would recognize as Delegate Holmes Norton herself, 
who, like me, is a constitutional law professor at the 
Georgetown University Law Center, as well as the American Bar 
Association.
    But it is a difficult question. It is difficult, because we 
see two constitutional provisions that appears to be in 
tension.
    The first is, of course, the District Clause, which gives 
Congress the power ``to exercise exclusive legislation in all 
cases whatsoever'' over the District.
    The courts have characterized this power as plenary and 
majestic. Now, this interpretation makes structural sense, 
because the District Clause works an exception to the system of 
federalism in our Constitution.
    Article I, Section 8 defines the power of Congress. Article 
I, Section 9 limits the power of Congress. And Section 10 
limits the power of the states.
    But when Congress acts pursuant to the District Clause, it 
acts as a legislature of national character, exercising in the 
words of the D.C. Court of Appeals, ``complete legislative 
control as contrasted with the limited power of the state 
legislature on the one hand and as contrasted with the limited 
sovereignty which Congress exercises within the boundaries of 
the states on the other.''
    This is truly a unique plenary and exclusive power you 
alone in this entire Federal republic have complete power as a 
legislature of national character.
    But opponents also raise an important point when they cite 
Article I, Section 2, the Composition Clause. ``The House of 
Representatives shall be composed of members chosen in every 
second year by the people of the several states.''
    Because D.C. is not a state, so goes the argument, Congress 
cannot allow District residents to vote for a representative.
    I note only in passing that the argument is a textual one. 
It proceeds from text, but it is not clearly a textualist one, 
because it proceeds from a negative implication of what is not 
said--that is, the negative implication is that because it does 
not say state and the territories and the District, then by 
definition or by implication, such people are excluded.
    But it is only by negative implication, not clear. explicit 
textual command.
    When we are faced with such a seeming contradiction or 
tension between the various provisions of the Constitution, I 
think it is our duty as Constitution interpreters to try to 
resolve them. And that is how the courts have tried to do in 
other contexts.
    Yes, the District is not a state. Yes, ``states'' mean 
states. But in other contexts, where we have similar type 
intention, the courts have resolved the issue by allowing 
Congress to treat District residents as if they were residents 
of states, or courts themselves have treated District residents 
as if they were residents of a state.
    I cite here the tax apportionment clauses, Article I, 
Section 2, and the 16th amendment, the Congressional authority 
to regulate commerce among the several states, the sixth 
amendment right to jury trial, and state sovereignty unity 
under the 11th amendment, even though each one of these 
provisions in our Constitution refer only to ``states.''
    More relevantly, I think the specific historical incident 
supports this conclusion in the context of House 
representation. As you know, the District originally was made 
up of land ceded by Maryland in 1788 and Virginia in 1789.
    By the Residence Act of 1790, Congress accepted the 
cession. The text of the Residence Act of July 16th, 1790, is 
in point, so I want to quote it.
    The land, ``it is hereby accepted for the permanent seat of 
the government of the United States, provided nevertheless that 
the operation of the laws of within such District shall not be 
affected by this acceptance until such time fixed for the 
removal of the government thereto and until Congress shall 
otherwise by law provide.''
    What this provision of law means is that between 1790, when 
Congress assumed title and jurisdiction over the land, and 
1800, when government was officially moved here from 
Philadelphia, Congress by act of Congress, by the Residence 
Act, provided that the laws of Maryland and Virginia would 
operate here in the District.
    During that time the District residents enjoyed the right 
to vote not because they were citizens of Maryland or 
Virginia--they had lost that right; in 1790 the land was ceded 
and accepted--but rather by act of Congress granting them that 
right to vote as if they were residents of--or citizens of 
Maryland and Virginia.
    What Congress could do then I submit Congress can now do in 
order to give the District residents the power to vote for its 
own representative.
    There are a number of cases holding that District residents 
are no longer residents of Maryland and Virginia. These cases, 
as I have noted, confirm that they are no longer exercising the 
right of the citizenship under Maryland and Virginia, but 
rather that right was granted to them in the first Congress in 
1790.
    I encourage this Committee to evaluate this historical 
evidence and treat this issue as their predecessors did in the 
first Congress. Thank you very much.
    [The prepared statement of Mr. Dinh follows:]
                   Prepared Statement of Viet D. Dinh



                               __________
    Mr. Nadler. I thank the gentleman. I thank the gentleman.
    And I will begin the questions by recognizing myself for 5 
minutes.
    My first question is to Mr. Henderson. Earlier we heard 
from former Congressman Tom Davis, who worked with 
Congresswoman Norton to develop a bipartisan, politically 
neutral approach to secure House representation for the 
District on the assumption--on the frankly political 
assumption--that the district would elect a Democratic member, 
so we will give in this bill Utah another seat until the next 
reapportionment on the assumption that Utah would elect a 
Republican member, so this would be politically neutral.
    Do you support continuing to pair the District with the 
Utah seat, even though there are presumably the votes in both 
houses now to do it without that, so we don't have to be 
politically neutral if we don't want to?
    Mr. Henderson. Thank you, Mr. Chairman, for your question.
    The leadership conference unequivocally, wholeheartedly 
supports keeping the bill as it was passed last year in the 
House of Representatives, which means that both Utah and the 
District would be provided with representation.
    We think it is important that we send a signal to the rest 
of the country that this is really not about a partisan issue. 
It is really about elevating voting rights to its 
constitutional frame. So, yes, we support it.
    Mr. Nadler. Thank you. And I have one further question for 
you before I turn to some of the other witnesses.
    One way to ensure that the bill's political neutrality is 
by mandating that Utah's additional seat be an at-large seat, 
thereby leaving intact Utah's current district representation, 
because if we didn't do that, the Utah Legislature, presumably, 
and the governor would have to reapportion. Reapportionment is 
a very political act, as you know, and so this would negate 
that.
    Can you please discuss briefly the benefits of ensuring 
that Utah's additional seat is an at-large seat, rather than a 
single member seat, as well as why the at-large seat should 
remain intact through 2012, especially in light of the general 
view that the Ranking Member referred to earlier That under the 
Voting Rights Act, at-large seats are disfavored?
    Mr. Henderson. Thank you, Mr. Chairman.
    Again, I think your question frames the answer that we 
would provide, which is to say we recognize that redistricting 
is indeed a very political issue and can be an extremely 
partisan issue.
    We want to avoid that kind of partisanship. We want to 
avoid that kind of fight. We think it is unnecessary, and we 
think it is potentially harmful.
    I think the notion that the seat would come in as an at-
large seat is one that we are perfectly comfortable with, 
notwithstanding the Voting Rights Act and its normal 
application, because I think in this context there has been 
great care given to trying to frame this issue in a way that 
would have the least amount of partisanship and political 
impact, aside from providing a representative vote for both the 
state of Utah and the District of Columbia.
    Mr. Nadler. Thank you.
    Professor Turley, you testified that you believe that this 
bill is unconstitutional, because despite the District Clause 
of the Constitution, we--that is, Congress--lacks the power by 
statute to afford the District congressional representation, 
because congressional representation is based on the states.
    And yet, as former Congressman Davis testified, we impose 
direct Federal taxes on District residents, despite the fact 
that the Constitution says direct taxes should be apportioned 
among the several states.
    District residents have the right to jury trial from the 
states. D.C. residents benefit or are not--or do not benefit--
are subject to, in any event, diversity jurisdiction. The right 
to sue is a benefit. The right to be sued I am not so sure of. 
But they have diversity jurisdiction, which is a right for the 
several states.
    The full faith and credit clause has been held to apply to 
D.C. And the District has no power to regulate commerce, as the 
states do not, because only Congress can regulate interstate 
commerce. I do not believe anybody thinks that the District of 
Columbia is an Indian tribe or a foreign nation, so it comes 
under the interstate commerce clause.
    Why do you think that Congress has been--that it has been 
held in a series of Supreme Court decisions that the District 
Clause gives Congress the power to consider the District a 
state for these purposes, and yet it wouldn't have the power to 
consider the state a--I am sorry--to consider the District a 
state or analogous to a state for purposes of congressional 
representation?
    Mr. Turley. It is an excellent question, Mr. Chairman.
    Mr. Nadler. Could you use your mic, please, or get closer 
to it?
    Mr. Turley. Oh, yes.
    I was surprised by my friend Tom Davis' statement that the 
plenary authority of the District had never been struck down in 
terms of legislation. He is excluding the Elizabeth Morgan Act. 
And the reason I think that he would recall that is because he 
was the sponsor of the Elizabeth Morgan Act, and I was the 
lawyer that challenged it.
    And in fact it was struck down. It was true it was struck 
down by bill of attainder, but much of the arguments in terms 
of the Elizabeth Morgan Act were made terms of plenary power. 
Ranking Member Sensenbrenner was involved in that debate on the 
floor.
    Many of the things that you cite, which are I think 
poignant points to be sure, fall into categories of individual 
rights of citizens that belong to them as a citizen of the 
United States, or they do fall under the plenary authority.
    As Justice Scalia said in the Cohen decision in 1984, there 
are many things you can do in the District you can't do in the 
50 states. And it is indeed true that this is truly plenary 
jurisdiction----
    Mr. Nadler. Excuse me, let me just--I know my time has 
expired. We are going to be a little liberal here.
    Diversity jurisdiction falls under individual rights?
    Mr. Turley. No, no. I am saying that there are different 
categories they fall under.
    That is, the Supreme Court has recognized that Congress can 
in fact extend certain things to the District. Congress can do 
a lot of things in the District. It has also said that there 
are rights that apply to members of the District.
    But what is clear is from the very beginning, it has been 
understood that that plenary authority deals with things within 
the District. Edmund Pendleton made that clear as a framer. He 
said that this power, in assuring his colleagues, only applies 
within the District. What you are doing now is applying that 
power outside the District to affect other states.
    Mr. Nadler. Thank you. I would observe that. I won't pursue 
this, because my time has expired, but I observed that 
diversity of jurisdiction doesn't seem to apply only within the 
District.
    I hope that one of the other Members of the Committee may 
ask Professor Dinh why he disagrees with Professor Turley.
    Mr. Turley. No, I wasn't only in the District, but I am 
saying it could be extended to the District.
    Mr. Nadler. Thank you. My time has expired.
    I now recognized for 5 minutes the distinguished Ranking 
Member of the Subcommittee, Mr. Sensenbrenner.
    Mr. Sensenbrenner. Well, I have a question of Professor 
Dinh, but it is not that one.
    Professor Dinh, why do you think this bill did not include 
granting the District the right to vote for two senators?
    Mr. Dinh. You know, we have a footnote in our opinion--
footnote 56--which specifically says that because we were asked 
to review this bill, which does not provide for Senate, so I 
did not spend the time necessary to think about a comprehensive 
answer to that.
    I do not have a conclusive or comprehensive answer to you. 
I think that it may open the door to that, and it also under 
our brief, very brief analysis suggests that it may be 
different, that senators are different, because in the relevant 
text there, Article I, Section 7, I believe, and also the 17th 
amendment, it has a Composition Clause, as it does in Article 
I, Section 2, but it also says that the Senate shall be 
composed of two Senators from each state and suggests that 
states qua states may have interest in that limitation in 
number.
    I, frankly, have not done the exhaustive look or 
comprehensive analysis to give you a final answer, but that may 
be a limiting point.
    Mr. Sensenbrenner. Doesn't it concern you that there may be 
an unintended consequence of this legislation, that if it is 
upheld as constitutional, the next lawsuit will be to 
judicially decree two senators from the District of Columbia, 
if the court should determine that D.C. really is a state for 
purposes of representation?
    Mr. Dinh. Mr. Ranking Member, that is a concern. I think if 
it is, it certainly would be unintended from all my 
understanding of the purpose of the legislation. More 
importantly, I think it would be wrong.
    Such a judicial holding would simply be wrong. The D.C. 
Circuit was right in the Alexander case to say that there is no 
inherent right for D.C. residents to vote either for senators 
or for the House of Representatives.
    The question that is raised here is whether Congress has 
the power under the District Clause to give that statutory 
right. And I do not think that that can bleed over into an 
inherent constitutional right to overrule the Alexander 
decision, which I think that the D.C. Circuit got exactly 
right.
    Mr. Sensenbrenner. If there is a statutory right for the 
Congress to give voting representation in the House for the 
District, is there also a statutory right utilizing the same 
argument to give them voting representation in the Senate?
    Mr. Dinh. That is exactly your first question. I think it 
is a very good question. I do not have a full and comprehensive 
answer to you. I have suggested that where there is the 
limiting principle in the fact that the 17th amendment calls 
for two senators from each state, but other than that I don't 
have a good answer for you, or at least a conclusive answer in 
that regard.
    But that is a possibility. I acknowledge it.
    Mr. Sensenbrenner. Professor Turley, what is your opinion 
on these questions?
    Mr. Turley. Well, actually, Viet and I have raised this 
question now for a number of years, and I disagree that it can 
be easily distinguished between the House and Senate clauses.
    Article I, Section 2 reads, ``Each state shall have at 
least one representative,'' very close to the language related 
to the Senate. It doesn't seem to me that is that easy to 
distinguish.
    And I think you have to ask that that once you put yourself 
on the slippery slope of redefining what our Members in the 
House of Representatives, you inevitably will have to adopt a 
consistent view.
    And in fact in one of our previous hearings, one of the 
witnesses in favor of the legislation admitted that he does 
believe that eventually the District could ask for two 
senators.
    I don't believe that that was within the intention of the 
framers, and I think that a better solution would be the most 
constitutional one, which is to go for a constitutional 
amendment, as you have previously stated, or, of course, to do 
what Virginia did. And that is to go for retrocession.
    In fact, I supplied in my previous testimony what I call a 
modified retrocession plan, which is very close to the 
legislation that has been offered.
    Mr. Sensenbrenner. Let me ask you one further question, 
Professor Turley. And that is is that when Congress proposed a 
constitutional amendment in 1978, which failed at ratification 
in the states, it was clear in the Committee report that the 
Judiciary Committee at that time felt that a constitutional 
amendment was the only way to go about it.
    What impact do you think that Committee report and the 
failure of the amendment to be ratified by the states will have 
on the litigation, should this bill become law?
    Mr. Turley. Well, I think that this legislation is being 
pulled down by considerable weights, and one of them is indeed 
the failed effort to amend the Constitution. It seemed a rather 
transparent effort to circumvent article V in terms of the 
amendment of the Constitution.
    And there has been rather frank discussion of that, that 
this idea born out of the expediency of the moment, with the 
trade of two districts. And unfortunately, as you know, 
convenience is often the enemy of principle. And we see that 
here.
    Mr. Sensenbrenner. I thank the Chair.
    Mr. Nadler. I thank the gentleman.
    I now recognize for 5 minutes the distinguished Chairman of 
the full Committee, the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Nadler. I am happened to 
see all of our witnesses here again.
    Professor Turley, let me say that I have been going over 
your work for quite a while now, not only on this subject, but 
others as well. But there is only one thing that I would like 
to talk with you about today.
    You said here, ``Permit me to be blunt. I consider this to 
be the most premeditated, unconstitutional act by Congress in 
decades.''
    Now, I have been reviewing the Congress and the court in 
its entire history, and that seems to imply some bad faith or 
lack of integrity on the part of this present Congress in that 
regard. Am I being oversensitive this morning, or am I supposed 
to take this precisely at what you have said twice?
    The same language you used 2 years ago: ``I consider this 
act to be the most premeditated, unconstitutional act by 
Congress in decades.''
    Mr. Turley. Well, I can't blame it on the spellcheck 
system, which I wish I could at this moment. But I don't mean 
truly to cast real type of aspersions. I have tremendous 
respect for you, as you know, and for the Members of this 
Committee. And in fact, I have worked with most of the Members 
of this Committee on legislation.
    But I also believe that we can be blunt and be clear. I 
believe that this legislation is motivated more by passion than 
by principle. And I can't deny that.
    Constitutional scholars like yourself and the Members of 
this Committee I believe have to recognize that the record is 
not found in that the President goes against this legislation.
    Having said that, I would never suggest those types of 
dishonest motives--certainly not from you and certainly not 
from Delegate Norton. I believe that Delegate Norton has been 
trying--I think heroically--to find a way to get her 
constituents of vote in the House, and I think that is a noble 
purpose.
    I just believe that the means here is clearly 
unconstitutional.
    Mr. Conyers. Well, we have got the weight of most 
constitutional authorities. We have got the weight of the 
majority of people not just in the District, but in the 
country. Do they come under your rather critical scrutiny that 
if they understand the Constitution, this is the most 
premeditated, unconstitutional act by the Congress in decades?
    I mean you said let us be blunt, and so I am returning the 
attitude in which I presume you wrote this. Do you really mean 
that? In other words if we go through the Congress do just that 
decade that I have been here, that I couldn't find another act 
that is more premeditatedly unconstitutional that the act of 
trying to get the vote to the citizens of this District?
    Mr. Turley. In recent decades I would say it would be hard. 
The mistakes that this institution has made has often been done 
because the institution move too quickly. That was certainly 
the case with Elizabeth Morgan in the Elizabeth Morgan Act.
    Many Members, Democrats and Republicans, objected to that 
act and the ability to remove it from the legislation was 
blocked, but I have to say, Mr. Chairman, even though the polls 
do show that the American people support this, it is not polls, 
but precedent that will determine the outcome of this 
legislation.
    And I do not believe that there is a scintilla of precedent 
to support what is happening here, particularly after what the 
court said just recently in Haller.
    Mr. Conyers. Well, let us say this final comment of yours 
that I would like to read. Look, you write this beautifully, 
and you do this for your questions in law school. You do it in 
the courts all the way up to the Supreme Court. You do it in 
the Congress, both House and Senate.
    But let me ask you about this. It takes an act of willful 
blindness to ignore the obvious meaning of these words. Just 
defend that for the few seconds we have left.
    Mr. Turley. I am pretty sure that was the spellcheck. No. 
Once again, I have to say that on that I must stand firm, Mr. 
Chairman. I believe that in order to get from here to the 
enactment of this law, you must step over considerable evidence 
in the record and say things like the framers didn't say 
anything about the Federal enclave after the mutiny.
    Those are simply--those are actual----
    Mr. Conyers. You are raising--you are impugning the 
integrity not just of the Congress, but every constitutional 
scholar and every one that doesn't agree with you. I mean this 
is a rather wide attack that is being made here.
    I think there are a lot of people that agree with the 
proponents of this measure, which has already passed the 
Congress a couple of years ago, that they weren't engaging in 
willful act of blindness to get the vote to the District of 
Columbia.
    Mr. Turley. Well, what I would say, Mr. Chairman, is that 
it is true that academics some time speak more bluntly than 
they should. We feel very strongly about our views of the 
Constitution. I know Viet does, and I do as well.
    Mr. Nadler. The gentleman's time has expired. You may 
finish answering his question.
    Mr. Turley. Thank you.
    And perhaps it is a different forum, but I do feel quite 
strongly that this is not a close question. And I am not 
imputing motivation. What I am imputing is the analysis and the 
failure to recognize what I believe is unmistakable, 
unquestionable evidence of the intent of the framers.
    Mr. Nadler. I thank the gentleman.
    I will now recognize for 5 minutes the gentleman from Iowa, 
Mr. King.
    Mr. King. Thank you, Mr. Chairman.
    I observe, as I listen to this discussion, that 25 scholars 
that would take the position that this legislation is 
constitutional doesn't sway me particularly, unless I would 
know how many of them actually teach constitutional law.
    And then I would follow that question up--this is a 
rhetorical one, I would point out, though, so the witnesses can 
relax a little bit--that I would want to know how they taught 
their con law. Was it from the Constitution? Did they start 
there and build their way up, or do they start at case law and 
never actually arrive at the text of the Constitution during 
the instruction of con law.
    Then, no matter how many experts are they are, I would 
point out to the body that there are 31,000 scientists that say 
that global warming is a bogus idea.
    So I would just leave that rhetorically the way it is, and 
I would raise this issue, that it seems to me that as I have 
watched the political arena--and we talked about a political 
decision on redistricting.
    In Iowa it isn't political. We actually have a law that 
says it is going to be drawn according to the defined concepts 
of the law with a nonpartisan three-person bureau that sits in 
a room, and everybody has to accept what they give, vote it up 
or down, or handed to the judges, which we live in great fear 
of.
    But I have watched in my political career and throughout my 
adult life a constant, in the political arena, migration toward 
power. And there seems to be a pulling and a tugging effect on 
that.
    So I am sitting here listening to this testimony, thinking 
if I were a D.C. resident, if I represented D.C. residents, 
what I dig a little deeper, trying to find a way that I could 
argue that this bill is constitutional?
    The answer to that is, yes, probably, because he has some 
incentive to dig a little deeper. If it works the other way, 
then you are more likely to read the text of the Constitution 
and accept the presentation of the argument that it is an 
unconstitutional bill.
    We went through this a couple of years ago, and I dug into 
it a little more deeply, and I watched some of the Members 
positioned themselves and go through their constitutional 
analysis. And I think that power becomes part of that 
analysis--in most cases passion over principle, as Professor 
Turley said.
    And so I just pose this question to you, Professor Turley. 
Have you watched this in your observation of politics on how 
the migration toward power seems to affect the judgment of 
principle?
    Mr. Turley. Well, I certainly believe that politics is 
about expediency. It is not without principle. And I believe 
that the Members on the other side of this aisle have fought 
hard and long for many principle--and I am deeply thankful to 
them--as has the minority.
    So this is not a place devoid of principle, but there is no 
question that politics tends to be about expediency. It tends 
to find the shortest and easiest route to an objective.
    This would certainly be that. It is a legislative amendment 
of the Constitution, in my view, and I think we have seen that 
before.
    What I think is the true tragedy here is that we now have 
this unique window of opportunity. Republicans and Democrats 
are pledged to solving the problem. And I think that what we 
can do is precisely that.
    But what will happen is this will put us on the road to 
litigation that I believe will ultimately go against this bill. 
I don't see the basis on which this could be sustained.
    And when it comes back, that window of opportunity may be 
loss. And I think that is what makes this a true tragedy in the 
making.
    Mr. King. Professor Turley, in following up on that, if 
there truly was a passion and conviction that the residents 
here, who many have already voted with their feet by moving 
here, would only have to move five miles to have their vote 
registered in the fashion that they ask.
    If they really believed in principle, if they really had 
the passion, wouldn't they then support retrocession?
    Mr. Turley. Well, I believe the modified--that retrocession 
is the correct way to go. And in the plan that I put forward, 
which is in my previous testimony and also in the article that 
I attach to my testimony, I go through how retrocession can 
retain the unique status of the District.
    The District residents will wake up, and nothing will be 
just as accept that they will have two senators and a Member--
at least one Member of Congress, and they will be fully 
represented.
    That is why I reject this as a civil rights measure, 
because to me it is akin like saying that Rosa Parks could move 
halfway up the bus. I think that the key is to resolve the fact 
that not giving half-formed citizens, but full citizens and 
full representation, and that could be done.
    Mr. King. Thank you, Professor Turley.
    Thank you, Mr. Chairman. I yield back.
    Mr. Nadler. I thank the gentleman.
    I know recognize for 5 minutes the gentleman from North 
Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. And thank you for 
convening this very important hearing.
    I am in an interesting position this morning, because I 
have seated in the audience an intern who is working in my 
office, and I know she just graduated from Spellman, and she is 
getting ready to go to law school.
    And this for me is one of those classic constitutional 
issues, where you have got persuasive arguments on both sides, 
and we as Members of Congress have to decide where we come 
down.
    I hadn't focused on Professor Turley's insult to the 
integrity with which we proceed, but having been the sole and 
only member of this body who voted against Megan's Law, because 
I thought it was unconstitutional and thought that the Supreme 
Court would in fact declared unconstitutional, and having had 
my Republican opponents spend almost $900,000 telling people 
how terrible I was for casting that one vote, and having almost 
lost my seat as a result of that one vote, I can tell you that 
I personally take this very, very seriously.
    Professor Dinh conceded that at least that this is a close 
question. Professor Turley, I take it you seem to be suggesting 
it is not even close. And I guess my concern is that if we pass 
this, it is obviously going to the Supreme Court. There is no 
question about that.
    Professor Dinh, is the Supreme Court going to uphold this 
statute in your opinion?
    Mr. Dinh. Yes.
    Mr. Watt. And Professor Turley, is the Supreme Court going 
to strike it down in your opinion? I mean that is where I am, 
because it really will be embarrassing, if it goes through the 
process and it ends up in the Supreme Court, and the Supreme 
Court does in fact strike it down.
    I think it would be a counterproductive move, as Professor 
Turley has indicated. I am just trying to figure out where this 
Supreme Court stands on this issue. And it seems to me to be a 
very close issue. I thought it was close from day one, and I 
have said that publicly, much to the chagrin of some of my 
District of Columbia friends.
    I think this is a tough constitutional question, and it is 
obviously going to be resolved. I mean that is what the Supreme 
Court is for. But how are they going to decide?
    Mr. Dinh. If I may, Congressman, I do think that the law as 
proposed is constitutional. I do think that the Supreme Court 
would uphold it, based upon my reading of the precedents as 
articulated in my testimony.
    The reason why I think that it is a close question is like 
all constitutional questions of high caliber, it is a question 
of characterization. Do you think that the Composition Clause 
trumps, or do you think the District Clause trumps?
    Well, I suggest that they can be reconciled in a way that 
the Supreme Court has reconciled, in so many other aspects, 
diversity jurisdiction, state sovereign immunity, Commerce 
Clause and the like.
    And so I think that that is the predictive path as to how 
the court would reconcile these two provisions in order to 
uphold this body's authority under the District Clause to do 
exactly that proposed by H.R. 157.
    Mr. Watt. Professor Turley is smiling at you as if to say 
that is absurd, as I take it you think it is.
    Mr. Turley. First of all, with Chairman Conyers staring 
directly at me, I would never use verbiage of that kind. But 
what I will say is that I would be astonished if the Supreme 
Court even was close on the question that----
    Mr. Watt. Pretty astonished about their ruling in the 
Megan's Law ratification, but they did it.
    Mr. Turley. Well, the problem is that--you know the problem 
for the District is that they have been saying different things 
in different locales. That is not going to help them.
    In the Parker case, they were just blocks away. While 
arguing here in the Congress that we are like a state for the 
purposes of this question, they were in court in Parker, saying 
we are not a state for the purposes of the second amendment.
    And they lost there. They lost at the Supreme Court, but 
they did win the dissenting judge. And the dissenting judge 
based her dissent on the fact that you aren't even close to a 
state, that the second amendment doesn't apply to you for the 
very reasons that they suggested.
    But Heller just decided. The Supreme Court just decided in 
quoting the very terms of the Composition Clause that it is 
restricted to states. I don't see how you could possibly get 
around that without changing Heller.
    Mr. Nadler. The time of the gentleman has expired.
    The gentleman from Texas, Mr. Gohmert?
    Mr. Gohmert. Thank you.
    And I do appreciate all the witnesses' testimony--
enlightening.
    And, Captain Lee, in your case inspiring. I know the Army 
doesn't just hand out Bronze Stars, so you are obviously an 
American hero and a great icon and somebody that I hope more 
people will emulate with your dedication to the country. And I 
appreciate that.
    It seems to me the issue is are we going to show America 
that we abide by the law, because the ultimate law is the 
Constitution. And it was very clear the more you go back to the 
debates, the discussion, in 1978 every proponent of the 
constitutional amendment in 1978 agreed, including this 
Committee, that there is only one way to give a representative 
to the District of Columbia, and that is by constitutional 
amendment.
    So it would appear that what we are doing here is, having 
seen that that did pass two-thirds in the House, two-thirds in 
the Senate, and then all it needed was three-fourths of the 
states to ratify, which never came.
    And it is like proponents said, ``You know what? It is just 
too hard to get three-fourths of the state to ratify, so we 
will do an end run on the Constitution.''
    You know this isn't a tactic. It is not a ploy to propose 
retrocession, as was done in 1847 with the land on the west 
side of Virginia. And for whoever came up with the idea of 
making taxation without representation such a slogan that it is 
on the license plates in D.C., it has worked, because it made 
an impression on me.
    As a big fan of history and studying history, you know you 
go back and you know that is right, and digging up the examples 
you know from Franklin's comment about, ``It is supposed to be 
an undoubted right of Englishmen not to be taxed but by their 
own consent given through their representatives.''
    And then they got more upset in 1765 with the passage of 
the Stamp Act. Taxation without representation--that slogan has 
made an impact on me. So that is why I have been looking. How 
do you do this constitutionally?
    If it is going to be too hard to create a representative 
and get it passed constitutionally as an amendment, then what 
else can be done? And we have the example in 1847.
    And then the other thing that hit me just in the last few 
days was we have done this with every part of the United States 
that has a delicate and not a representative, and that is they 
don't pay Federal income tax on income derived within their 
territory.
    Well, if we are not going to go to the trouble to have a 
constitutional amendment and do this the right way that will be 
upheld by the Supreme Court, then why not fix all these years 
of impropriety and just say until we fix this the right way, 
the residents of the District of Columbia that hold together 
the city where we come and we meet and we make laws, you don't 
have to pay Federal income tax.
    That is fair. And that came as a result of the big push 
about taxation without representation. Those that have been 
pushing that slogan, you are right. It has made an impact on 
me. And that is why I have got these two alternative bills.
    If the majority is not going to do this as a constitutional 
amendment, then let us do it constitutionally. Let us retrocede 
the territory back to Maryland see get two senators and a 
representative. And until we do that, or until we do a 
constitutional amendment, I don't think you ought to have to 
pay Federal income tax.
    And that bill will be filed this week, and I would 
encourage residents of the District of Columbia to encourage 
Members of Congress. Cut out our income tax until you fix up 
our representation issue.
    And Professor Turley, you had mentioned the Heller case, 
but going back to you know 1805, the Hepburn case that discuss 
the term ``states''--I know you are familiar with that, because 
I know, having dealt with you so much in the past, that you are 
smarter than me--but also came up in the 1949 Tidewater case.
    Don't those you believe add merit to your position on this 
issue?
    Mr. Turley. Indeed----
    Mr. Nadler. The gentleman's time has expired. The witness 
may answer the question.
    Mr. Turley. Indeed, it did come up. And in fact, Tidewater 
is relied on very heavily by the other side. But if you look at 
the opinion, it is deeply fractured. And the court began its 
analysis by categorically saying that the district is not a 
state. And then it fractured other reasons for the result.
    There are, as I mentioned before, some references to states 
that have been given different meanings, but if you take a look 
at the 120 or so references, all but a handful have been 
defined in this way.
    But most importantly, and the only question in front of us, 
is that the references in the Composition Clause have been 
defined that way. And that should end the question.
    Mr. Gohmert. Thank you.
    Mr. Nadler. I thank the gentleman.
    I now recognized for 5 minutes the gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Thank you.
    Mr. Turley, would there be any constitutional problems if 
we just made Washington, DC, a state?
    Mr. Turley. I am sorry.
    Mr. Scott. Would there be any constitutional problem if we 
made D.C. a state?
    Mr. Turley. In terms of whether you could do it 
legislatively in establishing it to be a state, you could 
declare the District to be a state. It would be a question 
about the Federal enclave within it. I would have to look into 
to what extent it would be a state within an interior Federal 
enclave.
    In fact, that issue was going to come up, if New York had 
won the fight over being the capital. My guess is that New York 
would have been New York with a Federal enclave inside it.
    Mr. Scott. The constitutional problem, Mr. Turley, is in 
Section 2, which says people of the several states, and we are 
looking at the word ``state'' to exclude D.C. And you have 
indicated that sometimes it is a state, sometimes it isn't.
    Section 10 says that no state shall enter into a treaty. 
Does that include D.C.?
    Mr. Turley. Whether true, whether the District of Columbia 
can enter into a treaty with a foreign government, I would say 
not.
    Mr. Scott. And the prohibition would be Section 10, which 
says no state shall enter into a treaty.
    Mr. Turley. Oh, I think there is other reasons why it can't 
enter into a treaty besides that provision.
    Mr. Scott. What?
    Mr. Turley. Well, I mean first of all the right to enter 
into a treaty belongs to the executive branch in the Federal 
system, and I think that if you look at article II, as well as 
article I, there are limitations that would kick into the 
treaty-making state or district.
    Mr. Scott. No state shall engage in war. Does that include 
D.C.?
    Mr. Turley. In the meaning that I think it is offered, but 
what I would submit is that the question that the Supreme Court 
I assume will take as a relevant one is that this body is 
trying to change the definition of a Member.
    They will go directly to the Composition Clause. There 
won't be any hesitation. They will look at the Composition 
Clause and see what the Constitution says about Members. And 
there they will find states and several states that they have 
just said is confined to political units, to the state unit.
    And unless they are going to reverse all of their 
precedent, I don't see how they could possibly give the 
Congress what it wants.
    Mr. Scott. Okay. And so when it says--I think we heard 
about the privileges and immunities clause. Citizens of each 
state shall be entitled to all the privileges and immunities of 
citizens of the several states. That includes D.C.?
    Mr. Turley. Well, the Supreme Court has said that District 
of Columbia residents have the privileges and immunities of 
citizens, and there are some things that you take with you.
    And that includes, by the way, the Heller decision, where 
the District Clause really wasn't that relevant ultimately to 
the decision that this was an individual right to bear arms, 
and as citizens of the United States, District residents have 
that authority.
    Mr. Scott. A person in charge of the state under the 
Extradition Clause shall be delivered up or removed--a person 
who is charged in any state. Does that include D.C.?
    Mr. Turley. I go through these examples in my article that 
there are situations where the court has accepted states mean 
something different. And I say that repeatedly. In fact, the 
Supreme Court----
    Mr. Scott. Mr. Turley, that is what--I mean if you look at 
the words in Section 2, it seems fairly open and shut. But as 
you go through the Constitution, ``state'' kind of wanders 
around.
    Mr. Turley. Congressman, I think that my problem with the 
analysis of saying, ``Well, that is the word 'state' too; it is 
the same noun'' is it is not the same noun. The Supreme Court 
has been very clear on the Composition Clause.
    The Composition Clause is so central to the constitutional 
structure it was a point of considerable debate among the 
framers. They were obsessed with state. They were obsessed with 
who could vote in Congress. They spend enormous amounts of time 
and energy and heat to trying to work out who could vote in 
Congress.
    The Supreme Court of the United States, in my view, is not 
going to wander into other provisions. The precedent related to 
the meaning of those words in the Composition Clause is clear 
and established.
    And the District has undermined its own position by arguing 
in various locales that sometimes it is a state, sometimes it 
is not.
    Mr. Scott. Well, Professor Dinh, this word ``state'' means 
different things, and sometimes it includes D.C. and sometimes 
it doesn't. Do you believe that we can include D.C. in the 
Composition Clause by statute?
    Mr. Dinh. Yes, because I think Jonathan is correct as it 
goes. He is saying that ``state'' means one thing in the 
Composition Clause. And I think he is just asking the wrong 
question, or failing--it may be willfully or otherwise--failing 
to ask the right question, which is what about this competing 
power that is plenary and majestic under Article I, Section 8, 
called the District Clause.
    And that is the essence of the question that Chief Justice 
Marshall even in the Hepburn case said that that is a matter 
for the legislature to decide, not for us to grant diversity 
jurisdiction, which is exactly what this body did and which it 
aims to do with H.R. 157.
    Mr. Scott. And you will not violate what appears to be a 
clear definition in Section 2, which says ``several states.'' 
You won't violate that anymore than you did where you decided 
that D.C. can't form treaties, can't coin money, can't grant 
powers of titles of nobility, can't engage in war.
    Those are limited to states, and you can include D.C. in 
that.
    Mr. Dinh. Exactly--especially when you have an affirmative 
grant of exclusive jurisdiction under the District Clause and 
only a negative implication in the Composition Clause.
    It does not say ``shall only be composed of representatives 
elected by the several states.'' So it is a negative 
implication. It is a strong negative implication, but you have 
to weigh that against the express plenary authority under the 
District Clause.
    And I think in terms of reconciling the provisions, you 
know, as Chief Justice Marshall suggested in Hepburn, Congress 
is the one that has the ability to do that. And the court will 
see to that, as it has done in diversity jurisdiction, in 
privileged communities, and all the other examples you have 
cited.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    I now recognize for 5 minutes the gentleman from Georgia, 
Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    Professor Dinh, do you believe that the framers, who had 
just gone to war based in part on the belief of no taxation 
without representation, intended to deny citizens of the 
Nation's capital the rights to representation?
    Mr. Dinh. On this issue, Congressman, Madison wrote very 
clearly. He said, look it--we have a provision--we have an 
intention to get some land in order to make the capital, right? 
The states who cede the land will protect the rights of its 
citizens--and provide for the vote. And Congress accepted that, 
because they--it needs the land.
    That is exactly what happened in the historical example of 
that that I gave you, which is that in 1790 Congress accepted 
the land, even though the residents are no longer citizens of 
Virginia or Maryland, and it ceded to them by grace of Congress 
the right to vote as if they were citizens of Maryland and 
Virginia.
    Only by the Organic Act of 1801 by omission did D.C. 
residents lose that right to vote. So while I do not have a 
clear answer to you about what the framers thought regarding 
depriving citizens of the vote, I suspect the omission was not 
intentional, for all the historical reasons that you stated.
    They did have a mechanism in order to provide for D.C. 
residents to vote, and that is in the District Clause.
    Mr. Johnson. Why is it that the framers did not include 
provisions for residents of Washington, DC, to have voting 
representation?
    Mr. Dinh. I think that it is encapsulated in James 
Madison's notes that said that the right to vote is so 
fundamental that I cannot imagine--that he could not imagine 
that a state would give up land without protecting that right 
to vote of the citizens.
    I have tried, and I have talked with Professor Turley about 
this. We tried to go back to the historical record around the 
passage of the Residence Act and the Organic Act, but 
unfortunately that record is very, very scarce as to what 
happened during those 10 years interval, and specifically in 
1801 why the omission in the Organic Act was made such that we 
don't have the right to vote today.
    Mr. Johnson. Professor Turley, what are your opinions on 
those two questions?
    Mr. Turley. Well, I cite in the article attached to my 
testimony what I think is an explanation. It is there. We may 
not agree with it. I certainly don't agree with the concept of 
having a capital with nonvoting citizens, which I do find it 
incredibly offensive as an American.
    The framers I believe did not find it that offensive, that 
when you look at what the statements were made, people did 
realize the problem. Alexander Hamilton tried to solve the 
problem. And Alexander Hamilton articulated, offered an 
amendment, which didn't pass.
    He was not the only one who raised this issue. There were 
other people, who were talking about this weird thing out 
there, this non-state you know capital.
    But the emphasis was that it would not be a state. That is 
what they wanted. They wanted the capital to be represented by 
Congress as a whole. And part of the problem is that when you 
start to change the meaning of ``state'' for the purpose of the 
Composition Clause, you then have a snowballing effect that 
goes into, for example, the qualifications clause, which is 
also in Section 2.
    There you have state legislatures deciding the 
qualifications of Members. And if you start to say that 
Congress can create a non-state voting member, you begin to 
have this snowballing effect on these other provisions.
    I think that the more reasoned approach is to take their 
framers at their word. They wanted a non-state entity. And when 
you are a non-state entity, you are not represented in Congress 
in the sense of an individual representative. You represented 
by the entire Congress.
    Mr. Johnson. All right. Well, let me ask this question, Mr. 
Turley. What is the constitutional issue with declaring the 
District of Columbia to be a state by statute, as was proposed 
in House bill--well, I don't know the name of the bill or the 
number of the bill, but it was in 1993 when it was proposed?
    Mr. Turley. Yes, I haven't actually looked at this question 
very closely, but that has never been a burden for me in the 
past.
    And so I will certainly give you what I think would be the 
answer, which is that you can create the state of Columbia, but 
you would still have to resolve the status of the Federal 
enclave within. And you would be in the same position as if New 
York had won the fight with the District of Columbia and that 
the capital was in New York.
    I expect that there would have been a Federal enclave that 
would not be part of New York. And in the same sense I think 
they would--unless you amend the Constitution, there would 
still be a Federal enclave here.
    Mr. Nadler. Thank you. The gentleman's time has expired. I 
thank the gentleman.
    Mr. Johnson. Thank you.
    Mr. Nadler. I now recognize for 5 minutes the gentle lady 
from Texas, Sheila Johnson Lee--Jackson Lee. I am sorry. I 
don't know how I did that.
    Ms. Jackson Lee. We are all related. [Laughter.]
    Let me thank the Chairman for his kindness. And I truly 
thank the panel.
    Professor Turley, I think your provocative testimony is 
instructive for what may come before the United States Supreme 
Court. And it certainly gives us an opportunity to be vetted on 
this legislation, which I happen to support--H.R. 157.
    So please accept our appreciation to all of the panel and 
for your insight and allow me to meander, as my colleague from 
Virginia mentioned, trying to suggest that there is great 
reason to be able to support this legislation.
    I am going to ask some quick, abbreviated questions. I just 
need you to say ``yes.''
    Did the Supreme Court make new law in Brown vs. Topeka 
Board of Education?
    Mr. Turley. Did it make new law?
    Ms. Jackson Lee. New law.
    Mr. Turley. I would like to say that it recognized the 
existing law, but yes, it made new precedent. I would say that.
    Ms. Jackson Lee. I accept that.
    Professor Dinh, would you suggest that the act of 1801 was 
an accidental omission? Now, you suggested that that is where 
by chance the individuals of D.C. lost their right to vote or 
it became unclear. Would you consider that an accidental act of 
omission?
    Mr. Dinh. No. I think it is certainly an omission. I do not 
know whether it was intentional or accidental. Simply, we don't 
have the record.
    Ms. Jackson Lee. And it is a rule without record, and so it 
could be that it was accidental.
    Mr. Dinh. Absolutely.
    Ms. Jackson Lee. Professor Turley, do you consider the 
individuals living in Washington, DC, citizens of the United 
States?
    Mr. Turley. Yes, I do.
    Ms. Jackson Lee. Let me now just tried to take you through 
this. And my argument is that by being citizens of the United 
States, the constitutional right to vote or the right to vote, 
however it be statutory or otherwise, inures to those citizens.
    And I would take you through--and I am going to quickly; 
hopefully, we will have enough time for you to just comment. 
Article 1, Section 2 indicates that the House of 
Representatives should be composed of Members chosen every 
second year by the people of the United States.
    And ended it mentions electors. Washington, DC, in the 
presidential elections had electors. I don't know how that was 
achieved, but they have the semblances of citizenship and 
states. States have individuals that go to the Electoral 
College, and so they have that. They have that right.
    Then if we go to article--if we go to I think it is Section 
8, where here again this is the one that you--I think Professor 
Dinh mentions to exercise exclusive legislation all cases 
whatsoever over such District.
    I just stop right there, which means that the Congress has 
a right to exercise legislation, which is what this particular 
legislative initiative is.
    And then lastly, I would take you through--and I wonder if 
your argument prevails, even though I am sure that you will 
find a appropriate response, then amendments 13, 14 and 15 
seemingly should not in essence be subjected to those who live 
in Washington, DC.
    If you are suggesting that they cannot have the right to 
have a representative in the United States Congress that would 
vote, they are citizens. They are able to participate in the 
Electoral College.
    The 13th amendment indicated that slavery was over. That 
means that it shouldn't have covered them. It talked about the 
14th amendment. All persons born or naturalized in the United 
States and subject to jurisdiction are citizens of the United 
States.
    It shouldn't have covered them at that time, if you are 
suggesting that they don't have the basic right that would come 
to all citizens, which allows all citizens to be represented in 
the United States House of Representatives.
    And in the 15th amendment, the right of citizens of the 
United States to vote shall not be denied or abridged, then 
that means that that you are abridging the rights of those here 
in Washington, DC, to not have the right to vote, or their vote 
being counted.
    My point, if you would answer, is it seems as if, if you 
meander through the Constitution, there are interchangeable 
interpretations. I could make the argument and join you in 
saying, ``You know what? Those living in the Washington, DC, 
area did not have the right to be under the 13th, 14th and 15th 
amendment.''
    I could make that argument. They were ceded, et cetera. Why 
would you suggest that there could not be growing 
interpretation to this Constitution, which has been called a 
living document?
    Mr. Turley. I----
    Mr. Nadler. The time of the gentlelady has expired. The 
witness may answer the question--hopefully briefly. We didn't 
say answer the various questions hopefully briefly.
    Ms. Jackson Lee. You could probably answer one.
    Mr. Turley. No, I appreciated the point of the gentlelady, 
and I--first of all, the reason they do have that power----
    Mr. Nadler. Professor, could you get closer to the mic, 
please?
    Mr. Turley. Oh, I am sorry.
    The reason they do have that power is partially because of 
the 23rd amendment. And the 23rd amendment actually works 
against the District's argument here, because the 23rd 
amendment says we are giving you this electoral power as if you 
were a state. I mean so the amendment itself reflects the fact 
that we had to do the amendment because you are not a state.
    And so when you look at the 23rd amendment, when you look 
at the failed amendment, Congress has repeatedly acknowledged 
that this isn't a state, and we have to amend the Constitution 
to get state-like authority like participating in a 
presidential election.
    Mr. Nadler. I thank the gentlelady.
    This concludes the second panel. I thank the panelists.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair addition no written questions for the 
witnesses, which we will forward, and ask the witnesses to 
respond as promptly as they can so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    And with that, the business of this hearing is concluded, 
and the hearing is adjourned.
    [Whereupon, at 12:01 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record



                                 
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