    [Senate Hearing 113-713]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-713

                     EQUALITY FOR THE DISTRICT OF COLUMBIA:
                    DISCUSSING THE IMPLICATIONS OF S. 132, THE
                       NEW COLUMBIA ADMISSION ACT OF 2013

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

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                   HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 SECOND SESSION

                                   ----------

                               SEPTEMBER 15, 2014

                                   ----------

            Available via the World Wide Web: http://www.fdsys.gov/

                           Printed for the use of the
            Committee on Homeland Security and Governmental Affairs

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            COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                      THOMAS R. CARPER, Delaware Chairman
    CARL LEVIN, Michigan                 TOM COBURN, Oklahoma
    MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
    MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
    CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
    JON TESTER, Montana                  RAND PAUL, Kentucky
    MARK BEGICH, Alaska                  MICHAEL B. ENZI, Wyoming
    TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
    HEIDI HEITKAMP, North Dakota

                      Gabrielle A. Batkin. Staff Director
                   John P. Kilvington, Deputy Staff Director
                          Deanne B. Millison, Counsel
                        Holly A. Idelson, Senior Counsel
                   Keith B. Ashdown, Minority Staff Director
             Christopher J. Barkley, Minority Deputy Staff Director
                   Gabrielle D'Adamo Singer, Minority Counsel
                         Laura W. Kilbride, Chief Clerk
                       Lauren M. Corcoran, Hearing Clerk

                               C O N T E N T S

                                     ------
    Opening statements:
                                                                       Page
        Senator Carper...............................................     1
        Senator Coburn...............................................     3
    Prepared statements:
        Senator Carper...............................................    43
        Senator Coburn...............................................    46

                                   WITNESSES
                           Monday, September 15, 2014

    Hon. Eleanor Holmes Norton, Delegate of The District of Columbia,
      U.S. House of Representatives..................................     6
    Hon. Vincent C. Gray, Mayor, District of Columbia................     9
    Hon. Philip H. Mendelson, Chairman, Council of the District of
      Columbia.......................................................    11
    Hon. Viet D. Dinh, Professor, Georgetown University Law School...    21
    Hon. Alice M. Rivlin, Ph.D., Senior Fellow and Leonard D.
      Schaeffer Chair in Health Policy Studies, The Brookings
      Institute......................................................    23
    Wade Henderson, President, Leadership Conference on Civil and
      Human Rights...................................................    25
    Roger Pilon, Ph.D., J.D. Vice President for Legal Affairs and B.
      Kenneth Simon Chair in Constitutional Studies, Cato Institute..    27
    Hon. Paul Strauss, Shadow Senator, District of Columbia..........    29
    Hon. Michael D. Brown, Shadow Senator, District of Columbia......    31

                         Alphabetical List of Witnesses

    Brown, Hon. Michael D.:
        Testimony....................................................    31
        Prepared statement...........................................   170
    Dinh, Hon. Viet D.:
        Testimony....................................................    21
        Prepared statement...........................................    74
    Gray, Hon. Vincent C.:
        Testimony....................................................     9
        Prepared statement...........................................    54
    Henderson, Wade:
        Testimony....................................................    25
        Prepared statement...........................................    90
    Mendelson, Hon. Philip H.:
        Testimony....................................................    11
        Prepared statement...........................................    62
    Norton, Hon. Eleanor Holmes:
        Testimony....................................................     6
        Prepared statement...........................................    50
    Pilon, Roger Ph.D. J.D.:
        Testimony....................................................    27
        Prepared statement...........................................    95
    Rivlin, Hon. Alice M.:
        Testimony....................................................    23
        Prepared statement...........................................    87
    Strauss, Hon. Paul:
        Testimony....................................................    29
        Prepared statement with attachment...........................   100

                                    APPENDIX

    Additional statements for the Record:
        Committee on DC Minority Report submitted by Senator Coburn..   173
        GWU Law Review Article.......................................   216
        Letter submitted from Lee Casey, Baker and Hostetler LLP.....   245
        Article submitted by Jonathan Turley, George Washington Law
          Professor..................................................   247
        Office of Legal Policy Report to Attorney General............   251
        Congressional Research Service...............................   399
        Charles Allen, Democratic Nominee, Council of the District of
          Columbia...................................................   408
        Committee for the Capital City...............................   412
        Mary M. Cheh.................................................   418
        District of Columbia Bar.....................................   442
        Attorney Johnny Barnes.......................................   445
        Timothy Cooper, Executive Director, World Rights.............   504
        Citizen Letters..............................................   506
        Bend the Arc Jewish Action...................................   553
        Central Conference of American Rabbis........................   555
        Gregory Allen Cendana........................................   556
    Responses to post-hearing questions for the Record:
        Ms. Norton...................................................   558
        Mr. Gray.....................................................   561
        Mr. Mendelson................................................   565
        Mr. Dinh.....................................................   572
        Ms. Rivlin...................................................   576
        Mr. Pilon....................................................   577

                     EQUALITY FOR THE DISTRICT OF COLUMBIA:.
                    DISCUSSING THE IMPLICATIONS OF S. 132, THE
                      NEW COLUMBIA ADMISSION ACT OF 2013

                                  ----------

                           MONDAY, SEPTEMBER 15, 2014

                                         U.S. Senate,
                               Committee on Homeland Security
                                      and Governmental Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 3:03 p.m., in
    room SD-342, Dirksen Senate Office Building, Hon. Thomas R.
    Carper, Chairman of the Committee, presiding.
        Present: Senators Carper and Coburn.

                  OPENING STATEMENT OF CHAIRMAN CARPER

        Chairman Carper. Good afternoon, everyone. The hearing will
    come to order. When I assumed the chairmanship of this
    Committee in January 2013 and Dr. Coburn became the Ranking
    Member, a Committee with broad jurisdictions over the Federal
    Government operations and homeland security. I took on the
    responsibility for Federal legislation on matters concerning
    the District of Columbia whose more than 600,000 citizens are
    denied a vote in Congress.
        I take that responsibility seriously, which is why last
    year I introduced the New Columbia Admissions Act to create a
    path, if you will, to end the voting inequality that exists.
    The District of Columbia is not just a collection of government
    offices, museums and monuments. It is a home to a little more
    than 632,000 people, more than both Wyoming and Vermont, and
    these residents pay over $20 billion in Federal taxes. That is
    more than the Federal taxes paid by States like Nebraska, South
    Carolina, and New Hampshire. These residents work, study, raise
    families and start businesses here, just like people do in all
    50 States. They also serve in the military.
        Yet when it comes to having a vote in Congress, these men
    and women really do not count, at least not in the same way. In
    truth, they never have. And while they bear the full
    responsibilities of funding our Federal Government and dealing
    with the consequences of the laws that it enacts, they do not
    enjoy the benefits and protection of having voting
    representation, in our Congress. In my view, this situation is
    simply not fair. Neither is it consistent with our values as a
    country. Perhaps most importantly, though, it is not consistent
    with the Golden Rule, that is to treat other people the way we
    would want to be treated.
        Voting rights is a passionate cause for many of the
    citizens of the District of Columbia. It has been for years and
    I believe it should be a cause for concern for all of us. It is
    the major reason why we are here today, 20 years after the last
    testimony before Congress on District of Columbia statehood. My
    goal for this hearing is to educate a new generation of people
    about this injustice and to restart the conversation about
    finding a more thoughtful solution.
        I was personally surprised to learn last year that the
    United States is the only democracy in the world that denies
    voting representation to the people who live in its capital
    city. Not one of 100, not one of 10, the only one. The United
    Nations Human Rights Committee has called us out on that. They
    have deemed the District of Columbia's lack of voting
    representation a human rights violation.
        But there is more to this injustice and inequality. The
    District of Columbia's disenfranchisement places its citizens
    in a doubly vulnerable political position. Unlike any other
    city in the United States, Congress holds ultimate control over
    the District of Columbia's laws, and even its day-to-day
    operations. In recent years, Congress has shown less of an
    inclination to meddle in the District of Columbia's affairs
    that it has in the past.
        But the fact remains that my colleagues and I can, if we
    choose to, overrule the voters of the District of Columbia and
    their local officials on any of a number of local issues that
    we want. So without their own vote in Congress or the ability
    to spend money and pass laws without Congress' consent, the
    District of Columbia is, at times, used as a political pawn for
    some of our colleagues looking to impose their own agenda on
    the city without regard for the views of the citizens who must
    live with the consequences.
        Just last fall, the District of Columbia was caught up in
    the Federal shutdown and was nearly blocked from using local
    tax dollars to keep basic city functions running, functions
    like schools, libraries, trash collection, just to name a few.
    Some determined and creative efforts by city officials avoided
    that outcome, but only after incurring needless costs and
    uncertainty in planning for the Federal shutdown.
        We have tolerated this situation for a long time. I think
    most people know it is just not right. It is incumbent upon
    those of us who enjoy the right and privilege of full voting
    rights to take up the cause of our fellow citizens here in the
    District of Columbia and to find a workable solution.
        I would be the first to acknowledge this is not a new
    cause. As soon as the capital city was organized in 1801,
    citizens of the District of Columbia began fighting for equal
    representation, and since that time, Congress has considered
    several legislative options. In 1978, Congress passed a
    constitutional amendment to give the District of Columbia full
    voting rights in Congress. In 2009, the Senate voted to give
    the District of Columbia a voting seat in the House. And for
    many years, members have offered bills to provide statehood for
    the District of Columbia.
        The bill I introduced is the latest chapter of that ongoing
    effort. It may not be the last chapter, but it attempts to
    right a wrong that should have been righted by now. S. 132
    would pave the way for the potential creation of the 51st State
    called New Columbia with full voting rights in Congress. Under
    the bill, a full district called Washington, DC. encompassing
    the White House, the Capitol, the Supreme Court, the National
    Mall, some other pieces of land would still remain under the
    control of Congress as the Constitution mandates.
        Now, I realize that not everyone will agree that this is
    the right solution and there are a number of legitimate
    questions about how this would work. I have a few myself. Our
    witnesses today will discuss some of these questions, and most,
    but not all of them, will lay out a strong case for why this
    approach is appropriate, why it is constitutional, and the
    preferred approach for many of the residents who live here in
    the District of Columbia.
        The Senate bill currently has 18 cosponsors. I am told it
    is the most cosponsors ever on a Senate District of Columbia
    statehood bill. I know Congresswoman Eleanor Holmes Norton, who
    is here today, has introduced companion legislation in the
    House which has a record number, I am told, of cosponsors. I
    think it is 104.
        Today we are going to hear from two panels of witnesses who
    are going to shed some light on this topic. On our first panel,
    we have three elected officials from the District of Columbia
    who will speak on how its current status affects its residents
    and their own abilities to govern effectively. Then our second
    panel will have six witnesses who will discuss other issues
    surrounding the topic of statehood, including its
    constitutionality, feasibility and practicality.
        Dr. Coburn, with whom I am privileged to serve, we have
    worked together for a number of years, we agree on a whole lot
    of issues. This is one where we just have an honest difference
    of opinion. I respect his opinion, as he knows. With that, let
    me just turn to Dr. Coburn so we can hear some of his views,
    and then we will hear from our witnesses today. Thank you. Dr.
    Coburn.

                  OPENING STATEMENT OF SENATOR COBURN

        Senator Coburn. Thank you, Mr. Chairman. Welcome to our
    honorable guests from the District of Columbia. Since 1888,
    there have been hundreds of bills and amendments proposed to
    address the representation of the District of Columbia. Since
    1964, Congress has held no less than 10 hearings on it. The
    House debated statehood in 1992. They heard from over a dozen
    witnesses and got another 20 opinions from every segment of the
    government.
        Witnesses identified numerous problems from constitutional
    to financial to administrative. The 1992 Minority Staff Report
    does an excellent job of laying all those issues out. Yet here
    we are again debating this issue even though it has no chance
    of success in this chamber and is dead on arrival in the House,
    and will not and cannot possibly be considered before we go
    sine die.
        This bill makes a state out of the neutral land that houses
    the Federal Government. It is unprecedented. Little effort was
    made to hold a hearing that seriously debates this bill. More
    than half the witnesses are representation from the District of
    Columbia in their elected capacities, all with the same agenda
    and voicing the same interests. They are legitimate.
        With the exception of a witness I invited, none of the
    witnesses here provide an alternate opinion. None. You can
    learn a lot about the seriousness of this hearing by looking at
    who is not here. Where is the Department of Justice (DOJ)?
    Every Department of Justice that has issued a report or
    testified about legislated District of Columbia statehood--
    Kennedy, Carter, Reagan, Bush--has concluded it is
    unconstitutional and would come with other extremely complex
    legal challenges.
        Where is the Congressional Budget Office (CBO), the Office
    of Management and Budget (OMB), the Interior, Transportation,
    State, Defense, the General Services Administration, and the
    Treasury? District of Columbia statehood would significantly
    affect the Federal Government's operations, including use and
    access to water and sewer services, utilities, police and fire
    services, infrastructure, communication networks, the District
    of Columbia National Guard, District of Columbia's unfunded
    liabilities and other benefits, and ability to control the
    aesthetics and conditions of our nation's capital.
        District of Columbia statehood would also come at an
    unknown cost to the United States. Who here is representing the
    interests of other States? District of Columbia statehood would
    significantly affect the sovereignty of other States, becoming
    the first among equals. Nothing in the bill prevents New
    Columbia from still getting the special funding the District of
    Columbia gets, $674 million each year by virtue of being the
    nation's capital.
        District of Columbia residents got more than eight times
    the national average of Federal aid per capita, and more than
    two times the next highest State. Who is here to represent
    Virginia and Maryland? There is a serious question as to
    whether Maryland's consent would be necessary to create a new
    State, since it gave the land to the capital. The bill even
    gives New Columbia control over certain land in Virginia and
    Maryland, a serious affront to their sovereignty.
        I will pass on that the District of Columbia residents
    suffer an injustice, I agree, by not having a vote, but
    Congress cannot bypass the constitutional amendment process
    simply because it is inconvenient. The Framers designed the
    District to be an autonomous Federal area, separate from any
    State's influence, and different from all other Federal land.
    It is patently false to say the Framers could not have
    predicted the city would thrive. The District was envisioned
    prior to 1800 as a large, powerful city with 800,000 people--
    more than the District of Columbia has now, more than even
    Paris had at the time. President Kennedy's Attorney General
    said Congress cannot reduce the District's size any more than
    it can remove a State from the Union.
        Attorney General Kennedy said, a small enclave clearly does
    not meet the concept of the permanent seat of government, which
    the Framers held. President Reagan's Attorney General said he
    would recommend the President veto any bill providing statehood
    without a previous constitutional amendment.
        Lee Casey, who wrote that report, could not testify today,
    but sent a letter with an original copy and reiterating its
    findings, the last report an Administration has issued on this.
    I would ask unanimous consent that that be added to the
    record.\1\
    ---------------------------------------------------------------------------
        \1\ The letter submitted by Lee Casey appears in the Appendix on
    page 245.
    ---------------------------------------------------------------------------
        Chairman Carper. Without objection.
        Senator Coburn. This bill also largely ignores the 23rd
    Amendment, which recognized the District of Columbia and gave
    its residents three electoral votes. Granting statehood without
    first repealing the 23rd Amendment creates a legal and
    political absurdity, allowing a few residents, including the
    White House occupants, to be the decisive votes in a close
    Presidential contest.
        Howard Law Professor Adam Kurland says as much in a Law
    Review article, and I would like to ask unanimous consent that
    that be entered into record.\1\
    ---------------------------------------------------------------------------
        \1\ The Law Review article appears in the Appendix on page 216.
    ---------------------------------------------------------------------------
        Chairman Carper. Without objection.
        Senator Coburn. And then finally, George Washington Law
    Professor Jonathan Turley, who could not be here today to
    testify, but wrote an informative article about the political
    and constitutional implications of this bill. I would like to
    have that admitted for the record.\2\
    ---------------------------------------------------------------------------
        \2\ The article from Mr. Turley appears in the Appendix on page
    247.
    ---------------------------------------------------------------------------
        Chairman Carper. Without objection.
        Senator Coburn. I will close with a quote from one of our
    witnesses today. Alice Rivlin, in 2009 said this: ``I think
    statehood is so unlikely to happen in the foreseeable future
    that pursuing it is a serious distraction from more important
    and feasible policies that could both improve the autonomy and
    fiscal health of the District.'' I agree. I yield back.
        Chairman Carper. Dr. Coburn, thanks very much. Again, our
    purpose here today is to start an old conversation. We look
    very forward to the testimony of the witnesses here and,
    frankly, the input of other people that are not here.
        Our first witness today is the Honorable Eleanor Holmes
    Norton, Washington, DC native. Congresswoman Norton has fought
    for the interests of the District of Columbia citizens on
    Capitol Hill since 1991. I was privileged to serve with her in
    the House for 2 years before going on and becoming Governor of
    Delaware. She has been the city's sole elected delegate to the
    House of Representatives, although, unfortunately, not a voting
    one.
        She has a long history in the field of civil rights,
    including serving as Chair of the Equal Employment Opportunity
    Commission. Congresswoman Norton is also a tenured law
    professor at Georgetown University. Congresswoman Norton
    currently serves as the Ranking Member of the House
    Subcommittee on Highways and Transits, and we thank you for
    joining us today and for sharing your thoughts with us. It is
    always good to be with you. Thank you.
        Our second witness is the Honorable Vincent Gray. Mayor
    Gray has served as Mayor of the District of Columbia since
    2011, and prior to that chaired the City's legislative branch,
    the Council of the District of Columbia. Mayor Gray was also
    born and raised in Washington, DC, has been active in city
    politics at many levels, and is closely familiar with the
    issues that citizens of the District face every day. Mayor,
    thank you for joining us this afternoon.
        And our final witness on this panel is the Honorable
    Chairman, Phil Mendelson, and Chairman Mendelson serves on the
    District of Columbia Council since 1998 and was elected
    Chairman in 2012. As Chairman, he leads the Council on all
    legislative matters and presides over the Committee of the
    Whole. Chairman Mendelson also serves as the Chairman of the
    Board of Directors for the Metropolitan Washington Council of
    Governments.
        Again, we thank you all for being here today. Congresswoman
    Norton, I am going to ask you to lead us off and then we will
    recognize the Mayor and Chairman Mendelson and then we will
    have some questions. Please proceed. Your entire statement will
    be made part of the record. Feel free to summarize as you see
    fit. Thank you.

    TESTIMONY OF THE HON. ELEANOR HOLMES NORTON,\1\ DELEGATE OF THE
          DISTRICT OF COLUMBIA, U.S. HOUSE OF REPRESENTATIVES

        Ms. Norton. Thank you very much, Mr. Chairman, and for that
    reason, I am going to try to summarize most of my testimony.
    Chairman Carper, Ranking Member Coburn, I know I speak for the
    enthusiastic, record number of residents who have come to
    attend this hearing. I thank you for the opportunity to testify
    this morning and this afternoon on their behalf, because this
    hearing is the leading indicator of their work and the work of
    our elected officials to get the unusual progress we have now
    made on advancing the District of Columbia statehood and its
    individual components.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Norton appears in the Appendix on
    page 50.
    ---------------------------------------------------------------------------
        Let me thank you, Chairman Carper, as the new Chair. You
    have been very energetic in helping us in many significant
    ways, of which this first hearing on statehood is perhaps the
    most high profile. But elected officials and I know of your
    work for the District and appreciate it very much.
        With your early initiative in introducing the bill, the
    record number of Senators you have gotten as cosponsors. You
    have now broken the record on Senators who support the bill led
    by the Majority Leader who generally does not cosponsor a bill,
    and the four top Democratic leaders all go to the support that
    is building in the Senate for the bill.
        Mr. Chairman, the residents are grateful for today's
    hearing, not because they are naive. They live in the belly of
    the beast here. They understand the Congress, what it does and
    does not do and how long it takes to do what it does do. They
    are grateful for this hearing and have considerable
    appreciation for it because they understand what a hearing is.
    It is a significant and necessary step to putting an issue on
    the official congressional agenda. It is the most important
    vehicle that Congress has, not only to educate members, but to
    signal that the matter constitutes a serious national issue
    that can move to passage.
        At the same time, Mr. Chairman, I want to be clear that the
    elected officials, and you see by the number of residents who
    are here, and I are clear that your willingness to hold this
    hearing, as I requested, carries a reciprocal responsibility on
    all of us who live in the District to continue to build support
    for the bill in Congress and in the public. Mr. Chairman, we
    have learned many lessons. For example, from the more than the
    hundred years it took us to get home rule, living in the
    District with no government whatsoever and no delegate, we
    learned that there could be no collective action until
    residents engaged the city and engaged the Nation.
        You have a very distinguished panel of expert witnesses to
    testify before you today, so I think my best contribution would
    be to speak from the vantage point of the member who represents
    the District in the Congress, which allows me to put this
    hearing in some context and to say why I believe it is
    particularly timely.
        We do not believe that the fact that this is a historically
    unproductive Congress or that we have been in the minority for
    most of my service in the Congress should discourage us from
    seeking what is an indispensable remedy to achieve our full
    citizenship, and we believe it is achievable.
        During this same period in the Congress, with the support
    of residents and members of the House and Senate, we have made
    continuing progress on the major elements of statehood, the
    elements that the Ranking Member spoke about when he said that
    Dr. Rivlin thought that we ought to be working on other aspects
    leading up to statehood as well. This is exactly what we have
    been doing.
        Even as we have continued to press for statehood itself,
    most recently, for example, budget and legislative autonomy and
    anti-shutdown legislation, all have moved further than at any
    point since the Home Rule Act of 1973. The President has put
    both the budget and legislative autonomy in his budget, the
    first time that any President has put both in his budget.
        Representative Darrell Issa, my good friend in the House,
    called a hearing last Congress on the District of Columbia
    budget, and after hearing Republican and Democratic witnesses
    alike testify about the District of Columbia's financial
    condition, its reserve, its growth in population, was among the
    best in the Nation. He himself endorsed budget autonomy and has
    worked tirelessly with local officials and me and Republican
    interest groups to secure budget autonomy.
        Last Congress, House Majority Leader Eric Cantor endorsed
    the District of Columbia budget autonomy bill. The District of
    Columbia appropriations bills enacted for the current fiscal
    year (FY) have anti-shutdown language for the District of
    Columbia, permanent language, and we have been able to keep
    shutdowns from occurring even if, once again, the Congress
    shuts down, because for the first time, we have been spared the
    threat of a shutdown for the entire fiscal year.
        The House version of the District of Columbia Appropriation
    bill for the next fiscal year also prevents shutdown for that
    following year. We are grateful that the pending budget and
    legislative appropriation bills of this House, the Senate would
    permanently grant the District anti-shutdown authority and also
    budget and legislative autonomy are in the Senate
    Appropriations Bill.
        So we are making progress on the components of statehood
    and we believe, over time, that the Congress will see that the
    components of statehood should add up to Statehood itself.
        Now, your panel will show the details and I am not going to
    reiterate the details of why we should have statehood. I am
    only going to summarize one or two of the indicators that I
    think should and would impress any American.
        They are going to show, Mr. Chairman, that the District's
    economy has become one of the strongest in the Nation. A $12.5
    billion budget, larger than the budget of 12 States. A $1.75
    billion surplus and growing, the envy of the States. A per
    capita personal income higher than that of any State. And
    resident income expenditures that are equally impressive. A
    growth rate of people are flocking to live in the District of
    Columbia. We are having to build housing for them, a larger
    population than Wyoming or Vermont, putting us in a league with
    seven States which have less than a million residents.
        You are going to hear why statehood is necessary for
    District of Columbia residents, but as the District's elected
    congressional representative, I want to say to you, Mr.
    Chairman, that it hit me in the face every single day. I feel
    it when the bell rings and I cannot vote for or on behalf of
    the 650,000 residents who live in the District, paying $12,000
    per capita, higher taxes than any American anywhere.
        I know I will feel it this week when I go to the floor to
    debate our country's military engagement in Islamic State of
    Iraq and the Levant (ISIL) because I have gone to the floor
    every time there has been a war since becoming a member of
    Congress and I shall never forget the purple fingers in Iraq
    and Afghanistan that signaled that they now had representation
    in their national legislature, while our residents fought and
    died in those wars and came home once again without the same
    rights they had gone to war and obtained for others.
        In all of the 20th Century wars, we lost residents
    disproportionately, most tragically in Vietnam, when there were
    more District of Columbia casualties than 10 States of the
    union. You are going to hear testimony that you have the
    authority to grant statehood. You are going to hear testimony
    about the accident in Philadelphia that resulted in Federal
    control.
        Finally, Mr. Chairman, ever since the creation of the
    capital, we have been an outlier in our own country, integral
    to the Nation, but divorced from its democratic principles. My
    own family has lived here for 150 of the 224 years that we have
    been the nation's capital, ever since my great-grandfather,
    Richard Holmes, a slave, walked off of a plantation in Virginia
    and made his way to the District of Columbia.
        Three generations of the Holmes' family have gone to
    segregated schools in the District of Columbia, as required by
    the Congress. We do not wish, Mr. Chairman, to be second-class
    stepchildren in the union, or voyeurs of democracy as you vote
    on how much in taxes we will pay or how many of our sons and
    daughters will go to war.
        We believe you have two choices, Mr. Chairman. The Congress
    can continue to exercise autocratic control over the District
    of Columbia or it can live up to the Nation's promise and its
    ideals by passing the New Columbia Admission Act. That is what
    we are asking today. Thank you, Mr. Chairman.
        Chairman Carper. Thank you so much. Thank you for your
    passion, for your leadership, and for your testimony today. We
    look forward to asking you some questions. Mayor Gray, please.
    I am going to ask you just to--we want to have a good back and
    forth with this panel. We have another panel with six more
    witnesses, so I would ask you if you could speak for 5 minutes.
    If you can stay close to that, we would really appreciate that.
    Thank you.

        THE HON. VINCENT C. GRAY,\1\ MAYOR, DISTRICT OF COLUMBIA

        Mr. Gray. Thank you, Mr. Chairman. Chairman Carper and
    Ranking Member Coburn, I want to thank you for the opportunity
    to be here this afternoon. As you indicated, I am Vincent Gray.
    I am the Mayor of the District of Columbia and I am grateful
    for this hearing having been convened today. I think it is yet
    another step in the direction of bringing full democracy to the
    District of Columbia, and we hope to see, at some point in the
    not too distant future, the approval of the New Columbia
    Admissions Act.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mayor Gray appears in the Appendix on
    page 54.
    ---------------------------------------------------------------------------
        If enacted, this bill would grant the long-awaited status
    of statehood to much of the District of Columbia while also
    preserving a Federal District that would contain the principal
    monuments and significant Federal buildings that already exist
    in this city, which would continue to conserve the Federal
    control over space in the capital city.
        We are the only place in America where Americans are
    serving in the military, where they are fighting, where they
    are dying, serving in wars, serving on juries, and are taxed in
    the same way as other Americans without any voting
    representation at all in the Congress of the United States.
    Gentlemen, that is just plain wrong.
        The proposed bill is an important step in lighting the way
    to new justice in the city and to achieving political equality
    for what is a population of 660,000 people who live in the city
    because we are growing at the rate of 1,000 to 1,200 people a
    month.
        As a native Washingtonian, I absolutely love the District
    of Columbia. It is a place of strong community and a place of
    American pride; except for our failure to provide the full
    democracy and adhere to full democratic principles as is done
    in the rest of America. It is home, as I indicated, to over
    660,000 people, which is more than the population, as has been
    pointed out, of two States, Wyoming and Vermont.
        We have hard-working families here, and incredibly--and I
    have witnessed this in another State legislature--there are
    some who do not even know that people live in the District of
    Columbia. They believe that it is just home to Federal
    monuments, Federal buildings, and Federal activity and that
    people go home to Maryland and Virginia and other places each
    day and do not live in the District of Columbia.
        But we are far more than the Federal Government. We have a
    substantial economy in this city and we have a decade-and-a-
    half, some 15, 16 years of a record now of passing balanced
    budgets, as well as a strong fiscal status at present. As you
    heard Mrs. Norton say, we have a reserve fund of $1.75 billion,
    which is the largest in the history of the District of
    Columbia.
        We also developed a State apparatus, a Medicaid agency,
    state school board, a state homeland security agency, a state
    level attorney general's office, a state level national guard,
    and more. We have a body of laws that already are accorded
    state level status by courts, as well as the Federal Government
    for numerous purposes. Our residents are the only residents of
    a major capital city--and you pointed this out, Mr. Chairman--
    in the free world who have no voting voice in our national
    legislative body.
        Though Congress has, since the 1973 Home Rule Act, provided
    for partial Home Rule by the District of Columbia, we have, for
    the last 40 years, been forced to function within a political
    structure that cannot determine a local budget without the
    approval of Congress, even though those dollars are raised, in
    large part, by the people of the District of Columbia.
        We also have to be wary of a Congress that at any time can
    overturn local laws here in the city. These barriers to full
    autonomy present numerous practical problems for the District's
    elected leadership, government workers, and residents. The
    District of Columbia annually raises, in our own tax dollars
    through income taxes, property taxes, and sales taxes, $6
    billion, and that is then used as a part--as the lion's share,
    frankly--of our budget. And while not all of it, but the lion's
    share of the Federal dollars we get, we get in the same way as
    any other State does, through the Medicaid program, through the
    Temporary Assistance for Needy Families (TANF) program, through
    the Federal Highways program, and others.
        Despite the fact that we have followed the budget process
    required of us by Federal law, and passed a balanced budget
    every year religiously and diligently, we have been forced to
    operate under continuing resolutions passed by Congress each
    year, often for months after the beginning of the fiscal year.
        By congressional mandate, the District of Columbia is
    forced to send every piece of legislation passed by the Council
    and signed by me as Mayor to Congress for review, and we think
    that is unnecessary and it is just plain wrong. This delays
    implementation of our laws by weeks and sometimes months
    because of the vagaries of the congressional calendar. The
    forced dependence on congressional approval not only can
    potentially paralyze the core functions of the District of
    Columbia, in the past it has.
        The numerous threats of Federal shutdown directly impact
    the District of Columbia Government because we are treated as a
    Federal agency rather than a municipality or a state
    government. We just saw this happen last October when there was
    an effort to shutdown the District of Columbia as if we were
    the National Park Service, the Interior Department, the
    Commerce Department, or some other Federal entity, and we were
    able to actually keep our government open for the 16 days of
    the Federal shutdown using our own reserves to do that.
        And what a travesty it would have been to shut down a city
    that was living essentially off of its own dollars in order to
    be able to accomplish what we think was an ill-advised purpose
    in the first place, and I am glad that we ultimately were not
    part of that.
        I think the Ranking Member and the Chairman both know that
    we have adopted the motto that has been known for centuries in
    this Nation, ``Taxation Without Representation.'' That is
    obviously what motivated the creation of America in the first
    place, and hopefully it will motivate the freeing of the people
    in the District of Columbia from the bondage that we suffer at
    this stage.
        People who pay taxes for the upkeep of their government, we
    think, we hope, everybody else agrees, should have a voice in
    how their government is run. In early 2011, I testified before
    the House Committee on Oversight, Subcommittee on Health Care,
    District of Columbia, Census and the National Archives about
    our then-2012 budget.
        During that hearing, I noted that the District has unfairly
    been subject to the political whims of Congress because,
    frankly, of Congress's control over our budget. The full
    Committee Chairman, as you heard, Darrell Issa of California,
    and then Subcommittee Chair, Trey Gowdy of South Carolina, both
    noted their surprise in learning of the extent to which the
    Federal budget process interferes with the District of
    Columbia's ability to operate efficiently.
        Over the course of the past few years, the District worked
    with Chairman Issa on developing broad principles on which we
    could agree that would provide the District with the autonomy
    to do what every State does in its budget process, develop a
    budget based on the priorities set by the Executive and
    Legislature, pass that budget according to the laws of the
    State, and then sign that budget into law.
        Chairman Issa, in concert with Congresswoman Norton,
    developed a bill that would move the District significantly
    forward in terms of budget autonomy. Unfortunately, because
    many Members of Congress do not recognize or acknowledge that
    autonomy for the District is not and should not be a partisan
    political issue, that bill simply did not advance.
        And so, Mr. Chairman, I want to underscore the importance
    of this bill. I want to thank you again for the opportunity to
    be here to testify on behalf of our city, which we hope will
    become a State. It has to be recognized that, as you pointed
    out, $20 billion in taxes being paid to the Federal Government,
    we do the things that virtually every other State does, and in
    the course of it, Mr. Chairman, we are deprived of the
    opportunity to enjoy the full freedom and democracy that is a
    promise to every American.
        Chairman Carper. Mayor, thank you for joining us, for that
    testimony and we look forward to having a chance to ask some
    questions. Chairman Mendelson, please proceed. We are delighted
    to see you here.

    TESTIMONY OF THE HON. PHILIP H. MENDELSON,\1\ CHAIRMAN, COUNCIL
                      OF THE DISTRICT OF COLUMBIA

        Mr. Mendelson. Thank you, Chairman Carper, and good
    afternoon. I am Phil Mendelson, Chairman of the Council of the
    District of Columbia and I want to note that joining me in the
    audience are a number of Councilmembers. I might miss a few,
    but they include Councilmembers Muriel Bowser, Anita Bonds,
    Mary Cheh, David Catania, Kenyan McDuffie, Vincent Orange, and
    Tommy Wells. I want to thank them for being here as well.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Mendelson appears in the Appendix
    on page 62.
    ---------------------------------------------------------------------------
        I am pleased to testify today in support of S. 132, the New
    Columbia Admissions Act of 2013. Full and fair representation
    for the over 646,000 United States citizens residing in the
    District of Columbia is only possible through achieving
    statehood. You have my prepared statement. I want to summarize
    and make four fundamental points.
        First, that the limited home rule granted by Congress in
    1973 is inadequate and problematic. Second, that statehood is
    about restoring rights, the rights that the citizens of the
    District had before Congress took them away. Third, that this
    legislation is about providing the United States citizens of
    the District of Columbia with the same rights and privileges
    enjoyed by the United States citizens of the 50 States. And
    fourth, that the District of Columbia is in good shape and
    compares favorably to the 50 States.
        One needs to look no further than last year's government
    shutdown to see the problem with the current governance
    structure. Year after year, Congress has done little with our
    budget except add social policy riders. In 25 years since 1990,
    Congress has adopted our appropriation only three times before
    the start of the fiscal year. We cannot even get Congress to
    change the dates of our fiscal year, which we know would save
    money, as well as align with the academic calendar of our
    school year. And then last year, not for the first time, we
    struggled with shutdown because of a non-local fight in
    Congress.
        We could instead look at our legislative process. It has
    been over two decades since Congress disapproved a bill adopted
    by the District Government. And still, every bill goes to
    Congress for a 30- or 60-day layover and these are
    congressional days, so we never know how long it will actually
    take, for a bill to become law.
        The Council adopted fine proportionality legislation for
    our criminal code on November 1, 2012, and the bill did not
    become law, that is, passed the congressional review process,
    until June 11, 2013, over 6 months later. Our General Counsel
    has estimated that at least 26 percent of our legislative
    measures are solely the result of the congressional review
    process.
        Or we could look at the details of government. When the
    District's former Chief Financial Officer (CFO), Natwar Gandhi,
    announced his retirement, the national search quickly revealed
    that the CFO salary was too low. We have shown ourselves to be
    a responsible government, providing appropriate salaries for
    national figures like our Public Schools Chancellor and our
    Chief of Police, but we are helpless to do anything about our
    CFO's salary. Only Congress can set his salary.
        We cannot fix inequities in our criminal sentencing without
    the approval of the United States Attorney General, and we
    cannot update the limits on small claims, that is the Small
    Claims Court, or strengthen our Anti-Strategic Lawsuit against
    Public Participation (SLAPP) law because we cannot legislate
    the judicial process. Current home rule is inadequate.
        Nowhere in the history of the Founding Fathers is there
    evidence that it was their express intention to deny the
    citizens of the national capital the rights enjoyed by the
    citizens of the rest of the Nation. Rather, the Founding
    Fathers' focus was on having a permanent seat of government
    under Federal control.
        When the District of Columbia was selected, the residents
    thereof, principally but not entirely in Georgetown and
    Alexandria, enjoyed all the benefits of statehood, fully
    controlling their affairs and electing representatives to
    Congress. By seeking statehood, today's citizens of the
    District ask for a restoration of our rights, something the
    Founding Fathers never intended to take away.
        For me, the bottom line for supporting this bill is that
    only statehood can provide the United States citizens of the
    District of Columbia with the same rights and privileges
    enjoyed by the United States citizens of the 50 States. We have
    sought incremental gains since the 1973 Home Rule Act. Besides
    the fact that much of what we have asked for--take budget
    autonomy for instance--is widely supported, these gains take
    years; no, decades, and most have yet to be granted.
        But incrementalism still would leave us short. As other
    witnesses have and will testify, we pay our dues, our taxes, we
    go to war, and District citizens have done everything asked of
    United States citizenship. Only statehood gives us all the
    rights and privileges in return.
        For many years, opponents of statehood claimed that the
    District is not worthy of the self-governance that comes with
    statehood. But now we have a track record and it is very good.
        For 17 consecutive years, we have ended our fiscal year
    with a budgetary surplus. We have grown our fund balance, which
    is one of the healthiest of State governments in the Nation.
    Our bond rating is good. We manage our capital budget better
    than Congress has required of us in the Home Rule Act. Our
    retirement accounts are second best in the Nation. Our city is
    growing in population, not declining, and our per capita income
    is among the highest. We are healthy. We are responsible.
        We have sufficient population and resources to support
    State government and to provide our share of the cost of the
    Federal Government, a standard Congress has set forth in the
    past for statehood.
        Throughout the world, there are only one or two national
    capitals--and none in the free world--where citizens do not
    enjoy a vote in the national legislature. We, the District of
    Columbia, are unique in this regard. It is a distinction we do
    not want and a stain on our Federal system.
        The Council appreciates the Committee's consideration of
    the New Columbia Admissions Act of 2013, and urges that it be
    brought before the Committee for action and before both houses
    for a vote.
        I also appreciate the Committee's past support for the
    District and look forward to continuing our working together in
    the future, I hope with a newly-elected Senator of our own, on
    the Committee, from the State of New Columbia. Thank you.
        Chairman Carper. Chair Mendelson, thanks so much and thanks
    for that summary. That was a good one.
        Mr. Mendelson. Thank you.
        Chairman Carper. I want to just start, before I ask a
    question, when Joe Lieberman stepped down and basically said to
    me, It is all yours, I thought of all the challenges we faced
    with respect to protecting our homeland, cyber challenges,
    terrorist attacks, Jihads, fear of someone blowing up our
    chemical facilities, wasteful spending, and huge budget
    deficits, a postal system that is sort of twisting in the wind
    these days because of inaction of the Congress. Those are all
    issues that I considered, worked on with Senator Lieberman,
    before Dr. Coburn and Senator Collins as well.
        The press would say to me, What do you want to focus on as
    a new Chairman of the Homeland Security and Governmental
    Affairs Committee? The items I just mentioned are really what I
    thought about and this is not the issue that came to mind. I
    noticed that this is something that Senator Lieberman felt
    passionately about and he has been good to continue to mentor
    me from time to time.
        Congresswoman Norton has as well. What I have finally done
    is related the issue of equity for those who live in the
    District of Columbia with my core values and the way that I was
    raised, I spent about 23 years of my life in the Navy, active
    and reserve as well.
        But the way that I was raised and trained as a leader was
    basically: We ought to figure out the right thing to do and try
    to do it. We should treat other people the way we want to be
    treated. We should focus on excellence in everything we do. I
    like to say, if it is not perfect, make it better. In the
    Preamble of the Constitution, it says, In order to form a more
    perfect union, and that is why we have amended the Constitution
    thousands of times.
        And finally, the fourth core value I would mention is just
    the notion of not giving up. If you are convinced you are
    right, just do not give up. So with that thought of mind, that
    is really sort of like my moral compass, those four values. Say
    what should we do in this instance? We need to do something. We
    can do better. We can improve on the status quo.
        I am not going to suggest we are going to move this piece
    of legislation through Committee and through the House and the
    Senate this year, but we do need to restart our conversation.
    And my hope is, if nothing else happens from this hearing
    today, that we are going to do that. We appreciate your helping
    us to do so.
        I want to come back, I think it was something that you
    said, Chairman Mendelson, near the end of your remarks. You
    talked about how the United States, the District of Columbia,
    Washington, DC, we may be the only nation among the democratic
    nations of the world, in which we do not allow our residents of
    our capital city to have the ability to vote and to be heard in
    their national assemblies, national elections. Did I hear you
    right on that?
        Mr. Mendelson. Yes. I believe there are only one or two
    national capitals in the world, and they are not free
    countries, where the citizens do not have a vote in the
    national legislature. We are unique in that regard.
        Chairman Carper. I wonder if there was a time when we were
    not unique, when other democratic nations had a system similar
    to what we have. Anyone know whether that was ever the case?
        Mr. Mendelson. Ever? If you are talking about 19th Century,
    I suspect it would be that we were not alone then. But,
    democracy has changed across the globe and we are alone now.
        Chairman Carper. In my previous role as Governor, I
    remember presiding at any number of cabinet meetings and we
    were talking about a particular issue or challenge we faced in
    Delaware, and I would say to my cabinet secretaries, somebody
    in some other State has dealt with this problem or issue. They
    figured out how to solve it. And what we need to do is to find
    that State, find that person, and see what they have done.
        Are there any national capitals in other, if you will,
    democratic nations that have dealt with this issue and maybe
    from whom we could learn something?
        Ms. Norton. Mr. Chairman?
        Chairman Carper. Delegate Holmes Norton?
        Ms. Norton. Yes.
        Chairman Carper. Congresswoman.
        Ms. Norton. It has not occurred to most countries if they
    were, in fact, giving the vote not to give it to their capital.
    So this has not been a matter that some countries have
    gradually realized that as the vote, in fact, was widened, it
    ought to also include their own capital. Of course, most of the
    countries are parliamentary governments, but I do not think
    that had very much to do with it.
        I think this is an American anomaly. It is a violation of
    international law. It violates treaty that we have signed and
    there is no way around it, and it is not because we are among a
    number of outliers and everybody else had to also incrementally
    correct this injustice. This anomoly came at the birth of the
    Nation and it came because of an accident of history when the
    Continental Congress got chased out of Philadelphia and the
    Framers did not quite know what to do, and they said, OK, let
    us just make this a Federal District.
        Mr. Gray. Mr. Chairman, I get the opportunity to meet with
    a lot of international delegations. They come to the Wilson
    Building, our city hall, and in virtually every instance, we
    have had an opportunity to talk about the political status,
    talk about democratic principles, et cetera. And people are
    absolutely astounded that the capital of the United States of
    America does not accord democracy, does not accord a vote, does
    not accord representation to the 660,000 people who live here.
        Again, I have not encountered anyone in the free world that
    does not have representation in their national legislative
    body. The same thing with the budget issues and the legislative
    issues. People really are aghast that we have to send our local
    budget, we have to send all of our local laws to the national
    legislature for approval.
        The example that I give is having to send--this has
    happened when I was the Chair of the Council. We changed the
    term ``handicapped'' to ``disabled,'' which is pretty minor, it
    seems to me. Important to people who are affected, obviously.
    But why should we have to send something like that to the
    Congress of the United States or approval.
        On its face, that is obviously, and those are the things,
    and there are so many other things that we have to send up here
    in terms of our local laws that really should be left to the
    approval of the people of the District of Columbia.
        Chairman Carper. All right. Thank you. Dr. Coburn raised a
    number of questions or concerns about the legislation that we
    have introduced, I have introduced and others have cosponsored.
    One of the concerns that he raised dealt with the 23rd
    Amendment to the Constitution. I will not attempt to
    paraphrase, but basically he said, you cannot have the 23rd
    Amendment to the Constitution and have the District of Columbia
    with full rights of statehood. Would you all just speak to that
    for us just briefly, please? Congresswoman?
        Ms. Norton. Mr. Chairman, Dr. Coburn mentioned any number
    of issues that the District is fully aware it would have to
    come to grips with. It certainly would expect to have a right
    to vote, which took a constitutional amendment, to remain in
    force, until the statehood Bill is passed.
        But as you said, Mr. Chairman, this is a threshold hearing.
    You are restarting a conversation. This is a serious issue. We
    had no intentions to lay before you all of the transition
    issues that would be very important were this a hearing further
    along the way.
        There has been almost an entirely new Senate since this
    bill was last discussed. We ought to deal with first things
    first and the 23rd Amendment, which is a very technical issue
    but one we are fully prepared to deal with, we fully
    understand, would no longer be necessary and our bill would
    provide for that.
        Chairman Carper. The 23rd Amendment, as I recall, basically
    says that the District of Columbia will have three electoral
    votes.
        Ms. Norton. Yes. The 23rd Amendment in 1960 gave the
    District the right to vote for President. We went that long
    without the right to vote for President. And, of course----
        Chairman Carper. Hold on. The concern that he has raised is
    that if we are not careful, we cannot only have the 23rd
    Amendment to the Constitution, but also a State with also the
    ability to vote twice. So what he raised is a legitimate
    question, but I think there could be a problem with the
    sequencing.
        If we, for example, were to repeal the 23rd Amendment with
    the expectation that we are going to pass some kind of
    legislation that would give the residents of the District of
    Columbia the chance to vote, like in a State, and that never
    happens, then we would have a problem.
        Ms. Norton. The timing would have to be simultaneous.
        Chairman Carper. Yes, there you go. I think Dr. Coburn
    raised an issue about Federal funds, and I have heard this from
    others. I think, Mayor, you spoke to this, I believe. Just
    revisit what he said, share what you heard him say, and then
    just respond to that, if you will.
        Mr. Gray. I think he used the number $674 million, which I
    would like to see the details of, Mr. Chairman. We follow that
    fairly closely and, when you look at Medicaid, every State gets
    Medicaid, like Delaware gets Medicaid and TANF and Federal
    highway funds. We do receive some special funds. We have had
    support for our education programs. We have had support, a very
    small amount of support, for our HIV/AIDS programs.
        But when you total up those funds they do not come anywhere
    near $674 million. Let me underscore a principle for us. We are
    not asking for special treatment. We are asking for the same
    treatment that all Americans get, and that is to be able to
    make decisions for ourselves, to be able to determine how we
    spend our money, and then be accorded the same rights as other
    Americans.
        If you look at our budget, the 2011-2012 billion dollar
    budget, almost $7 billion which we raise locally, when you look
    at the Federal funds that are contained there, you are not
    going to find that being largely a picture that is very
    different than any other of the 50 States.
        Chairman Carper. OK.
        Mr. Mendelson. If I could add to that?
        Chairman Carper. Please.
        Mr. Mendelson. I do not think Senator Coburn was saying
    this, but I know some folks have said that they think that our
    budget, the money that the District uses, is entirely Federal
    dollars, and it is not. We raise something like $6 billion
    annually from local taxes and fees, just like any other
    jurisdiction does, and those are our local dollars. So if there
    is any misunderstanding, there is a substantial portion of our
    budget that is local dollars.
        I addressed this in my prepared statement. We do get
    additional dollars that are Federal and almost every dollar is
    through a Federal subsidy program that all the States get,
    probably the biggest being Medicaid. That is substantial. But
    every State gets it. So we are not unique in that regard. We
    use to get a Federal payment. We got that Federal payment for a
    time, but we have not gotten that Federal payment for many
    years. It was something like a half billion dollars and then it
    was discontinued in the late 1990s.
        And as the Mayor put it, we are not looking for special
    treatment. We are looking for the same treatment that every
    State has. But I would note, and this is also in my prepared
    statement, that there are some Federal programs such as the
    Payment in Lieu of Taxes (PILOT) program. The District gets
    something like $18,000 a year compared with, for example, $28
    million a year for Alaska or $34 million a year for Arizona.
        And then there is also a Federal Mineral Royalties program.
    Wyoming got $932 million last year. We are not asking for that.
    So there are Federal payments to States and we are not asking
    for that. But that is not unusual, Federal payments to the
    States.
        Chairman Carper. All right. When I was 29 years old, I got
    elected to State treasurer. I was just out of the Navy, got a
    Master of Business Administration (MBA), and nobody wanted to
    run for State treasurer in my State as a Democrat, so I got to
    run because there was nobody who wanted to run. And we, at the
    time, we were the best in the country. Delaware was the best in
    the country in over-estimating revenues and under-estimating
    spending. Not a good combination.
        We had no pension fund, we had no cash management system.
    In order to raise money so we could be able to meet payroll and
    pay pensions, we would issue taxes and revenue notes, taxes and
    revenue notes just for short-term financing. We ended up with
    nobody who would lend us any money, we were closed out of
    credit markets. We ended up with the worst credit rating in the
    country.
        From that, Pete duPont became Governor. I served as State
    treasurer. I thought he was an excellent Governor. And we now
    have triple A credit ratings across the board and, I think,
    respected by most financial folks in terms of our economy and
    budget and fiscal policies.
        It was not all that long ago that the District of Columbia
    labored in terms of managing its own affairs, and it was not
    all that long ago, as I recall, we had a control board that was
    put in place to help manage the District of Columbia. And today
    when I hear you talk about the District of Columbia in terms of
    your economic growth and vitality and your budget reserves and
    level of employment and people coming into the city, it is
    rather an extraordinary turn around.
        I am going to ask Chairman Mendelson, then the Mayor, and
    Congresswoman Holmes Norton just to take maybe a minute apiece
    and say, why did that happen? Why did that transform? I think
    in our State it was leadership. I think leadership was the key.
    I think that is the key in most areas, but go ahead, Mr.
    Chairman.
        Mr. Mendelson. Well, I would agree that it was leadership,
    but we have put a number of practices in place and I think that
    we have at this point a culture in the government about
    financial discipline. So sometimes we have arguments, like with
    our retirement fund, which is pretty good, second best in the
    country, whether we should make it better or just accept it at
    second best out of all the States and all the cities and
    counties.
        As I said, we put a number of practices in place and we
    value very much our financial health. It allows us a lot in
    terms of policymaking because the resources are there. And
    further, I think, is the reason why the city is growing in
    population, because, I think, people are attracted to a city
    that is healthy financially.
        Chairman Carper. OK. Thank you. Just very briefly, Mayor,
    please.
        Mr. Gray. I want to agree with the Chairman. First of all,
    I think it has become now, since the mid-1990s, a part of the
    culture of the District of Columbia, that it is hugely
    important for us to be fiscally responsible. We did have a
    control board for several years that essentially became
    dormant, I think, in 2001 and 2002.
        We have continued, and Chairman Mendelson pointed this out,
    with a Chief Financial Officer who essentially is independent.
    There are days when I think that is a vestige of control that
    we should not have; on the other hand, I think it is very
    helpful on many days because we cannot pass a piece of
    legislation without there being a fiscal impact statement. In
    essence, the structures that we have in place now, the rigorous
    structures we have in place, prevent us from becoming fiscally
    irresponsible.
        One of the things that we do is we work very closely with
    the rating agencies, with Moody's and Standard & Poors and
    Fitch, and we are very proud, Mr. Chairman, that we have now
    reached on our income tax secured bonds, we have now reached
    triple A rating, which is unprecedented in the District of
    Columbia, and frankly imbues what we do every day with the
    pride of being able to demonstrate that we are a place that
    takes fiscal responsibility seriously.
        I do not think the District of Columbia will ever go back
    to a time when irresponsible decisions around money were made,
    and that finds its way into our decisions about legislation
    and, obviously, about budgets. We have passed very responsible
    budgets and, again, to point out, we have done it on time. We
    passed our fiscal year 2015 budget, which begins October 1.
    That budget was passed in July and now is just sitting.
        Chairman Carper. OK. Thank you, sir. And Congresswoman
    Holmes Norton, would you just wrap this up for us briefly,
    please?
        Ms. Norton. In a word, why did this happen or how did this
    happen? I would summarize it by saying local prudence. We were
    not the first city to have a control board. New York,
    Philadelphia both had control boards. In the District, it will
    focus your mind. We are the only city in the United States as a
    result that has a CFO, the kind that the Mayor has spoken of,
    and the legislation that we designed in this Congress almost
    makes it impossible for the District of Columbia ever to need a
    control board again. And that is why you see balanced budgets
    and surpluses.
        Finally, if I could just thank you for the principled
    approach, Senator Carper, that from the very first time we sat
    down with you, you have taken to your Chairmanship of this
    city, and you mentioned Senator Lieberman who you regard as a
    mentor who took us with great passion through several attempts
    to get statehood. And I must say, if he is your mentor, you
    are----
        Chairman Carper. He says we mentor each other.
        Ms. Norton. OK.
        Chairman Carper. Probably giving me too much credit.
        Ms. Norton. Let us call it the Joe Lieberman tradition. And
    how much we appreciate that you have afforded us this hearing
    and given us, what I must tell you, renewed energy in the city
    to do what we have to do to meet what you have already done in
    affording us this hearing. Thank you very much, Mr. Chairman.
        Chairman Carper. Well, let me just say, in full disclosure,
    I may just do a quick segue here, I am a huge baseball fan,
    huge Detroit Tigers fan, and if the Nationals end up in the
    World Series with my Tigers, I hope that renewed energy thing
    falls a little short of the ninth inning of the seventh game of
    the World Series.
        Mr. Gray. Not too late to become a Nationals fan this year.
        Chairman Carper. The Phillies fans in my State would kill
    me. [Laughter.]
        I am reminded here, talking about the turn around in the
    District of Columbia in the last 20 years, it is really pretty
    remarkable. Delaware had a pretty remarkable turn around as
    well wherein during the late 1970s, 1980s, and even more
    recently, it reminds me of a story, and I will close with this.
    During the Civil War, the North was not doing well and Lincoln
    kept looking for the right military leader for our country. He
    would try this person for a while and that person for a while,
    and finally he heard that Grant was doing pretty well in his
    assignments, so he made him the military leader of our Union
    forces.
        Folks on the Lincoln Cabinet did not like it very much.
    Some regarded Grant as a drunkard, an alcoholic, just drank too
    much. And in one particular Cabinet meeting, President Lincoln
    called them to order and the Cabinet members were prepared to
    pounce on Grant and just call him all kinds of things and say
    the President should get rid of him, fire him.
        And at that time, the North was starting to move and doing
    a whole lot better. Lincoln listened to them for a while and
    just cut them off. He finally cut them off and he said--this is
    sort of looking at how much better you guys are doing in the
    District of Columbia. He listened to them for a while and he
    finally cut them off and he said, Find out what Grant is
    drinking and give it to the rest of my generals. [Laughter.]
        So you all are obviously doing some good things and we
    applaud those. My hope, at the very least, and I hope we can do
    better. I hope this addresses some of the very real inequities
    that we have discussed here today. Dr. Coburn is a highly
    principled person, really understands fairness and equity, and
    I think most of my colleagues know in their hearts that what is
    going on here, what has been going on here for a long time is
    just not fair and equitable and there is something we ought to
    do about it. And hopefully, with your help and encouragement,
    we can find a good path to get there.
        With that, I am going to recess the Committee just for a
    moment and we will assemble with our second panel. Again, thank
    you all for joining us today.
        Mr. Gray. Thank you very much, Senator.
        Mr. Mendelson. Thank you, Senator.
        Chairman Carper. Please take your conversations outside the
    room, if you would. Thanks so much.
        Beginning now the second part of our hearing. Welcome our
    second panel. Very nice to see some of you I have known for a
    million years, well, maybe half a million. But it is great to
    see you all and to welcome those that I have never had the
    privilege of meeting before. I am going to take a moment just
    to briefly introduce our witnesses. It could be a long
    introduction. It is a distinguished panel. But let me just do
    this briefly so we can hear from you.
        First we are going to hear from the Honorable Viet Dinh.
    Professor Dinh, when I saw your name, I spent some time over in
    Southeast Asia during the hot war of a few decades ago. Where
    is your family from?
        Mr. Dinh. I was born in Saigon and I grew up in Vietnam.
    Thank you for your service to our country here and my country
    there.
        Chairman Carper. And we thank you for yours. Thank you.
    Professor Dinh is a founding partner of Bancroft, LLC. He is
    also a professorial lecturer in law and distinguished lecturer
    in public policy at Georgetown University where he specializes
    in constitutional law and corporate governance. He has
    previously served as U.S. Assistant Attorney General for Legal
    Policy from 2001 to 2003 where he played a key role in
    developing legal policy and issues to combat terrorism.
        Next we will hear from my friend, the Honorable Alice
    Rivlin. Ms. Rivlin is a senior fellow in the Economic Studies
    Program at Brookings, a visiting professor at the Public Policy
    Institute of Georgetown University, and the Director of the
    Engelberg Center for Health Care Reform. She is an expert on
    fiscal and monetary policy and also chaired the District of
    Columbia's Financial Management Assistance Authority, generally
    known as the control board, and has held many senior service
    positions. It has always been a great joy to serve with you and
    to see you and to hear from you today. Thank you, Alice.
        Next witness is Wade Henderson. Mr. Henderson is President
    and Chief Executive Officer (CEO) of the Leadership Conference
    on Civil and Human Rights in the Leadership Conference
    Education Fund. He is also a professor of public interest law
    at the University of the District of Columbia. Mr. Henderson is
    well known for his expertise on a wide range of civil rights,
    civil liberties, and human rights issues.
        Next we have Mr. Roger Pilon? Pilon. Is that a French name?
        Mr. Pilon. It is.
        Chairman Carper. Bienvenue. Dr. Pilon currently holds the
    B. Kenneth Simon Chair in Constitutional Studies at the Cato
    Institute, where he is also the Vice President for Legal
    Affairs. As a noted constitutional scholar, Dr. Pilon gives
    lectures and participates in debate regarding the Constitution
    at universities across our Nation.
        Our next witness is the Honorable Paul Strauss. As a Senior
    Shadow Senator for the District of Columbia, Senator Paul
    Strauss advocates within the Senate on behalf of the citizens
    of the District of Columbia for the District's admittance to
    the Union as the Nation's 51st State. Prior to being elected,
    Senator Strauss served in several locally elected government
    positions and is a founder and principle of Law Offices of Paul
    Strauss and Associates. Welcome.
        Our final witness today is the Honorable Michael D. Brown.
    Senator Brown was elected as the District of Columbia's Shadow
    Senator in 2006 and in this role, he lobbies elected officials
    in Congress on behalf of the citizens of the District of
    Columbia In 2009, Senator Brown launched the nationwide Teach
    Democracy, a District of Columbia organization, to inform the
    country of the District of Columbia's struggles for statehood.
        Thank you all for joining us today. We look forward to
    hearing from each one of you. I would ask you, again, we are
    going to go into session. In fact, I think we are in session
    now. We are going to start voting within about an hour and we
    have a series of votes and I do not want to miss them. So I am
    going to ask you to stick pretty close to the 5-minute limit
    that we have asked you to use. Your entire statement will be
    made part of the record. But if you go much beyond that, I am
    going to have to ask you just to halt. I do not want to do
    that, though. All right. Mr. Viet Dinh, we are delighted to
    hear from you first. Thank you. Welcome.

     TESTIMONY OF THE HON. VIET D. DINH,\1\ PROFESSOR, GEORGETOWN
                         UNIVERSITY LAW CENTER

        Mr. Dinh. Thank you, Mr. Chairman. I have been asked to
    advise on the constitutionality of the New Columbia Admission
    Act, and I will limit my comments here to those legal and
    constitutional matters and not to the Act's wisdom as a policy
    matter. My conclusion is that the courts would likely decline
    to adjudicate any constitutional challenge to the Act, and in
    all events, were to reach the merits would likely hold the Act
    to be constitutional.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Dinh appears in the Appendix on
    page 74.
    ---------------------------------------------------------------------------
        As an initial matter, the courts would likely avoid ruling
    on the merits of any constitutional challenge. In many ways,
    Congress's admission of new States is the paradigm of a
    political question that is not justiciable in courts. The
    Constitution commits the task exclusively to Congress under
    Article IV and it is difficult to imagine judicially manageable
    standards for assessing the legality of the admission by this
    chamber.
        And any decision would disrespect the political branches
    while risking conflicting judgments on a State's existence. And
    here, I think history is very helpful. When the 1846
    retrocession of Arlington and Alexandria from the District to
    Virginia was finally challenged some 40 years later, the courts
    avoided ruling on the merits on non-justiciable local question
    grounds. But it is likely that the courts would do the same if
    faced with the challenge of the admission of New Columbia.
        In all events, courts reaching the merits would likely find
    the New Columbia Admission Act to be constitutional, in my
    opinion. Under the New States Clause of Article IV, Congress
    has the constitutional authority to accept new States through
    simple legislation. This is how States are constitutionally
    admitted. Aside from the original 13 colonies, the 37 remaining
    States were all admitted through simple legislation pursuant to
    Article IV.
        And quite analogous to the current situation, Congress
    formed the State of Ohio with the Enabling Act of 1802 from the
    eastern portion of the Northwest Territory, which territory
    itself came from lands that were previously ceded to the
    Federal Government from the other States.
        Congressional authority under Article IV to admit new
    States is broad and subject to just three requirements within
    the Constitution. First, Congress must guarantee new States a
    Republican form of government. Second, new States formed from
    within or combining existing States must receive State
    legislature approval. And third, new States must be admitted on
    an equal footing with existing States. The New Columbia
    Admission Act meets each of these three constitutional
    requirements.
        Adjudicating courts would not likely find any contravening
    constitutional provisions. The District clause under Article I,
    Section 8, contemplates an exclusively Federal district and is
    satisfied because the Act would preserve an exclusively Federal
    District not larger than 10 miles square, the requirement of
    Article I, Section 8, Clause 17.
        The district clause actually supports the Act because it
    grants Congress sweeping and exclusive authority over the
    Federal District, and thus affirms congressional authority to
    alter the size and shape of that district. In fact, again,
    history shows that Congress can alter the district. The first
    Congress altered the Southern boundaries of the original
    District of Columbia, and as I noted before, in 1846, Congress
    returned Alexandria and Arlington to Virginia.
        Likewise, those historical examples, it seems to me,
    confirms Congress's action here, which at its base, only alters
    the core size of the District and not exceeding 10 miles
    square. Some also have interposed objections based on the 23rd
    Amendment, but I believe the 23rd Amendment, which allows the
    District of Columbia to participate in the Electoral College,
    is not violated just because the Federal District is smaller.
        Although granting the First Family and a few other citizens
    that remain in the shrunken Federal District three electoral
    votes would, I think, indeed be bad policy, the Constitution
    does not prohibit it. It would be better, I think, to repeal
    the 23rd Amendment concurrent with admission of New Columbia,
    but it is not a constitutional requirement, nor will courts
    likely require Maryland's consent just because the land was
    part of Maryland before 1790.
        The Constitution requires a State's consent when a new
    State is created from within an existing State's jurisdiction.
    But the land that would form New Columbia is not within and no
    longer is within Maryland's jurisdiction. Maryland lost that
    authority as soon as the Federal Government accepted Maryland's
    absolute cessation of the land.
        While the Act presents a handful of other concerns, for
    instance, New Columbia would have a uniquely Federal character,
    as some have noted, it would have an outsized influence in the
    Senate and would lack the internal diversity of interests that
    most view as ideal characteristics of statehood. These are
    policy issues for Congress's, your, consideration. In my view,
    the mechanism is constitutional and is for this Committee and
    Congress to decide whether or not it is wise. Thank you.
        Chairman Carper. Professor Dinh, thank you so much. Dr.
    Rivlin, welcome. Great to see you. Please proceed.

    TESTIMONY OF THE HON. ALICE M. RIVLIN, Ph.D.,\1\ SENIOR FELLOW
     AND LEONARD D. SCHAEFFER CHAIR IN HEALTH POLICY STUDIES, THE
                         BROOKINGS INSTITUTION

        Ms. Rivlin. Thank you, Mr. Chairman.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Rivlin appears in the Appendix on
    page 87.
    ---------------------------------------------------------------------------
        Chairman Carper. You have probably testified before just
    about every panel in the House and Senate, but I do not know if
    you have ever testified before this one.
        Ms. Rivlin. Yes, I have.
        Chairman Carper. Oh, good. I should have known.
        Ms. Rivlin. I am delighted that you are holding this
    hearing, Mr. Chairman. I think it is high time that you brought
    attention to this outrageous situation that citizens of the
    District of Columbia find themselves in. We are not, in fact,
    full citizens with full self-governing rights. I think this is
    both an anomaly in a great democracy and an anachronism and I
    hope this hearing will start the process leading to statehood
    for the District of Columbia.
        It is hard to explain to anyone why a nation that sees
    itself as a beacon of democracy keeps the more than half-
    million inhabitants of its capitol city from normal
    participation in the governance of the country. We are very
    proud of our Constitution. We fight wars in faraway places to
    guarantee the democracy of others.
        My favorite metaphor is that in television pictures you see
    of long lines of people in Afghanistan or Iraq standing waiting
    to vote because our country has guaranteed them the right to do
    that, and yet, those networks never mention the fact that right
    here in the District of Columbia we cannot vote for full
    representation in our national legislature.
        As has been pointed out, we pay taxes, we serve in the
    armed forces, we do everything that other citizens do, if
    necessary die in foreign wars, but we do not have the full
    rights of democracy. And this is also a very strange
    anachronism. I think two centuries ago, despite what Dr. Coburn
    said, one would not have expected this little enclave to be a
    vibrant urban economy. There were not very many people here.
        Moreover, at the time, the concept of voting rights was
    very narrow. Most of the people who work here would not have
    been able to vote anyway because they were female, because they
    were slaves, because they were African-American or other people
    of color, or because they did not own property.
        But over the period of the last couple of hundred years,
    our concept of what democracy is has broadened and voting
    rights have been achieved for all adult citizens. And at the
    same time, this little enclave has become a vibrant city with a
    growing population. Various statistics have been quoted, like
    we have more people than Vermont and Wyoming. The one I like is
    we have an economy that is larger than the gross domestic
    product per State of 16 other States. We are well up there as
    economies go. And one of the smaller ones is Delaware.
        But let me speak particularly----
        Chairman Carper. When you describe that, in boxing we have
    this saying like punching above our weight. Sort of reminds me
    of this. [Laughter.]
        Ms. Rivlin. Absolutely. Let me speak particularly to the
    fiscal viability of the District of Columbia because I had the
    honor of chairing the infamous control board to which reference
    was made earlier. And indeed, in the mid-1990s, the District of
    Columbia, like many other cities, was in pretty bad fiscal
    shape. We had lost much of our middle class, the population was
    declining, we had distressed neighborhoods, we had a declining
    tax base, and we had some mismanagement into the bargain.
        The situation was not as serious as facing Detroit at the
    moment, fortunately, but it was serious and it warranted a
    Federal intervention in the form of a control board. The
    Clinton Administration worked with Delegate Norton and with the
    Republican Congress. It was a very bipartisan thing to put in
    place, this board, and restored the city to fiscal health.
        Since then, we have done very well. The combination of
    fiscal reform, the Chief Financial Officer, which was in the
    control board legislation and remains, and a recovering economy
    and building traditions of fiscal discipline in the city have
    given us a serious turn around. Population is increasing.
        Our population grew faster than any other State except
    North Dakota last year, and we do not have oil. The city
    weathered the storm of the great recession better than most
    cities. It has balanced its budget every year for the last 17
    years. So I believe there is no longer any reason to worry that
    the District would not be a fiscally viable State.
        Finally, there are other steps toward fiscal autonomy and
    legislative autonomy and voting representation in the Congress
    that the Congress could say. When Dr. Coburn quoted what I had
    said in 2009, he omitted the first sentence that said I was in
    favor of statehood, but I did point out that there were some
    other high priority things that could be done, some of which
    actually have been done, but some remain.
        So in sum, I commend the Committee for holding this hearing
    and I urge Congress to get on with statehood for the District
    of Columbia. Thank you.
        Chairman Carper. Thanks so much. Thanks for being here
    today and for your leadership of the control board all those
    many years ago. Mr. Henderson, great to see you. Welcome.
    Please proceed.
        Mr. Henderson. Pleased to see you.
        Chairman Carper. Let me say for the first two witnesses,
    you were very good at staying close to your 5 minutes. I
    applaud you for that and you set a good example for the rest of
    us.
        Mr. Henderson. She set an excellent example.
        Chairman Carper. There we go.

         TESTIMONY OF WADE HENDERSON,\1\ PRESIDENT, LEADERSHIP
                  CONFERENCE ON CIVIL AND HUMAN RIGHTS

        Mr. Henderson. Good afternoon, Mr. Chairman, and thank you,
    your Ranking Member Senator Coburn, and Members of the
    Committee for the opportunity to speak today in support of the
    New Columbia Admission Act. I am here today, of course, as
    President of the Leadership Conference on Civil and Human
    Rights, a coalition of more than 200 national organizations
    working to build an America as good as its ideals. You have
    also noted that I am the Joseph L. Rauh, Jr. Professor of
    Public Interest Law at the University of the District of
    Columbia. It is an honor to be here.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Henderson appears in the Appendix
    on page 90.
    ---------------------------------------------------------------------------
        Now, I would like to speak about this bill today, both as a
    lifelong civil and human rights advocate as well as a native
    Washingtonian. This issue means a great deal to me on a very
    personal level, and I would like to focus my remarks primarily
    in those terms.
        As a civil and human 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 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.
        At the same time, our government at all levels continues to
    more closely reflect the make-up of the Nation it represents.
    And, of course, progress has never occurred in a straight line,
    but it has been undeniable, and I have great faith that it will
    continue.
        Now, I have seen this progress in Washington, D.C. as well.
    When I was born in the old Freedmen's Hospital on Howard
    University's campus, the city's hospitals were segregated along
    racial lines by law. Our nation's capital and many Southern
    States functioned under a form, a virulent form of apartheid
    that is no longer the case. LeDroit 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. But today, my
    neighbors include people of all races and from all around the
    world.
        Even the public accommodations of 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 quite
    proudly, we have moved on. Yes, Washington, D.C. has become a
    great American city.
        Yet in spite of all the progress we have seen, one thing
    has still not changed. In spite of all of my efforts to speak
    out on behalf of other Americans, I have never had anyone on
    Capitol Hill with a real ability to speak for me. For over 200
    years, my hundreds of thousands of neighbors in this city and I
    have been mere spectators to our democracy even though we pay
    Federal taxes, as you have noted, fight courageously in the
    wars in Iraq and Afghanistan, 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 District of Columbia residents understand the
    unique location of our city and we have understood its unusual
    relationship with the Federal Government, we are not even given
    a single vote in decisions that only affect the District of
    Columbia residents alone. Perhaps the most egregious example
    occurred when the District of Columbia could not even cast a
    vote several years back when Congress decided to prevent city
    officials from using our own local tax dollars to advocate for
    a voice in our Nation's democracy.
        Taxation without representation is enough to make people
    want to dump crates of tea into the Potomac River. Now, this
    continued disfranchisement of the District of Columbia
    residents before Congress stands out as one of the most blatant
    violations of the most important civil rights that we Americans
    have, the right to vote and to have that vote count for
    something.
        Now, without the ability to hold our Nation's leaders
    accountable, all other rights are illusory. Our Nation has made
    great progress throughout its relatively brief history in
    expanding the right to vote, and in the process, it has become
    a role model to the rest of the world. Yet, one thing remains
    painfully clear.
        If citizens do not have anyone to vote for, they are not
    substantially better off than African-Americans in the South
    were prior to 1965 when President Johnson signed the Voting
    Rights Act into law, and until that vote is achieved, the
    efforts of the civil rights movement will remain incomplete.
        For those reasons, extending representation and self-
    governance to the District of Columbia residents is one of the
    highest legislative priorities of the Leadership Conference on
    Civil and Human Rights, as it is for me on a very personal
    level. I know that Professor Dinh and former Director Rivlin
    have spoken eloquently and at length about the constitutional
    and economic issues surrounding the District of Columbia
    Admission Act.
        In the interest of time, I would simply like to associate
    myself with their analyses. Thank you, Mr. Chairman, and I look
    forward to your questions.
        Chairman Carper. Mr. Henderson, thank you so much for those
    words. Dr. Pilon.

      TESTIMONY OF ROGER PILON, Ph.D.,J.D.\1\ VICE PRESIDENT FOR
      LEGAL AFFAIRS AND B. KENNETH SIMON CHAIR IN CONSTITUTIONAL
                        STUDIES, CATO INSTITUTE

        Mr. Pilon. Thank you, Mr. Chairman. I want to thank Senator
    Coburn as well for inviting me to offer a discordant note.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Pilon appears in the Appendix on
    page 95.
    ---------------------------------------------------------------------------
        Chairman Carper. We are glad you could be here, though,
    nonetheless.
        Mr. Pilon. If enacted, this bill would create a 51st State
    called New Columbia from the present District of Columbia,
    leaving a tiny enclave around the National Mall as the District
    and the seat of the Federal Government. It is both
    unconstitutional and unwise. Let me summarize my prepared
    statement and ask that it be put in the record.
        As a preliminary matter, given that the District has
    existed in its present form for over 200 years, save for a
    small Virginia portion retroceded in 1847, at this point in
    time there must be a strong presumption against the kind of
    radical changes envisioned by this bill. The Framers could not
    have imagined anything like the arrangements here contemplated.
        I will summarize three constitutional objections and then
    raise a few practical problems. First, the Enclave Clause gave
    Congress exclusive authority over such district, not exceeding
    10 miles square, as may be created pursuant to it as the seat
    of the Federal Government. In 1790, Congress accepted 10 square
    miles from Maryland and Virginia ceded for that purpose.
        To be sure, the Framers set no minimum size for the
    District, and that has led this bill's proponents to believe
    that Congress, by statute, may shrink the District to this tiny
    area and turn the rest of the District into a new State. But
    the Framers' mention of ``10 square miles,'' together with
    Congress's nearly contemporaneous creation of the District from
    10 square miles, is strong evidence of what they intended and
    evidence against the tiny enclave envisioned by this bill.
        Moreover, Congress was granted exclusive authority not
    simply over the seat of the Government, but over the district
    in which the Government is seated, which for over 200 years has
    been far larger than the small area where the Government
    literally sits. This bill would strip Congress of this
    authority.
        A closely related objection, rooted in Congress's
    enumerated powers, was well-stated in 1963 by then-Attorney
    General Robert Kennedy, commenting on a bill that would have
    retroceded the District of Maryland, and I quote, ``While
    Congress's power to legislate for the District is a continuing
    power, its power to create the District by acceptance of
    cession contemplates a single act. The Constitution makes no
    provision for revocation of the act of acceptance, or for
    retrocession.''
        In short, Congress has no power to do what this bill
    proposes. Every Justice Department from the Kennedy
    Administration on that has addressed the question has concluded
    that Congress has no authority to alter the status of the
    District legislatively--save for Attorney General Holder, who
    sought a second opinion from the Solicitor General after the
    Department's Office of Legal Counsel found to the contrary.
        But second, even if Congress had such a power, it is all
    but certain that Maryland's consent would be needed. Were
    Congress to put the land Maryland ceded not to the purpose for
    which it was ceded, but to create a new State, not only would
    the terms of the original cession be violated, but so would
    Article IV, Section 3, which provides that no new State may be
    created out of the territory of an existing State without that
    State's consent.
        Congress cannot do in two steps, simply from the passage of
    time, what it would be forbidden to do originally in one fell
    swoop, namely, accept the grant for Federal purposes and then
    turn it into a State.
        Finally, the 23rd Amendment, which enables the District to
    appoint Presidential electors, poses yet another constitutional
    challenge. The tiny enclave this bill preserves as the District
    would still contain voters with constitutional rights afforded
    by the amendment. Those rights cannot be eliminated by mere
    statute, as Section 2035 seems to do. The 23rd Amendment
    authorizes Congress to direct the manner in which the District
    appoints electors, not to eliminate the District's power to
    appoint them.
        Let me conclude with just a few practical objections. As
    Madison explained in Federalist 43, a ``Federal district'',
    separate from any State, was necessary to preserve the
    independence of both, which means that any such district must
    be large enough to serve that purpose.
        It was imperative, he argued, that the Federal Government
    not be dependent on any State, and equally important that no
    State be either dependent on the Federal Government or
    disproportionately influential on that Government.
        Yet, S. 132 fails on both counts. Today Congress has
    authority over the entire District, albeit largely delegated to
    the District Government. That authority would cease under this
    bill making the Federal Government dependent on New Columbia
    for everything from electricity to water, sewer, snow removal,
    police and fire protection, and much else that today is part of
    an integrated jurisdiction under Congress's ultimate authority.
    Nearly every foreign embassy would be beyond the Federal
    jurisdiction, dependent mainly on the services of the new
    State. Ambulances, police and fire equipment, diplomatic
    entourages, Members of Congress, and ordinary citizens would be
    constantly moving over State boundaries in their daily affairs
    and in and out of jurisdictions, raising vast jurisdictional
    complications.
        But neither would New Columbia be independent of the
    Federal Government. Madison's ``multiplicity of interests''
    defining statehood attributes hardly defines the District.
    Washington is a wholly urban, one-industry town, dependent on
    the Federal Government far in excess of any other State.
    Moreover, with Congress no longer having authority over New
    Columbia, but dependent on it, New Columbia could exert
    influence on the Federal Government far in excess of that of
    any other State, raising the kinds of problems Madison
    detailed.
        I conclude, therefore, that this proposal is not only
    unconstitutional, but impractical as well. Thank you, Mr.
    Chairman.
        Chairman Carper. Mr. Pilon, thank you very much for those
    comments. One of the things I will just telegraph, one of the
    things I like to do at hearings like this where we have
    diversity of opinion on important issues on a panel, I like to
    come back at some point in the questions and answers and say,
    if not this proposal, what makes sense and where might lie some
    consensus to address the inequity that I think we all agree
    exists.
        Mr. Pilon. I have a modest proposal along those lines.
        Chairman Carper. Oh, good. Well, I was hoping you would. We
    will come back to you. Thank you so much. Senator Strauss,
    please proceed. Again, try to hold it to 5 minutes, you and
    Senator Brown.

    TESTIMONY OF THE HON. PAUL STRAUSS,\1\ SHADOW SENATOR, DISTRICT
                              OF COLUMBIA

        Senator Strauss. Thank you, Senator Carper. I appreciate
    the opportunity to be here today. As the Shadow Senator for the
    District of Columbia, I stand in a long tradition of Shadow
    Senators representing territories in their efforts to become
    States.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Strauss appears in the Appendix
    on page 100.
    ---------------------------------------------------------------------------
        As the student of history that I know you are, Shadow
    Senators first were elected by the Southwest Territory, now of
    Tennessee and used several times during the pre-Civil War era
    when pro-slavery States tried to block the admission of free
    States into the Union. Most recently, the Territory of Alaska
    elected Shadow Senators who served for 3 years until the State
    of Alaska was finally admitted into the Union. I appreciate
    making us part of this historic panel.
        Let me begin briefly by answering some questions that you
    posed to the other panel. When you do not have to cast votes or
    write legislation, you have a little bit of time to do some
    research. The Republic of Argentina actually copied our
    Constitution so closely that initially they disenfranchised the
    citizens of their own nation's capital.
        They quickly realized it was a mistake, and one of the
    first things they rectified was securing full Federal
    representation for the ``Districto Federal'' and amending their
    Constitution to provide equality. Australia's capital, as well
    as the new capital of Brazil, also briefly experimented with
    political disenfranchisement and realized that it was a
    mistake. To my knowledge, the United States remains the only
    country without representation of its capital citizens.
        On a recent trip to the country of Belarus, a country that
    nobody necessarily holds out as a model of human rights, I went
    there to take my father to the land of his father and I
    participated in a meeting with our own State Department where
    we talked about political prisoners and a variety of human
    rights issues. They raised the issue of America's violating
    human rights in the District of Columbia.
        When you are being called out, and with some legitimacy, by
    the Government of Belarus, that is a problem. The amendment
    which gave us the right to vote for the President took place in
    the era of the Cold War. Khrushchev would point out that if you
    lived in Washington, D.C., you could not vote for President. If
    you lived in Moscow, you could. Sure, there was probably only
    one name on those ballots, but that was one more name than
    anybody in the District of Columbia ever got to cast a vote
    for.
        In response to Senator Coburn's comments about the 23rd
    Amendment, the last time I checked the boundaries of New
    Columbia, there really was only one family there and I think
    they vote in Chicago. But your bill includes expedited repeal
    of that amendment, so it addresses, I think in a productive
    way, dealing with that issue.
        As for embassies being outside the Federal district, I grew
    up in New York City. The United Nations is there. The State and
    city of New York are host to hundreds of embassies of foreign
    governments. Foreign governments have consular offices which
    are essentially diplomatic property in a variety of States
    around the Union.
        And the idea that somehow the United States needs to
    exclusively control its territory to protect itself is rendered
    ludicrous when you think of the most sensitive government
    institutions that are located outside the boundaries of the
    seat of government, the Pentagon, the Central Intelligence
    Agency (CIA), the National Security Agency (NSA), agencies that
    are frequently the jurisdiction of oversight hearings before
    this Committee. Not once has it ever been suggested by Senators
    from any party that their location outside of the seat of
    government hampers America's ability for those agencies to do
    heir jobs.
        Everybody recognizes, at least initially, that this is a
    great injustice, and if not this remedy, what? We have tried
    other remedies, voting rights, amendments, arguments where we
    would have voting representation in the House but not the
    Senate. Maybe the District of Columbia residents could vote on
    even-numbered legislation on Wednesdays but not on Tuesdays.
        This is the solution! It is the solution that has been
    chosen by the District of Columbia residents in a democratic
    election and it is the solution that in all frankness does most
    accurately reflect the vision of our Nation's founders. A
    Federal district remains under the exclusive control of
    Congress. Everybody who walked in this building today and
    entered this room followed Federal rules when they came in this
    building. Whether it was being security screened or the
    prohibition against bringing fruit, that was an exclusively
    Federal decision relevant to Congress's control over its own
    territory.
        The new Congress and the new Federal District will have its
    own police force, be able to maintain its own laws, and I
    promise you, the new State of New Columbia will not try and a
    collect sales tax on any meals in the Senate dining room. We
    seek only equality of our fellow citizens, the same rights as
    everybody else. And of all the arguments that people make
    against statehood, there is one, in closing, that I just want
    to say bothers me the most and that is, if you do not like it,
    move.
        Well, I came here of my own free will to pursue an
    education at one of the many fine institutions we have here,
    but I brought my daughter Abigail with me here today. With all
    due respect, she did not have a choice about living here in the
    District of Columbia. That was where her parents decided to be
    when we gave birth to her.
        By the time she is ready to make that choice, she will have
    formed bonds and put down roots. It is inappropriate to tell an
    American citizen that if you want a right you have to move,
    especially when you live in the United States of America. Thank
    you, Mr. Chairman.
        Chairman Carper. Senator Strauss, thank you very much for
    the thoughtful testimony. Senator Brown.

      TESTIMONY OF THE HON. MICHAEL D. BROWN,\1\ SHADOW SENATOR,
                          DISTRICT OF COLUMBIA

        Senator Brown. Thank you, Mr. Chairman. I am proud to be
    the clean-up batter here, so I will try to wrap things up. I
    want to thank you. I remember the first time I ever talked to
    you about the District of Columbia statehood. You said, Push
    and keep pushing. Your cause is just and you will prevail. So I
    come here today to push.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Brown appears in the Appendix on
    page 170.
    ---------------------------------------------------------------------------
        My constituents have been denied their basic rights of
    citizenship and this is unacceptable. In spite of this, they
    have never shirked a single responsibility of democracy. They
    have always been exemplary citizens, paying taxes, serving in
    our military, taking on every obligation and receiving only
    partial compensation in return. I know there are many proud
    veterans on this Committee who know what it means to risk life
    and limb in defense of their country, but imagine what it was
    like to serve in a world war knowing that you did not even have
    the right to vote for President.
        I am proud to represent people with this kind of character,
    proud to call myself a Washingtonian knowing that the District
    of Columbia residents have always cared more about America than
    their own self-interests. Our Founding Fathers established this
    great nation to a sacred covenant with the people based on
    freedom, liberty, and mutual obligation.
        Although we have faithfully fulfilled our end of the
    bargain, our government has consistently failed in its
    responsibility to reciprocate and has defaulted on the solemn
    pledge of citizenship that forms the basis of all legitimate
    governments. One nation indivisible, not separate but equal.
    That is the promise of democracy and we have been denied for
    200 years.
        Once the contract has been breached, all that flows from it
    is tainted and the covenant that binds us is diminished. We are
    tired of hearing irrelevant excuses, too small, never meant to
    be, a violation of the Constitution. Insults like move if you
    do not like it, stop whining, go back from where you came only
    perpetuate the misconception that we expect to be given
    something rather than reclaiming that which is ours.
        The Framers may have given the power to Congress, but the
    right was given us by God. I am here to say enough. We have
    earned our citizenship, paid with our sacrifice, our money, our
    service to America, and the time has come to right a wrong
    which violates every principle that Americans hold dear.
        You heard testimony today using words like budget autonomy,
    legal autonomy, voting rights. Make no mistake. Only statehood
    makes us whole. Any other solution glosses over the inherent
    inequity in our subjugation and perpetuates our second-class
    citizenship. Only statehood makes us equal. Only statehood
    resolves the injustice that has resulted in us becoming
    colonists rather than citizens.
        You asked, what are the implications of S. 132. They are
    simple. Fulfillment of an indenture as old as America itself.
    The final righting of a wrong that has perpetuated a political
    anachronism that has outlived its usefulness by more than a
    hundred years. On this date in 1814, a member of the District
    of Columbia Militia, Lieutenant Francis Scott Key, wrote a poem
    that became our National Anthem.
        This morning, a group of veterans and District of Columbia
    citizens presented each Member of this Committee a flag with 51
    stars and the inscription, in recognition of the 200,000 who
    have served during wartime and our special connection to the
    American flag. This was done to remind members that we are
    asking for nothing more than the restoration of our rights. We
    ask for no favors, no special treatment, no dispensation. Only
    that justice of equality that democracy demands.
        You are right, Senator. Our cause is just and we will
    prevail. The President said I am for it, Senator Reid said we
    deserve it, and 80 percent of America in a nationwide poll
    said, We support it. As a child, I stood up every morning, put
    my hand over my heart and said, ``with liberty and justice for
    all.'' I believed it then, I believe it now, and I call upon
    the Members of this Committee and in both houses to make it
    true and show the same courage that the residents of the
    District have always exemplified. Not asking what is in this
    legislation for me, but rather, what is in it for our
    democracy.
        Dr. King said injustice anywhere is a threat to justice
    everywhere. And this injustice can no longer stand. Our
    democracy can no longer tolerate it. Our government can no
    longer support it. And the way to abolish it is statehood. The
    partisan politics that characterize this struggle must end. We
    must rise above the rancor and divisiveness, act selflessly to
    pass this legislation, and continue to form a more perfect
    union.
        I close by answering the question my fellow Washingtonian
    asked 200 years ago. Yes, Lieutenant, that star spangled banner
    yet waves, and it is time to add another star so that it
    finally waves for all of us. Thank you.
        Chairman Carper. Senator Brown, thank you very much. I
    think it was Senator Strauss who said something to the effect,
    if not this solution--I think referring to what we have
    introduced in the Senate with, I think, 17 cosponsors and what
    Congresswoman Holmes Norton has introduced in the House with
    over 100 cosponsors--if not this solution, then what?
        We learned here fairly early in our time in the Senate, and
    in the House as well, never negotiate against yourself. If you
    are going to negotiate with somebody, then negotiate with
    somebody who has a different point of view. So I would start
    off before I ask this question just to say, Well, for those who
    are advocates of statehood or addressing this inequity, you do
    not want to negotiate necessarily against yourself.
        But let me just ask each of you, and I will start with Dr.
    Rivlin. If not this solution, then what?
        Ms. Rivlin. I think this is the right solution. That does
    not mean that there would not be intermediate steps that you
    could take toward statehood, like budget autonomy, for
    instance. That is pretty easy and it is a good thing. But it
    does not solve the problems that we are talking about here. So
    I do not see an alternative to statehood, ultimately.
        Chairman Carper. OK. Professor Dinh, if not this solution,
    then what?
        Mr. Dinh. First of all, I just want to emphasize I do not
    have a dog in this hunt because as a lifelong Republican living
    in the District, I doubt that my vote will count for much
    anyway. So it seems to me, however, that there are a number of
    choices that the Congress or the people can make. One of those
    steps was enacting the 23rd Amendment in order to give
    Electoral College votes to the District short of statehood.
    That was a policy choice that I think was obviously the right
    decision for the country at the time.
        I do not think anything in the 23rd Amendment limits the
    Congress from pursuing the traditional route of admitting new
    States, which is, as I noted and as Roger noted, is under the
    New States Clause by simple legislation under Article IV of the
    Constitution.
        I think the easiest way to illustrate that point is to
    consider the 23rd Amendment, and this bill, were it to have
    passed in 1960 prior to the enactment of the ratification of
    the 23rd Amendment, I do not think the 23rd Amendment obviously
    has nothing to say about whether or not Congress had the power
    to enact this bill in 1960 prior to the 23rd Amendment. And the
    23rd Amendment itself does not speak to limiting the power of
    Congress in any way; rather, just simply to give the power to
    Congress of Congress to enforce the terms of the 23rd
    Amendment. So I think that Amendment does not independently add
    anything to the entire statehood legality objection.
        Chairman Carper. All right. Thank you. Mr. Henderson, if
    not this solution, then what?
        Mr. Henderson. Well, Chairman Carper, I have come to the
    conclusion that this is the only viable option that guarantees
    the right to vote for District of Columbia residents in a way
    consistent with that of other American citizens in having both
    a vote in the House of Representatives and in the U.S. Senate.
        We have concluded that this is the only approach. We have
    explored options of retrocession under the assumption that
    Congress would never provide an affirmative right for District
    of Columbia residents consistent with that principle, and the
    State of Maryland, as we have explored, not having an official
    position, but unofficially was not interested in retrocession
    for a variety of political reasons.
        We have explored options that were intermediate in step,
    providing, first, for a vote in the House of Representatives
    with, hopefully, speaking recognition in the Senate. But even
    that proposal, which was supported by Jack Kemp, Republican Tom
    Davis in the Senate, Congresswoman Eleanor Norton was subverted
    by efforts to, if you will, corrupt District of Columbia's gun
    control laws.
        Every approach that has been explored, even those that have
    been considered woefully inadequate, have been rejected by
    opponents for those who seek to block the ability of District
    residents to have equal rights. So in the final analysis, we
    have come to the conclusion that only statehood provides the
    full equivalent of rights that we believe American citizens are
    entitled to have and that those in the District have.
        I would simply close with this one fact. It is especially
    galling to know that District of Columbia residents have fought
    to bring democracy to Bhaghdad, have fought to bring democracy
    to Kabul, Afghanistan, and are yet denied that same right here
    at home, and to be questioned as we are at the U.N. conventions
    and various international gatherings, by those countries that
    seek to really highlight the contradiction between what we say
    as a Nation, and what we practice at home is profoundly
    disturbing.
        The only way to address that concern is, well, not regret
    to say--the only solution to this problem, I will say quite
    openly, is the bill that you have proposed and are supporting.
        Chairman Carper. All right. Thank you, sir. Dr. Pilon, I
    think you said you had a solution and we are anxious to hear
    it.
        Mr. Pilon. Well, a modest proposal. Let me begin on the
    point that my good friend, Viet Dinh, just made. He knows what
    it is like to not have his vote count because he lives in the
    District. I am in the same boat because I live in Maryland.
        Chairman Carper. You are not going to tell us you are a
    Democrat, are you?
        Mr. Pilon. In any event, the problem with this bill, as I
    said, is with the Constitution. It will take a constitutional
    amendment to get this bill through, and therein lies the
    problem, because we know that it is not likely to come out of
    the Congress, and if it did, the last time the Congress tried
    something along these lines, only 16 States joined on.
        Chairman Carper. But it did make it through the House and
    Senate, did it not? Did a constitutional amendment not make it
    through the House and Senate?
        Mr. Pilon. Yes. But now, given that unlikelihood let me
    come to my modest proposal. We heard the Mayor speak about
    ``taxation without representation,'' and all the focus is on
    the second part of that slogan rather than on the first part.
    If we focused on the taxation part and treated the District,
    keeping it as it is, like Puerto Rico, like Guam and other
    territories, and stopped taxing the residents of the District,
    since they do not have representation, this loss of revenue
    would be a drop in the bucket to the Federal treasury in a
    country of 300 million people, but it would be a giant windfall
    of opportunity for the District, which would attract all kinds
    of business and other potential for the District, and it would
    have a tax base for itself and the independence that goes with
    that, and I should think that would be the best of all worlds
    because it is a win-win all around. Think about it.
        Chairman Carper. Let me just ask Senator Strauss and
    Senator Brown, would you just respond to what Dr. Pilon has put
    before us?
        Senator Strauss. Certainly. And I probably should not admit
    this, but for procrastinators like me, it was actually today,
    September 15, as opposed to April 15 when I paid my Federal
    taxes, and as painful as that was, what I really want is to be
    an equal citizen of this Republic, not to shirk our
    responsibilities.
        The District contributes a lot more than a mere drop in the
    bucket. Billions of dollars in Federal revenue come from
    District of Columbia taxpayers that seek not more than to be
    equal citizens. There are other solutions that have been
    discussed to the question of Federal representation, but this
    is the only solution to the question of both Federal
    representation on an equal basis and self-determination, which
    is becoming more and more important to the citizens of the
    District of Columbia.
        Senator Coburn frequently has been an advocate, and it is
    one of the things I respect about him, for fighting government
    waste and repetition. But how many times has this Committee had
    to have hearings on family court judges in the District of
    Columbia, something where no Federal interest has evolved at
    all because of the way our limited home rule is set up?
        Congress wastes thousands of taxpayer dollars doing things
    that it need not do for the District of Columbia, when it
    should be focusing on national problems. And so, this is the
    best solution because it is permanent. A constitutional
    amendment can always be repealed. It preserves a seat of
    government in the way that the Framers envisioned. And it
    provides for self-determination as well as Federal
    representation.
        Chairman Carper. Senator Brown, would you just respond to
    the proposal of Dr. Pilon, please?
        Senator Brown. Well, the only thing I have to add to what
    Senator Strauss said is that we have tried other things,
    Senator. We have been in court. We have tried the
    constitutional amendment. We decided to, a few years ago, try
    one vote method based on the Missouri Plan. We have tried
    everything else.
        So it seems to me that since equality is a prerequisite of
    our democracy, that this really is the only viable solution.
    There was even a case one time in front of the Supreme Court
    where we tried to sue on the basis of taxation without
    representation, and Justice Marshall ruled that taxation
    without representation was a catchy slogan and not a principle
    of government.
        So I do not know. We have done everything, I think, we can
    do creatively and I think as much as I admire the Framers, they
    were not particularly inclusive guys. They left out women, they
    left out African-Americans, Native Americans, and all these
    people have been brought back into the system and made whole. I
    think that the only way to do that for Washingtonians is
    through statehood.
        Chairman Carper. I am not sure who mentioned the State of
    Ohio. Professor Dinh, it was you, was it not?
        Mr. Dinh. Yes.
        Chairman Carper. Would you just revisit with us what you
    said, please, and how it might be instructive here?
        Mr. Dinh. Yes. The State of Ohio was admitted by the
    Enabling Act of 1802 from what was then Federal land, the
    Northwest Territory, I think, by simple legislation. I think
    that example I cite as an answer to the concern that Maryland's
    consent is now needed just because the original land that is
    now making up the current District of Columbia was originally
    ceded by Maryland in 1789 and accepted by the Federal
    Government in 1790.
        The argument is that despite the fact that it has been in
    Federal possession for 200 years, we still now need to relate
    back to Maryland's original possession in order to seek its
    consent. I think that is misguided just for the simple fact
    that the 200 years has convened of Federal control and
    possession, including under Article I, Section 8 of the
    District clause for the Congress to have that control and have
    absolute power to do with it as it wishes, including, in the
    first Congress in 1791 and 1846, to adjust the size of the
    District just as Congress contemplates to do with this bill.
        The second reason why I think that that objection is
    misplaced is exactly the example of Ohio, because if you will
    not recall, you were not there, I hope--the Northwest
    Territory, which originally was created by cessation of land
    and claims from the Eastern States, many of which had claims or
    the land that made up the Northwest Territory, all of those
    States ceded land to the Federal Government in order to create
    the Northwest Territory, including the State of Connecticut,
    portions of which became the State of Ohio.
        In the cession of land to the Federal Government, the State
    of Connecticut did not include any grants or approvals or
    consent for the territory later to become a State, and yet, the
    Federal Government obviously had the power later with the
    Enabling Act in order to create the State of Ohio.
        Just so here. The cession in 1788 of Virginia, in 1789 of
    Maryland of land to the United States which the United States
    accepted in 1790, did not impose any condition that is relevant
    to our discussion, and the Congress has possessed that land for
    over 200 years and it now can exercise its power under Article
    I, Section 8 in order to lessen the District, and under Article
    IV, in order to admit a new State.
        I think that is fairly simply, fairly straight forward, and
    lest we be accused of maligning the Framers, I do not think the
    Framers' statements are instructive or conclusive in this
    regard. I think the fact that the Framers themselves, who were
    sitting as legislators in 1791, adopted a bill to adjust the
    Southern boundaries of the District, show that the District's
    size and boundaries are not sacrosanct, but, rather, can be
    adjusted legislatively under Article I, Section 8.
        And also, the Framers' statements regarding the
    independence of the Federal seat are still satisfied by the
    enclave that the Act would preserve the Capitol and the White
    House and the other Federal seat. The only thing that Congress
    has done is to shrink the size of the Federal enclave.
        And again, as Dr. Pilon has noted, there is no lower limit
    to the size of the District in the Constitution. There is only
    an upper limit of no more than 10 miles square, and I think the
    Framers knew how to draw a floor just as well as it knew how to
    specify a ceiling. And the latter cannot be converted into the
    former.
        Chairman Carper. Dr. Pilon, would you just react to what
    Professor Dinh has said?
        Mr. Pilon. Yes, I would like to respond to the first point
    that he made, namely, that the consent of Maryland would not be
    required for retrocession pursuant to Article IV, Section 3,
    which provides that no State may be created out of the
    territory of an existing State without that State's consent.
        The reason it would not violate that, he says, is because
    the District is no longer part of the State of Maryland. Well,
    the problem with that is, that it is an invitation to mischief.
    Imagine this scenario. Maryland cedes the territory to the
    Federal Government for the creation of a District and then the
    Federal Government turns right around and turns that into
    another State. That would be pure mischief and it would be
    because it would be violative of the original terms of the
    agreement.
        And indeed, it would be doing in two steps what it is
    prohibited from doing in one fell swoop. And indeed, the
    Supreme Court just decided an analogous case along those lines,
    the Brandt decision, Brandt v. United States, in the term just
    ended. That is the Rails-to-Trails decision, and that was an
    eight to one decision and the parallel here is almost exact.
        Chairman Carper. All right. Someone mentioned that earlier
    when there was an effort to pass a constitutional amendment,
    which actually was approved in the House and the Senate, two-
    thirds vote in the Senate and in the House, the States had a
    period of time to consider that amendment. Only 16 States voted
    to ratify that constitutional amendment.
        Somebody or several of you who have a better understanding
    than I have of why, after Congress had done what I think is
    some pretty heavy lifting on this subject, the States chose not
    to, except for those 16 States, to ratify. Anyone know why?
        Senator Brown. Well, I think there are several reasons,
    Senator, and one is that, when you look at constitutional
    amendments in general, there have only been 17 of them since
    the passage of the Bill of Rights. So it is a very difficult
    thing to do on every level. There were other problems with it.
    Very often I have heard that the equal rights amendment, which
    was proposed at the same time, was an interference in the
    process.
        It is much easier to become a State. We have made 37 States
    in the same period of time that we have made 17 constitutional
    amendments, and I think that, for me anyway, says it better
    than anything, that it is just a very difficult process, and I
    see it as a red herring, that people throw this up all the
    time.
        Chairman Carper. OK. Others, please? Why do you think only
    16 States said, yes, we would like to ratify that?
        Senator Strauss. I cannot speak to what happened in the
    other States, but in the District of Columbia, realizing the
    difficulties associated with this amendment as well as the fact
    that it only dealt with one-half of the problems that this bill
    addresses, that is, Federal representation only and not self-
    determination, in the District of Columbia the movement toward
    District of Columbia statehood began to gain momentum as a way
    of achieving even more than a constitutional amendment would
    give us with less intrusion into the political process.
        We did not need the consent of a majority of States. We
    needed only a simple majority of Congress, which we had at that
    point, and we would have gotten both self-determination and
    full Federal representation, and preserved the Framers' idea of
    a Federal district separate and autonomous and under the
    exclusive control of Congress.
        So statehood was then the better solution. It remains the
    better solution today because it solves all of those problems,
    while at the same time preserving the Federal District.
        Chairman Carper. Thank you. Any other thoughts? Mr.
    Henderson.
        Mr. Henderson. I guess my only additional comment, Mr.
    Chairman, and I completely agree with my colleagues who have
    given you some sense of why a constitutional amendment has been
    difficult to achieve on behalf of the District of Columbia. But
    it should be noted that one of the States that ratified the
    amendment was Maryland in 1978, which by implication suggests
    that they would not have a problem with giving the District the
    ability to become a State, and that retrocession in the formal
    sense, as Dr. Pilon suggests, may not be required.
        I will say that there are many issues that come into play
    with statehood. For example, the assumption that the District
    of Columbia's electorate is likely to weigh in one direction or
    another, thus tipping the balance of power that may exist in
    the Congress today.
        Or that somehow the District is not deserving because of
    its previous history of some economic insolvency at a
    particular point in time. Those collateral factors help cloud
    the ability of the District to have a pure vote on the question
    of whether District of Columbia residents are entitled to the
    same rights of participation in our democracy as other
    residents.
        I think when the issue is framed in isolated terms, the
    right to vote stands above all else as the most important right
    that Americans have. Other rights are dependent upon our
    ability to vote. So really, voting is the language of
    democracy. If you do not vote, you do not count, and that is,
    unfortunately, the rule that affects issues like this and does
    affect how the country sees an amendment.
        Chairman Carper. Dr. Pilon, please.
        Mr. Pilon. Yes.
        Chairman Carper. And then I think we are going to wrap it
    up here.
        Mr. Pilon. We have heard that the amendment process would
    be difficult if not impossible. We have also heard, I believe,
    that it, therefore, is a red herring. I do not believe the
    Constitution should be conceived of as a red herring, nor do I
    believe, as Professor Dinh, suggested that the Court would
    treat an effort by the Congress to achieve statehood through
    mere legislation as a ``political question.''
        I think that the court would very seriously look at both
    Article I, Section 2 and Article I, Section 8, Clause 17, put
    the two together and conclude that there is a real
    constitutional problem with trying to achieve this end through
    mere legislation.
        Chairman Carper. All right. Thank you. I think I will wrap
    up with this thought: We have a chaplain here in the U.S.
    Senate, some of you have seen him, heard him, great guy.
    Retired Navy Admiral. Barry Black is his name. And he is the
    first African-American ever to be Chief of Chaplains for the
    Navy and Marine Corps, first African American ever to be
    Chaplain of the U.S. Senate.
        Sometimes he meets with us in the Bible study group that
    meets a lot of Thursdays. I like to say that six, seven, or
    eight of us who need the most help show up. Last Thursday we
    were gathered for about half an hour or so, and one of the
    things that he made a big point of is just encouraging all of
    us sometime during the day, I think when most people probably
    pray, I like to say I met a kid in the eighth grade in inner
    city school in Wilmington, and I always like to say that there
    will always be prayer in schools as long as there are math
    tests.
        But whatever the cause, whether it is math tests or world
    peace or something else, most of us pray sometime during the
    day or the week. One thing he urges us to pray for is wisdom,
    and he has a lot of admonitions that he gives and every now and
    then one of them falls on fertile soil, and for me one really
    falls on fertile soil. I pray for wisdom a whole lot, and I
    know my colleagues do, too, more than you probably would
    imagine.
        And one of the things we ask God for is to give us the
    wisdom to know what is the right thing to do, and then when we
    know the right thing to do, or have a pretty good idea of
    really the courage and strength to do that which we think is
    the right thing to do.
        I have asked this question a couple of different ways and
    before we conclude, I just want to ask, short of statehood, if
    each of you could give us maybe one idea, something that you
    think we can agree on in the interim. We have a lot of very
    wise people here on this panel, folks who have thought a lot
    about these issues, and we appreciate very much your testimony
    today.
        But could you just give us maybe one? You can repeat. You
    can all come up with the same idea. But just one thing, if we
    cannot agree on statehood this year, this Congress, or maybe
    the next Congress, what should we be able to agree on that
    would move us forward in this debate? Professor Dinh.
        Mr. Dinh. Mr. Chairman, the last time I was in before this
    Committee, I was sitting next to the late great Jack Kemp, as
    Wade Henderson has just noted, and both of us spoke in favor,
    one on legality, the other one on policy of the District of
    Columbia Representation bill, which was a compromise to add
    District of Columbia representation in addition to the Utah
    representation in the House.
        We thought it was sensible thing and legal then, and I
    think if you allow us to repeat an old policy proposal, that is
    one I would.
        Chairman Carper. Thank you, Professor. Dr. Rivlin.
        Ms. Rivlin. I would join that, but if you want another one,
    I think budget and legislative autonomy could be achieved very
    easily. And since, as was noted earlier, the Congress has not
    overturned District of Columbia legislation in I do not know
    how many decades, you are not giving up anything. You are just
    making it possible for the District to move ahead without
    having to wait. Budget autonomy again, a very simple thing:
    Allowing the District of Columbia to spend its own raised tax
    dollars in accordance with the wills of the Council and the
    Mayor.
        Chairman Carper. All right. Thank you, Dr. Rivlin. Mr.
    Henderson.
        Mr. Henderson. As Professor Dinh noted, I, too, was a
    supporter of the District of Columbia Representation Bill. But
    having said that, it has been overtaken by events and is no
    longer a viable initiative, even to respond to the need to
    provide a vote in the House of Representation and speaking
    privileges in the Senate. I support budget autonomy for the
    District.
        But in each instance, that is an inadequate solution to the
    fundamental problem of providing voting representation for the
    District in both houses of Congress, and in providing the self-
    determination that a vote for Members of Congress provides. And
    so, while I believe change occurs incrementally, would love to
    see a change occur in that direction for the District.
        I fear that there is nothing that has been discussed that
    is a satisfactory alternative to providing the structure and
    providing the right to vote that the bill that you have
    introduced would do. And so, these interim measures, though
    they may be attractive for building bipartisan support, do not
    ultimately go to the fundamental question of how you treat
    District residents with the equality that citizenship demands.
        Chairman Carper. All right. Mr. Henderson, thank you. Dr.
    Pilon.
        Mr. Pilon. You asked what it is we can all agree upon. I am
    going to offer just a very simple point, namely, as the person
    here who is offering the discordant note, I think we can all
    agree that you have conducted an eminently fair hearing.
        Chairman Carper. Doctor, you are welcome to take more time
    to speak. [Laughter.]
        You do not have to stop there. Thank you. Thank you for
    your kindness. Senator Strauss.
        Senator Strauss. Mr. Chairman, I am on record as supporting
    legislative autonomy and budget autonomy, bills that have been
    introduced by one of your colleagues and aptly titled the
    Paperwork Reduction Act because of their positive impact on
    reducing superfluous Federal oversight on things that the----
        Chairman Carper. Did you mention judges? One of you
    mentioned judges.
        Senator Strauss. I did mention judges.
        Chairman Carper. Would you expand on it just a little bit?
        Senator Strauss. Well, one of the things that makes me a
    more frequent visitor to this Committee is that when this
    Committee, not the Judiciary Committee, has to conduct
    confirmation hearings on Federal judges nominated by the
    President, confirmed by the Senate, who have exclusively local
    purview for the courts of the District of Columbia. And while
    these judges tend to be extraordinarily well qualified and
    worthy of all of the pomp and tradition that comes from a
    Presidential nomination and confirmation by this body, a
    greater dignity to them and to the people who they serve on the
    bench would be to be treated equally as full citizens.
        And so, it is something, frankly, your Committee has done a
    decent job of moving those along, but there are times when
    vacancies sit on our court because they are, understandably,
    not a priority, and the administration of justice in the
    District of Columbia is handicapped because, frankly, your
    Committee has more important things that it should be doing
    rather than confirming local judges that would not be involved
    with the Federal Government or any other State.
        Chairman Carper. Thank you. I think you make a very good
    point. Senator Brown.
        Senator Brown. Well, I have to agree with Mr. Henderson. I
    mean, I think all of us up here, Senator, have tried to stand
    behind interim measures, but none of them have worked. We have
    had all sorts of governments in the District of Columbia,
    commissioners, mayors, sometimes our Delegate has a vote,
    sometimes she does not.
        We need a permanent solution to this problem, and I think
    equality is a prerequisite to democracy, and any other solution
    that does not give us full equality, I think, is like asking us
    to sit in the middle of the bus. I think if we pay the fare,
    that we have to pick our seat just like everybody else, and I
    think statehood is really the only solution for that.
        Chairman Carper. All right. Thank you. It has been a
    wonderful hearing. I think one of the reasons why it is not
    better attended is that people are coming in from all over the
    country, as we speak here, in order to be on hand when we start
    voting in a few minutes. There are a number of my colleagues
    who do have a strong interest in these issues, and my guess is
    they are going to write to you and they will have that
    opportunity over the next 15 days to submit statements for the
    record and to submit questions to you for the record. I would
    just ask you, when you receive those questions, that you
    respond as promptly as you can.
        I said earlier, and I will close with this. I mentioned my
    moral compass, the four principles that help guide me. I should
    add this. I usually violate at least one of them a week,
    sometimes more. But the nice thing about having a compass is
    when you get off course, you know how to get back on the right
    course. Very helpful to me in that regard.
        As it turns out, I am not the only one who has really
    almost verbatim those core values. Figure out the right thing
    to do, just do it. Not the easy thing, not the expedient thing.
    What is the right thing to do and try to do that.
        Second, to treat other people the way we want to be
    treated. Third, if it is not perfect, make it better. Not to
    form a perfect union, but a more perfect union. And last, just
    do not give up. If you know you are right, you are sure you are
    right, just do not give up. You would be amazed how many of my
    colleagues I talk to about those core values and how many of
    them say, Well, those are really my core values.
        I will close on a hopeful note and just say that given that
    Democrats, Republicans, even a couple of those radical
    Independents, I hear have values like that here in the Senate.
    I have some hope that we can do better and we are going to. I
    think this has been a very good hearing. Both the first panel
    and this panel, we are grateful to you for your preparation,
    for your heartfelt commitment and your willingness to spend
    this time with us today.
        With that having been said, this hearing is adjourned.
    Thank you so much.
        [Whereupon, at 5:24 p.m., the hearing was adjourned.]
                                A P P E N D I X

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