[Senate Hearing 117-481]
[From the U.S. Government Publishing Office]
S. Hrg. 117-481
EXAMINING D.C. STATEHOOD
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
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JUNE 22, 2021
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Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
S. Hrg. 117-481
EXAMINING D.C. STATEHOOD
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
JUNE 22, 2021
__________
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
______
U.S. GOVERNMENT PUBLISHING OFFICE
46-567 PDF WASHINGTON : 2022
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Lena C. Chang, Director of Governmental Affairs and Senior Counsel
Chelsea A. Davis, Professional Staff Member
Pamela Thiessen, Minority Staff Director
Andrew Dockham, Minority Chief Counsel and Deputy Staff Director
Amanda H. Neely, Minority Deputy of Governmental Affairs and General
Counsel
Meredith M. Pohl, Minority Deputy General Counsel
Laura W. Kilbride, Chief Clerk
Thomas J. Spino, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Peters............................................... 1
Senator Portman.............................................. 2
Senator Carper............................................... 3
Senator Johnson.............................................. 22
Senator Lankford............................................. 27
Senator Rosen................................................ 32
Senator Hawley............................................... 36
Prepared statements:
Senator Peters............................................... 45
Senator Portman.............................................. 46
Senator Carper............................................... 49
WITNESSES
Tuesday, June 22, 2021
Hon. Eleanor Holmes Norton, Delegate of the District of Columbia,
U.S. House of Representatives.................................. 5
Hon. Joseph Lieberman, Former U.S. Senator from the State of
Connecticut.................................................... 7
Hon. Muriel E. Bowser, Mayor, District of Columbia............... 10
Hon. Marc H. Morial, President and Chief Executive Officer,
National Urban League.......................................... 13
Richard Primus, D.Phil, Theodore J. St. Antoine Collegiate
Professor of Law, University of Michigan Law School............ 15
Roger Pilon, Ph.D., Vice President for Legal Affairs, The Cato
Institute...................................................... 17
Derek T. Muller, Professor of Law, University of Iowa College of
Law............................................................ 19
Alphabetical List of Witnesses
Bowser, Hon. Muriel E.:
Testimony.................................................... 10
Prepared statement........................................... 57
Lieberman, Hon. Joseph:
Testimony.................................................... 7
Prepared statement........................................... 53
Morial Hon. Marc H.:
Testimony.................................................... 13
Prepared statement........................................... 70
Muller, Derek T.:
Testimony.................................................... 19
Prepared statement........................................... 96
Norton, Hon. Eleanor Holmes:
Testimony.................................................... 5
Prepared statement........................................... 51
Pilon, Roger, Ph.D.:
Testimony.................................................... 17
Prepared statement........................................... 88
Primus, Richard D.Phil.:
Testimony.................................................... 15
Prepared statement........................................... 75
APPENDIX
Carper chart..................................................... 110
Viet D. Dinh 2014 Testimony...................................... 111
Fitzroy Lee, Interim Chief Financial Officer Government of the
District of Columbia House Testimony........................... 124
Harry Wingo House Testimony...................................... 128
Law Professors Letter............................................ 132
NAACP and PP Letter.............................................. 140
Federalist 43 Papers............................................. 148
Loughborough v Blake............................................. 155
Wurman Article................................................... 164
Additional statements for the Record:
American Civil Liberties Union............................... 171
American Civil Liberties Union of West Virginia.............. 193
American Federation of Government Employees.................. 195
Arizona Jews for Justice..................................... 196
Conservative Voices.......................................... 202
District of Columbia Bar..................................... 205
DC for Democracy............................................. 210
Faith Leaders................................................ 215
Rose Ippolito................................................ 243
Jesse Lovell................................................. 244
League of Women Voters of the United States.................. 247
Maine People's Alliance...................................... 249
George Derek Musgrove Report................................. 252
National Active and Retired Federal Employees Association.... 283
Neighbors United for D.C. Statehood.......................... 285
NOPE for DC Statehood........................................ 290
Dave Yost, Ohio Attorney General............................. 292
Wren Patton.................................................. 296
Alan Wilson, Attorney General of South Carolina.............. 297
Sunrise DC................................................... 302
Responses to post-hearing questions for the Record:
Ms. Bowser................................................... 303
Mr. Morial................................................... 310
Mr. Pilon.................................................... 312
Mr. Muller................................................... 316
EXAMINING D.C. STATEHOOD
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TUESDAY, JUNE 22, 2021
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., via
Webex and in room SD-342, Dirksen Senate Office Building, Hon.
Gary Peters, Chairman of the Committee, presiding.
Present: Senators Peters, Carper, Hassan, Sinema, Rosen,
Padilla, Ossoff, Portman, Johnson, Lankford, Scott, and Hawley.
Also present: Delegate Eleanor Holmes Norton.
OPENING STATEMENT OF CHAIRMAN PETERS\1\
Chairman Peters. The Committee will come to order. I would
like to say thank you to our witnesses for joining us to
examine legislation introduced by my colleague, Senator Tom
Carper, to make the District of Columbia our nation's 51st
State.
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\1\ The prepared statement of Senator Peters appear in the Appendix
on page 45.
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I would also like to extend a warm welcome to Washington,
D.C.'s Delegate to the U.S. House of Representatives,
Congresswoman Eleanor Holmes Norton, as well as former Senator,
and also a former Chairman of this Committee, Joe Lieberman.
Certainly Congresswoman Eleanor Holmes Norton, I appreciate
your attendance here today, and I want to recognize your
incredible leadership on this issue over many years, so it is
wonderful to have you here before the Committee.
For decades, you both have, Senator Lieberman as well,
served as strong advocates in the conversation to give D.C.
residents an equal voice, and today, for the first time in
nearly seven years, this Committee will continue that
discussion and hear from the Mayor, policy, legal, and civil
rights experts on how lawmakers can finally give D.C. residents
the same representation in Congress as their fellow Americans.
This lack of representation for the residents of this city,
which serves as a beacon of freedom and democracy around the
world, is a stunning contradiction.
Since 1790, when President Washington signed into law the
Permanent Seat of Government Act, D.C. has served as our
Nation's Capital. D.C.'s more than 700,000 residents, many of
whom have fought in our wars, paid Federal taxes, and served
the American people in public service, have been denied an
equal voice in the formation of the very laws and decisions
that govern them. This is unconscionable.
It is time to follow the lead of our colleagues in the
House, pass the Washington D.C. Admission Act, which will
finally ensure that D.C. residents have the full congressional
representation and self-governance that they deserve, and that
our democracy is built on.
Our nation's most defining principle is that our
government's power is derived directly from the people. It is
why we elect leaders to represent us in Congress, and every
American should be entitled to the same representation in our
democratic republic, no matter which part of our nation they
live in.
When the founders first established a permanent seat of
government at a site along the Potomac River, they could have
never imagined it would become the large, vibrant, and diverse
city that more than 700,000 Americans call home. While we may
hear a number of questions raised about this issue today, I
encourage all of my colleagues to stay focused on the core
civil rights issue that we have an opportunity to address.
I look forward hearing from our witnesses and having a
productive discussion today about making the District of
Columbia our nation's 51st State.
With that I turn it over to Ranking Member Portman.
OPENING STATEMENT OF SENATOR PORTMAN\1\
Senator Portman. Thank you, Chairman Peters, and thank you
for our witnesses. We have a distinguished group here today,
including Eleanor Holmes Norton, my Congresswoman when I am
here in D.C., and Senator Joe Lieberman, who is back to this
Committee, having served as its Chair and Ranking Member, and
really was the heart and soul of this Committee when he was
here. We are also going to hear from Mayor Bowser today. I
appreciate her coming, and a good group of academics.
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\1\ The prepared statement of Senator Portman appears in the
Appendix on page 46.
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As you know, Mr. Chairman, I have both practical and
constitutional concerns about making Washington, DC. its own
State. Legally, Congress does not have the power to override
the Constitution, and that is, to me, the most important issue
here. D.C., of course, is the only place specifically created
by the Constitution in Article 1 as the ``seat of government,''
meaning, it has a special constitutional status completely
different from any current or previous U.S. territory that
eventually became a State through the Article 4 Admissions
Clause.
Our framers gave us a limited Federal Government, one in
which Congress only wields the power explicitly granted to it.
Here, neither the District Clause nor the Admissions Clause
provide Congress with the power to transform the ``seat of
government'' into a new State. Moreover, D.C. has special
constitutional status, of course, in the 23rd Amendment, which
grants D.C. residents three electoral votes in Presidential
elections. We cannot legislate over these constitutional
provisions.
Further, when Maryland authorized the cession of nearly 60
miles of its territory to the Federal Government for the
creation of the District of Columbia in 1788, it did so for the
purpose that, ``Congress may fix upon and accept [the land] for
the seat of government,'' When Congress formally accepted the
land from Maryland by legislative act in 1790, we explained
that the land was, ``hereby accepted for the permanent seat of
the government of the United States.'' Maryland gave up its
land, and we accepted it, so that we could create an
independent Federal Governmental district.
Making D.C. into a separate State violates the solemn
compact we made over 200 years ago with Maryland, as well. By
the way, we would be creating a State that by acreage comprises
less than 6 percent of the next smallest State, Rhode Island. A
better option, in my view, would be to retrocede a large
portion of the District to Maryland. Retrocession is the
preferable way to provide D.C. residents with voting
representation in both chambers of Congress.
This issue has come up before. The States declined to
ratify the D.C. Voting Rights Amendment (DCVRA) in the 1970s,
which would have granted D.C. Congressional representation in
both Houses of Congress and repealed the 23rd Amendment. Only
16 States ratified that amendment, 22 States short of the
required two-thirds for adoption. Surveys today would
demonstrate that the American people are still not interested
in eliminating their capital district.
Again, Mr. Chairman, I appreciate the witnesses coming
today, and I look forward to hearing their testimony.
Chairman Peters. Thank you, Ranking Member Portman.
Before we turn it over to our distinguished guests and
panel I want to give the lead sponsor of the Washington, D.C.
Admission Act, the lead sponsor here in the Senate, Senator Tom
Carper, an opportunity to address the Committee.
OPENING STATEMENT OF SENATOR CARPER\1\
Senator Carper. Thank you so much, Mr. Chairman.
Colleagues, I appreciate this opportunity. Let me welcome Joe
Lieberman. Welcome back to your home, and thank you for your
years of leadership. Welcome to another Yale grad, Eleanor
Holmes Norton. A couple of teammates here. Great to see you
both. Thank you for joining us today and for your leadership.
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\1\ The prepared statement of Senator Carper appears in the
Appendix on page 49.
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When Joe Lieberman left the Senate he handed off a piece of
legislation to me, and it is the piece of legislation that is
before us today.
When summer ends and school resumes this fall, millions of
American schoolchildren will begin each day by repeating these
words: ``I pledge allegiance to the flag of the United States
of America, and to the republic for which it stands, one
nation, under God, with liberty and justice for all.'' One
nation, under God, with liberty and justice for all.
We are a nation of many faiths--Protestant, Catholic, Jew,
Muslim, Buddhist, Hindu, and others. Each of these six
religions share at least one thing in common, each of them.
They share this admonition to love our neighbors as ourselves
and to treat other people the way we want to be treated.
The more than 700,000 citizens of the District of Columbia
are our neighbors. They deserve to be treated as such by the
rest of us in this country. They pay more on a per capita basis
in Federal income taxes than any of the 50 States, yet they
have no vote in the U.S. House of Representatives or the
Senate. They serve in the U.S. Army (USA), the U.S. Navy (USN),
the U.S. Air Force (USAF), the U.S. Marine Corps (USMC), the
National Guard, yet they have no vote in the U.S. House of
Representatives or the U.S. Senate.
The leader of every State is authorized to call up their
National Guard in times of crisis, but we learned on January
6th that the elected leader of the District of Columbia has no
such authority. The District of Columbia has earned an AA+
credit rating, higher than most other States, yet the Congress
has to approve the District's budget.
Some of the finest judges serve on D.C. courts, but the
Congress has to approve each one of them, and when the Federal
budget shuts down because of a budget impasse, it creates
turmoil, budget turmoil, for the District of Columbia. When the
Congress fails to vote to confirm highly qualified judges for
weeks, for months, and sometimes for years, justice is delayed
and sometimes justice is denied.
Two hundred forty-five years ago, 13 colonies took on the
mightiest nation on earth, England, because of unjust
treatment. They found particularly galling the requirement to
pay taxes without representation. Taxation without
representation became the rallying cry that led to our
Declaration of Independence and a war to achieve it. The people
of the District of Columbia have no interest in waging a war
for independence. They want to be treated fairly and justly.
We should do that, and we can start doing that by enacting
legislation that has passed the House of Representatives and is
the subject of today's hearing. That is the right thing to do,
the right thing to do. It meets constitutional muster, it puts
the District of Columbia on the very same path followed by all
37 States who entered the union since, I believe, 1791.
To paraphrase Mark Twain, ``When it doubt, do what's right.
You will amaze your friends and confound your foes.'' Let's do
what is right. We start by treating our neighbors here in the
District of Columbia the way we want to be treated.
By the way, I want to give you another quote that may come
as a surprise. It did to me, and it might to you as well. Here
is another quote. ``The fact that more than half a million
Americans live in the District of Columbia and are denied a
single voting representative in Congress is clear an historic
wrong and justice demands that it be addressed.'' I do not
agree with our former Vice President, Mike Pence, on
everything, but we certain agree on this one.
Thank you, Mr. Chairman.
Chairman Peters. Thank you, Senator Carper, and thank you
for your leadership on this issue over many years.
Before I introduce our witnesses, I want to give two very
important guests an opportunity to provide remarks. Our first
is Congresswoman Eleanor Holmes Norton, the delegate to the
U.S. House of Representatives from the District of Columbia.
Congresswoman Holmes Norton has, without question, been the
leading voice in this fight for statehood, as she has worked
tirelessly--I think that is a good word to sum up your work,
Congresswoman--tirelessly to provide her constituents with
equal representation throughout her 15-term tenure in the
Congress. She recently led the passage of the Washington D.C.
Admission Act through the Congress earlier this year.
Welcome, Congresswoman. Again, thank you for your tireless
leadership on this issue, and I speak for the entire Committee,
we look forward to hearing your remarks.
STATEMENT OF THE HONORABLE ELEANOR HOLMES NORTON,\1\ DELEGATE
TO THE U.S. HOUSE OF REPRESENTATIVES FROM THE DISTRICT OF
COLUMBIA
Ms. Norton. Thank you very much Mr. Chairman.
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\1\ The prepared statement of Ms. Norton appears in the Appendix on
page 51.
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Chairman Peters, on behalf of the 700,000 District of
Columbia residents, including 30,000 veterans, I thank you for
holding this hearing and for being an original co-sponsor of
the District of Columbia statehood bill.
This hearing is of historic significance, because it is
only the second Senate hearing on our D.C. statehood bill in
the nation's history. In the last year, the House of
Representatives has twice passed our D.C. statehood bill. In
1993, when I first came to the House of Representatives, I got
the first-ever House vote on D.C. statehood, but the bill
failed because the House had a very different composition then.
Prior to last year, neither chamber of Congress had ever passed
the D.C. statehood bill in the nation's history.
Senator Carper, I particularly thank you for sponsoring our
D.C. statehood bill and for being a champion for D.C. in the
Senate, where we have no representation. Following in the
footsteps of Senator Joe Lieberman, under your leadership the
D.C. statehood bill has 45 Senate co-sponsors, which is the
greatest number of Senate co-sponsors of the bill in the
nation's history.
President Biden strongly supports D.C. statehood, our D.C.
statehood bill, and is the first President to put the full
weight of the presidency behind the bill in the nation's
history. 54 percent of the American people, more than half of
the American people, support D.C. statehood. According to a
recent, very detailed poll, this is the greatest support for
D.C. statehood in the nation's history.
Congress has both the moral obligation and the
constitutional authority to pass our D.C. statehood bill. The
country was founded on the principles of no ``taxation without
representation'' and consent of the government, but D.C.
residents are taxed without representation and cannot consent
to the laws under which they, as American citizens, must live.
The State of Washington, DC. would consist of 66 of the 68
square miles of the present-day Federal District. The Federal
District would be two square miles, and Congress would retain
control over it, as required by the Constitution. The D.C.
statehood bill clearly complies with the Constitution,
including the Admissions Clause, the District Clause, and the
23rd Amendment.
Those who believe the bill is constitutional need only rely
on the plain text of the Constitution. A group of very
distinguished law professors and scholars from America's top
law schools have sent a definitive analysis of the bill's
constitutionality to the House and Senate leadership. You
already have that, so I do not believe to ask that it be
admitted to the record. The Admissions Clause gives Congress
the authority to admit new States. All 37 new States were
admitted by Congress, by majority vote. No State was admitted
by constitutional amendment, and no State would have to consent
to the admission of the State of Washington, DC.
The District laws gives Congress plenary authority over the
Federal District and establishes a maximum size of the Federal
District, 100 square miles. It does not establish a minimum
size or a location of the Federal District. Congress reduced
the size of the Federal District by 30 percent in 1846. The
23rd Amendment allows the Federal District to participate in
the electoral college but does not establish a minimum size or
location of the Federal District. Therefore, the bill complies
with the 23rd Amendment. Nevertheless, the bill would repeal
the enabling act for the 23rd Amendment, and the 23rd Amendment
itself would be repealed quickly.
The Constitution does not establish any prerequisites for
new States, but Congress generally has considered three:
population and resources, support for statehood, and commitment
to democracy. The State of Washington, DC. would meet all
three. D.C.'s population is larger than the population of two
States. D.C. pays more Federal taxes per capital--and I will
repeat that one. The residents I represent pay more taxes per
capita than any State, and pay more Federal taxes, right now,
than 21 States.
D.C. Federal domestic product is larger than 17 States. In
2016, 86 percent of D.C. residents voted for statehood. D.C.
residents have been petitioning for voting representation in
the Congress and local autonomy for all of its 220 years of
existence, from the moment this became the Capital of the
United States.
Congress does have a choice. It can continue to exclude
D.C. residents from the democratic process, forcing them to
watch from the sidelines as Congress votes on Federal and D.C.
laws and to treat them, in the words of Frederick Douglass, as
``aliens, not citizens, but subjects,'' or it live up to our
nation's founding principles and pass our D.C. statehood bill.
Again, Chairman Peters and Senator Carper, thank you for
your leadership on this bill. I look forward to continuing to
work with you and your colleagues to enact the D.C. statehood
bill this Congress. Thank you again.
Chairman Peters. Congresswoman Holmes Norton, thank you for
your statement, and again, thank you for your leadership on
this issue.
Our second guest is Senator Joe Lieberman, who represented
Connecticut in the Senate for 24 years. Senator Lieberman
served as both the Chairman and the Ranking Member of this very
Committee. In 2012, he helped author the New Columbia
Admissions Act, the first D.C. statehood bill to be introduced
in the Senate in nearly 20 years.
Senator Lieberman, you may proceed with your statement.
STATEMENT OF THE HONORABLE JOSEPH LIEBERMAN,\1\ FORMER UNITED
STATES SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thanks very much, Chairman Peters,
Ranking Member Portman, and Members of the Committee for
convening this hearing today and for giving me the honor of
testifying. Delegate Norton, Mayor Bowser, and other
distinguished witnesses, it is a pleasure to be with you here.
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\1\ The prepared statement of Senator Lieberman appears in the
Appendix on page 53.
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As Senator Carper alluded to, a few years ago, Delegate
Norton and I were at law school together, and we have not aged
at all since then. I will point out that we were lucky to go to
Yale--the mascot at Yale is a bulldog, and I do not think
anyone would argue with me if I said that Delegate Norton, on
this particular issue and many others, has had the tenacity of
a bulldog, occasionally the bark, and, if necessary, the bite.
It is always good to be on her side.
A special thank you, talking about tenacity, to Senator
Carper, my dear friend, for introducing and advocating this
legislation, which really would right a wrong that has been
done for too long to the residents of the District of Columbia.
I am honored, really personally, to have the opportunity to
return to this Committee, in this room, where I spent so many
of the best, most productive days of my 24 years in the U.S.
Senate, in large part because I was privileged to work, in
bipartisan partnership, with the leading Republicans on the
Committee during that time, first Fred Thompson of Tennessee,
and then for more than a decade, Susan Collins of Maine.
I hope that the spirit of bipartisanship, which has been
part of this Committee's history, and really has been
exemplified, I think already this year, by Chairman Peters and
Ranking Member Portman, will guide your Committee's
consideration of the deprivation of voting representation in
Congress for citizens of our Capital City, as you know, as far
as anyone can tell, the only citizens of any capital of any
country in the world who are disenfranchised in this way.
I first introduced legislation on this subject in 2002,
when some of the current Committee staff members were probably
in elementary school. It was called the No Taxation Without
Representation Act, and was, I am pleased to say, reported
favorably from the Committee but was not acted on by the
Senate.
In 2009, a group of us introduced the D.C. House Voting
Rights Act, which was favorably reported by this Committee and,
in fact, passed by the Senate, in a vote of 61-37.
Unfortunately, however, the Senate added an amendment that
repealed D.C.'s gun control laws, and therefore, the House
never acted on the legislation.
In 2012, which was my last year in the Senate, a group of
us introduced the D.C. statehood legislation, which is very
much like Senator Carper's initiative that is before you today.
But Senator Carper has done a much better job than I did. He
has the largest-ever number of co-sponsors for this
legislation. It is really a tribute to the cause and to his
tenacity and advocacy.
When Senator Carper asked me if I would get involved in
supporting the current proposal I immediately said yes. The
truth is, I was very grateful to Tom for giving me the
opportunity to re-engage in this constitutional cause that has
mattered to me for a long time. It has mattered to me because
there are two great American constitutional principles that are
at the heart of the cause of D.C. statehood and that are
violated every day in the current treatment of residents of the
District of Columbia. Both of these principles were central to
the American Revolution against the British crown.
The first is that governments should govern only with the
consent of the governed, not by the whim of the crown or any
other leader, particularly not a dictator, and that in a great
democracy, a republic like ours, that consent is given by the
votes of the citizenry.
The second, as has been mentioned, a great founding
principle, is that citizens should not and cannot be taxed
without representation in the legislative body that taxes them.
Here, in general, I quote Justice Hugo Black, who wrote in
Wesberry v. Sanders in 1964, Supreme Court decision, ``No right
is more precious in a free country than that of having a voice
in the election of those who make the laws under which we must
live,'' end quote. Today's residents of the District of
Columbia, as has been said, have every right to sound the
battle cry of our revolution, no ``taxation without
representation''. Greater per capita income tax paid from
residents of the District, and more, in total, than the
residents and citizens of 21 other existing States.
Why would anyone not want to eliminate these grossly
outdated, un-American inequities? Today, you will hear some
arguments why from the witnesses who will testify against
Senator Carper's legislation. I must say, respectfully, that I
have heard the arguments before many times over the years, and
I suppose as judges say, I have reached a decision. All the
arguments seem to me to be legalistic disputations, and
ultimately excuses for something that is inexcusable. The
arguments against this legislation do not come near to
overcoming the great principled constitutional arguments for
it.
What is the problem? The media suggests it is not
constitutional or philosophical but political and partisan,
that Republicans today fear that granting equal voting
representation in Congress to D.C. residents will inevitably
lead to two more Democratic Senators and one more Democratic
member of the House. I hope that is not the problem, because it
is self-evidently unacceptable in America to condition the
enjoyment of constitutional rights on political party
membership, any more than Congress would condition access to
constitutional rights on citizens' race or gender or religion
or sexual orientation. Besides, it is not sensible to base
one's vote on this legislation, which would correct an
injustice forever, on a short-range political prediction,
which, based on history, may well turn out to be baseless, or
at least temporary.
Who among us can really predict how the citizens of the
State of Washington, DC. will vote in elections for their
representatives in Congress in 50 years, or 20 years, or even
five years? For example, who would have predicted, five years
ago, that the State of Georgia would elect two Democratic
Senators to this Congress? Who could have predicted, 30, 40, 50
years ago, that there would be almost no Republicans from New
England, my part of the country, in the Senate today, and
almost no Democrats from the House, which is obviously why we
were so surprised by the election of the two Democrats from
Georgia.
A look at American history shows that partisan anxieties
have been common when States have been considered for admission
to our union since the original 13, but 37 times these
anxieties were overcome to enable us to become the United
States of America we are today.
Here is an example, which I think proves the difficulty of
deciding this issue, based on political predictions. In 1959,
Alaska and Hawaii were both seeking admission to our union.
There was a lot of concern about how the citizens of those
States would vote. They were essentially both admitted
together, though there was a separation of a few months,
because they were expected to balance each other politically.
Alaska was expected to vote Democratic, and Hawaii was expected
to vote Republican. That was the bipartisan consensus prophecy
in 1959.
I could tell you, in my 24 years in the Senate, and still
today, the opposite is the case. Hawaii elects Democrats and
Alaska has elected Republicans. So much for deciding great
constitutional issues, such as this one, because of passing
political prognostications. Its not only a weak basis for
judgment, it is unacceptable in our system of law and equity.
Mr. Chairman, many times in my 24 years on this Committee
our Members were able to find bipartisan solutions to difficult
problems, and then to convince the Senate to agree with those
solutions, and together we got some great and good things done
for our country, I am proud to say. I hope you Members of the
Committee in this session will similarly rise to the challenge
of this moment and this problem and work together to get
something good and great done for our country, our
Constitution, and for the people of our Capital City. Thank you
very much.
Chairman Peters. Thank you, Senator Lieberman and
Congresswoman Holmes Norton for your perspectives on this
issue. I would now like to invite our witnesses up to their
chairs and to get settled. As we are making those changes, as
the witnesses are coming to their seats, I would also like to
welcome our esteemed guests to stay for the remainder of the
hearing, if their schedules allow.
As we set up to move into the next phase of this hearing, I
hope my colleagues will pause and reflect on the remarks of
Representative Norton and Senator Lieberman, with their depth
of knowledge and experience working to provide D.C. residents
with an equal voice in our democratic process. I think they
have set the tone for today's very historic hearing. Today's
hearing is not about political posturing, and it should not be
predicated on predetermined views. It is simply about providing
D.C. residents full and equal democratic rights.
President Eisenhower I think said it best in his 1954 State
of the Union address, and I quote President Dwight Eisenhower
when he said, ``In the District of Columbia, the time is long
overdue for granting national suffrage to its citizens and also
applying the principle of local self-government to the Nation's
Capital.'' That was Dwight Eisenhower, and now 67 years later
those words still ring true. Like folks throughout our Nation,
my constituents, and I know the constituents of everyone on
this Committee, deserve a complete voice in government. It is
long past time for the Senate to pass this act.
Now that the witnesses have been settled I would like for
each of the witnesses know that it is the practice of this
Committee, Homeland Security and Government Affairs (HSGAC), to
swear in witnesses, so if you will rise and raise your right
hand. We have witnesses also on video. If you would do the same
I would appreciate it.
Do you swear that the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Ms. Bowser. I do.
Mr. Morial. I do.
Mr. Primus. I do.
Mr. Pilon. I do.
Mr. Muller. I do.
Chairman Peters. You may be seated.
Our first witness is Mayor Muriel Bowser, the eighth Mayor
of the District of Columbia. In her role, Mayor Bowser serves
as the District of Columbia's chief executive and functions as
its Governor, county Executive, and Mayor. You have a lot on
your plate, Mayor, and it is certainly wonderful to see you
here before the Committee today, and you may proceed with your
opening statement.
TESTIMONY OF THE HONORABLE MURIEL E. BOWSER,\1\ MAYOR, DISTRICT
OF COLUMBIA
Ms. Bowser. Thank you, Chairman Peters, Ranking Member
Portman, and Members of this esteemed Committee, thank you for
convening this hearing on S. 51, the Washington, D.C. Admission
Act, which provides the 700,000 residents of Washington, DC,
full democracy.
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\1\ The prepared statement of Mayor Bowser appears in the Appendix
on page 57.
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I am Muriel Bowser, Mayor of Washington, DC, and I am
honored to come before this Committee with a simple request:
Senators, we ask you to right the wrong that occurred some 220
years ago when the residents of the District of Columbia were
stripped of their full congressional representation, and we ask
you to do it now. The Constitution left the issue of democracy
for residents of the District of Columbia to the Congress. The
House of Representatives has passed the Washington, D.C.
Admission Act twice, and the White House has indicated its
support for the bill through a Statement of Administration
Policy. Our democracy is truly in the hands of this Senate. It
is time for the U.S. Senate to support the D.C. petition for
statehood.
My testimony today echoes the many arguments that I made
before the House Committee on Oversight and Reform in March,
and in September 2019, and some of the same arguments made by
my predecessor in this very room in 2014. Then, as now, the
District's call for full democracy has been drowned out by
arguments that ignore the fact that the second-class status of
D.C. residents is clearly an anomaly of the U.S. Constitution,
not a feature of it.
Over the decades, arguments against D.C. statehood have
ranged from assertions that are, quite frankly, preposterous,
to inaccurate legal claims. Just to cite a couple, in 2019, we
were asked what would happen to the parking spaces for
congressional staff if the District were to become a State. We
were at a loss to see how our full democracy should be equated
to a few parking spaces. This past March, I was confronted with
concerns that the District could not be a State because it was
believed that we did not have a car dealership, even though we
do.
Statements like these not only discount the civil rights of
D.C. residents, they also demonstrate a true lack of
understanding of the rapidly growing and thriving businesses,
neighborhoods, and culture that surround the small Federal
presence. It is for those neighborhoods and those people, the
neighbors of Michigan Park, where I was born and raised,
Congress Park, and Mount Pleasant, Columbia Heights and
Hillcrest among them, that make up 99 percent of the District,
and the people who live in them and who have come to D.C. for
school, government service, or other work, I appear today to
represent them.
There is no legal or constitutional barrier to D.C.
statehood. The prevailing constitutional issue is the civil
rights violation of 700,000 D.C. residents who fulfill all
obligations of U.S. citizenship but are denied any
representation in this body. We say, and we rely on the
opinions of 39 legal scholars who have submitted testimony to
you, unequivocally, that the bill before you, S. 51, the
Washington, D.C. Admission Act, is constitutional. Dozens of
America's most recognized constitutional experts have testified
before Congress and penned letters to that effect. Scholars and
experts have opined that it is fully within Congress' power,
under the Constitution, to make D.C. a State through the
passage of S. 51.
The Constitution's Admissions Clause grants Congress
authority to admit States into the union, including Washington,
DC. Following the 13 colonies, all 37 States were admitted by
Congress through this constitutional authority. States were not
added solely because of a particular industry, or the size of
its land mass. States were added to include the people.
The Constitution's District Clause poses no barrier to
admitting D.C. as a State either. The District Clause sets a
maximum size of 10 square miles for the Federal District, not a
minimum size. S. 51, of course, retains a Federal District, as
required by the Constitution. It encompasses the unpopulated
areas that make up the Federal presence, including all of the
House and Senate office buildings, the Capitol itself, of
course, the Supreme Court building, the White House, the
monuments and museums on the National Mall, and all of the
Federal buildings and land. The people of America, when they
come to the Nation's Capital, they will still find all of the
great monuments and museums that make up their experience, and,
of course, the free museums of the Smithsonian Institution.
The 23rd Amendment to the Constitution, which granted D.C.
residents a vote for President in 1961, does not pose a
constitutional barrier to statehood either. The bill addresses
it head on by repealing statutory language that enables the
appointment of electors, and it includes expedited procedures
for consideration of the repeal of the unnecessary
constitutional amendment, thus virtually ensuring quick and
certain ratification by the States to ensure no ambiguity about
the electoral. S. 51 outlines a clear path forward on how to
address the 23rd Amendment. post-D.C.'s admission. It is
particularly contradictory that the 23rd Amendment, which was
passed to expand democracy to taxpaying D.C. residents, is now
being held up as the main barrier to further expanding
constitutional rights in the District. This flies in the face
of the amendment's intent.
Retrocession to Maryland is also not required by the
Constitution, nor is it addressed in the Constitution. Maryland
has no claim to the land it ceded to the Federal Government
when the District was founded. Certainly no one in this body
would suggest that Maine should retrocede to Massachusetts, or
that West Virginia should return to Virginia. Of course not.
To be clear, D.C.'s current status is due to generations of
inactivity by lawmakers, including the Founding Fathers
themselves, failing to address the contradiction that D.C.
residents of the U.S. Capitol are treated as second-class
citizens. With no constitutional underpinning, the
disenfranchisement of Washingtonians is a glaring civil rights
and voting rights issue of our time. In fact, we are the only
capital city, as has been stated, in the world's democracies,
without voting rights in the national legislature.
In two weeks, the country will celebrate our Independence
Day and the establishment of the United States as a sovereign
nation, free from ``taxation without representation''. Yet the
700,000 predominately Black and Brown residents of Washington,
DC. continued to pay taxes without representation for over 200
years.
As we celebrate our nationhood, I appeal to this Senate to
end the ongoing systemic injustice faced by the growing
population in D.C. and vote for statehood in the 117th
Congress. We cannot emphasize enough the civil rights and full
democracy of D.C. residents is in your hands.
We are 700,000 people, some born here, others from all 50
States and the many nations of the world. We are Washingtonians
who serve proudly in our military and fight for our country,
and we are 30,000 veterans of our Armed Forces.
We are Washingtonians. We have served on the front line as
essential workers during this pandemic--doctors, nurses,
firefighters, schoolteachers--and yet we have no say in this
Senate.
We are Washingtonians who heroically defended our Nation's
Capital during the January 6th insurrection by answering the
call to support our Federal partners, despite not having any
representation in this Senate.
We are Washingtonians. We do not have any say when this
Senate considers Presidential nominations, Supreme Court
justices, and large investments like the Coronavirus Aid,
Relief, and Economic Security (CARES) Act or the American Jobs
Plan.
I ask you today to treat D.C. residents the same as all
taxpaying American. Your inaction could doom yet another
generation of Washingtonians to being locked out of their
constitutional power and human rights. Will this body
perpetuate this civil rights and voting rights wrong? By what
authority would this body continue to have Washingtonians pay
Federal income taxes without a voice?
Today, I am asking this U.S. Senate usher in a new age of
fairness and equality for D.C. residents.
One thing I know about D.C. residents is that they have
been fighting for this for 220 years. We will not quit until we
achieve full democracy, and our two Senators are seated here
with you. D.C. residents are not standing alone. Over the years
we have garnered the support of Americans of all stripes and
beliefs: the bipartisan United States Conference of Mayors, for
example, representing millions of Americans in big cities and
small towns; the nonpartisan League of Women Voters (LWV) who,
for 100 years have fought to defend our democracy; the National
Association for the Advancement of Colored People (NAACP); the
Human Rights Campaign (HRC); and the Leadership Conference on
Civil and Human Rights (LCCHR), who recognize D.C. statehood
for the civil and human rights contradiction that it is; to
your former colleague and Independent Senator Joe Lieberman
whose focus on justice and fairness makes plain why partisan
considerations have absolutely nothing to do with the quest of
D.C. citizens for full democracy and absolutely no place in
ensuring that S. 51 moves forward in the 117th Congress.
Finally, Chairman, together, with leaders from across
America, we know that we will keep pushing until D.C.'s tragic
disenfranchisement is rectified. You have the power to make two
things happen that I see so clearly in my mind's eye and feel
so deeply in my heart and soul. With your courageous leadership
and clear-eyed focus on fairness and perfecting our union
today, this session, this Congress, you will vote to admit D.C.
into our great American union. Second, and prayerfully, I will
be the last D.C. Mayor who needs to sit here demanding, on
behalf of our 700,000 residents, what is our birthright, and
what is owed to us as taxpayers, and that is full citizenship
and democracy.
Thank you, Mr. Chairman, and thank you, Senators, and we
are happy to take your questions.
Chairman Peters. Thank you, Mayor, for your opening
statement.
Our next witness is Marc Morial, President and Chief
Executive Officer (CEO) of the National Urban League (NUL), the
nation's largest historic civil rights and urban advocacy
organization. Mr. Morial previously served as mayor of New
Orleans, a Louisiana State senator, and was the president of
the U.S. Conference of Mayors.
Welcome, Mr. Morial. You may proceed with your opening
comments.
TESTIMONY OF THE HONORABLE MARC H. MORIAL,\1\ PRESIDENT AND
CHIEF EXECUTIVE OFFICER, NATIONAL URBAN LEAGUE
Mr. Morial. Chairman Peters, Ranking Member Portman, and
Members of the Committee, I want to thank you for the
opportunity to testify on the Washington, D.C. Admission Act.
As Chairman Peters indicated, I am Marc Morial. I am President
and CEO of the National Urban League. In addition to serving as
mayor of New Orleans and a Louisiana State legislator, I am
also a former Senate staffer, having served for the late
Russell B. Long of Louisiana in the 1980s.
---------------------------------------------------------------------------
The prepared statement of Mr. Morial appears in the Appendix on
page 70.
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I also am proud to say that Congresswoman Norton taught me
both civil rights and constitutional law when I was a student
at Georgetown University Law Center and a resident of the
District of Columbia, from 1980 to 1983, and I thank her, Mayor
Bowser, and Senator Lieberman for their testimony and their
leadership on this important issue.
We, the National Urban League, were founded in 1910, and we
have served the District of Columbia through both the Greater
Washington Urban League, since 1938, and the Washington, D.C.
Bureau of the National Urban League, since 1962. On behalf of
all of our members and supporters across the Nation, I urge the
Senate to pass this legislation to remedy the
disenfranchisement of nearly 700,000 Americans.
Throughout my career as a voting rights activist, a civil
rights lawyer, and an elected official, I have had a
longstanding passion in the D.C. statehood movement. While in
law school in Washington, I grew to know and love this
community and made the city my second home. From 2006 to 2010,
I served on the D.C. Statehood Commission, where we pushed for
D.C. statehood and statutory representation.
Despite the progress we have made in the fight against
disenfranchisement over the 200-plus years, D.C. residents have
been pushed to the sidelines as spectators, and continue to be
deprived of full representation. They are unable to bring
grievances to influential Federal officials, reap the benefits
available to other congressional constituents, or have a say in
the important issues of war and peace that confront this
Nation.
As a civil and human rights services organization, the
National Urban League is in a unique position to see how this
lack of representation acutely impacts D.C. residents during
the Coronavirus Disease 2019 (COVID-19) pandemic. D.C.
residents were in dire need of the relief afforded under the
CARES Act. However, they did not have congressional
representation that could offer amendments to, or vote on the
final bill, and D.C. was originally denied some $755 million in
critical funding that it needed to provide direct relief to its
residents.
Last summer, D.C. residents took to the streets to exercise
their First Amendment rights to peacefully protest racial
injustice and police brutality. In response, the then
administration gave orders to the National Guard and Federal
law enforcement to carry out a disproportionate and
inappropriate response in the interest of a photo op.
The same administration refused to call in the National
Guard in response to a violent attack on the U.S. Capitol on
January 6th, until much of the damage had already been done. In
both cases, D.C. officials were absolutely powerless to respond
to critical events that were happening to their own people,
because the District did not have statehood and the critical
safety mechanisms that statehood provides.
D.C. residents are not able to hold elected representatives
accountable for these horrors. There was no D.C. elected
congressional representative to vote to establish the
Independent January 6th Commission to investigate the attack on
the U.S. Capitol or the George Floyd Justice in Policing Act,
which would put in place critical policing reforms.
We are at a unique juncture in American history, where we
can create laws that reflect our democratic values and
principles and ensure that the fundamental right to vote, which
is a foundation of all rights, can be exercised by all American
citizens. We cannot let this moment pass. It is time to enact
the Washington D.C. Admission Act.
I want to thank Senator Carper for calling attention to
this issue by introducing the Washington D.C. Admission Act in
the Senate, and I applaud all of the testimony herein. This is
an injustice. This is a denial of voting rights. This is
something that should be remedied now.
I urge this committee to stand up for American values and
for democratic principles and pass the D.C. statehood bill.
Thank you so much.
Chairman Peters. Thank you, Mr. Morial, for your opening
statement.
Our next witness is Richard Primus, the Theodore J. St.
Antoine Collegiate Professor of Law at the University of
Michigan Law School. Go Blue. Professor Primus is an expert in
congressional law. He is the recipient of the first-ever
Guggenheim Fellowship in Constitutional Studies for his work on
the relationship between history and constitutional
interpretation. He also clerked for the late Justice Ruth Bader
Ginsburg on the Supreme Court.
Professor Primus, welcome. You may proceed with your
opening comment.
TESTIMONY OF RICHARD PRIMUS, D.PHIL.,\1\ THEODORE J. ST.
ANTOINE COLLEGIATE PROFESSOR OF LAW, UNIVERSITY OF MICHIGAN LAW
SCHOOL
Mr. Primus. Chairman Peters, Ranking Member Portman,
Members of the Committee, my name, as the Chairman says, is
Richard Primus. I am the Theodore J. St. Antoine College
Professor at the University of Michigan Law School. I am
honored by your request that I participate in today's
proceedings. I want to recognize Chairman Peters as my own
Senator and Ranking Member Portman as a distinguished graduate
of the law school where I teach, and I thank the Michigan law
students who helped me prepare: Ruby Emberling, Savannah Brice,
Rob Loteman, Thomas Quillen, and Tyler Washington.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Primus appears in the Appendix on
page 75.
---------------------------------------------------------------------------
The constitutionality of S. 51 is straightforward. The
Admission Clause, or Article IV, Section 3, empowers Congress
to admit new States subject only to the limitation that
Congress cannot unilaterally reconfigure existing States. S. 51
would not reconfigure any existing State. It would simply take
an American territory that is not currently a State and make it
one. This exactly what the Admission Clause empowers Congress
to do.
Some say that this admission would require a constitutional
amendment, but the Constitution does not say that. The
Constitution gives the power to admit new States to Congress,
not jointly to Congress and the State legislatures by way of
constitutional amendment.
Still, some Americans have the intuition that something
would be constitutionally amiss about making most of what we
know as Washington, D.C. into a State, and that intuition,
which I think many people hold on a good-faith basis is based
on our knowledge that the Founding generation did not intend
Washington, D.C. to be a State. It is true. The Founding
generation did not intend Washington, D.C. to be a State. But
the Founding generation also did not intend to create a
situation in which 700,000 Americans would have no voting
representation in Congress. For the Founders, no principle was
more central to the Constitution than representative
government. At their time there was no conflict between that
principle and the non-state status of Washington, D.C, because
virtually nobody lived in Washington, D.C, but today it is a
conflict.
The number of registered voters in D.C. today is larger
than the entire number of voters who participated in all of the
elections, of all of the conventions that ratified the
Constitution, in all 13 original States put together. On any
constitutional vision that takes representative government
seriously, that is a serious problem, and given the importance
that the Founders attached to representative government, it
would be strange to conclude that their vision requires us to
maintain a situation in which so many American citizens lack
representation.
Unfortunately, it doesn't. The Constitution they adopted
gives Congress a tool for solving the problem. That tool is the
power to admit new States and give representation for Americans
who currently lack it. S. 51 is not at odds with the Founders'
vision. On the contrary. S. 51 helps fulfill what is most
important in that vision.
Before I close, I should say a word about the ideas
expressed in the testimony of two witnesses with whom I have
the honor to share this meeting, Professor Derek Muller and Dr.
Roger Pilon. Professor Muller cautions that S. 51 could cause
confusion at the next Presidential election, given the 23rd
Amendment. I agree with Professor Muller that the best solution
is to repeal the 23rd Amendment and that the second-best
solution is for Congress to ensure, by statute, that the seat
of government does not appoint rogue electors, and read S. 51
to accomplish the latter solution by removing any electors that
might be appointed for the seat of government from the
electoral count. In my written testimony, I offer suggestions
for what Congress could do if it wants to improve on that
solution, but the existing solution is adequate.
Professor Muller rads the statutes differently, but the key
point is this. Professor Muller and I agree that even if his
reading were correct, S. 51 would be constitutional, and
Congress could solve any confusions rising from the 23rd
Amendment statutorily. In other words, he and I agree that
nothing about the 23rd Amendment makes S. 51 unconstitutional.
In my limited time, I will address one of Dr. Pilon's
arguments that contention to S. 51 would require the consent of
the Maryland legislature. The idea is that Maryland gave what
is now Washington, D.C, to the United States to be used as the
seat of government, not so that one day it could be a State of
its own. In my own view, this is the strongest of Dr. Pilon's
arguments, and Ranking Member Portman picked up on it in his
spoken remarks.
But there is a difference between giving a gift for a
reason and giving a gift on condition, and I am happy to
discuss the distinction further, if it is helpful. But in
short, if Maryland had ceded lands to the United States and
specified that the cession was valid only so long as the land
were used in a certain way, there might be a problem with S.
51. But Maryland's cession has specified no such condition.
Washington, D.C., belongs to the United States. Maryland has no
greater claim on it than the rest of America does.
I thank the Committee for its attention and I will be happy
to address any questions.
Chairman Peters. Thank you, Mr. Primus.
Our next witness is Roger Pilon, Vice President for Legal
Affairs and the B. Kenneth Simon Chair in Constitutional
Studies at the Cato Institute. Mr. Pilon is a policy scholar at
the Cato Institute and is the Chair of the Constitutional
Studies program.
Welcome, Mr. Pilon. Please proceed with your opening
statement.
TESTIMONY OF ROGER PILON, PH.D.,\1\ VICE PRESIDENT FOR LEGAL
AFFAIRS, THE CATO INSTITUTE
Mr. Pilon. Thank you.
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\1\ The prepared statement of Mr. Pilon appears in the Appendix on
page 88.
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Chairman Peters, Ranking Member Portman, thank you for
inviting me to testify on the D.C. Admissions Act. S. 51 raises
both Constitution and practical problems. That has been the
conclusion of every Department of Justice (DOJ) that has
considered related issues since the time of Attorney General
(AG) Robert Kennedy. To summarize my written statement here, in
which the points I make here are much more fully discussed in
written statement. I will simply touch on four issues:
congressional authority, Maryland's consent, practical
problems, and most important, 23rd Amendment.
Congress certainly has authority to admit new States to the
union. It has done so 37 times under Article IV, Section 3,
either with consent of the State from which the new State was
created or, more often, from Federal territory acquired in
clear contemplation of creating States from it, like the
Northwest Territory.
But this is not a normal admissions case. The District of
Columbia is unique. Our first Congress created it not under
Article IV but under Article I's Enclave Clause for the express
purpose of it becoming the seat of the new government. It has
been that well over 200 years. Given that history, there is a
strong presumption by now against this bill's radical change.
The framers certainly did not intend anything like this.
Second, Maryland ceded the land for the express purpose of
it becoming the seat of the Federal Government. It did not do
so for the purpose of creating a new State on its border, nor
is it likely that it would have done so for that purpose.
Contrary to the bill's proponents, Article IV alone requires
Maryland's consent.
Third, as a practical matter, this bill strips Congress of
its authority over the present district. Congress will then
have authority over this tiny enclave around the National Mall,
and that raises numerous practical problems. As James Madison
explained, the Federal Government must not be dependent on any
one of the States, nor should any State be either dependent or
excessively influential on the Federal Government. This bill
fails on each of those counts.
Finally, and most important, the 23rd Amendment granting
the District three electoral college votes, would need to be
repealed, because there will still be residents in this tiny
enclave, including the First Family, and they will have
outsized influence on Presidential elections, yet their votes
cannot be taken away by mere statute. It is going to take an
amendment. Proponents seem to understand this. Indeed, their
bill provides for expedited procedures for repealing the 23rd
Amendment, but that is a long shot, given the ratification
hurdles. The bill also provides for repealing the statute that
enables residents to vote.
That would extinguish the residents' right to vote, of
course, so there is a problem here, and not even the 39
scholars who wrote to Congress recently to support this bill
are able to agree about how to resolve it. One camp reads the
23rd Amendment as self-enforcing and therefore as mandating the
appointment of electors. The other reads it as requiring
enabling legislation, so without that there is no way for the
residents to vote, and that camp seems perfectly happy with
that result.
But even if the self-enforcement camp prevailed and the
District had to appoint electors in such manner as the Congress
made direct, as the amendment reads, both camps claim that
Congress could replace the current law. That law orders
electors to vote in accordance with the District's popular
vote.
The scholars believe that Congress could order electors to
vote for the ticket that got the most electoral college votes
nationwide, for example, or for the ticket that won the
national popular vote. In other words, the scholars read manner
as referring not simply to procedures needed to execute voting
but to legislation allowing Congress to direct electors now to
vote.
The current statute does that, of course, but the way it
does it is perfectly consistent with the whole point of the
23rd Amendment, namely to enable District voters to choose
electors pledged to their preferred ticket. Congress certainly
cannot direct voters how to vote, but neither could Congress
direct electors how to vote, except as consistent with the
popular vote, in the jurisdiction. Otherwise, the amendment
would amount to nothing. Yet that is precisely what the
scholars' examples come to.
Thus, if District voters went overwhelmingly for electors
pledged to the Democrat ticket, while in the rest of the
country the Republican ticket got the most electoral college
votes, or won the national popular vote, the District's voters
would effectively count for nothing, because the electors they
voted for would be required to ignore how they voted. That
would surely raise constitutional issues.
In short, I do not see how this bill, if enacted, can
overcome the constitutional and practical challenges 22 State
attorneys general have promised it is going to face. Thank you.
Chairman Peters. Thank you, Mr. Pilon. Our final witness is
Derek T. Muller, a Professor of Law at the University of Iowa
College of Law. Mr. Muller focuses on election law, Federal
courts, civil procedure, administrative law and evidence. His
research concentrates on the role of State and the
administration of Federal election.
Professor Muller, welcome to the Committee. You may proceed
with your opening comments.
TESTIMONY OF DEREK T. MULLER,\1\ PROFESSOR OF LAW, UNIVERSITY
OF IOWA COLLEGE OF LAW
Mr. Muller. Thank you, Chairman Peters, Ranking Member
Portman, Members of the Committee. I appreciate the kind
invitation to testify here today. I am a Professor of Law at
the University of Iowa College of Law, as mentioned. I teach
election law and Federal courts, and today I am here to talk
about four points on voting issues relating to the District.
These are not abstract questions about statehood. These are
practical problems related to S. 51 as it presently exists.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Muller appears in the Appendix on
page 96.
---------------------------------------------------------------------------
First, the 23rd Amendment guarantees that the new District
would have three electoral votes, no matter how few people
reside in it. While most of the District of Columbia would
become a State, under S. 51 the new seat of government would be
known as ``Capital,'' and Capital would be entitled to three
electoral votes. The boundaries of Capital roughly map onto a
census tract. That tract had 33 inhabitants in the 2010 census,
and 58 in the 2019 survey. A tiny group of prospective voters,
potentially including the President and family, who happen to
reside here, now have three electoral votes.
Second, S. 51 does not adequately address the 23rd
Amendment and related voting issues. To start, there is no
guarantee of repeal of the 23rd Amendment. The bill simply
hopes it will happen. If there is a legal controversy about
whether the District could become a State, everyone has an
incentive to wait and see the legal process play out. If
statehood is unconstitutional, as found by a Federal court, I
assume District residents would prefer to retain the 23rd
Amendment rather than see it repealed.
Amending the Constitution is a hard thing to do. It has
been done once in the last 50 years. We have had a lull period
of amending the Constitution, and we should not simply wish for
future events to occur.
Additionally, Section 223 of the act is misleading. It is
entitled ``Repeal of law providing for participation of seat of
government in election of President and Vice President.'' But
in my judgment this does not ``repeal'' the law providing for
participation'' in the Presidential election, which is
currently codified in the D.C. Code and would continue to be in
force after S. 51 was enacted. Instead, it repeals 3. U.S.C.
Section 21, a provision enacted to clarify the Electoral Count
Act about the timing, transmission, and counting of electoral
votes, not the District's participation in a Presidential
election.
Finally, Section 221 of the bill may be unconstitutional.
It compels States to permit absent Capital voters, eligible
voters in Capital who had previously domiciled in another
State, to register in their former States and request absentee
ballots for Federal elections, but States have the broad power
of the qualifications of their voters, including reasonable
citizenship, age, and residency requirements.
Congress' power to dictate voter qualifications for those
who moved out of a State years ago is deeply contested. If this
section is successfully contested in court, a related provision
in Federal law that entitles tens of thousands of military and
overseas voters access to the ballot may well be in peril.
Third, statehood for the District of Columbia should be
conditioned on repeal of the 23rd Amendment. An amendment might
condition repeal in the event that the District falls below a
certain population threshold. If the bulk of the present
District of Columbia becomes a State or is retroceded, the 23rd
Amendment would simply cease to apply.
Fourth, potential alternative statutory solutions present
legal and practical problems. None of these solutions that I
describe are present in S. 51. They are the stuff of conjecture
at the moment. If Congress decided not to appoint any electors
at all, by, say, repealing the relevant provisions of the D.C.
Code, Congress would be derelict in its duty. The Supreme Court
has repeatedly noted that in the context of elections the word
``shall'' places a duty. The Constitution provides, in the 23rd
Amendment, the District shall appoint electors.
Congress might enact a law awarding Capital's electors to
the winner of the electoral college or to the winner of the
national popular vote, but the 23rd Amendment provides that the
District shall appoint and Congress may direct the manner. The
first clause is the ``who.'' The second clause is the ``how.''
If Congress chooses a manner to award electors based on what
happens in the rest of the United States, it is hard to say
that the District has appointed anyone. Selection must occur
within a place, not outside it.
Awarding Capital's electors to the winner of the national
popular vote suffers too. How does Congress determine the
national popular vote? How does it handle litigation and
recounts? Voter eligibility rules vary from State to State.
Voting procedures vary. Different candidates appear on the
ballot in different States. While some variation in election
procedures is inevitable, it may well violate the Equal
Protection Clause, and it certainly presents significant
practical problems.
In one sense my testimony is modest. It does not weigh in
on the merits of constitutionality of statehood. It is
addressed simply at the practicalities of S. 51, what it would
do and what might happen if it were enacted. It only addresses
practical voting rights problems, but these problems are
serious and vexing, that in my judgment the present bill is
inadequate to address.
Thank you for the opportunity to testify. I look forward to
answering your questions.
Chairman Peters. Thank you, Mr. Muller, for your testimony
here today.
As we sit here and meet at this hearing the U.S. Senate, we
are within a city outside these grounds that is populated by
over 700,000 Americans who simply do not have equal
representation or an equal voice in this Congress.
Mr. Morial, as President and CEO of the National Urban
League, you lead an organization that is dedicated to achieving
equal rights. Would you explain to this Committee how D.C.
statehood further our democratic promise of equal
representation and how ensuring D.C. very diverse population
has a voice in Congress is part of the American Civil Rights
Movement.
Mr. Morial. Thank you very much, Chairman Peters. It is
axiomatic that the right to vote is fundamental to American
democracy. Think of what we have here--700,000 American
citizens who comply with our laws, pay Federal taxes,
participate in our society, are the only who do not have the
right to vote in Federal elections in a way that counts, and,
of course, excluding territories. That robs the residents of
the District of Columbia a voice in many critical decisions--
war and peace, taxation, regulation, distribution of proceeds,
and I could continue to list it. It is so basic.
We fought, as a Nation, in the 20th Century to expand the
right to vote, first to women with the passage of the
Nineteenth Amendment, to African Americans, with the enactment
of the Voting Rights Act, which made real the promise of the
Fourteenth and Fifteenth Amendments, with the constitutional
ban on poll taxes. In every single instance, this is one of the
last pieces of that, I think, important shift in how we govern
this Nation.
For us, at the National Urban League, nothing is more
fundamental than the right to vote, the ability to choose a
member of the House, who has a vote on the floor of the House,
to choose two members of the U.S. Senate, who have a say in all
of the important proceedings.
I might add that right now Federal judges and superior
court judges are appointed by the President of the United
States and ratified, or rather confirmed by the Senate with no
voice by the members of the District of Columbia, by the
residents of the District of Columbia, and any choice for U.S.
Attorney, for district court judge, for appellate court judge,
or even the court that deals with, if you will, the counterpart
to State laws in the District of Columbia, the superior court.
No voice by the residents of the District of Columbia. This is
an injustice, and all of the legalistic arguments do not
address the fundamental basic issue, and that is the right to
vote.
I think I speak for the broad civil rights community and
for the voting rights community in saying that this is a long
battle whose time has come. It is time to enact this bill.
Chairman Peters. Thank you. Our country was founded on the
principle of no ``taxation without representation'', the key
part of what inspired the Revolutionary War. But the reality
for D.C. residents is that unlike any other citizen of this
country they pay taxes, Federal taxes, without having full
representation in Congress. In fact, residents of the District
of Columbia currently pay more than $6.9 billion annually
Federal income taxes. That is more than residents in over 20
States, and it means D.C. residents pay more per return in
Federal income tax than residents of any other State.
Mayor Bowser, under the status quo, in your mind, is it
fair that D.C. residents are paying billions of dollars in
taxes every year to the Federal Government and yet have no say
in how that taxpayer money is being spent?
Ms. Bowser. It is absolutely unfair, Mr. Chairman, and you
laid it out perfectly. It is a question of fairness and it is a
question for us of what we are entitled to as American citizens
and taxpayers. What we have spent, many years, making sure that
everybody recognizes is that the residents of the District of
Columbia, we pay our own way. We run our own government. We are
a State, a city, and a county all at once. It is very important
that a jurisdiction as well run as ours, a jurisdiction that
has built its population, its tax base, has built a AAA bond
rating on Wall Street, have full representation in the
Congress, but also that we have full autonomy over our
decisions.
Chairman Peters. Thank you, Mayor, for that response. I
need to step out and be on the floor of the Senate, and so I am
going to turn over the gavel to Senator Carper. But I will now
recognize Senator Johnson. I know Ranking Member Portman had to
step away. He has yielded his time to you, Senator Johnson. You
may proceed with your questions.
Ms. Bowser. Thank you, Mr. Chairman.
OPENING STATEMENT OF SENATOR JOHNSON
Senator Johnson. Thank you, Mr. Chairman. We have heard
approximately about an hour of testimony, opening statements in
favor of D.C. statehood, and about 15 minutes of the
counterargument there, which I found quite convincing, the
complexities of it, the difficult nature of the Constitution,
as well as the statutes.
A number of times I have heard that something is not
constitutional about this, that there are constitutional rights
being violated. Yet the Constitution set up the District,
specifically.
Mr. Pilon, can you talk about what the Founders had in mind
and why they set the District apart separate from the type of
statehood that we have in the rest of the country?
Mr. Pilon. I would be delighted to do, Senator Johnson, and
the argument can be found in Federalist 43\1\, by James
Madison, in which interdependency and the problem it poses runs
throughout the arrangements that were set forth, to create a
separate District of Columbia such that the Federal Government
would not be seated in any one of the particular States.
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\1\ The Federalist 43 papers appear in the Appendix on page 148.
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They had experience with that in 1783, under the Articles
of Confederation, where the then Continental Congress was
meeting in Philadelphia at the time. They were confronted with
a job that sought to storm the Constitutional Hall, and indeed
were forced to fleet because the local government would not
take measures to prevent that mob from doing so. That was
clearly on their mind when they drafted the Constitution's
Enclave Clause, which provides for a District no larger than 10
miles square, not 10 square miles. There is a difference
between the two.
Senator Johnson. There is obviously a conflict between a
central Federal Government versus the sovereign States. Those
individuals that are within the District obviously have a
vested interest in a very powerful Federal Government. Correct?
Mr. Pilon. Yes.
Senator Johnson. Which is counter to the power vested in
the States, that the States want to maintain their sovereign
power. Correct?
Mr. Pilon. Yes.
Senator Johnson. From my standpoint--and again, we can talk
about the constitutionality, we can talk about the complexities
with the statutes and how to deal with the 23rd Amendment--to
me this seems like a naked power grab.
I thought it was interesting, Senator Lieberman talked
about that nobody can predict how the District would vote. I
think you can predict quite handily. He cited Alaska and
Hawaii's examples of what people thought, how they thought they
would vote has completely flipped, but I do not think either
Hawaii or Alaska had these types of voting histories.
In 2020, 92.2 percent of D.C. votes went to the Democratic
candidate, 5.4 percent went to the Republican candidate. In the
last eight elections, no Republican candidate has gotten more
than 10 percent of the vote. That is over 28 years. Again, I
would argue that certainly has something to do with the vested
interest of the people here in D.C. who--there is certainly
poverty here, but this District is not made of many
disadvantaged individuals, because the average median income of
the District of Columbia is $92,000. That compares to the
average median income nationally of $65,000.
Thirty-four percent of the residents of the District of
Columbia that are 25 years or older have some kind of post-
graduate or professional degree, versus 13 percent of the rest
of the population. This is an elite group of people here. They
have a vested interest in the power of the Federal Government,
and I think that is one of the issues that we need to address
when we are talking about whether we should grant statehood to
the District of Columbia.
Professor Muller, would you agree with that, or what would
your comments be on that?
Mr. Muller. I think statehood is a question of
representation and a question of the kinds of issues that the
Members of this Committee are debating, to determine whether or
not it should look like the present form, whether it should
look like statehood, whether it should look like retrocession.
It is certainly the kind of thing that should be considered.
Senator Johnson. In the end, people choose to live here, as
well.
Madam Mayor, I cannot let this opportunity pass, as long as
you are here testifying before the Committee, to talk about
what I consider an important constitutional issue, which is the
equal administration of justice. Just a couple of questions in
terms of how the District has handled people who have rioted in
the summer versus people who breached the Capitol. I condemn
both equally. Have you seen any information in terms of
insurance claims of how much property damage, was done during
the summer rioting? Do you have a figure on that, because we
know nationally those riots, close to $2 billion in insurance
claims.
Ms. Bowser. Thank you, Senator, for your interest in the
District, but I have to address your question first by talking
about the residents of D.C., 700,000 people, hard-working
individuals, who educate their children, start businesses, and
work in the District. It would be incorrect to say that D.C.
residents have more of an interest in the Federal Government
than other Americans. We know that we have----
Senator Johnson. Again, that is not the question.
Ms. Bowser [continuing]. All over----
Senator Johnson. That is not the question I asked you, so
could you answer the question? Do you have a property damage
estimate from the summer riots?
Ms. Bowser. I am glad to hear you say that you are opposed
to riotous behavior, whether it happen on 16th Street or here
at the Capitol.
Senator Johnson. Madam Mayor, could you answer the
question? Do you have an estimate of the property damage during
the summer riots?
Ms. Bowser. I know that we had one night of rioting in the
District----
Senator Johnson. Do you know how many people were arrested
for the summer riots?
Ms. Bowser. We have had dozens of people arrested over the
last year.
Senator Johnson. How many are still being detained?
Ms. Bowser. I do not know. I do not know the answer to
that.
Senator Johnson. Do you know whether, by using geolocation,
did we go and arrest people who participated in the summer
riots in their individual States, like we did with the January
6th breachers?
Ms. Bowser. If you are asking about how the Federal Bureau
of Investigations (FBI) operates you will have to address those
questions to them. I can speak for the Metropolitan Police
Department (MPD), and we do not permit any riotous behavior,
whoever is conducting it. We have made arrests in both cases,
in cases where we had riotous behavior, and that is a specific
behavior, here, on the Congress' grounds, and on city streets.
Senator Johnson. OK. My final point is I know the members
of the House of Representatives have written a letter to you
inquiring about the conditions in the D.C. jail, which people
are being held basically the entire population in some form of
solitary confinement. When you respond to their letters I would
like you to send me the same response.
Ms. Bowser. Senator, you are aware that our criminal
justice system is also unique in the American system, that our
Metropolitan Police Department makes arrests, but all arrestees
are processed through a Federal system, through the courts who
have federally appointed judges, a pretrial system that is
Federal as well.
We operate a D.C. jail, and if there are any concerns about
conditions at the jail I will address them.
Senator Johnson. There are, and again, I just ask you to
respond to me when responding to the House members who are
asking about the conditions of solitary confinement.
Ms. Bowser. Yes. Having control of our criminal justice
system is a driving force behind why we need statehood.
Certainly we have talked about representation, but being able
to enforce our own laws is important to how we operate our
jurisdiction.
Senator Johnson. OK. Thank you, Mr. Chairman.
Senator Carper [Presiding.] Thank you, Senator Johnson.
To our witnesses, let me just note that the Members of the
Committee will have the opportunity and the right to submit
questions for the record, and if they exercise that right then
we would appreciate very much your timely response.
Again, we thank all of you for joining us today to testify
and presenting your points of view. I am going to ask, if I
can, for Dr. Primus, if you don't mind I would like for you to
reflect on what we have heard today from Dr. Pilon and from Mr.
Muller, and to ask is there anything that you have heard from
either of these witnesses, anything you would like to comment
on, please? Thanks.
Mr. Primus. Sure, and it is a privilege to share the
hearing with both of them. They are both people who think a lot
about these issues.
The first point I would note is that there is something a
little bit curious about the contention that we have heard from
Professor Muller that we should not count on the ability to
repeal the 23rd Amendment. It is true the repeal does not
happen by itself, but here is what I want to point out to the
Committee in a very big-picture way.
Many members of the U.S. Senate are committed to a theory
of constitutional interpretation that usually goes by the name
of originalism. It is the theory that is usually associated
with late Justice Scalia. One of its very basic premises is
that the Constitution's original leanings are binding because
if we do not like what it means we can change it. That is, the
whole theory is premised on the idea that the Constitution can
be amended whenever we want.
To take the view that the 23rd Amendment could not be
amended, that it is very unrealistic to think that would
happen, even though the 23rd Amendment would be ultimately
pointless--nobody would really want it around if S. 51 were to
be adopted--is essentially to say that the theory of
originalism associated with Justice Scalia is all wrong, is a
fable. I do not think that is a position that everyone who is a
member of the U.S. Senate wants to endorse.
I should also say, briefly, to Dr. Pilon's comment. I am
sorry?
Senator Carper. Thank you. I was listening to something
that colleague, Senator Johnson said. Go ahead. Anything else
you wanted to say on this point?
Mr. Primus. Just very briefly, Dr. Pilon says that there is
disagreement among the scholars who wrote in to support the
constitutionality of this bill about the best way to solve the
complications arising from the 23rd Amendment. It is true that
there is disagreement about what the best way to solve the
problem is. That is because there are many possible solutions,
and as among many adequate possible solutions, not everyone
agrees on what the best solution is, but everyone agrees that
the problems are solvable. Mr. Muller agrees about this. I
agree with this also. I could, if the Committee wanted to,
speak about specific details of complexities that are raised
and why there are actually not problems, or solvable, but we
all agree that all of these problems are solvable, and none of
them should be an obstacle to S. 51.
Senator Carper. Dr. Primus, thank you very much for that
response. As you mentioned in your testimony, some people
believe that the District of Columbia can only become a State
through constitutional amendment. My bill, a bill that many of
our colleagues have co-sponsored, as well as the nearly 40
constitutional law experts who recently signed a letter of
support, believe otherwise.
Professor Primus, I am going to ask you a series of brief
questions, if you do not mind. The first of those is, how many
of the 37 States admitted into the union after the original 13
colonies were done so by a constitutional amendment?
Mr. Primus. None.
Senator Carper. Second, did Congress require constitutional
amendment to shrink the Capital in 1946, when it gave land back
to Virginia?
Mr. Primus. No, it did not.
Senator Carper. Third, what is the maximum size of the seat
of government established in the Constitution, and does it
require a minimum size?
Mr. Primus. The maximum is 10 miles square. That is in
plain text. There is no minimum size. It is left to the
judgment of Congress.
Senator Carper. Thank you. Last, can you speak briefly as
to why a constitutional amendment is not required, nor the
norm----
Mr. Primus. Well, constitutional----
Senator Carper. Wait. Can you speak briefly as to why
constitutional amendment is not required, nor the norm, in
entering a State into the union, and how the Constitution
grants Congress the authority to make a State? Go right ahead.
Mr. Primus. Sure. This is the text of the Constitution. The
Constitution, Article IV, Section 3, the Admissions Clause,
which says that Congress can admit new States into the union.
Like every other power expressly vested in Congress by the
Constitution, except where specifically specified otherwise,
that power is accomplished by congressional action by a
majority of each house, and then presented to the President. In
the small number of cases where something has to be done
different, the Constitutional specifies that it has to be done
different.
This is not an oversight. At the Constitutional Convention
in 1787, there was a proposal considered to require a super-
majority of Congress to consent to the admission of new States,
and it was rejected. It was felt that this was the sort of
thing that Congress can do all by itself, in the normal way
that it does everything else. That is the text of the
Constitution. To state that it has to be done in some other way
is simply to say something that the Constitution does not say.
If I might say one other thing, the suggestion that
Congress needs Maryland's permission is not supported by the
clause. It is true that Maryland gave the land to the United
States to be used as the District. The land was used as the
District.
Suppose you wanted to bike to work instead of drive, and I
said, ``I have an extra bike. Why don't you take my bike? Here,
it is a present,'' and for 10 years you used my bike and ride
it every day. Then 10 years later you decide that you want to
do something else with the bike. You are going to ride it on
weekends, or you are going to give it to your kid, or some such
thing. You do not need to come back and ask me to do that. I
gave you the bike. I did not say, ``If you do something with
it, otherwise one day you have to give it back to me.''
That is the position we are in. D.C. belongs to the United
States.
Senator Carper. Thank you for that response. We are being
joined by Senator Lankford. I am pleased to recognize him at
this time. Thank you for joining us, James.
OPENING STATEMENT OF SENATOR LANKFORD
Senator Lankford. Senator Carper, thank you very much. I
know you have been in this dialogue for a very long time, and
that you have been engaged in this, as many of you have been,
engaged for a very long time on this. You also know my
predecessor, in the last time that there was a hearing on this,
Senator Coburn, when he came into this hearing he sat down and
said it was a waste of time, and walked out.
Senator Carper. A man of few words.
Senator Lankford. Yes. I know that you all had multiple
conversations on things you did not agree on, and I know this
was also an area that you had strong disagreements.
Senator Carper. We had a great friendship. He was a good
talker. I was good listener.
Senator Lankford. Yes. I appreciate the dialogue on this
and to be able to go through it. Obviously this has been a
point of conversation for many people for a very long time, to
be able to talk about this.
I want to begin with a larger question on this, and that is
the issue of retrocession. Obviously we have walked through
this area before, as a Nation, that the southern portion of the
District of Columbia retroceded back to Virginia in 1847, 1946.
I think just about everybody on the panel has mentioned that so
far today, to be able to discuss retrocession. What is the
barrier to retrocession with Maryland today? Mr. Pilon?
Mr. Pilon. Yes. Thank you, Senator Lankford. That issue,
with respect to the retrocession of Virginia in 1846 has never
been tested. It arose in a private taxpayer suit some 30 years
later. The court declined to address the merits because so much
water had gone under the bridge, and so much would have to be
disturbed.
Many people have questioned whether that retrocession was
legitimate, including no less than President Lincoln and
President Taft, and others. And so it remains an open question.
Senator Lankford. What is the way that that would have to
be resolved?
Mr. Pilon. The court have to speak to it, first of all.
Senator Lankford. You have to find someone with standing,
first of all, for the court to speak to it.
Mr. Pilon. Yes. The standing issue would certainly come up.
But with respect to retrocession to Maryland, which is what
your opening question was about, there you would certainly need
the consent of Maryland to do that. In fact, if I may respond
to a point that Professor Primus made, the grant of land from
Maryland to the District was made pursuant to Article I, the
Enclave Clause, expressly for the specific purpose of creating
a seat for the new government.
Now, he used a hypothetical. I will give you a
hypothetical. Suppose that immediately upon receiving that land
the Federal Government turned around and created a State rather
than the seat of the new government. Everybody would agree that
was sheer political mischief. If that is the case, then what
difference does it make whether they did it immediately or in
the intervening 200 years? The principle remains the same. They
did not use it for the purposes for which the land was granted,
but to do something completely different, and that raises a
series problem, in and of itself. It raises the Article IV
question too, because in order for the Federal Government,
Congress, to make a State out of the District, you would need,
had they done that initially, the consent of Maryland to do
that, under Article IV. It seems to me that consent will still
be needed, even though it is more than 200 years later.
Senator Lankford. It is interesting to me when I look back
on the history of this conversation, again, none of this is new
in this dialogue. In 1963, at that time Attorney General Robert
Kennedy wrote, ``While Congress' power to legislate for the
District is a continuing power, its power to create the
District by acceptance of secession contemplates a single act.
The Constitution makes no provision for revocation and the act
of acceptance or for retrocession.''
Then Ed Meese, a couple of decades later, as our Attorney
General, in 1987, wrote, ``Clearly, the District chosen would
not exceed 10 miles square, but under the language of that
clause, once the session was made and this District became the
seat of government, the authority of Congress over its size and
location seems to have been exhausted. The Constitution appears
to leave Congress no authority to redefine the District's
boundaries absent an amendment granting it that power.''
Now obviously constitutional scholars, even at this
conversation, have disagreed with that. What are your thoughts?
Mr. Pilon. Attorney General Kennedy was absolutely right.
The creation of the district was a single act. It was
completed. It was done. Now you have to look where Congress
might have other authority to turn that District into something
like a new State.
The other side points to Article IV. The problem there is
that the District is sui generis. It is unique. This is not a
normal creation of a State process, as though you were doing it
under Article IV with the Federal territory, say the Northwest
Territory, the Louisiana Purchase, land that was acquired in
clear contemplation of new States being created for it. The
District of Columbia of was not created with the contemplation
of a new State being created from it.
Senator Lankford. Mayor Bowser, it is good to see you
again. We have had the opportunity to be able to chat for
several years now, so it is good to see you again. Let me ask
you a couple of questions on this as well.
Were you surprised at the original design of the transition
of leadership that the Mayor--whoever the Mayor is, at whatever
time that this would automatically become Governor in that
transition? Obviously, the Federal officials would have to go
under an election, but at that point District leadership would
become State leadership and get automatic transition. Is that
surprising to you, just in the structure of it?
Ms. Bowser. We convened a Constitutional Convention,
Senator, so over several months D.C. residents participated in
how they would want the State government to look, and we wrote
a constitution. In that constitution we expanded democracy by
adding more State legislatures, which is important, but also
just converted the existing elected officials to seats, and the
constitution also contemplates the election of the new State
representatives and the Federal officials.
Senator Lankford. OK. Let me follow through on one more
issue that is connected but not connected on this.
Washington, D.C., during the pandemic time period, had the
most strict religious liberty restrictions of all across the
United States, with the limitations for gathering of people of
faith to be able to gather indoors. There was a lot of pushback
that happened. You eventually changed that and opened that up a
little bit, but it was still a very strict, non-allowance, I
guess I should say, for people of faith to be able to meet,
whether it was last Easter or other times, to be able to gather
and to be able to go through all these, just a normal faith-
gathering time period.
You have to know that Congress overwhelmingly passed, in
1993, the Religious Freedom Restoration Act (RFRA), and it is
interesting to me during this time period and this conversation
Delegate Norton introduced H.R. 4023, which would amend the
Religious Freedom Restoration Act and would take out the
applicability of that to Washington, D.C., that Washington,
D.C., would no longer follow under the Religious Freedom
Restoration Act as the rest of America would, and watching what
happened for the limitation of people of faith during the time
of the pandemic.
I am trying to figure out, if this became a new State, kind
of the direction that this seems to be headed for people of
faith to be able to live out their faith. Now I have no belief
that you are trying to limit people from having faith in D.C.,
but it was odd, during this season of the pandemic, to see such
strong limits on people of faith gathering together. Can you
help me understand that?
Ms. Bowser. Certainly. The COVID restrictions were for
everybody, and I do not have to tell you that we faced a 100-
year pandemic, and I am very proud of D.C. residents,
businesses, houses of worship who followed health guidance and
allowed us to crush this virus. That is why I can sit here
today with D.C. fully open, and I know that we saved lives by
flattening the curve, keeping people out of the hospital and
intensive cares, and making sure our first responders could
respond to the virus. I am proud of the work that we did.
Certainly what health guidance told us, Senators, was that
some indoor spaces were more of a risk for transmission of the
virus than others, and unfortunately churches were among them.
Believe me, I have had this debate. I have had this debate with
my own church, in court. We came to many compromises. It was
always our intent to make sure that people of faith and houses
of worship all across the District could practice their faith,
but also practice it safely.
I do not have to remind you our very first case in the
District was in a church, and we saw the spread of the virus,
and we learned a lot about the spread of the virus from case
No. 1.
The work that we did was important, it was necessary, and
the compromises that we made were also good ones.
Senator Lankford. It is an interesting balance, though, to
be able to walk through First Amendment protections and also
pandemic protections----
Ms. Bowser. Yes.
Senator Lankford [continuing]. In this process, and as you
know many churches left the District to be able to go worship a
few miles away, either in Maryland or in Virginia, where they
could meet for worship, to be able to gather indoors or
outdoors. I understand as a mayor you make difficult calls, but
there is a unique protection for people of faith to be able to
live out their faith and be able to guard that. I appreciate
the dialogue----
Ms. Bowser. Sure.
Senator Lankford [continuing]. Let me yield back the time.
I apologize for going a little bit long.
Senator Carper. No, happy to hear you. Thank you for your
questions. It would be interesting to know. Senator Lankford is
probably, I should mention, a number of members of our body
here are people of deep faith, and none deeper than his. It
would be interesting to know, attendance at worship services of
all different faiths ebbs and flows over time. We are seeing
some ebbing going along in most major faiths in this country
today. I don't assume to believe that anybody knows what this
number would be, but it would be interesting to know what
church attendance is like in the District as compared to some
of our other States. That would be interesting. We will ask
that question for the record. It would be interesting to see
what that looks like.
I have a follow-on question, if I could, and I would ask
the Mayor if you could handle this, but I also want to ask Mr.
Morial to join as well. I will ask the two of you to tag-team
it. I never imagined, as an elected official, as Delaware's
Treasurer, Congressman, Governor, Senator, that a retired Navy
captain, a Vietnam veteran, last Vietnam veteran serving here,
but I never imagined serving in all those capacities that I
would ever end up leading a charge in the Senate to fight on
behalf of the residents of the 51st State. But that is where we
find ourselves, and I think we regularly see the negative
effects on D.C. residents of not having a vote or a voice in
Congress. We talked about that, especially during a global
pandemic.
As a District with 46 percent African American population,
let's not forget that like other communities of color across
the Nation, African Americans are suffering disproportionately,
or have suffered disproportionately in D.C. from the COVID-19
pandemic, and most of those infected in D.C. are people of
color, as you know, and I am told that about 75 percent of
those who have died here are African American.
I would ask the Mayor and then Mr. Morial, can you speak to
the issue of inequality here, and, Mayor Bowser, could I please
ask you to speak to why the nearly 700,000 District residents,
our fellow Americans, have been and continue to be
disproportionately impacted during the pandemic as a result of
not being a State.
Ms. Bowser. Thank you, Senator, and I think you are about
right about those stats. We saw early on in the pandemic that
our African Americans residents were not only being affected
with COVID-19 but dying from COVID-19 in vastly greater numbers
than their white counterparts. We know that African Americans
and our Latino residents are more likely to be in essential
work positions and were unable to stay at home once the home
orders were introduced across America, because they were the
grocery workers, they were the nursing assistants, they were
the people that were keeping our sanitation services going
across America. They were getting infected more, and because of
centuries of disinvestment in our health, were also dying more.
What was a tragedy that we did not expect during all of
this, as we were facing a 100-year pandemic, is that we would
be left out of the emergency funding that we so desperately
needed, to stand up testing, to build alternative care sites,
to make sure that we could provide alternate spaces for
learning. In the CARES Act, $755 million, we were short-
changed, and we spent the better part of the year making sure
we got that money back. I am grateful to this Congress for
seeing that through.
But what that meant, Senator, for the first time in no one
could remember since, that we were treated in a formula with
territories, rather than being treated like a State, which we
are, in hundreds of Federal statutes. So it made clear to all
of us how important it was that what our practical operation as
a State, a county, and a city can only be codified and not
reversed in any piece of legislation with statehood.
Senator Carper. Thank you for that response. Mr. Morial,
would you like to add to those words?
Mr. Morial. Let me say, Senator Carper, I appreciate you
raising this issue. A few important facts. The United States is
approximately 14 percent African American. The District of
Columbia is some 46 to 50 percent African American. The failure
to provide Federal voting rights, voting rights for a Member of
Congress and two U.S. Senators, for the 51st State,
disproportionately impacts a large number of African American
citizens of the United States.
There was once a time when the District of Columbia was as
much as 70 percent African American, and D.C. became, in the
early 20th Century, a place where African American residents of
Virginia, North Carolina, South Carolina, and the Old South, as
a part of the great migration transitioned to. They had no
right to vote in Alabama, Georgia, South Carolina, North
Carolina, or Virginia, and they had no right to vote in the
District of Columbia.
Then the Voting Rights Act came along, and people in
Alabama, Georgia, South Carolina, North Carolina, Virginia,
Louisiana, Texas, and Florida gained the right to vote for
members of the House and members of the U.S. Senate. But the
members of the District of Columbia, the black residents, and
beyond the black residents, were left out and left behind.
Mayor Bowser identified the structural impact of this, is
that D.C., for many Federal programs and initiatives, is
treated like a territory, which denies the residents of the
District of Columbia, including its black residents, equal
treatment and therefore equal representation, not only in
voting but across the board. That is a structural inequity that
is associated with this fundamental denial of a right to vote.
One only believes, as I do, that the residents of the
District of Columbia have been patient since 1965, have been
patient as they sought to achieve and to accomplish their full
rights as American citizens, and I doubt if anyone else outside
of the District of Columbia would stand for being
disenfranchised in the way the residents of the District of
Columbia have been disenfranchised. This is something whose
time has come, and this is something that is a right.
Senator Carper. Thank you for those words. That was very
insightful. Thank you.
We have been joined by Senator Rosen. I want to thank you
for joining us today, for being in support of this legislation,
and you are now recognized. Thank you, Senator Rosen.
OPENING STATEMENT OF SENATOR ROSEN
Senator Rosen. Thank you, Senator Carper. I appreciate your
work on this for many years and your chairmanship of this
Committee in the past.
I would really like to thank Mayor Bowser, Congresswoman
Holmes Norton, well, Senator Lieberman has left, but everyone
for being here and for the work that you have been doing,
because we know there are a lot of contributions from our D.C.
residents. I like to say every Senator is a parent of an only
child, the States we represent, and we are so incredibly proud
of them, right? We are their biggest cheerleader, their biggest
champion.
For me that means Nevada, and I could not be prouder of our
great State and its amazing people, but we were not always a
State. We began as a territory, becoming part of the United
States but not yet a full State. Via treaty with Mexico in
1848, that is when we were a territory. In the beginning we did
not even have our name. We were part of the Utah Territory,
becoming the Nevada Territory only in 1861, and it was not
until October 31st--Nevada Day, we call it now--1864, in the
midst of the Civil War, just eight days before President
Lincoln's reelection, that Nevada, the Battle Born State,
became the 36th State in the union.
I am a proud co-sponsor of S. 51, the bill that provides
statehood to D.C., and so I am so glad to hear your stories and
have that become part of your State story when somebody tells
that in the future. And so we just want you to be the parents
of the newest State.
Mayor Bowser, as a proud D.C. resident, as its elected
Chief Executive, can you tell us about some of the wonderful
contributions that D.C. residents make to our, not just this
community but to our country, every day?
Ms. Bowser. Thank you for that question, Senator, and thank
you for sharing the Nevada story, and we do indeed look forward
to telling the D.C. story and being admitted, just like Nevada
was, by a simple legislation by this Congress, who has that
full authority.
When we think about D.C. residents we are eight wards,
700,000 people, people who start businesses here, who raise
their children here, and pay their taxes. In fact, they pay
more taxes per capita than any other American, and we pay more
taxes than 20 States.
We are what we call a donor State to the Federal
Government, and sometimes people are mistaken and think that
the Federal Government pays to operate the District of
Columbia, and that is just not the case. I presented, just a
couple of weeks ago, a $17 billion budget to the Council of the
District of Columbia, which will become our State legislature.
Unlike other mayors, we operate a school system. We operate our
corrections system, our Department of Motor Vehicles (DMV). In
so many ways we already function as a State.
Senator Rosen. You are the busiest mayor--is that what you
are saying? [Laughter.]
But you are the most diverse mayor, perhaps, because
diversity is a strength. That is for sure. And like D.C.,
Nevada's population and our State is incredibly diverse. Our
strength as well. We have 30 percent Latino, 10 percent African
American, about 9.5 percent Asian American and Pacific Islander
(AAPI) community. In fact, we have the fastest-growing AAPI
community, one of them, in the Nation. While D.C. is often
called out for having lots of newcomers, Nevada has many new
residents as well, and sometimes we have been known to be the
fastest-growing State in the country.
And so only 25 percent of Nevada's 3 million residents were
actually born in Nevada. So our diverse population, the influx
of people from all around the Nation and the world, make us the
dynamic State that we are. I know you too have a diverse
population, coming from all over the country and all over the
world. Why does it matter to this population as well that they
are the 51st State?
Ms. Bowser. Absolutely. We are diverse, and we are diverse
in some ways that people do not recognize. I call him Mayor
Morial, but President Morial also mentioned, 46 percent African
American, 12 percent Latino, about 3 or 4 percent AAPI. We are
also growing. With our recent census we are among the fastest-
growing jurisdictions in the Nation as well.
Let me say something about our economic diversity.
Infrequently we are thought of us as a Federal Government town,
and indeed, we are proud to be host to the Federal Government.
But the Federal Government's presence in the District of
Columbia has actually been decreasing over a couple of decades.
Federal jobs have been decreasing, Federal workers have been
decreasing, and even the Federal use of space in the District
has been decreasing over several years.
We have been focused on how to diversify our economy, build
private-sector jobs, focus on technology and hospitality and
education. Those are the jobs of the future in the District.
That is why our economy has been so robust.
It was discussed earlier that we are an elite place.
Speaking as the daughter of two government workers who raised
five kids and focused on family and faith in this city, I can
tell you that people work hard here, but we also have a
diversity of incomes, and even a diversity of views.
We are particularly well situated right now, Senator, to be
admitted as a State. You will see, with our population, we are
larger than two States already and we rival five others, and
the way that we are growing we will achieve that. We are by far
larger than most States when they were admitted to the union.
We are just poised to be a great benefit to the union as the
51st State.
Senator Rosen. Thank you. I think you are a great benefit
already. I appreciate your service, and I will yield back my
time.
Senator Carper. Thanks very much for yielding. Senator
Lankford, if you would like to be recognized again I am happy
to do that.
Senator Lankford. Senator Carper, thank you very much for
that.
Professor Muller, I want to ask you a couple of questions
to be able to follow up on some of your statements earlier. You
had talked about the difference in this bill, the H.R. 51 bill,
and the way that it handles the 23rd Amendment. This bill says
that we will pass it, we will declare D.C. a State, and then we
will get around to doing the 23rd Amendment, to be able to
change the electors issue that is hanging out there.
You flipped that in your earlier statement in saying why
wouldn't this be conditioned on the 23rd Amendment being
eliminated first, to be able to make sure that there are not
three additional electoral college--I think you mentioned, for
59 people that would be in the new Capital enclave at that
point, that those 59 people would not have three electoral
college votes. Can you go into that a little deeper?
Mr. Muller. Sure. The bill does anticipate an expedited
repeal process. It could only do one thing, which is an article
that says we repeal the 23rd Amendment. But, until that happens
we have an enclave of around 59 people, some set of that
voters, who would then be eligible to choose three Presidential
electors. And so the thought is, well, if we can push people
and hopefully wait and see what happens, then maybe the 23rd
Amendment will be repealed.
So there is no condition on that. There is no sort of hard
rule. The hard rule is that Congress has to have a vote. There
is no guarantee that two-thirds of each house of Congress does
it. There is not going to be a time limit about when 38 or 39
States approve that amendment. It is sort of waiting to see
what will happen while the 23rd Amendment, giving three
electoral votes to this enclave, sits there.
So instead, another way might be to say let us repeal the
23rd Amendment or put a condition in the 23rd Amendment saying
if the population of the District constituting the seat of
government drops below a certain population threshold then the
23rd article of the Constitution is no longer in place, 23rd
Amendment no longer applies. Then that way we do not have these
sorts of residual problems out there.
Senator Lankford. All right. Do you know of any issue with
trying to be able to form that way, what you are describing, as
far as a constitutional issue or a problem with that?
Mr. Muller. No. I think you could develop a constitutional
amendment that would condition the repeal of the 23rd Amendment
on some future event, like retrocession or statehood for the
District. I mentioned in my testimony some of the concerns
about how to handle the Capital voters left within that
enclave. I think it is contested whether or not Congress has
that power. I think a constitutional amendment that empowers
Congress expressly to handle those voters left in the Capital.
You could certainly fashion amendments and think creatively
about how to address that solution holistically, on a
constitutional side, before you get to the statutory side.
Senator Lankford. Right. But either way there is a
tremendous number of constitutional issues that still have to
be resolved. Obviously, the Founders designed a Capital region
to never be a State. I mean, that was the design in the
Constitution to say this is uniquely, so that the Federal
Government does not exist under the authority of any State, or
try to interact with a State. It was designed very particularly
to be able to make sure that constitutionally there would
always be a region that is there, that was established so that
Federal Government did not have to worry about what is State,
what is Federal, and living under that.
So there are lots of constitutional questions here that the
farther you go, the larger the constitutional questions get.
Many of them are novel. They have never been addressed before.
Obviously, the retrocession to Virginia of the southern portion
of D.C. was never really resolved long term. That one still
hangs out there. But all the other constitutional issues still
are reserved. Is that correct or not correct?
Mr. Muller. Right. There are a number of unsettled
constitutional issues. You have heard about some of them today,
and they have been written about for decades.
Senator Lankford. Right. Two hundred-plus years, any
individual that moves to Washington, D.C., understand that
Washington, D.C., is unique. This is a place where you do not
have a vote for a Senator or a House member. Of the last 100
years, we have had a delegate in the House. But it has been
well known that when you move to Washington, D.C., at any point
you are moving to an area that does not have two Senators or a
House member. Correct or not correct?
Mr. Muller. Yes, that is correct.
Senator Lankford. When I look at it, and just the
transition of this, that is a given statement for anyone that
is moving. My hometown of Oklahoma City is ten times the size
of Washington, D.C,, but there are still individuals that want
to live in Edmond, Norman, Moore, or in Bethany, and they
choose to be able to move out of Oklahoma City but still
commute back and forth in other areas, to be able to work or
live, because it is a choice that they make.
In an area that is literally one-tenth the size of my
hometown of Oklahoma City, people have options to be able to
still work and to be able to travel and to be able to move into
other areas. If they wanted to be able to work in Washington,
D.C., many people live in Maryland, in Virginia, or in West
Virginia, and drive in, to be able to here from longer
distances. But that is a volitional choice. No one is compelled
to actually be here, knowing that that has been the situation
for more than 200 years. Correct?
Mr. Muller. Yes.
Senator Lankford. OK. Thank you.
Chairman Peters [Presiding.] Thank you, Senator Lankford.
The Chair recognizes Senator Hawley for your questions.
OPENING STATEMENT OF SENATOR HAWLEY
Senator Hawley. Thank you very much, Mr. Chairman, and
thanks to all the witnesses for being here.
Dr. Pilon, let me just start with you, if I could. Just
help me understand the history here. My understanding is that
the United States Justice Department, the Office of Legal
Counsel (OLC), has weighed in on this question a number of
times over the course of its history. To my knowledge, the
Office of Legal Counsel has never said that Congress has the
ability, by statute, to turn the District of Columbia into a
State. Is that correct?
Mr. Pilon. That is correct. The only exception occurred
during the Obama Administration, when the Office of Legal
Counsel gave the no-go for this. And so he turned to the
Solicitor General's Office (OSG), and the Solicitor General
said we can defend this, and, of course, that is very precious,
because that is the job of the Solicitor General's Office, to
defend even unconstitutional matters that may turn out to be
such.
Senator Hawley. Sure. What happened was the Attorney
General under that administration got a consistent, the same
answer that Attorneys General, and Presidents, had been getting
for decades, decided he did not like that answer, and said,
well, maybe somebody else will give me a different answer. But
consistently, the Office of Legal Counsel, which is that unit
in the Justice Department, that office that is charged with
looking at these constitutional questions and providing
dispassionate, impartial, nonpartisan legal counsel, has
consistently said there is no constitutional authority for
Congress to snap its fingers, use a statute to turn D.C. into a
State.
Mr. Pilon. Right.
Senator Hawley. Now that is a bipartisan tradition. You
mentioned in your written testimony one pretty prominent
Democrat Attorney General, Robert Kennedy. He rendered a fairly
lengthy opinion on this. Tell us about the significance of
Robert Kennedy's opinion back in 1963, I think it was, when he
said that, no, the Constitution does not give Congress the
power, by statute, to turn D.C. into a State. Of course, it can
be done by constitutional amendment, how exactly it would have
to be worked out, but that is what we are talking about here.
We are talking about just doing it by statute. Even Robert
Kennedy said no, that cannot be done. Tell us about the
significance of his opinion.
Mr. Pilon. The significance, beyond the fact that was a
Democrat, comes from the fact that he said that this is a
single act, the creation of the District. Then the question
becomes does Congress have authority to do what is contemplated
by these various proposals that have come over the years, and
the conclusion that the Office of Legal Counsel gave him was
that no, they do not. It is a single act to create the
District. It is finished. If you want to do something more like
retrocession and so forth you are going to need to find some
authority under the Constitution.
The important issue here, which was just brought up by
Senator Lankford, namely that the District is unique. It is not
an ordinary process of creating a new State from territory
acquired for the express purpose of creating new States from
it, the Louisiana Purchase, et cetera. It is sui generis. It
was created expressly under Article I, not under Article IV, to
be the seat of the Federal Government. Under this bill, S. 51,
the seat of the government would be this tiny enclave, and I
just invite you to think, in response to an earlier question
from Senator Lankford, what this would mean with this much-
reduced authority of Congress to have exclusive jurisdiction
over this tiny enclave. It means that, for example, they are
dependent upon this new, untested State for everything from
power to water to fire protection, and going on and on. We can
imagine how the framers did not want that, and they did not
want it expressly because of what the experience, as we
testified earlier, they had under 1783, when the Congress was
attacked by a mob.
Senator Hawley. Let me ask you this. So we have the scene
set. The Constitution of the United States expressly and
explicitly created the District of Columbia. It designates it
as the seat of government, with the 23rd Amendment, which comes
along and ratifies that, essentially. I mean, it is already in
the Constitution. The 23rd Amendment ratifies that, so it is
there. It is not an unincorporated territory. It is created by
the Constitution, created as the seat of government.
Now my understanding of constitutional law is Congress
cannot, by legislation, override the Constitution. Am I right
about that basic understanding?
Mr. Pilon. That is Con Law 101.
Senator Hawley. Now what if Congress really wants to? Like
if Congress thinks, no, it is really important that we override
the Constitution. Do they get to do it then?
Mr. Pilon. That is called the demise of the rule of law.
Senator Hawley. What happens if there is a great political
advantage to one party of they do it? I am looking here at a
series of news articles from the last year and a half. The
Nation, ``Democrats have inherited a broken Senate. Can they
make it work? It calls for D.C. statehood to add two more
Democrat votes to the Senate.''
NBC News, ``New push for Washington, D.C., statehood hits
the Presidential campaign trail, imperative, Democrats say, to
add two more votes to the U.S. Senate for them.'' New York
Magazine, ``D.C. statehood is the Democrats' only option.''
VOX, ``Eleven ways to fix America's fundamentally broken
democracy, D.C. statehood, to add two more Democrat votes to
the U.S. Senate.'' Indivisible says, ``Making democracy reform
a priority has to be D.C. statehood.''
All of this, the premise of all of these articles, which
are very candid, is that Democrats think that they will not be
able to control the U.S. Senate in the long term, they need to
add two more Democrat seats to control the Senate, so it is
really important. If they think it is really important, does
the Constitution give them the authority to override what is
actually written down on that text with the law? Can they do
that?
Mr. Pilon. Let me get on the record an important point. It
is often thought that we, on this side, are opposed to giving
the District residents the vote. Nothing could be further from
the truth. The idea is, however, that you must do it in the
right way. You have to do it in the constitutional way. And so
that means that you are going to have to address, among other
things, the 23rd Amendment problem, because there will still be
people within this District who still have the right to vote.
You cannot remove that from them by mere statute. It has got to
have an amendment to do that. Indeed, if the tables were
reversed on some other issue, I think the other side would be
screaming if this were attempted.
Senator Hawley. Rightfully so, and I will just finish, Mr.
Chairman, by saying that it is a fundamental premise of our
democracy that the Constitution of the United States is the
supreme law of the land, that it binds all who live under it.
We, the people, can change it. We absolutely can change it. We
have a process to do that, a democratic process.
What Congress cannot do is override the Constitution any
time it becomes inconvenient for a majority in Congress, a
temporary majority, as James Madison would have said. Today it
is the Democrats, tomorrow it is the Republicans, after that
the Democrats again. Who knows? The point is the Constitution
endures, and that is the fundamental premise of our democratic
republic, and I fear that that premise is being threatened by
this legislation.
Thank you, Mr. Chairman.
Chairman Peters. Thank you, Senator Hawley. I want to
follow up on Mr. Pilon's comments on the 23rd Amendment. This
question is for you, Mayor Bowser. In your written testimony
you state that it is, ``It is particularly contradictory that
the 23rd Amendment is being held up as the main barrier to
further expanding constitutional rights in the District.''
Could you elaborate on this point for the Committee, please?
Ms. Bowser. Yes, Mr. Chairman, and let me be clear what the
23rd Amendment does. The 23rd Amendment allowed D.C. residents
a vote for President, and that was in the 1960s. Let that
marinate for a second. Before the 1960s--this is, about 10
years before I was born--we could not even vote for President.
So that is what the 23rd Amendment does. Its intent was to
expand democracy to D.C. residents, and now it is being held up
as a barrier.
I just ask you to look at the comments that were submitted
by 39 legal scholars, where Professor Primus has already
testified to today, that the 23rd Amendment poses no
constitutional barrier to this bill's passage. D.C. can be
admitted as a State.
The practical concerns have been discussed, and this bill
also lays out practical solutions, by repealing the enforcement
legislation. The 23rd Amendment makes clear that Congress, that
it is the Congress, by statute, can enforce the 23rd Amendment,
must enforce the 23rd Amendment. That is what will happen after
this bill is passed.
Chairman Peters. Thank you, Mayor. Mr. Morial, I want to
ask you a question related to the 23rd Amendment as well. You
have heard the Mayor speak and you have heard critics say that
the 23rd Amendment really provides sufficient voting rights
now, because you can vote for President. That is part of it.
Could you, Mr. Morial, would you explain the importance of
granting full voting rights and equal representation, and how
important that is in your mind?
Mr. Morial. Every American citizen has the right, those
that live in the States of the United States, the right to
elect people to the Legislative Branch and the Executive
Branch, and therefore have a voice in the selection of the
Judicial Branch. To suggest that for the residents of the
District of Columbia that solely having a right to participate
in the Presidential election, it is tantamount to the one-third
rule--we will give you one-third of your Federal voting rights
and the other two-thirds we are going to withhold.
I have listened today to a lot of arguments about the
Constitution and about the law, and I am lawyer, and respect
those. But when you balance what is fundamental to the United
States, all of our rights as citizens, it is the right to vote
which is fundamental.
When the 23rd Amendment was passed, black D.C. residents
did not have the protection of the Voting Rights Act. Poll tax
was legal. These are different times, and I think that all of
these arguments fall by the wayside when you balance it against
the necessity. What does a vote in Congress give you an
opportunity to do? Participate in the appropriations process,
participate in the process of writing laws, giving yourselves a
voice on taxation issues, on regulatory issues, on a wide range
of issues. The District of Columbia is a dynamic community of
700,000 people. It is distinct from the State of Maryland. Its
voters have said we do not want to retrocede to Maryland. In
fact, the polling suggests that the residents of Maryland have
said we do not want the District of Columbia to retrocede to us
either.
This is so crucial that the right to vote is what is at
stake here, the right to representation is at stake here. Our
soldiers have been overseas, fighting in Iraq, fighting in
Afghanistan, fighting for democracy, fighting for the right to
vote, fighting for the right to participate. What about right
here in the United States of America? Why do we single out the
residents of the District of Columbia? Forget the partisanship.
Forget who will vote for who. That is not what is at stake. If
we really, truly want to nonpartisan, we will be like Lady
Justice. We will put a blindfold on as to how the residents of
the District of Columbia might vote, and affirm their
fundamental right to vote, without regard to who they may vote
for.
Chairman Peters. Thank you, Mr. Morial. A foundational
principle of our Nation, that I think we can all agree on, and
certainly was etched in the Declaration of Independence, is
that government is derived from just powers, and the just
powers they have is from the consent of the people. Bottom line
is it is from the consent of the people.
Professor Primus, in your written testimony you state that
that principle, and I would quote here, ``animates the whole
Constitution and is the idea that Congress should be
electorally responsible to the people for whom it legislates.''
Professor, could explain how D.C. statehood would fulfill
our core democratic principles while also complying with the
Founding Fathers' intent that there be an independent seat of
government?
Mr. Primus. Statehood would mean that D.C. residents who
are American citizens can vote and be represented in Congress.
It is that simple. And S. 51 would mean that the Constitution's
vision of a seat of government that is not part of any State,
it would be maintained. We can have a both. If we can have
both, then it does not seem to make sense to blame the
Constitution if we decide not to have both, because the
Constitution lets us have both of those things.
We heard a few times today that the Constitution does not
give Congress the power to do this, but, in fact, the
Constitution does give Congress the power to do this. That is
Article IV. Congress has the power to admit new States. That is
all this would be. Sometimes we have heard this discussed as if
there was a really powerful set of incentives to admit D.C.
statement but it cannot be done because the Constitution does
not permit it, and we would disrespect the Constitution to go
forward.
What actually disrespects the Constitution is to pretend
that the Constitution says things that it does not, that stop
us from doing the right thing. The Constitution does not say
that the seat of government has to be D.C. as we know it. The
Constitution does not say anything about D.C. or where it has
to be or how small it can be. The Constitution does not say
that Article IV permits Congress to admit new States but not
D.C. We have heard a number of times today D.C. is unique, but
Article IV does not say ``except D.C.'' All of those things
that are raised as objections are actually not in the
Constitution. The Constitution permits this, and the vision it
represents to the government requires it.
Congress can decide to do it or not, but if Congress does
not do it, Congress should not say we wish we could but the
Constitution prevents it. No one has identified anything in the
Constitution that prevents it, for the simple reason that
nothing in the Constitution does prevent it.
Chairman Peters. Thank you, Professor Primus.
Mayor Bowser, the professor has just mentioned nothing is
in the Constitution that would prevent this from happening, so
we would also like to think about what perhaps were our
Founding Fathers thinking, as they wrote this. My question to
you is, do you believe that preserving the status quo in D.C.,
where residents have no voice in their government, do you think
that is what the Founding Fathers envisioned when they drafted
and ratified the Constitution?
Ms. Bowser. Absolutely no, Senator. We know, as we have
already discussed, that ending ``taxation without
representation'' was a principle that led to the independence
of our Nation, and it is a glaring contradiction of our
democracy that residents of the Nation's Capital, literally
people who could look out of their windows and see this
building, do not have a vote or a voice in this chamber, and no
vote in the House of Representatives. As the professor
outlined, it is very clear that the Congress has the authority
to admit new States, including Washington, D.C. We know the
time to correct that wrong is now.
Chairman Peters. Mr. Morial, I mentioned men and women who
are serving in the military from the District now, and we know,
since World War I, around 200,000 brave men and women from
Washington, D.C., have served in the Armed Forces, including
11,000 residents who are actively serving right now, and
roughly 30,000 veterans who live within the borders of D.C.
Mayor Bowser, can you speak to the service and to the
sacrifice of your veteran constituents, and the injustice that
they face as they put their lives on the line to protect the
rights of others, and yet when they return to the city those
rights are actually being denied.
Ms. Bowser. Yes. So our Congresswoman spoke very eloquently
when she started. We represent 30,000 veterans. We see D.C.
residents sign up and volunteer for the Armed Forces every
single day. Our residents go to service academies in service to
their country. D.C. residents, you note, Senator, are not
asking for special treatment. We are asking to be treated
equally. We have stepped up in every case that we have been
asked to serve our country, and we want to continue to be able
to do that.
When D.C. residents have two Senators they can argue for
better treatment for our veterans, not just our own but
veterans across America. We can stand shoulder to shoulder with
you to make sure the Veterans Administration has what it needs,
or like I like to see here in Washington, D.C., a world-class,
state-of-the-art, new Veterans Hospital for Washington, D.C.
We can be creative with you and our fellow Americans in
addressing the needs of our veterans, including work and job
training, job opportunities, and housing. We can promote
innovative housing options like we have done right here in
Washington, D.C., and share all of that learning with our
fellow Senators. So our admission to the union is only going to
enhance how our country really invests in and responds to our
veterans.
But imagine--and I think when we were here the last time we
were joined by members of our Armed Forces, who when important
measures come before this Senate, like Mayor Morial said,
including issues of war and peace, they have no voice here.
That is fundamentally unfair to their service and unfair to
their citizenship.
Chairman Peters. Thank you, Mayor. Senator Carper, you are
recognized for your questions.
Senator Carper. Thank you, and thank you so much. I
appreciate your patience as a panel, which we are voting on a
number of bills, so thank you for bearing with us. Thank you,
Mr. Chairman, as well.
I want to know one last question, if I could, for Professor
Primus. Some folks are concerned that if statehood is granted
to the District of Columbia, the Federal District is reduced.
The individuals living in the Federal District will have
outsized power due to the three electoral votes assigned to the
District through the 23rd Amendment. Our bill, S. 51, would
repeal the enabling statute for the 23rd Amendment and provide
for expedited consideration of a joint resolution for the
repeal of the amendment.
Now I understand that even if Congress does not move to
repeal the 23rd Amendment it has the authority remedy that
situation. Professor Primus, can you take a moment to address
the options Congress has when it comes to dealing with three
electors assigned to the Federal District and why you do not
see this as a constitutional obstacle, please?
Mr. Primus. Yes, Senator, I would be happy to. The first
best-case scenario, I think everyone agrees, is if the 23rd
Amendment should be repealed, and the good news is if everyone
agrees that it would be not a good situation to have a couple
of dozen people have three electors for the presidency--I think
everyone does agree about that--repeal ought to come pretty
quickly. If you think that we cannot get a repeal of the 23rd
Amendment on those facts, it means that you do not believe that
the Constitution can be amended at all, and that is a
proposition that I think few of us want to endorse.
Now, until that happens, secondarily, S. 51, as presently
written, takes the electors appointed pursuant to the 23rd
Amendment, out of the electoral count, that ultimately names
the President. That is an amendment that it makes statutorily.
That is enough to prevent the situation where those electors
distort the outcome of a Presidential election, even if the
23rd Amendment is still on the books.
If the Congress wanted to do other things to make even more
sure that there would be no problem under the 23rd Amendment,
Congress has many options. The Congress is in charge of
legislation enabling, implementing the 23rd Amendment. For
example, Congress could provide, by statute, exercising their
constitutional power, that if there are electors named for the
seat of government that they will be legally instructed to vote
for the candidate that would get the most electoral votes
anyway. That would not be hard to do, and it would have the
effect of making sure that those electors do not affect the
electoral vote. Or Congress could, if it wanted to, decide that
it would instruct those electors to vote for the winner of the
national popular vote, and if necessary could specify what
shall constitute the winner of a national popular vote.
It could even, in a symbolic measure, if it wanted to make
the admission of D.C. into a further moment of confirming our
connection to the framing of the Constitution, it could even
direct those electors to vote for President, for George
Washington of Virginia, and for Vice President, for John Adams
of Massachusetts. That would not distort our current elections
at all.
Again, the best thing is simply for the 23rd Amendment to
be repealed, that any of these solutions would do, and the
concern that we cannot find a solution for something for which
there are many good solutions, is the sort of thing that gets
to we do not want to find a solution? There are lots of easy
solutions here, and S. 51 already has one of them.
Senator Carper. Mr. Chairman. Thank you. I want to thank
again the panel, Mayor, everyone, all the witnesses on both
sides, and Senator Lieberman as well, and for Mayor Morial.
I opened my statement by quoting, earlier today, Mr.
Chairman, the words of Mark Twain. I want to close with the
words, if I could, of Thomas Jefferson. Jefferson once said
words to this effect. He said, ``If the people know the truth,
they will not make a mistake.''
Our intent in this hearing today is to better ensure that
people know the truth. I think most people have no--and
probably, if you ask them, they do not realize that the
District of Columbia has more people living in it than a number
of States. Most people in this country probably do not realize
that the per capita income, on a per capita basis, the Federal
Government income taxes paid by the residents of the District
of Columbia are greater than any other State. Most people do
not realize that in this case the leader of the District of
Columbia does not have the authority to call the Washington
National Guard. There are any number of things that people just
do not realize.
My guess is that the framers, when they were writing the
Constitution, never would have imagined that the District of
Columbia would have this many people, and to pay this much in
taxes but yet not have the opportunity to have representation
or vote in the House and the Senate.
This is a wrong that needs to be righted, and my hope is
with the information, some of the information, the knowledge
that we are gaining from this hearing and others going forward
that at the end of the day we will do the right thing.
I close with the words of William Wilberforce, not an
American but a great British parliamentarian, who, for many
years, was a leader against slavery in Great Britain. He said
these words, the words of Wilberforce, 150 years ago. He said,
``You may choose to look the other way, but you can never again
say you did not know.'' We want to make sure the people of this
country know, and know the truth, the whole truth, and nothing
but the truth.
Thank you, Mr. Chairman, and again, for our witnesses. Much
obliged.
Ms. Bowser. Thank you.
Chairman Peters. Thank you, Senator Carper. In closing out
this hearing I want to first thank Congresswoman Norton for
your opening, for your incredible leadership over the years,
and for passing significant legislation out of the House that
we are now in the processing of looking at here in the U.S.
Senate. I also want to thank Senator Lieberman for his
leadership on the issues over the years as well.
I want to thank each of our distinguished witnesses. This
has been a great panel that certainly has provided perspective
on, in my mind, this fundamental civil rights issue that we
discussed here today. I think the Committee heard very
compelling testimony on why Washington, D.C., should be
admitted to the union as the 51st State. In my mind, it should
not be viewed as a partisan issue in any way. This is about
ensuring that more than 700,000 American citizens, who call
Washington, D.C., home, have an equal voice in this great
democratic republic of ours. For far too long, these Americans
have been denied our nation's most critical founding
principle--the right to equal representation and government.
We heard convincing testimony today that there are no
constitutional obstacles to admitting Washington, D.C., as a
State, and the importance of passing Senator Carper's
legislation here in the Senate would right this longstanding
wrong in our nation's history.
Once again, I appreciate our speakers. I appreciate our
witnesses for their input on this important issue. The record
for this hearing will remain open for 15 days, until July 7th
at 5 p.m. for the submission of statements and questions for
the record.
Senator Carper. Mr. Chairman, before you do, can I just say
one last sentence? A word of thanks to D.C. shadow Senators,
Paul Strauss and Michael Brown, for their input in anticipation
of this hearing. We appreciate their input. Thank you.
Chairman Peters. Very good. With those final words, this
hearing is now adjourned.
[Whereupon, at 12:37 p.m., the hearing was adjourned.]
A P P E N D I X
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