[Congressional Record Volume 155, Number 32 (Tuesday, February 24, 2009)]
[Senate]
[Pages S2390-S2399]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2009--MOTION TO PROCEED

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to S. 160, 
which the clerk will report by title.
  The legislative clerk read as follows:

       A motion to proceed to the bill (S. 160) to provide the 
     District of Columbia a voting seat and the State of Utah an 
     additional seat in the House of Representatives.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 11 a.m. will be equally divided and controlled between the two 
leaders or their designees.
  The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I would first ask unanimous consent, 
since the leaders have consumed--quite eloquently, I might add--15 
minutes, that the hour run from this minute until 11:15 so that both 
sides have the full hour and that the cloture vote on S. 160 occur at 
11:15 a.m.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  The majority leader is recognized.
  Mr. REID. Madam President, I overlooked a very important part of 
today. It is my understanding it is the birthday of the manager of this 
legislation. So all of us in the Senate wish the great Senator from the 
State of Connecticut happy birthday.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut is 
recognized.
  Mr. LIEBERMAN. Well, the Senator from the State of Connecticut has

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reached an age where he has mixed feelings when people acknowledge his 
birthday. But I thank the Senator.
  Mr. REID. As President Reagan said, the alternative, though----
  Mr. LIEBERMAN. The alternative is not good. And I praise the Lord for 
every day. So I say thank you to Senator Reid for his kind words.
  Madam President, I rise today, and I am proud to do so along with my 
friend and colleague, Senator Hatch of Utah, to urge all Senators to 
vote yes on the motion to proceed to this important legislation, the 
District of Columbia House Voting Rights Act of 2009. This measure will 
give the citizens of our Nation's Capital full voting rights in the 
House of Representatives while effectively adding a fourth 
congressional seat for the State of Utah.
  In 2007, this bill passed overwhelmingly in the House by a vote of 
241 to 177 but fell 3 votes short of gaining cloture in the Senate. 
That failure to proceed here in the Senate, 2 years ago now, left the 
citizens of the District with the wholly unsought after distinction of 
being the only residents of a democratically ruled national capital in 
the world who have no say in how their nation is governed. It is really 
astounding. It is time to right this injustice, just as this Congress 
has historically righted so many other voting injustices that stretch 
back to the very founding of our Nation.
  I again thank my friend, Senator Orrin Hatch, for his principled and 
steadfast support of this bill. I believe his commitment to join in 
this historic change puts him up there with other great Republican 
Senators in recent history, such as Everett Dirksen, who worked with 
Lyndon Johnson to pass the Voting Rights Act of 1964.
  I also thank my colleagues, Senators Carper, Dodd, Durbin, Feingold, 
Kennedy, Kerry, Landrieu, Lautenberg, Leahy, Levin, McCaskill, 
Mikulski, Sanders, and Voinovich, for joining as cosponsors. And, of 
course, I thank our leader, Senator Reid, for bringing this bill to the 
floor so swiftly in this 111th session. In the Senate, as we all know, 
one of the greatest gifts you can get is floor time, and the priority 
Senator Reid has placed on this measure speaks volumes of his 
commitments to fairness, justice, and, in this case, I think civil 
rights.
  Great thanks are due to District Delegate Eleanor Holmes Norton, who 
has been a tireless champion of full representation for the citizens of 
the District. In her 10 terms in Congress, Eleanor Holmes Norton has 
valiantly represented the citizens of the District despite the fact--
and I say valiantly and effectively represented the citizens of the 
District--despite the fact that she has no vote on the House floor.
  Madam President, before I go on with the substance of the argument, I 
would like to ask that you let me know when I have consumed 14 minutes 
of my time so I can wind it up.
  The ACTING PRESIDENT pro tempore. The Chair will so advise.
  Mr. LIEBERMAN. I thank the Chair.
  I wish to begin by taking my colleagues way back to November 22, 
1800. Why that day? Because that was the day that could be considered 
the official dedication of Washington, DC, as our Nation's Capital: 
November 22, 1800. On that day, President John Adams, who had only 
recently moved into the still-unfinished Executive Mansion--it was not 
known as the White House back then--gave his State of the Union Address 
to the opening of the second session of the Sixth Congress, which was 
also moving into its offices in the unfinished Capitol Building.
  It is a sweet historical coincidence that today we begin discussion 
of this bill and tonight President Obama addresses the 111th session of 
Congress.
  President Adams opened his statement with a prayer that this new city 
``be the residence of virtue and happiness [and] be forever held in 
veneration!'' That prayer has only, let's say, imperfectly been 
realized, but we aspire to it nonetheless.
  Adams then called on Congress to be wise stewards of this new city of 
then roughly 8,000 people.
  He said:

       You will consider it as the capital of a great nation 
     advancing with unexampled rapidity in arts, in commerce, in 
     wealth, and in population, and possessing within itself those 
     energies and resources which, if not thrown away or 
     lamentably misdirected, will secure to it a long course of 
     prosperity and self-government.

  Beautiful words.
  The District did, of course, grow into a robust and thriving capital. 
Today, with nearly 600,000 residents, the District has a population 
roughly equal to or, in fact, greater than the States of Alaska, North 
Dakota, Vermont, and Wyoming. But, sadly, its residents have not been 
allowed to be full participants in our democracy, have not been allowed 
to have voting representation in the Congress of the United States.
  I want to speak for a moment about some of the fundamental injustices 
that result from that fact. The people of the District, of course, have 
been a direct target of a terrorist attack, but they have no vote on 
how the Federal Government provides for their homeland security.
  Men and women of the District have fought bravely in all our wars--
well, at least going back to the War of 1812--many, many giving their 
lives in defense of our country and its freedom. Yet they have no vote 
on the serious questions of war and peace, of funding conflicts, of 
supporting veterans when they return home.
  The courts have found that Congress has the authority to tax the 
citizens and businesses of the District. And do they pay taxes? In 
2007, residents and businesses of the District paid over $20 billion in 
Federal taxes, which is more than 19 States, and at the second highest 
per capita rate of Federal taxation in the Nation. This should be 
embarrassing; that is, the fact that they still do not have voting 
representation here should be embarrassing to a nation whose Founders 
rallied around the Revolutionary slogan: Taxation without 
representation is tyranny. The District is the only jurisdiction in the 
country that must seek congressional approval, through the 
appropriations process, before spending locally generated tax dollars. 
Yet DC has no vote in the appropriations process.

  Finally, if any American living in the 50 States--outside of the 
District of Columbia, I mean to say--were to move abroad, they would 
continue to be entitled to full voting representation in Congress--
voting by absentee in their last State of residence--regardless of how 
long they remain out of the country. The only way they can lose that 
full voting representation here in Congress is if they were either to 
renounce their citizenship or return to the United States and live in 
Washington, DC. Now, that just does not make sense.
  I am pleased to say that as I hear the arguments of the opponents of 
this bill, they seem to recognize and concur on the fundamental justice 
of our cause. Their primary argument against the bill is the question 
of constitutionality. Opponents cite article I, section 2, of the 
Constitution, which states that the House ``shall be composed of 
members chosen . . . by the people of the several states.'' But I would 
urge my colleagues to read on because in article I, section 8, the 
Framers gave Congress authority to ``exercise exclusive legislation in 
all cases whatsoever'' regarding the District. This so-called District 
clause grants Congress particularly sweeping powers with regard to 
legislation for the District of Columbia. In fact, our courts have 
upheld Congress's right to treat the District as a ``State'' for 
purposes of Federal taxation, Federal court jurisdiction, the right to 
a jury trial, and interstate commerce, among others.
  A broad range of constitutional experts, including very respected 
conservative constitutional experts such as Judge Ken Starr and former 
Assistant Attorney General Viet Dinh tell us that Congress's power to 
provide voting rights to the District lies within this District clause. 
If Congress has this power, there is no excuse for not deploying it to 
end the injustice facing the District's many residents with respect to 
voting representation in Congress.
  Madam President, let me give a little more history. There are some 
question marks lurking in the history of voting rights in the Federal 
District. In the first 11 years after Maryland and Virginia ceded land 
for the Capital in 1788 and 1789, respectively, residents of that ceded 
territory continued to vote in either Maryland or Virginia. They 
retained this right to vote through congressional legislation. But when 
the

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District was formally established in 1800, Congress was silent on the 
voting rights for citizens of our Capital City. Frankly, we do not know 
exactly why this came about. The rights were never explicitly 
withdrawn. They just never addressed them.
  What we all know is that our Nation has always moved to expand and 
protect the right to vote so that evermore voices could be heard and 
represented. It is time to do that again. The fact is, in 1800, when 
the Federal Government first took up residence in the District, as we 
all know, sadly, not all Americans could vote. Slaves, who made up 
nearly a sixth of our Nation's population, had no vote and outrageously 
were counted as a mere three-fifths of a person. Women could not vote, 
and neither could many men. Most States required you to be a landowner 
to vote, so many tradesmen, laborers, shop clerks, farmhands, and 
others who were vital to the Nation's growing economy were denied the 
franchise.
  The Senators of 1800 were chosen by State legislatures, not by 
popular vote. President Adams, in fact, was about to be defeated in 
1800 by his Vice President, Thomas Jefferson, in an election where most 
of the members of the electoral college were also chosen by State 
legislatures, not popular vote.
  Well, we have, over the decades and centuries since 1800, righted 
those wrongs. As I heard someone once say: American democracy is on a 
journey without a final destination. We keep struggling and, 
thankfully, achieving, generation after generation, the rights that are 
proclaimed in our Declaration of Independence. So we move beyond those 
barriers to voting through legislation, constitutional amendments, and 
court decisions. And our democracy is, of course, stronger for it.
  State legislatures began expanding voter rolls beyond just landowners 
and also provided for the direct election of Presidential electors. Let 
me just read from----
  The ACTING PRESIDENT pro tempore. The Senator has consumed 14 
minutes.
  Mr. LIEBERMAN. I thank the Chair.
  The Supreme Court, in Wesberry v. Sanders, in 1964, ruled that House 
districts had to be approximately equal in population. That was the so-
called ``one man, one vote.'' Again, in each of these cases, our Nation 
has always had the goal of expanding and protecting the right to vote. 
And that is what we seek to do today.
  I am going to yield now to Senator Hatch, with whom I am proud to 
cosponsor this legislation. Senator Hatch in this case is not just the 
distinguished and effective and honorable and intelligent Senator from 
Utah, he has written one of the great law journal articles which 
asserts and I think clearly establishes the constitutionality of what 
we are trying to do today.
  So I thank the Chair and I yield the floor to my friend from Utah.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Madam President, I compliment my dear friend and 
distinguished colleague from Connecticut for the leadership he has 
provided on this issue and for the intelligence he has brought to this 
issue as well.
  Madam President, I rise to support S. 160, the District of Columbia 
House Voting Rights Act of 2009, which I am cosponsoring with my friend 
from Connecticut, Senator Lieberman. This bill would give the District 
of Columbia one seat and Utah another seat in the House of 
Representatives. I will address three questions about this bill: 
whether Congress may pass this bill or this legislation, whether 
Congress should pass it, and whether the Senate bill is how Congress 
ought to do it. I believe the answer to all three questions is yes.
  The first question is whether the Constitution allows Congress to 
pass this legislation. Congress may certainly increase the size of the 
House from 435 to 437 Members and give a new seat to Utah which 
qualifies for one under the formula used in the last 2000 census. The 
2010 census will determine whether Utah keeps this seat. The Congress 
certainly has the legislative authority to grant it to us. The 
constitutional question is whether Congress may give the other new 
House seat created by this bill to the District of Columbia which is, 
of course, not a State. The District did not even exist when the 
Constitution was drafted to provide that the House be composed of 
Members chosen by the people of the several States. The constitutional 
question is whether the word ``States'' prevents Congress from 
providing a House seat for the District.
  We should debate more often and more openly whether the Constitution 
allows us to do what we do. I studied the constitutional issues raised 
by the bill before us and published my analysis and conclusions, as the 
distinguished Senator from Connecticut has noted, in the Harvard 
Journal on Legislation for everyone's consideration.
  I commend it to my colleagues.
  Madam President, I wrote in that article and acknowledge here today 
that there are legitimate arguments on both sides. There are liberal 
and conservative legal experts on both sides. As we debate this bill, 
however, I hope those who oppose it on constitutional grounds will do 
more than just repeat the single word ``States.'' Noting that the 
District is not a State is a factual observation; it is not a 
constitutional argument. It is a premise, not a conclusion.
  Several considerations led me to conclude that this legislation's 
constitutional foundation is solid. First, representation and suffrage 
are the heart of our American system of self-government. This principle 
is so fundamental that there must be affirmative evidence that 
America's Founders intended to deny it to Americans living in the 
District. That evidence simply does not exist.
  Secondly, America's Founders demonstrated the opposite intention by 
their own legislative actions. In 1790, as the distinguished Senator 
from Connecticut has observed, Congress provided by legislation that 
Americans living in the land ceded for the District could continue 
voting in congressional elections. Nobody even suggested that this 
legislation was unconstitutional, even though the land on which those 
Americans lived was no more part of a State in 1790 than the District 
is today. If Congress could do it then, Congress can do it now.
  Third, the Constitution explicitly gives Congress legislative 
authority over the District ``in all cases whatsoever.'' This authority 
has been called sweeping, plenary, and extraordinary by the courts and 
surpasses the authority a State legislature has over its own State.
  Fourth, courts have held for more than two centuries either that 
constitutional provisions framed in terms of States can be applied to 
the District or that Congress can legislatively accomplish for the 
District what the Constitution accomplishes for States. Congress, for 
example, has authority to regulate commerce among the several States. 
The Supreme Court held in 1899 that this applies to the District of 
Columbia.
  The original Constitution provided that direct taxes shall be 
apportioned among the several States. The Supreme Court held in 1805 
that Congress's legislative authority over the District allows taxation 
of the District. The Constitution provides that Federal courts may 
review lawsuits between citizens of different States. The Supreme Court 
held in 1805 that Congress can legislatively extend this to the 
District even though the Constitution does not.
  In 2000, the Supreme Court affirmed a lower court decision holding 
that while the Constitution does not provide congressional 
representation for the District, that goal can be pursued in other 
venues including, the Court said, ``the political process.''
  Those who argue the word ``States'' in the Constitution cannot 
include the District must believe that all of these court decisions 
were wrong. They must believe that District commerce cannot be 
regulated, that District residents cannot be taxed, cannot sue in 
Federal court, and have no right to a speedy trial. They are entitled 
to believe that, but they should say so and defend their position.
  Fifth, maintaining the District as a jurisdiction separate from State 
control in no way requires disenfranchising its residents. America's 
Founders wanted the Capital to be free from State control, and I 
support keeping it that way. I oppose statehood for the District of 
Columbia, and I think most people in this body do, but giving the 
District a House seat so that

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its residents can participate in the process of making the laws they 
must obey in no way changes either the District's political status or 
Congress's legislative authority over the District.
  These are some of the considerations leading me to conclude that the 
Constitution allows Congress legislatively to provide a House seat for 
the District of Columbia.
  The next question is should Congress do so or whether Congress should 
do so. I believe it should. Representation and suffrage are essential 
to our American system of self-government. The Supreme Court has said 
no right is more precious in a free country than having a voice in the 
election of those who govern us. Congress provides by legislation for 
the millions of Americans living overseas to exercise that right by 
voting in congressional elections. They obviously do not live in a 
State. They do not even live in America.
  Do those who believe the word ``States'' in the Constitution 
precludes representation for Americans living in the District, do they 
believe that it also precludes representation for Americans living 
outside the country altogether? Of course not.
  I wish to emphasize the legislation before us would restore 
congressional representation that Americans living in the District once 
enjoyed. After taking up residence in 1800, Congress failed to continue 
by Federal law the voting rights these Americans had previously 
enjoyed, by Congress's permission, under State law. One member of the 
District City Council, Augustus Woodward, wrote in 1801 that District 
residents are still part of the people of the United States and that 
``it is violating an original principle of Republicanism to deny that 
all who are governed by laws ought to participate in the formulation of 
them.''
  I continue to believe what I stated more than 30 years ago on the 
Senate floor that Americans living in the District should enjoy all the 
privileges of citizens, including voting rights.
  If Congress may and should provide a House seat for the District, the 
remaining question is how to do it. I believe the bill before us, 
rather than the House version, is the best vehicle for accomplishing 
that goal. First, it disclaims Senate representation for the District 
both explicitly and implicitly. It explicitly does so in language that 
the Senator from Maine, Ms. Collins, first introduced during the 
committee markup in the 110th Congress.
  The bill States:

       The District of Columbia shall not be considered a State 
     for purposes of representation in the U.S. Senate.

  But the bill also implicitly disclaims Senate representation by 
treating the District as a congressional district rather than as a 
State even for purposes of House representation. This avoids even a 
rhetorical parallel to States that have only one House Member.
  I wish to firmly repeat my continuing opposition to District 
representation in the Senate. I opposed the constitutional amendment in 
1978 that would have given the District both House and Senate 
representation. The two Houses of Congress are designed differently: 
the House to represent population and the Senate to represent the 
States. The House is considered the people's body, the Senate the 
State's body. The 17th amendment changed how Senators are elected but 
did not change the Senate itself or its place in the design of 
Congress.
  In addition, as I argued in 1978, adding a nonstate jurisdiction to 
the Senate would disrupt the equal suffrage the Constitution guarantees 
to the States in this body. Secondly, the Senate bill provides for 
expedited judicial review. The House bill does not. As I do, my 
colleagues take the Constitution seriously, and this provision will 
help ensure that, if necessary, the courts can decide the legal issues.
  Third, the Senate bill allows Utah to elect its additional House 
Member after drawing new congressional district lines. The House bill 
would improperly force Utah to elect an additional Member at Large. 
This would create two strange situations. It would mean one House 
Member from Utah would have three times as many constituents as the 
other, and it would mean Utahans would each have two House Members, 
twice as many as Americans living in any other State. Utah has already 
demonstrated that it is willing and able to draw fair and reasonable 
lines to elect a fourth House Member, and Congress has no business 
forcing Utah to do it any other way.
  Let me close by saying there are many differences between Utah and 
the District, to be sure, but their residents deserve to be properly 
represented in our National Legislature. I do not believe that 
representation and suffrage, the heart of self-government, should be 
provided based on how Americans will exercise this most precious right 
or which party they will likely support. I believe Congress may and 
should provide for that representation and ought to do so by passing 
the bill before us today, and I hope we will.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona is 
recognized.
  Mr. KYL. Madam President, obviously, the principal argument that must 
be made against this bill is its blatant unconstitutionality. Article I 
of the Constitution clearly and expressly provides that representation 
in the House of Representatives shall be apportioned among the several 
States. The meaning of this language is not ambiguous. Only States may 
be represented in the House of Representatives--not territories, not 
districts, or other Federal possessions. It is hard to craft a 
colorable argument that this bill is constitutional, especially in view 
of court decisions confirming what I just said.
  But let me set aside for a moment the constitutional argument and 
talk about the idea behind the bill, which is that it is wrong for 
residents of the District not to have some representation in the House 
of Representatives. The argument is that everyone is entitled to 
representation in Congress and that the District currently lacks such a 
representative--in other words, that the District runs afoul of the 
principle of ``no taxation without representation'' as the 
jurisdiction's current license plates complain. Of course, there is a 
representative, but that representative is a nonvoting representative.
  The argument, however, is wrong. The District does not lack 
representation in the Congress or need a voting representative to, for 
example, provide funding for the District of Columbia. It actually 
already has representatives in Congress: 100 Senators and 435 House 
Members, all of whom, under the Constitution itself, have the 
jurisdiction and, indeed, the obligation to provide for the general 
welfare of the residents of the District of Columbia. All of these 
Members work in the District. Most of them live close to, if not in, 
the District. Their presence here and the oversight that Congress 
provides and the funding Congress provides effectively ensures that the 
District is adequately cared for by the Congress.
  If anyone here today doubts that Congress has been anything less than 
generous toward the District, I would ask them to consider the latest 
data from the Tax Foundation on the amount of tax dollars each State 
and the District pay to the Federal Government and the amount each 
receives in Federal spending in return.
  Let's start with those States for whom the redistribution of 
America's wealth via the Federal Government is not such a good deal. 
Going down the rankings to No. 47 of per capita dollars received to 
dollars taxed, we have the State of New Hampshire. Its residents paid 
an average of $8,162 of taxes to the Federal Government but received a 
per capita average of only $6,386 in Federal spending. This earned New 
Hampshire a return of only 71 cents for each dollar paid in Federal 
taxes.
  Next on the list is the State of Connecticut. Its residents paid an 
average of $11,522 in Federal taxes but saw only $8,795 per capita in 
Federal spending in return, which means every dollar in Federal taxes 
saw a return of only 69 cents in Federal spending.
  At No. 49 on the scale of returns is the State of Nevada. Its 
residents saw only a 65-cent return on every dollar paid in Federal 
taxes. On average, every Nevadan paid $8,417 in Federal taxes, but the 
State received only $5,889 per capita in Federal spending.
  Finally, rock bottom on the list of beneficiaries of Federal largess 
is the State of New Jersey. Its residents paid a total of $86 billion 
in taxes to the Federal Government. That comes to $9,902 paid to the 
United States by every man, woman, and child in the State. Yet the 
State saw only $6,740 in Federal spending--a return of only 61

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cents of Federal return for every dollar New Jersey residents send to 
Washington.
  Neither New Jersey nor any of these other States pay the most in 
total taxes to the Federal Government. That honor goes to California, 
whose citizens paid a total of $289 billion in taxes to the Federal 
Government. That comes out to $8,028 for every man, woman, and child in 
California. But in return, the State only received $6,709 per capita in 
Federal spending--a return of only 78 cents for each dollar in Federal 
taxes paid.
  There is also the other end of the scale--the States that received 
more in Federal spending than they pay in Federal taxes. Which are 
they? Let's start with West Virginia, which ranked fifth. Its residents 
paid an average of $4,861 in taxes and received $8,872 per capita in 
Federal spending--a return of $1.76 for every dollar in taxes.
  No. 2 on the list is Mississippi, which saw a return of $2.03 for 
every $1 paid in Federal taxes.
  At the very top is New Mexico, whose residents paid an average of 
$5,153 in Federal taxes but saw a per capita return of $10,733 in 
Federal spending or $2.03 for every dollar paid in Federal taxes. 
Mississippi and New Mexico, with two Senators each, and with four and 
three Congressmen respectively, made out better than all other States 
in terms of per capita Federal spending that Congress delivered to 
these States, as compared to the amounts they pay in taxes. No State 
got a better deal than Mississippi and New Mexico, which saw a per 
capita return of over $2 for every dollar paid. So they did very well 
by any measurement.
  There is one jurisdiction that does better than even these States and 
that is--as you might guess--the District of Columbia. It far exceeded 
the $2 return seen by even the No. 1 and 2 States on the list of 
Federal beneficiaries. For the last year for which data is available, 
District residents paid an average of $11,582 in Federal taxes. But in 
return, the District of Columbia received over $65,109 in per capita 
Federal spending. This represents a return that is more than twice as 
high as that received by the No. 1 and 2 States, a return of 55 cents 
for every $1 that its residents paid in Federal taxes. The District did 
over six times better than even first-ranked New Mexico, at $65,109. 
This represents a 555-percent return on the District's investment in 
Federal taxes--generous by any standard, even accounting for the fact 
that much of the money is for the Federal area for buildings and other 
projects within the District.
  The numbers I have been citing have not abated in recent times. Most 
recently, on February 14, in the Federal stimulus bill, the District's 
nonvoting Delegate, Holmes-Norton, issued a press release bragging 
about the District's recent take. She gave a press briefing in which, 
according to news accounts:

       . . . gave a detailed account of the $620 million of 
     benefits for the District of Columbia in the American 
     Recovery and Reinvestment Plan of 2009 at a press conference 
     this morning. The funds in the stimulus package are expected 
     to generate 12,000 jobs and an even larger number of jobs at 
     the Department of Homeland Security headquarters in Ward 8, 
     which will receive $650 million, even more than expected, to 
     build the first of five buildings at the DHS compound, a 
     project expected to generate 38,000 jobs in the area. The 
     Congresswoman's work to make sure that in every category DC 
     was treated as a State paid off handsomely for the District, 
     which did better in funds received than seven States. Funds 
     to repair federal structures will be spent disproportionately 
     in DC because so many Federal buildings are located here.

  One would expect DC would receive more Federal money because of the 
Federal enclave that exists in the District. But the point of the 
representative is to note that all of that benefits the residents of 
the District as well, unlike that money that goes to the States. So 
straight from the nonvoting District's representative, you have the 
fact that the Congress has clearly been very generous toward the 
District. It is in no way underrepresented and certainly doesn't 
deserve to have an additional Member of Congress, whose goal it would 
be to expand the District's share of Federal spending.
  Even if giving the District a dedicated representative in the House 
were sound policy, let me return to the argument about the 
constitutionality. This, the proponents appreciate, is the soft 
underbelly of this legislation. There are arguments they adduce to 
support its constitutionality. I submit they are weak and will not 
succeed in court. I appreciate the fact that the sponsors of the bill 
support the necessity of an expedited hearing to get the legislation 
heard and a decision made by the courts as to its constitutionality. 
That is the least we would owe the representatives of the District, as 
well as the other citizens of the country.
  Congress has long recognized we can only grant District residents the 
ability to participate in Federal elections through constitutional 
amendment. Prior to 1961, for example, District residents were not 
permitted to vote in Presidential elections. Article II, section 1 of 
the Constitution provides that the electors from each State should be 
comprised of the number equal to the State's combined congressional 
delegation. In the face of this express constitutional language, 
Congress recognized that a change to the law would require a change to 
the Constitution itself. That is why, when we granted DC residents the 
right to participate in Presidential elections, we went about it the 
right way--by passing the 23rd amendment to the Constitution.
  Just as article II of the Constitution, which deals with the 
Presidency, limited the right to appoint Presidential electors to the 
State, article I, which deals with Congress, clearly and repeatedly 
limits representation in the House and Senate to the State. Article I 
says the House ``shall be composed of members chosen every second year 
by the people of the several states, and the electors in each state 
shall have the qualifications requisite for electors of the most 
numerous branch of the state legislature.'' Obviously, that doesn't 
apply to the District of Columbia. It requires that each 
representative, ``when elected, be an inhabitant of that state in which 
he was chosen.'' It mandates that ``each state . . . have at least one 
Representative,'' and it provides that ``when vacancies happen in the 
Representation for any state, the executive authority thereof shall 
issue writs of election to fill such vacancies.'' Again, it could not 
have application to the DC.
  The import of these provisions was recognized by the legal scholar, 
Jonathan Turley, in a law review article published last year. In it he 
concludes:

       It would be ridiculous to suggest that the delegates to the 
     Constitutional Convention or ratification conventions would 
     have worked out such specific and exacting rules for the 
     composition of Congress, only to give the majority of 
     Congress the right to create a new form of voting members 
     from federal enclaves like the District. It would have 
     constituted the realization of the worst fears for many 
     delegates, particularly Anti-Federalists, to have an open-
     ended ability of the majority to manipulate the rolls of 
     Congress and to use areas under the exclusive control of the 
     Federal Government as the source for new voting members.

  Indeed, congressional Democrats, in 1978--and Republicans as well--
recognized that giving the District of Columbia a dedicated House 
Member would require amending the Constitution. That year, Congress 
passed an amendment giving District residents a voting seat in the 
House. When the House Judiciary Committee, under the leadership of 
Chairman Peter Rodino, reported out the amendment, the accompanying 
report recognized that ``if the citizens of the District are to have 
voting representation in the Congress, a constitutional amendment is 
essential; statutory action alone will not suffice.''

  I am certainly not alone in concluding that this bill, though well-
intentioned, violates the plain language of the Constitution. The very 
court that will hear challenges to this bill under its expedited 
judicial review provision has already ruled that District residents do 
not have a constitutional right to congressional representation. In 
Adams v. Clinton, decided in 2000, a three-judge panel of the Federal 
District Court for the District of Columbia had concluded that the 
Constitution plainly limited congressional representation to the 
States. Here is what the court said:

       The overlapping and interconnected use of the term 
     ``state'' in the relevant provisions of article I, the 
     historical evidence of contemporary understandings, and the 
     opinions of our judicial forebears, all reinforce how deeply 
     Congressional representation is tied to the structure of 
     statehood. . . . There is simply no evidence that the Framers 
     intended that not only citizens of the States,

[[Page S2395]]

     but unspecified others as well, would share in the 
     congressional franchise.

  The District residents who brought suit in Adams v. Clinton appealed 
their case all the way to the U.S. Supreme Court, and the Supreme Court 
allowed the trial court's ruling to stand.
  The Senate should not be passing legislation that we believe is 
unconstitutional. We should not pass the buck to the Federal courts 
because we feel good about a particular case to be made and want to 
express our feelings about it, in the firm judgment that the court will 
save us from ourselves and declare our action unconstitutional. When we 
neglect our duty to the Constitution, we fail to uphold the oath that 
we take as Senators to support and defend our great founding documents.
  My friends in the Senate who support this legislation rely 
essentially on two arguments, neither of which, I submit, outweighs the 
clear mandate in article II. First, they claim that another provision 
in the Constitution, the so-called District clause, allows Congress to 
essentially grant any sort of legislation relating to the District of 
Columbia, including even legislation to give DC residents a voting 
House Member. This clause doesn't do that. What it does is permit 
Congress to pass laws to provide for the general welfare of District 
residents. The bill, however, does not propose to provide for the 
welfare of District residents; it seeks to alter the fundamental 
composition of the House of Representatives.
  This clause not only does not allow the Congress to change the law 
without a constitutional amendment; it is, in effect, a logical 
extension of the fact that the District requires some separate entity 
to make the laws and provide for its needs, and that, of course, as 
identified in the Constitution, is the Congress. So, far from 
supporting the case, it actually confirms the argument that the 
District, not being a State, is not entitled to representation as a 
State.
  Second, proponents of the bill correctly point out that there are 
certain instances in the Constitution where references to citizens of 
the States has been interpreted to include residents of the District of 
Columbia. Many of these cases, though, involve individual rights, and 
it is obvious that DC residents do not lose their rights as citizens of 
the United States by choosing to live in the District. For example, 
they retain the right to trial by jury, and they may bring civil suits 
in Federal court against citizens of other States and so on. The bill 
is not a bill about individual rights, such as free speech, the right 
to own firearms or to due process of law. It is a bill about the makeup 
of House of Representatives. It is about the delicate balance our 
constitutional Framers struck in affording representation to the States 
in the House and the Senate, and it is about the fundamental structure 
of our Government.
  Finally, there is actually nothing standing in the way of full 
representation in the Congress for residents of the District. In fact, 
there have been previous offers, and there will be another offer in the 
context of the debate on this bill to allow the residents of the 
District of Columbia to vote as a congressional district of the State 
of Maryland. The retrocession amendment would also allow representation 
in the Senate as well. This is essentially what residents of Virginia 
had when the land was retroceded to the State of Virginia that had 
originally been carved out as part of the 10-mile square of the 
District of Columbia. Up to now, the residents of the District have not 
seen fit to take advantage of this offer to have full representation in 
the Congress as residents of the State of Maryland. But they will have 
that opportunity again when an amendment is proposed in the context of 
this legislation.
  The bottom line is this: The District of Columbia residents do not 
suffer from a lack of representation in terms of the general welfare of 
the District. The Congress has been enormously generous and has ceded 
jurisdiction to the city of the District of Columbia and provided 
funding and other legislation to govern the District as called for 
under article I.
  Secondly, the Constitution of the United States could not be clearer 
about the fact that representation is limited to the States of the 
Union.
  The District of Columbia being a Federal enclave, not being a State, 
therefore, is not entitled to congressional representation, so the 
Federal District Court of the District of Columbia has held. The 
Supreme Court has declined to review that ruling, allowing it to stand. 
It is my firm belief when this legislation, if it is passed, is 
challenged, it will, in fact, be declared unconstitutional. Because of 
that, it seems to me those of us in the Congress who respect the 
Constitution and this argument should oppose the legislation on the 
grounds that we should never pass legislation that we believe to be 
unconstitutional in the hopes that the Congress will be overruled by 
the Court and the Court will save us from the action we take.
  I reserve the remainder of the time on my side and see if anybody 
else on the other side wishes to speak.
  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)
 Mr. KENNEDY. Madam President, our vote today affects one of 
the core issues of our democracy--the right to vote. It is a 
fundamental American principle that every citizen should have the right 
to vote and to participate in our democracy. Yet the nearly 600,000 
residents of the District of Columbia have no voting representative in 
Congress. Americans give up their right to vote for Members of Congress 
when they move to the Nation's Capital. It is long past time for us to 
finally correct this basic wrong, and I commend Senators Lieberman and 
Hatch for their strong leadership on this legislation.
  The basic injustice is clear. Already this year, District of Columbia 
residents have paid over $500 million in Federal taxes. Annually, they 
have the second highest per capita tax burden in the Nation. But they 
are denied the basic right of congressional representation taken for 
granted by other taxpaying Americans.
  DC residents have fought and died to protect our Nation in every war 
in which America has participated since our Nation was founded. Since 
World War I, over 192,000 residents of the District of Columbia have 
served in our Armed Forces, and more than 1,600 DC residents have given 
their lives in service to our Nation. Since the start of the current 
wars in Iraq and Afghanistan, nearly 3,000 DC residents have been 
deployed in those countries and dozens of DC residents have been 
wounded or killed. There is no reason to deny representation in 
Congress to these patriotic veterans.
  I have long been a strong supporter of DC representation in Congress. 
In 1978, the District's nonvoting Delegate in the House, Walter 
Fauntroy, our Senate majority leader, Robert Byrd, and I worked with 
many others to pass a constitutional amendment to extend full voting 
rights to Americans living in the Nation's Capital. Congress passed 
that constitutional amendment, but too few States ratified it, and it 
never took effect.
  Although I strongly supported that constitutional amendment, I do not 
believe that a constitutional amendment is the only valid option. In 
1978, we were following the precedent of the 23rd amendment, which was 
approved by Congress in June 1960 and was ratified by the States in 
March 1961 and which gave citizens of the District of Columbia the 
right to vote in Presidential elections. At the time, there was little 
opposition in the House to the amendment giving the District 
congressional representation, and the Republican leaders in the Senate 
actively supported it. It passed the House by a vote of 289 to 127. The 
Senate passed it by a vote of 67 to 32, narrowly above the two-thirds 
majority required for a constitutional amendment. Needless to say, we 
were deeply disappointed by the failure of the States to ratify the 
amendment, and that failure planted the seeds for the serious 
consideration now of the statutory option for achieving the goal.
  As the House and Senate hearings on the current bill make abundantly 
clear, the Constitution's District clause provides a valid means for 
acting by statute to grant citizens of the District of Columbia the 
right to vote in the House of Representatives. In testimony on the 
bill, numerous constitutional scholars have explained that article I, 
section 8 of the Constitution grants Congress the authority ``to 
exercise exclusive Legislation, in all Cases whatsoever, over'' the 
District of

[[Page S2396]]

Columbia. The Supreme Court has ruled that Congress's exclusive 
authority over the District of Columbia is broad and ``national in the 
highest sense.'' O'Donoghue v. United States, 289 U.S. 516, 539-40, 
1933.
  Madam President, at this very moment as the Senate debates whether DC 
citizens deserve a vote in Congress, many brave Americans born in the 
District of Columbia are fighting for democracy in Iraq. If we are for 
democracy in Iraq and Afghanistan, we cannot oppose democracy in the 
District of Columbia. If we believe in the principles of ``one person, 
one vote'' and government by the consent of the governed on which our 
Nation was founded, we must support this bill.
  I urge my colleagues to vote for cloture on the motion to proceed to 
this long overdue legislation and to support final passage of the bill 
so that we can finally correct this historic wrong.
  Mr. BAUCUS. Madam President, I rise today to discuss the District of 
Columbia House Voting Rights Act.
  This legislation, if passed, is an unprecedented action. For the 
first time in history, Congress will grant the District of Columbia a 
voting seat in the U.S. House of Representatives. For decades, citizens 
of the District of Columbia have fought for their right to vote in 
Congress.
  But this legislation sets precedence in another way. The bill we 
discuss today does not provide merely one additional seat in the House 
of Representatives. It adds two. The second seat is given to Utah.
  For the first time in history, Congress will specifically set out in 
legislation an additional seat in Congress for an existing State.
  This measure is included in this bill not because of the belief that 
the people of Utah are in the same position as those living in the 
District of Columbia. Instead, this additional seat is included in the 
legislation in an effort to balance the supposed political makeup of 
the two new districts--one Republican and one Democratic.
  I do not support the reasons behind this second additional seat, and 
thus, I cannot vote in support of this bill.
  The State of Utah failed to obtain an additional seat in the last 
apportionment by a narrow margin. Many in the State felt the 
reapportionment was unfair. In fact, the State of Utah took its 
argument all the way to the U.S. Supreme Court but lost that battle in 
court.
  But Utah is not unique. The people of the State of Montana can 
relate. Mr. President, I would like to share with you today Montana's 
story.
  In the 1910 reapportionment, with a population of 243,000, Montana 
gained an additional seat in the House of Representatives, for a total 
of 2 seats. But 80 years later following the 1990 census, 8 States 
gained a total of 19 additional seats in the House of Representatives, 
and 13 States lost an equal number.
  Montana was one of those States. With a population of over 800,000, 
Montana lost 1 seat, reducing its voice in the House in half. Losing 
this seat established the State of Montana as the largest single 
congressional district in the United States.
  In 1990, the average size of the 435 congressional districts was 
572,466 people. From 1910 to 1990, Montana's population increased by 
563,000 people roughly the size of a modern congressional district.
  Yet in 1990, Montana lost a congressional seat. In fact, if Montana 
had retained its two districts, each would have been closer to the 
ideal, average district size than the single congressional district.
  The State of Montana--just like Utah--sued the U.S. Department of 
Commerce, asserting the reapportionment was unconstitutional. A three-
judge district court panel ruled in favor of the State of Montana. The 
district court held that the principle of equal representation for 
equal number of people as applied to State districting by the U.S. 
Supreme Court in 1964, should also be applied to the apportionment of 
seats among the States.
  The U.S. Government appealed the decision. On March 2, 1992, the U.S. 
Supreme Court held oral arguments on the case. I attended the oral 
arguments, sitting behind then-attorney general for Montana Marc 
Racicot, as he argued on behalf of the State of Montana.
  Unfortunately, the Supreme Court reversed the district court 
decision, upholding the reapportionment and Montana's lost seat.
  The people of Montana accepted that fate and patiently waited for the 
next reapportionment, hoping to obtain the second seat Montana lost 10 
years earlier. Early estimates were promising. The 1995 projection for 
2000 census estimated that Montana would regain its second seat.
  However, Montana came up short in the 2000 census. Though Montana's 
population grew by 12.9 percent, nearly matching the national rate, 
Montana's congressional representation remained the same. In fact, the 
State came up only 8,000 people short of the number needed, just nine-
tenths of 1 percent of the State's population. Only Utah missed gaining 
another seat with a narrower margin.
  Marc Racicot, then-Governor of Montana in 2000, said the unfairness 
of having such a large district was obvious. The ability of one person 
to represent over 900,000 is substantially strained, he said.
  Today, the State of Montana remains the single most populated 
congressional district in the United States, at a population over 
947,000--far larger than the average population per district of 
625,000.
  But mere population doesn't tell the whole story.
  The State of Montana is the fourth largest State in the country. With 
over 145,000 square miles, Montana is bigger than the District of 
Columbia, Maryland, Virginia, and North Carolina combined. It is larger 
than all of New England.
  Though Montana may not be the biggest congressional district based on 
land mass--Alaska has us beat--Montana's population is spread out more 
evenly across the State's vast area. Billings, Montana's largest 
``city,'' only just recently surpassed 100,000 people.
  In Montana, we don't distinguish between rural and nonrural. Rural is 
a matter of degree, as it compares to an increasingly more urban and 
suburban Nation.
  This bill should be about the District of Columbia and the merits of 
awarding the taxpayers of the District their right to vote in Congress. 
Indeed, the bill itself is called the District of Columbia House Voting 
Rights Act. But to strike a political deal to maintain the status quo 
in the Halls of Congress is something I cannot support.
  The PRESIDING OFFICER (Mr. Udall of Colorado.) The Senator from 
Connecticut.
  Mr. LIEBERMAN. Mr. President, I say to my friend from Arizona, Mr. 
Kyl, that Senator Durbin, the senior Senator from Illinois, is on his 
way to speak for 5 minutes. Senator Kyl has raised some important 
constitutional questions. I spoke to them briefly in my opening 
statement. Senator Hatch spoke at more length. It will undoubtedly 
consume a great deal of discussion, assuming we invoke cloture when we 
vote in approximately 15 minutes. I will wait to respond until then and 
remind my colleagues, of course, that on the constitutional question, I 
think it is at least arguable--I believe it is more than arguable. I 
believe the proposal before the Senate today is clearly constitutional 
and has been acknowledged as such by a wide array of experts--left, 
center, right--but that will be determined by the Chamber.
  I remind my colleagues what we are voting on today is whether we are 
going to take up this bill. The basic reality is that a grave injustice 
has been done to the residents of this District. Mr. President, 600,000 
Americans do not have voting representation in Congress just because 
they happen to live in our Nation's Capital, the only democracy in the 
world where that is so. It is an embarrassment. I think my friends who 
oppose this bill agree; we just disagree on the constitutionality of 
this proposal.
  I ask everyone, please vote for cloture. Let's at least give the 
residents of the District their day in the Senate and hopefully we will 
go on to enact this legislation. But this bill certainly at least 
deserves to be debated.
  I reserve the remainder of the time on our side.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I understand the time on the Democratic side 
has expired, but when Senator Durbin arrives, I will yield him 
Republican time

[[Page S2397]]

to make his statement, if he would like to do that.
  Mr. LIEBERMAN. I thank my friend for his generosity.
  Mr. KYL. In the meantime, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, it is my understanding there is a vote 
scheduled for 11:15 a.m.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DURBIN. I don't know if any time has been allotted between now 
and 11:15.
  Mr. LIEBERMAN. Mr. President, I say to the Senator from Illinois, we 
actually used all our time. Senator Kyl graciously offered the Senator 
from Illinois the final 5 minutes of their time.
  The PRESIDING OFFICER. The Senator from Connecticut does have 1 
minute remaining.
  Mr. LIEBERMAN. One minute of mine and four of his.
  Mr. DURBIN. I thank my gracious colleagues.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, the Senate is debating whether to have a 
vote this week on a very important bill called the District of Columbia 
House Voting Rights Act of 2009. This bill would finally give voting 
rights to the people of the District of Columbia after 200 years. I am 
a cosponsor and supporter of this measure; I have been since the 
earlier days of my service in the House.
  I find it unimaginable in modern America that 600,000 Americans have 
no voice and no vote in the U.S. Congress. It is a fact. It reflects 
decisions made long ago about whether the District of Columbia and its 
residents would be represented in Congress. There is a good reason they 
should be.
  The right to vote is one of the most fundamental in the United 
States. Over a century ago, the Supreme Court called the right to vote 
``a fundamental political right'' and a right that is ``preservative of 
all rights.''
  It is unconscionable that we would ask the men and women in the 
District of Columbia to fight and risk their lives so the people of 
Iraq and Afghanistan have the right to vote, but we do not extend that 
same right to the citizens of the District of Columbia.
  Seven DC residents have died on the battlefields of Iraq and 
Afghanistan: SPC Darryl Dent, LCpl Greg MacDonald, MAJ Kevin Shea, LTC 
Paul Kimbrough, CPT Darrell Lewis, SGT Randy Lewis Johnson, Jr., and 
SPC Keisha Marie Morgan. They were unable to fully participate in 
democracy in the town from which they came.
  Opponents of the DC voting rights bill say they have constitutional 
concerns. They point to language in the Constitution that says the 
House of Representatives will be composed of Members chosen by ``the 
people of the several States.'' They argue that the District of 
Columbia is a district, not a State.
  I do not think that is a strong argument. Our Federal judiciary has 
long treated the District of Columbia as a State for many purposes. For 
example, DC residents pay Federal income tax, serve on Federal juries, 
and register for Selective Service. Why should the right to vote be 
different?
  Do opponents of DC voting rights believe that residents of America's 
Capital City should bear the full responsibilities of citizenship but 
not deserve the full rights of citizenship?
  It is not just Democrats who believe the DC voting bill is 
constitutional. Many prominent Republicans agree. I am pleased that a 
half dozen of my Senate Republican colleagues have voted in the past 
for this bill. Listen to the words of conservative constitutional 
scholar Kenneth Starr. It is not often I have quoted him. He is not 
someone with whom I frequently see eye to eye. He coauthored a 
Washington Post op-ed and said:

       There is nothing in our Constitution's history or its 
     fundamental principles suggesting that the Framers intended 
     to deny the precious right to vote to those who live in the 
     capital of the great democracy they founded.

  I conclude by saying that I have served in the Senate now for a 
little over 12 years and the House 14 years before. I have seen the 
Congress treat the District of Columbia many times in a way that I 
found unacceptable, sometimes embarrassing. There are many Members of 
Congress whose obvious lifelong ambition is to serve as the mayor of a 
city--they cannot wait to be the Mayor of the District of Columbia--by 
the laws we pass on the floor of the House and Senate. We have denied 
to these people a voice in that process. We have made basic and 
fundamental decisions for the residents of this city which many of us 
never would have imposed on the city we represent. But they have been 
used as a laboratory for political debate and political experiment.
  It is time that the people of this great Capital City have a voice in 
the Halls of Congress, at least in the House of Representatives. This 
bill is an important step forward in extending the opportunity for 
participation in our democracy and the opportunity for freedom. In this 
21st century, we can do no less. I hope the new day, the change we are 
seeing in America, will be seen in the District of Columbia soon when 
they are given the right to have a voice in the Congress.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, if I may, before the vote goes off, I 
simply wish to note that in addition to the names I indicated in my 
opening statement who are cosponsors of S. 160, Senator Specter of 
Pennsylvania and Senator Schumer of New York have also joined.
  And on behalf of my colleagues, I would note the presence in the 
Chamber and welcome the Honorable Mayor of the District of Columbia, 
Adrian Fenty, and the honorable and eloquent and aggrieved Delegate 
from the District, Eleanor Holmes Norton.
  I yield the floor.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order and pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will state.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the motion to 
     proceed to S. 160, the District of Columbia House Voting 
     Rights Act of 2009.
         Harry Reid, Joseph I. Lieberman, Richard Durbin, Charles 
           E. Schumer, Christopher J. Dodd, Benjamin L. Cardin, 
           Edward E. Kaufman, Mark Udall, Daniel K. Inouye, 
           Michael F. Bennet, Mary L. Landrieu, Mark L. Pryor, 
           Sheldon Whitehouse, Roland W. Burris, Patty Murray, 
           Bernard Sanders, Thomas R. Carper.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 160, the District of Columbia House Voting 
Rights Act of 2009, shall be brought to a close? The yeas and nays are 
mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Iowa (Mr. Harkin) and 
the Senator from Massachusetts (Mr. Kennedy) are necessarily absent.
  I further announce that, if present and voting, the Senator from Iowa 
(Mr. Harkin) would vote ``yea.''
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. DeMint).
  Further, if present and voting, the Senator from South Carolina (Mr. 
DeMint) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 62, nays 34, as follows:

                      [Rollcall Vote No. 65 Leg.]

                                YEAS--62

     Akaka
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gillibrand
     Hagan
     Hatch
     Inouye

[[Page S2398]]


     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--34

     Alexander
     Barrasso
     Baucus
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Byrd
     Chambliss
     Coburn
     Corker
     Cornyn
     Crapo
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Martinez
     McCain
     McConnell
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--3

     DeMint
     Harkin
     Kennedy
  The PRESIDING OFFICER. On this vote, the yeas are 62, the nays are 
34. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  The clerk will report the bill.
  The assistant legislative clerk read as follows:

       A bill (S. 160) to provide the District of Columbia a 
     voting seat and the State of Utah an additional seat in the 
     House of Representatives.

  The Senate proceeded to consider the bill (S. 160) to provide the 
District of Columbia a voting seat and the State of Utah an additional 
seat in the House of Representatives, which had been reported from the 
Committee on Homeland Security and Governmental Affairs, with an 
amendment to strike all after the enacting clause and insert in lieu 
thereof the following:

                                 S. 160

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``District of Columbia House 
     Voting Rights Act of 2009''.

     SEC. 2. TREATMENT OF DISTRICT OF COLUMBIA AS CONGRESSIONAL 
                   DISTRICT.

       (a) Congressional District and No Senate Representation.--
       (1) In general.--Notwithstanding any other provision of 
     law, the District of Columbia shall be considered a 
     congressional district for purposes of representation in the 
     House of Representatives.
       (2) No representation provided in senate.--The District of 
     Columbia shall not be considered a State for purposes of 
     representation in the United States Senate.
       (b) Conforming Amendments Relating to Apportionment of 
     Members of House of Representatives.--
       (1) Inclusion of single district of columbia member in 
     reapportionment of members among states.--Section 22 of the 
     Act entitled ``An Act to provide for the fifteenth and 
     subsequent decennial censuses and to provide for 
     apportionment of Representatives in Congress'', approved June 
     28, 1929 (2 U.S.C. 2a), is amended by adding at the end the 
     following new subsection:
       ``(d) This section shall apply with respect to the District 
     of Columbia in the same manner as this section applies to a 
     State, except that the District of Columbia may not receive 
     more than one Member under any reapportionment of Members.''.
       (2) Clarification of determination of number of 
     presidential electors on basis of 23rd amendment.--Section 3 
     of title 3, United States Code, is amended by striking ``come 
     into office;'' and inserting ``come into office (subject to 
     the twenty-third article of amendment to the Constitution of 
     the United States in the case of the District of 
     Columbia);''.

     SEC. 3. INCREASE IN MEMBERSHIP OF HOUSE OF REPRESENTATIVES.

       (a) Permanent Increase in Number of Members.--Effective 
     with respect to the 112th Congress, or the first Congress 
     sworn in after the implementation of this Act, and each 
     succeeding Congress, the House of Representatives shall be 
     composed of 437 Members, including the Member representing 
     the District of Columbia pursuant to section 2(a).
       (b) Reapportionment of Members Resulting From Increase.--
       (1) In general.--Section 22(a) of the Act entitled ``An Act 
     to provide for the fifteenth and subsequent decennial 
     censuses and to provide for apportionment of Representatives 
     in Congress'', approved June 28, 1929 (2 U.S.C. 2a(a)), is 
     amended by striking ``the then existing number of 
     Representatives'' and inserting ``the number of 
     Representatives established with respect to the 112th 
     Congress, or the first Congress sworn in after implementation 
     of the District of Columbia House Voting Rights Act of 
     2009''.
       (2) Effective date.--The amendment made by paragraph (1) 
     shall apply with respect to the regular decennial census 
     conducted for 2010 and each subsequent regular decennial 
     census.
       (c) Transmittal of Revised Apportionment Information by 
     President.--
       (1) Statement of apportionment by president.--Not later 
     than 30 days after the date of the enactment of this Act, the 
     President shall transmit to Congress a revised version of the 
     most recent statement of apportionment submitted under 
     section 22 of the Act entitled ``An Act to provide for the 
     fifteenth and subsequent decennial censuses and to provide 
     for apportionment of Representatives in Congress'', approved 
     June 28, 1929 (2 U.S.C. 2a), to take into account this Act 
     and the amendments made by this Act. The statement shall 
     reflect that the District of Columbia is entitled to one 
     Representative and shall identify the other State entitled to 
     one representative under this section. Pursuant to section 22 
     of the Act entitled ``An Act to provide for the fifteenth and 
     subsequent decennial censuses and to provide for 
     apportionment of Representatives in Congress'', approved June 
     28, 1929 (2 U.S.C. 2a), as amended by this Act, and the 
     regular decennial census conducted for 2000, the State 
     entitled to the one additional representative is Utah.
       (2) Report by clerk.--Not later than 15 calendar days after 
     receiving the revised version of the statement of 
     apportionment under paragraph (1), the Clerk of the House of 
     Representatives shall submit a report to the Speaker of the 
     House of Representatives indicating that the District of 
     Columbia is entitled to one Representative and identifying 
     the State which is entitled to one additional Representative 
     pursuant to this section. Pursuant to section 22 of the Act 
     entitled ``An Act to provide for the fifteenth and subsequent 
     decennial censuses and to provide for apportionment of 
     Representatives in Congress'', approved June 28, 1929 (2 
     U.S.C. 2a), as amended by this Act, and the regular decennial 
     census conducted for 2000, the State entitled to the one 
     additional representative is Utah.
       (3) Additional statements and reports.--
       (A) In general.--Subject to subparagraph (B) and following 
     the revised statement of apportionment and subsequent report 
     under paragraphs (1) and (2), the Statement of Apportionment 
     by the President and subsequent reports by the Clerk of the 
     House of Representatives shall continue to be issued at the 
     intervals and pursuant to the methodology specified under 
     section 22 of the Act entitled ``An Act to provide for the 
     fifteenth and subsequent decennial censuses and to provide 
     for apportionment of Representatives in Congress'', approved 
     June 28, 1929 (2 U.S.C. 2a), as amended by this Act.
       (B) Failure to complete.--In the event that the revised 
     statement of apportionment and subsequent report under 
     paragraphs (1) and (2) can not be completed prior to the 
     issuance of the regular statement of apportionment and 
     subsequent report under section 22 of the Act entitled ``An 
     Act to provide for the fifteenth and subsequent decennial 
     censuses and to provide for apportionment of Representatives 
     in Congress'', approved June 28, 1929 (2 U.S.C. 2a), as 
     amended by this Act, the President and Clerk may disregard 
     paragraphs (1) and (2).

     SEC. 4. UTAH REDISTRICTING PLAN.

       The general election for the additional Representative to 
     which the State of Utah is entitled for the 112th Congress, 
     pursuant to section 3(c), shall be elected pursuant to a 
     redistricting plan enacted by the State, such as the plan the 
     State of Utah signed into law on December 5, 2006, which--
       (1) revises the boundaries of congressional districts in 
     the State to take into account the additional Representative 
     to which the State is entitled under section 3; and
       (2) remains in effect until the taking effect of the first 
     reapportionment occurring after the regular decennial census 
     conducted for 2010.

     SEC. 5. EFFECTIVE DATE.

       The additional Representative other than the Representative 
     from the District of Columbia, pursuant to section 3(c), and 
     the Representative from the District of Columbia shall be 
     sworn in and seated as Members of the House of 
     Representatives on the same date as other Members of the 
     112th Congress or the first Congress sworn in after 
     implementation of this Act.

     SEC. 6. CONFORMING AMENDMENTS.

       (a) Repeal of Office of District of Columbia Delegate.--
       (1) Repeal of office.--
       (A) In general.--Sections 202 and 204 of the District of 
     Columbia Delegate Act (Public Law 91-405; sections 1-401 and 
     1-402, D.C. Official Code) are repealed, and the provisions 
     of law amended or repealed by such sections are restored or 
     revived as if such sections had not been enacted.
       (B) Effective date.--The amendments made by this subsection 
     shall take effect on the date on which a Representative from 
     the District of Columbia takes office.
       (2) Conforming amendments to district of columbia elections 
     code of 1955.--The District of Columbia Elections Code of 
     1955 is amended as follows:
       (A) In section 1 (sec. 1-1001.01, D.C. Official Code), by 
     striking ``the Delegate to the House of Representatives,'' 
     and inserting ``the Representative in Congress,''.
       (B) In section 2 (sec. 1-1001.02, D.C. Official Code)--
       (i) by striking paragraph (6); and
       (ii) in paragraph (13), by striking ``the Delegate to 
     Congress for the District of Columbia,'' and inserting ``the 
     Representative in Congress,''.
       (C) In section 8 (sec. 1-1001.08, D.C. Official Code)--
       (i) in the heading, by striking ``Delegate'' and inserting 
     ``Representative''; and
       (ii) by striking ``Delegate,'' each place it appears in 
     subsections (h)(1)(A), (i)(1), and (j)(1) and inserting 
     ``Representative in Congress,''.
       (D) In section 10 (sec. 1-1001.10, D.C. Official Code)--
       (i) in subsection (a)(3)(A)--

       (I) by striking ``or section 206(a) of the District of 
     Columbia Delegate Act''; and
       (II) by striking ``the office of Delegate to the House of 
     Representatives'' and inserting ``the office of 
     Representative in Congress'';

[[Page S2399]]

       (ii) in subsection (d)(1), by striking ``Delegate,'' each 
     place it appears; and
       (iii) in subsection (d)(2)--

       (I) by striking ``(A) In the event'' and all that follows 
     through ``term of office,'' and inserting ``In the event that 
     a vacancy occurs in the office of Representative in Congress 
     before May 1 of the last year of the Representative's term of 
     office,''; and
       (II) by striking subparagraph (B).

       (E) In section 11(a)(2) (sec. 1-1001.11(a)(2), D.C. 
     Official Code), by striking ``Delegate to the House of 
     Representatives,'' and inserting ``Representative in 
     Congress,''.
       (F) In section 15(b) (sec. 1-1001.15(b), D.C. Official 
     Code), by striking ``Delegate,'' and inserting 
     ``Representative in Congress,''.
       (G) In section 17(a) (sec. 1-1001.17(a), D.C. Official 
     Code), by striking ``the Delegate to Congress from the 
     District of Columbia'' and inserting ``the Representative in 
     Congress''.
       (b) Repeal of Office of Statehood Representative.--
       (1) In general.--Section 4 of the District of Columbia 
     Statehood Constitutional Convention Initiative of 1979 (sec. 
     1-123, D.C. Official Code) is amended as follows:
       (A) By striking ``offices of Senator and Representative'' 
     each place it appears in subsection (d) and inserting 
     ``office of Senator''.
       (B) In subsection (d)(2)--
       (i) by striking ``a Representative or'';
       (ii) by striking ``the Representative or''; and
       (iii) by striking ``Representative shall be elected for a 
     2-year term and each''.
       (C) In subsection (d)(3)(A), by striking ``and 1 United 
     States Representative''.
       (D) By striking ``Representative or'' each place it appears 
     in subsections (e), (f), (g), and (h).
       (E) By striking ``Representative's or'' each place it 
     appears in subsections (g) and (h).
       (2) Conforming amendments.--
       (A) Statehood commission.--Section 6 of such Initiative 
     (sec. 1-125, D.C. Official Code) is amended--
       (i) in subsection (a)--

       (I) by striking ``27 voting members'' and inserting ``26 
     voting members'';
       (II) by adding ``and'' at the end of paragraph (5); and
       (III) by striking paragraph (6) and redesignating paragraph 
     (7) as paragraph (6); and

       (ii) in subsection (a-1)(1), by striking subparagraph (H).
       (B) Authorization of appropriations.--Section 8 of such 
     Initiative (sec. 1-127, D.C. Official Code) is amended by 
     striking ``and House''.
       (C) Application of honoraria limitations.--Section 4 of 
     D.C. Law 8-135 (sec. 1-131, D.C. Official Code) is amended by 
     striking ``or Representative'' each place it appears.
       (D) Application of campaign finance laws.--Section 3 of the 
     Statehood Convention Procedural Amendments Act of 1982 (sec. 
     1-135, D.C. Official Code) is amended by striking ``and 
     United States Representative''.
       (E) District of columbia elections code of 1955.--The 
     District of Columbia Elections Code of 1955 is amended--
       (i) in section 2(13) (sec. 1-1001.02(13), D.C. Official 
     Code), by striking ``United States Senator and 
     Representative,'' and inserting ``United States Senator,''; 
     and
       (ii) in section 10(d) (sec. 1-1001.10(d)(3), D.C. Official 
     Code), by striking ``United States Representative or''.
       (3) Effective date.--The amendments made by this subsection 
     shall take effect on the date on which a Representative from 
     the District of Columbia takes office.
       (c) Conforming Amendments Regarding Appointments to Service 
     Academies.--
       (1) United states military academy.--Section 4342 of title 
     10, United States Code, is amended--
       (A) in subsection (a), by striking paragraph (5); and
       (B) in subsection (f), by striking ``the District of 
     Columbia,''.
       (2) United states naval academy.--Such title is amended--
       (A) in section 6954(a), by striking paragraph (5); and
       (B) in section 6958(b), by striking ``the District of 
     Columbia,''.
       (3) United states air force academy.--Section 9342 of title 
     10, United States Code, is amended--
       (A) in subsection (a), by striking paragraph (5); and
       (B) in subsection (f), by striking ``the District of 
     Columbia,''.
       (4) Effective date.--This subsection and the amendments 
     made by this subsection shall take effect on the date on 
     which a Representative from the District of Columbia takes 
     office.

     SEC. 7. NONSEVERABILITY OF PROVISIONS AND NONAPPLICABILITY.

       (a) Nonseverability.--If any provision of section 2(a)(1), 
     2(b)(1), or 3 or any amendment made by those sections is 
     declared or held invalid or unenforceable by a court of 
     competent jurisdiction, the remaining provisions of this Act 
     or any amendment made by this Act shall be treated and deemed 
     invalid and shall have no force or effect of law.
       (b) Nonapplicability.--Nothing in the Act shall be 
     construed to affect the first reapportionment occurring after 
     the regular decennial census conducted for 2010 if this Act 
     has not taken effect.

     SEC. 8. JUDICIAL REVIEW.

       If any action is brought to challenge the constitutionality 
     of any provision of this Act or any amendment made by this 
     Act, the following rules shall apply:
       (1) The action shall be filed in the District Court of the 
     United States for the District of Columbia and shall be heard 
     by a 3-judge court convened pursuant to section 2284 of title 
     28, United States Code.
       (2) A copy of the complaint shall be delivered promptly to 
     the Clerk of the House of Representatives and the Secretary 
     of the Senate.
       (3) A final decision in the action shall be reviewable only 
     by appeal directly to the Supreme Court of the United States. 
     Such appeal shall be taken by the filing of a notice of 
     appeal within 10 days, and the filing of a jurisdictional 
     statement within 30 days, of the entry of the final decision.
       (4) It shall be the duty of the District Court of the 
     United States for the District of Columbia and the Supreme 
     Court of the United States to advance on the docket and to 
     expedite to the greatest possible extent the disposition of 
     the action and appeal.

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