[Congressional Record (Bound Edition), Volume 155 (2009), Part 5]
[Senate]
[Pages 5915-5951]
[From the U.S. Government Publishing Office, www.gpo.gov]




          DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2009

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 160, which the clerk will report 
by title.
  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.

  Pending:

       Ensign amendment No. 575, to restore second amendment 
     rights in the District of Columbia.
       Coburn amendment No. 576 (to amendment No. 575), of a 
     perfecting nature.
       Thune amendment No. 579, to amend chapter 44 of title 18, 
     U.S. Code, to allow citizens who have concealed carry permits 
     from the State or the District of Columbia in which they 
     reside to carry concealed firearms in another State or the 
     District of Columbia that grants concealed carry permits, if 
     the individual complies with the laws of the State or the 
     District of Columbia.
       Kyl amendment No. 585, to provide for the retrocession of 
     the District of Columbia to the State of Maryland.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10:30 will be equally divided and controlled between the Senator 
from Arizona, Mr. Kyl, and the Senator from Connecticut, Mr. Lieberman, 
or their designees.
  The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, under the previous order, the Senate 
will now move to the Kyl amendment, I believe, on retrocession, not to 
be confused with retrogression, although there may be some similarity 
between the two.
  I am looking at the Senator from Maryland, who will rise to the 
defense in a moment.
  As my colleagues know, last night the majority leader filed a cloture 
motion on this bill, S. 160, the District of Columbia House Voting 
Rights Act. We made some progress yesterday. There are a few amendments 
still pending. Obviously, it is our hope that we will be able to 
complete the bill today and hopefully not have to go to the cloture 
vote. But that depends on our colleagues.
  So I would yield on the pending Kyl amendment to the distinguished 
Senator from Maryland.

[[Page 5916]]

  The ACTING PRESIDENT pro tempore. The Senator from Maryland.


                           Amendment No. 585

  Mr. CARDIN. I thank my friend from Connecticut for his leadership on 
this issue. Let me tell my colleagues, I think this is a major human 
rights issue. I have the opportunity of representing this body as the 
chairman of the Helsinki Commission. The Helsinki Commission deals 
internationally with issues of human rights. It is interesting that the 
United States has taken the leadership on protecting the rights of 
individuals to vote and to be able to determine their own government. 
So we have invested a lot of resources in the Helsinki Commission to 
protect steps to monitor elections around Europe and central Asia and 
to fight for minority communities to have the right to vote and to have 
open and honest voting.
  Let me tell you, last year there was a resolution filed in our 
Parliamentary Assembly of the CSCE to encourage America to give the 
people of the District of Columbia the right to vote. The international 
community understands that we are out of compliance with basic 
international norms on giving our citizens the right to participate in 
their parliament.
  So I look at this bill first as a basic right, that every American 
should be able to have their voice heard here in the Congress of the 
United States. I support this bill because it moves us in the right 
direction. But I must tell you, I believe the people of the District 
should have two Members of this body, two U.S. Senators, and a voting 
Member of Congress, and I know we tried to do that in the 1970s with a 
constitutional amendment. I was proud at that time to be a State 
legislator in Maryland as speaker of the Maryland House. We passed and 
ratified that constitutional amendment because we thought it was the 
right thing for the District to have full representation in this body 
and to have a voting representative in the House of Representatives.
  So this legislation, as I said, moves in the right direction. It 
gives the people of the District a voting Representative in the House 
of Representatives. That, we should do. And then it even goes further, 
recognizing the political sensitivity of having another Congressman who 
may represent one political party. Since the District registration is 
heavily Democratic, the compromise is to give another Representative to 
the State of Utah because they are the closest to having been able to 
obtain another Representative and the registration in Utah is heavily 
Republican. So it balances it from a political point of view. I 
understand that is how the system works here. I think this is a fair 
compromise. What I do not understand is why we are getting all of these 
other amendments on this bill as an effort to try to kill the 
underlying bill. Let's have an up-or-down vote on it.
  The people of the District have been waiting a long time. I think it 
is the right thing for us to do to say: Let's give them a vote. Let's 
get rid of these amendments because these amendments are not aimed at 
trying to solve the problem, they are aimed at trying to defeat the 
bill, which brings me to the amendment offered by Senator Kyl that is 
currently pending.
  I find this amendment somewhat surprising. Let me tell you why. It 
would cede the District back to the State of Maryland. It would change 
the border of my State that I represent in this body. Now, I would have 
thought--maybe I am naive about this--that if a Senator was introducing 
an amendment which would change the border of a particular State, that 
he would talk to the Senators from that State, he would talk to the 
Governor from that State, he would try to work with the Representatives 
from that State because if this amendment were adopted, it would affect 
every single person in Maryland. Our formulas for aid to our counties 
and Baltimore City are based upon population. If all of a sudden 
Maryland grows by a couple hundred thousand people, it affects the way 
our counties operate essential services. Yet there was no effort made 
by the author of this amendment to consult with the political 
leadership of my State.
  I do not know how another Senator would feel if I introduced an 
amendment--and I am glad to see Senator Kyl has returned to the floor. 
I don't know how Senator Kyl would feel if I introduced an amendment 
that said, perhaps, Arizona's borders should change a little bit 
because it makes more sense to do it that way, and there is no need to 
talk to the Senators from Arizona about it or the government of 
Arizona, we are just going to do it. I do not think that is the right 
thing to do.
  So I am somewhat puzzled. I must tell you, to me, it is a matter of 
an unfunded mandate on my State. It is a matter of what federalism is 
about. It is a matter of States rights, and it is a matter of common 
decency.
  Now, I read the amendment coming over, and I am not sure how these 
lines were drawn, but I would have thought, if Maryland were to get the 
District, we would at least get the Kennedy Center. But it looks as if 
they took the Kennedy Center out, for reasons I cannot explain. I do 
not know how these lines were drawn. So perhaps my friend will help me 
understand this better and understand whether the courtesies of the 
Senate mean you can put legislation in affecting the borders of one 
State or another without even having the courtesy to talk to the 
Members of that State.
  I can tell you that Maryland very much works very closely with the 
Mayor of Washington and the people of the District. We have a wonderful 
regional governmental organization. We work cooperatively on providing 
services to the people of this region. We have an excellent 
relationship. We support giving the people of the District 
representation in Congress because it is the right thing to do, and we 
want them to have their own Representatives here. We think it is a 
wrong suggestion to now say: Oh, we can solve this problem by changing 
the borders of the State of Maryland for that.
  I urge my colleagues to reject the Kyl amendment and let us get on 
with passing this very important bill for Americans who have been 
denied a voice in the Congress of the United States.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona is 
recognized.
  Mr. KYL. Mr. President, if the Senator from Maryland has a moment, I 
would be very happy to respond to some of the concerns he raised. They 
are all legitimate questions, I acknowledge up front. No State should 
have territory foisted upon it. That is absolutely true. And the 
questions raised here were good questions.
  First of all, the amendment before us is an amendment that has 
frequently been offered in the House of Representatives. It has been 
vetted over there for a long time. So this is not something new.
  Secondly, it is absolutely clear from section 6 of the amendment that 
nothing happens with regard to retrocession unless the State of 
Maryland agrees. The effectiveness provision reads as follows:

       Not later than 30 days after the State of Maryland enacts 
     legislation accepting the retrocession described in section 
     1(a), the President shall issue a proclamation announcing 
     such acceptance.

  Unless the State of Maryland affirmatively, through an act of the 
people's representatives of that State, vote to do this, there is no 
retrocession to the State of Maryland.
  That answers the question of States rights.
  Mr. CARDIN. Will the Senator yield?
  Mr. KYL. Of course.
  Mr. CARDIN. Does he believe it is fair to say to the people of the 
District of Columbia that their right to have a voice in the House of 
Representatives depends upon the will of the people of Maryland?
  Mr. KYL. I say to my colleague, the first point he made was that the 
State of Maryland should have a say in this, and it should be a 
definitive say. If the State of Maryland doesn't want the residents of 
the District of Columbia to be part of the State, that informs our 
decision about what the people of the State of Maryland want. I 
wouldn't force that decision upon them any more than the Senator 
suggests should

[[Page 5917]]

be the case. The State of Maryland should have that say. If the Senator 
is saying: I can tell you right now Marylanders don't want these folks 
from the District as part of their State, we ought to know that by a 
definitive process rather than assuming it to be the case going into 
the debate. That would be my response.
  Mr. CARDIN. Will my colleague yield further?
  Mr. KYL. I am happy to engage in a colloquy.
  Mr. CARDIN. I am wondering how my colleague would feel if legislation 
was introduced here by a Senator not from Arizona saying: I understand 
what the people of Arizona want better than the Senator does. I want to 
introduce a bill affecting land rights or property rights or anything 
in the State of Arizona, and I will make it subject to the vote of the 
people of Arizona. It will change the border area a little bit, and I 
know you don't want this, but I am going to do it anyway. I am curious 
how the Senator would respond if such legislation was introduced and 
the Senator who introduced it said: I am allowing your Governor to take 
it to the people. I know there will be a lot of pressure building up on 
that. But it is not relevant to the Senators from Arizona.
  Mr. KYL. Mr. President, my colleague makes a good point. I will 
respond in two ways. First, I appreciate the sentiment and would hope 
that when western land issues are dealt with in this body, our eastern 
colleagues would apply that same principle. Frequently, there is a 
sense that folks in the east know best about what we should be doing 
with Federal lands in the west. I certainly respect that sentiment. 
Obviously, in some respects, that is not as important as the 
fundamental political jurisdictional issue we are facing here. The 
question of retrocession is a fundamental issue, and it has to do with 
a fundamental right the District of Columbia residents would have to 
participate in State government. I recognize there are some 
differences, but I offer that first response.
  Second, I am not presupposing anything with the amendment. The 
question will always be before the Maryland electorate whether they 
want to do this. I don't know whether the Maryland electorate wants to 
do this. I presume there would be a debate. The result of that debate, 
decided by the people of Maryland or their elected representatives, 
would be dispositive on the question. Nobody is foisting anything on 
anyone. I would be the first to say: If the people of Maryland don't 
want the residents of the District to be part of the State of Maryland, 
then the Congress would have to be informed by that decision. I would 
think it would be dispositive.
  Could I respond to a couple other points first and then I will be 
happy to engage in a further colloquy.
  On the matter of the way the lines were drawn, the history of this is 
that the so-called national areas, the areas where the Federal 
buildings, various Government departments are located, the Mall, the 
monuments and those sorts of things, would not be part of the 
retrocession. The bulk of the bill draws those lines. I can't tell my 
colleague exactly what the philosophy was with respect to each of those 
areas. Any question about what should or should not be in, be it the 
Kennedy Center or anything else, is a legitimate subject of discussion. 
It could be the subject of amendment. This has been a matter that has 
been not frequently but not infrequently debated in the House of 
Representatives. So there is some history of the rationale behind the 
line drawing. But with respect to where any of these particular lines 
are drawn, obviously, the Senators from Maryland should be key in 
helping us to decide where those lines would be. There is nothing 
locked in stone here that could not be considered the subject of an 
amendment.
  Finally, with respect to the unfunded mandate part, I am not sure it 
wouldn't work the other way around. I cited a couple days ago the 
statistics about the money that the Government provides for the 
District of Columbia. Some of that money has to do with the running of 
these Government departments, the construction of buildings, 
maintenance of the buildings, and so on, but much of it does not. Much 
of it has to do with what the Constitution provides as to the general 
welfare of the people within the District. I suspect that under any 
scenario, the money that has been provided to the District of Columbia 
would still be far in excess of the money returned to any of the 
several States. And because of the unique nature of the District and 
the history and traditions, much of that funding would naturally carry 
over to future years. There is no way the Federal Government is not 
going to fund all of the national areas that are retained in this 
legislation.
  As the District's Delegate Norton said in a press release recently, 
much of the money in the stimulus bill that is going to refurbish or 
construct office buildings that are Federal Government buildings 
provides employment opportunities for the residents of the District. 
While we should obviously be sensitive to any issues of transfer, if 
the State of Maryland were to accept the residents of the District of 
Columbia, it is a very legitimate point, and all of those things are 
appropriate for discussion.
  On the matter of the unfunded mandate, it would probably work the 
other way around, that Maryland would receive a lot of money from the 
Federal Government. In any event, the Federal national areas that would 
be receiving the amount of money that they naturally do would certainly 
help the residents who work here in what is now the District of 
Columbia.
  There is nothing in this amendment that is intended to jam anything 
down the throats of the people of Maryland. They have the final and 
ultimate say of what is done. I wouldn't propose anything different 
from that.
  Mr. CARDIN. Will the Senator yield?
  Mr. KYL. Absolutely.
  Mr. CARDIN. Let me make a brief comment with regard to the mandate on 
Maryland. Maryland would be under tremendous pressure to change funding 
formulas consistent with what aid the District currently receives. It 
would have a major impact on the ability of our State to carry out its 
fundamental aid formulas to local governments, considering how 
significant the District would be, the population, relative to the 
State of Maryland.
  The second point is, I can tell you how the people of Maryland feel. 
They believe the residents of the District of Columbia should have 
their voting representative in the House of Representatives. That is 
how the members of our congressional delegation have acted. That is how 
Senators are acting. We know that is what the District wants. We agree 
with that. I hope we can get an up-or-down vote on this bill and let's 
move forward.
  I thank the Senator for yielding.
  Mr. KYL. If I may make one other point, we will have an up-or-down 
vote on this amendment at 10:30 and on the bill, of course. I want to 
conclude my comments to the Senator, because he, obviously, has a good 
sense of what the people of Maryland want. I concede that. Again, I 
concede the premise of his point which is that the people of Maryland 
should have a say before this is done. The reason for the amendment is 
simply this: We believe it is unconstitutional for the Congress to 
simply provide a congressional district without an amendment to the 
Constitution. I personally think the residents of the District should 
be represented in the House. The only other way to do that, for those 
of us who believe it is unconstitutional to pass the legislation 
pending before us, and a court will in relatively short order make a 
determination on whether that is true, and let's assume that the court 
says, you can't do it, Congress, by simple legislation, then short of a 
constitutional amendment, this is the only other way to achieve the 
objective. It is presented in good faith. It is presented as the only 
other logical alternative for the residents of the District of Columbia 
to have their own congressional district. Because of the number of 
people who live in the District, something over 600,000, and because 
the representation from House congressional districts today is 
approximately a shade over 600,000, the fact is that the residents of 
the District could have a district of

[[Page 5918]]

their own or essentially exactly as the District is configured today 
without presumably modifying the lines of other Maryland districts. Of 
course, that would be up to the State of Maryland in the way that it 
sets its congressional district lines.
  Mr. CARDIN. Will the Senator yield on that point?
  Mr. KYL. I am happy to.
  Mr. CARDIN. Having served in the House and also going through 
redistricting, the courts are now requiring an exact number of 
equality. So it would be improbable that the lines would remain the 
same.
  Mr. KYL. I said that is why it would be ``almost.'' You might have to 
include a few residents of what are now Maryland within the District, 
and I acknowledge that to be the case. In any event, I accept the 
fundamental premise of the Senator. Our amendment addresses that 
specifically. My hope would be that if the courts should declare that 
we cannot by legislation do what this bill attempts, then the people of 
Maryland would strongly consider whether the next best alternative is 
to provide for the retrocession we have in this amendment as the next 
best way to provide a vote for the residents of the District of 
Columbia.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank the Senator from Arizona and 
the Senator from Maryland for a thoughtful discussion. I rise to oppose 
amendment No. 585, offered by the Senator from Arizona. Unlike some of 
the other amendments pending, this one goes to the heart of what the 
underlying bill that came out of committee is all about, which is how 
do we give voting rights in Congress to 600,000 Americans who happen to 
live in our Nation's Capital who don't have such representation now. I 
disagree with the method, but I appreciate the fact that this is not 
germane in a parliamentary sense, but it is directly relevant to the 
underlying injustice and inequity. But for the reasons that the Senator 
from Maryland made clear, this is not a practical solution to the 
problem before us, the longstanding injustice.
  It requires the consent of the people of Maryland, and all their 
leaders tell us that the people will not support it. So it may be a 
solution on paper, but it is not going to be a solution and a fix to 
the problem in fact. It is also full of complications that would ensue.
  For instance, section 2 of the amendment would automatically transfer 
all pending legal actions in the District of Columbia to an 
``appropriate Maryland court.'' We can only imagine the legal and 
political tangle that could create given that Maryland and the District 
actually have distinct legal structures, rules, and precedents. Section 
3 of the amendment describes at some length the boundaries of a small 
but still sizable national capital service area that would continue to 
be controlled by Congress and which would consist of key Federal 
buildings and monuments. There are complications there too. Who would 
police and maintain those streets and otherwise administer this large 
swath of downtown Washington?
  As has been said, it would require a constitutional amendment to 
repeal amendment XXIII which granted the District of Columbia three 
electoral votes in Presidential elections. If amendment XXIII were not 
repealed, presumably the effect would be to grant a disproportionately 
large role in Presidential elections to a relatively small population 
that would continue to reside in that national capital service area and 
that would remain under congressional control. In fact, the amendment 
recognizes this and, therefore, would not become effective until such a 
repeal amendment to the Constitution is ratified.
  As I have said, this is an alternative solution to the problem. I 
appreciate it in that it would, if it overcame the obstacles, actually 
be a remedy, but it is not the right or realistic remedy to the 
injustice of nonvoting representation in Congress for residents of the 
District. The right and reasonable and realistic solution is the 
underlying bill before us, S. 160. That is why I oppose the amendment 
and urge the passage of the bill.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. KYL. Mr. President, let me respond to two points my colleague 
made, and they are both legitimate questions. The first is some of the 
technical problems. I am sure there are a lot of technical problems we 
have not even thought about that would attend. This is a big change. 
Whether you adopt the underlying legislation or you go through a 
process such as retrocession, there will have to be a lot of 
adjustments and accommodations, to be sure.
  But on questions such as, for example, policing the Mall and so on, 
those things are already well understood and resolved. For example, I 
have spoken recently with Capitol Police and asked them about the 
overlapping jurisdiction: Where, for example, does the Capitol Police 
jurisdiction end and where does the DC Police jurisdiction begin, and 
so on? They have all these things worked out. I do not think there is 
any difficulty with those kinds of technical issues. But there will be, 
undoubtedly, others that will have to be addressed as well.
  Secondly, my colleague is correct, in order to avoid the anomalous 
situation where a few people who might be technically residents 
downtown and not have other residence downtown--being in the Federal 
areas or national areas as described in this legislation--we would have 
to eliminate the twenty-third amendment to make sure those people would 
not have three electoral votes for the Presidency. I cannot imagine 
that if retrocession did occur the citizens of the country would not 
follow through on that essentially technical issue and approve the 
recession of the twenty-third amendment. But it is one of the things 
that will have to be done. That is absolutely true.
  Again, I will conclude by saying, for those of us who believe it 
would be preferable for the residents of the District to have their own 
representative in the House of Representatives and, in fact, to be able 
to vote for Senators, and have that representation as well, if they are 
part of a State--if, in fact, the underlying legislation is 
unconstitutional, as many of us believe it is--then this amendment 
offers a constructive way to achieve the same result, I would suggest, 
with very little in the way of adjustment, but with some adjustment 
that would have to occur--again, subject solely to the approval of the 
people of the State of Maryland.
  I say to our colleagues, this vote is scheduled for 10:30, so if 
there are people who want to discuss other amendments or other matters, 
or to further debate this amendment, this would be a good time to do 
so.
  Mr. LIEBERMAN. Mr. President, I thank my friend from Arizona. He is 
absolutely right. I have been informed that the senior Senator from 
Delaware is on his way to the floor to speak on this amendment. But I 
echo what Senator Kyl has said, that we have some other pending 
amendments. The floor is open until the vote at 10:30, and I urge our 
colleagues to come and take advantage of that opening.
  With that, Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARPER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. CARPER. Mr. President, yesterday morning, at about 8 o'clock, 
down in, I think, S. 115, there was a prayer breakfast. Actually, that 
happens about every week. And for many weeks in the last year or two, 
our Acting President pro tempore was one of two Members--one a Democrat 
and one a Republican--who brought people together for an hour of 
fellowship. They would have breakfast together and sing a hymn--or at 
least try to sing a hymn--or a song of some kind, and they would share 
their story, if you will, their spiritual journey with one another.
  I usually do not get to go to those; I am on a train coming down from 
Wilmington, DE. But I have been a time or

[[Page 5919]]

two, and I find it very uplifting. There is a smaller gathering that 
will occur today a little after noon, right here off the Senate floor, 
and it will be a group convened by our Chaplain, Barry Black, who is a 
retired Navy rear admiral. He used to be Chief of Chaplains for the 
Navy and the Marine Corps.
  What we have is a little bit like an adult Sunday school class. There 
are people of different faiths who show up. Sometimes we may have five 
or six or seven or eight or nine people there, Democrats and 
Republicans.
  I always like to tell the story that happened about a couple years 
ago, when we were having orientation for new Senators--something our 
Acting President pro tempore has been a part of establishing--but we 
had a last session of orientation for new Senators--I think it was 
about 2004, right after the election--a last session where John Breaux, 
a Democrat, was leaving and Don Nickles, a Republican, was leaving the 
Senate, and they both were talking to our new Senators and their 
spouses about bridging the partisan divide.
  Don Nickles talked--he has a great sense of humor; so does John 
Breaux, as we know--and Senator Nickles was about to leave the Senate. 
He was talking to the Democrats and Republicans who had just arrived, 
and their spouses, and he said: You all ought to think about going to 
this Bible study group. It is uplifting. It is inspiring. It is 
refreshing. You get to know your colleagues better. It does not take 
that much time every week. He said: You ought to try to do it. Tom 
Carper and I go to that Bible study group. He is a Democrat and I am a 
Republican.
  He said: Week after week, month after month, you sit together, you 
read Scriptures together, you talk and share with one another your 
thoughts and problems and what you are facing in your life. You pray 
for each other. He said: You know, after I do that, it is hard to walk 
out on the Senate floor and stab Tom Carper in the back. He said: It is 
not impossible, but it is hard.
  One of the other things that is hard is for us to actually figure out 
how our faith should guide us in the decisions we make here. I am 
always inspired by the depth of conviction of the floor manager, the 
chief sponsor of this bill, Senator Lieberman, and how his faith guides 
him in the work we do here.
  But Barry Black, our Chaplain, often challenges us in the Senate--
Democrats and Republicans--and not just there, but, later today, in our 
Bible study class, and also at the Wednesday morning prayer breakfast, 
and throughout the week--he is always challenging us: How should we use 
our faith to help guide us in the decisions we make?
  The other thing he is good at doing is reminding us, about every 
other week, of the two great Commandments in the New Testament. The 
first: Love Thy Lord Thy God with all thy heart, all thy soul, all thy 
mind. And the second one is: To love thy neighbor as thyself--which we 
also call the Golden Rule: Treat others the way we want to be treated. 
Chaplain Black likes to say the ``CliffsNotes'' of the New Testament is 
the Golden Rule: Treat other people the way we want to be treated.
  When I run into great leaders in my life, in this country and in 
other countries, a lot of times the good leaders are those who actually 
internalize the Golden Rule, who do try to treat others the way they 
want to be treated. I am pleased to say that the two Senators who are 
here on the floor right now certainly embody that rule too.
  How does that pertain to the legislation before us? Well, I think it 
pertains to the legislation before us because there are about 600,000 
people who live in the District of Columbia. Some of them actually work 
here with us, but they live here in the District of Columbia and they 
pay taxes. They pay Federal taxes. They don't get to vote. They don't 
have a vote here in the Senate. They don't have a Representative, if 
you will, who can vote for them and for their interests and concerns in 
the House of Representatives.
  Delaware has about 850,000 people, so we have a few more people than 
the District of Columbia. There are some other States that have fewer 
people than we do. There is actually probably a State or two that has 
fewer people living in it than does the District of Columbia. I won't 
call out those States here this morning. They are pretty big in 
geography but not so big in population. They have two Senators and at 
least one U.S. Representative. Whether the issue is foreclosures, 
budget, or stimulus package, they have somebody here to vote, to 
represent them, to speak on the floor and to offer legislation, amend 
legislation, and to vote on legislation. We saw in the stimulus package 
how critical one or two votes can be. The District of Columbia has 
nobody here and they have nobody voting for them in the House. They 
have a delegate--a very good one--who can vote in committee, offer 
legislation, offer amendments, and introduce bills, but can't actually 
vote when the time comes. There is something about that that seems 
unfair to me. It seems unfair to me. I think it certainly seems unfair 
to the sponsor of the bill, Senator Lieberman, and to a lot of people 
who cosponsored the legislation, as have I.
  None of us is suggesting that there ought to be two Senators 
representing folks from the District of Columbia. In allowing the 
delegate to become sort of a full-fledged U.S. Representative over in 
the House, there is a trade that--we would expect that person to be a 
Democrat, at least initially; maybe someday Republican--but the idea 
would be to provide an additional Republican representative, in this 
case from the State of Utah. That seat may become a Democratic seat. I 
wouldn't want to bet my paycheck on it, but it might. So we are trying 
to come up with an equitable, a fair, a reasonable compromise. Isn't 
politics the art of compromise? This is a compromise.
  There are some who have suggested that is unconstitutional. I am not 
a constitutional expert. I know a lot of smart people have considered 
it. We will have an opportunity--if this legislation is passed and 
signed by the President, there will be an opportunity for an expedited 
process and the Federal courts, the appropriate courts will determine 
whether this measure, this statute actually is constitutionally sound. 
My hope is it will be. A lot of forethought has gone into this issue 
already.
  In closing, let me say in the minute or so that is left on our side, 
I wish to thank Senator Lieberman for his steadfast leadership on this 
issue and for making it not just a bipartisan issue but a tripartisan 
issue, by making sure we have both Republicans and Democrats and 
Independents such as himself and Bernie Sanders to weigh in and to 
support this legislation; not just to offer the bill but actually to 
stand up and call on the rest of us to do what we know in our hearts is 
fair and just, and to put ourselves in the shoes of the folks who live 
here in Washington, DC and who work and pay their taxes and who deserve 
a full-fledged vote, at least in the House of Representatives. We will 
wait another day to take up that battle here in the Senate.
  That having been said, I yield back my time.
  The ACTING PRESIDENT pro tempore. The time for the majority has 
expired.
  Mr. LIEBERMAN. Mr. President, seeing no one on the other side in the 
Chamber, I ask unanimous consent to speak for no more than 5 minutes, 
probably less.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LIEBERMAN. I thank the Chair. I will yield if anyone on the other 
side comes in.
  I thank my friend from Delaware for his very eloquent and thoughtful 
statement. The pending amendment is on retrocession. As the Senator 
began his remarks about the Bible study and prayer groups, I thought he 
was going to talk about redemption and not retrocession, but he got to 
the point. I must say, if I may continue the argument the Senator from 
Delaware made very eloquently in two ways, S. 160, the underlying bill, 
does provide--please allow me some license here for a kind of political 
redemption--for the voters of the District of Columbia who up until 
this time have been denied a voting representative in Congress. The

[[Page 5920]]

whole premise of our Government is that we govern with the consent of 
the governed, but here we have 600,000 Americans who, through 
historical anomalies and maybe more recently partisan disagreements, 
don't get to consent or object to anything we do to them or even for 
them.
  The second--and I thank my friend from Delaware for making this point 
about the Golden Rule. I hope all of our colleagues in the Senate will 
apply that fundamental ethical human principle to this vote and think 
about how we would feel if we were the District's Delegate in the House 
of Representatives. Eleanor Holmes Norton is a gifted and wonderful 
person. I have known her--I won't state the year because I don't want 
to compromise the privacy of her age; mine has already been compromised 
this week. We were at law school together. She is an extraordinarily 
gifted person and a very diligent and passionate and aggressive 
advocate for the people of the District of Columbia. Imagine how we 
would feel if we were occupying the seat she occupies in the House of 
Representatives. She gets to debate issues. She gets to talk. But when 
the roll is called, imagine how we would feel--my friend from Delaware 
and our dear friend from Arkansas who occupies the Chair at the moment, 
myself--if there were a major item here in the Senate and we could 
debate it, but then the roll is called and it is as if our mouths are 
stifled, muffled. We couldn't vote. That is what Delegate Norton goes 
through in the House of Representatives. If we think about it that way, 
in the terms the Senator from Delaware stated, to treat others as we 
would like to be treated ourselves, it seems only fair, reasonable, 
human to give Delegate Norton and the 600,000 people she represents the 
right to vote on the floor.
  So I thank my friend for taking the time to come over and speak as 
eloquently and convincingly as he has.
  With that, I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Gillibrand). Without objection, it is so 
ordered.
  Under the previous order, the question is on agreeing to amendment 
No. 585.
  Mr. KYL. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Tennessee (Mr. Corker).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Corker) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 30, nays 67, as follows:

                      [Rollcall Vote No. 69 Leg.]

                                YEAS--30

     Alexander
     Barrasso
     Bennett
     Bond
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kyl
     Martinez
     McCain
     McConnell
     Risch
     Roberts
     Shelby
     Thune
     Vitter
     Wicker

                                NAYS--67

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Brownback
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Ensign
     Feingold
     Feinstein
     Gillibrand
     Gregg
     Hagan
     Harkin
     Inouye
     Johanns
     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
     Sessions
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--2

     Corker
     Kennedy
       
  The amendment (No. 585) was rejected.
  Mr. LIEBERMAN. Madam President, I move to reconsider the vote, and I 
move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LIEBERMAN. Madam President, I believe two of our colleagues wish 
to speak as in morning business at this time. After that, our intention 
is to pick up the amendment offered by the Senator from South Carolina, 
Mr. DeMint, on the fairness doctrine, and then Senator Durbin also will 
be offering a matter on the fairness doctrine as well.
  With that in mind, I yield the floor to one of the two Senators to my 
right, and they may joust as to who goes first.
  Mr. BOND. Madam President, I thank my colleague from Connecticut, 
with whom I worked so closely last fall and at the end of January, for 
allowing us to go forward. I ask unanimous consent to speak as in 
morning business, and my colleague, the Senator from Iowa, I believe, 
wishes to speak as in morning business after that, as indicated by the 
manager of the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Bond and Mr. Grassley are printed in today's 
Record under ``Morning Business.'')
  Mr. ENSIGN. Madam President, I ask unanimous consent that the pending 
amendment be set aside to call up the amendment No. 587.
  The PRESIDING OFFICER. Is there objection?
  Mrs. FEINSTEIN. Reserving the right to object, it is my understanding 
that the Senator from Nevada wishes to call up the amendment and speak 
very briefly--he mentioned to me 2 minutes. I believe I am in the line 
to speak and I wish to speak on this amendment.
  Is that the agreement?
  Mr. ENSIGN. Madam President, I ask unanimous consent that I be 
allowed to call up my amendment, get it pending, and speak on it for 2 
minutes.
  Mrs. FEINSTEIN. Is the subject of this amendment vouchers?
  Mr. ENSIGN. Yes.
  Mrs. FEINSTEIN. No problem.


                           Amendment No. 587

  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Ensign] proposes an amendment 
     numbered 587.

  Mr. ENSIGN. Madam President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To reauthorize the DC School Choice Incentive Act of 2003 for 
                           fiscal year 2010)

       At the end, add the following:

     SEC. __. REAUTHORIZATION OF THE DC SCHOOL CHOICE INCENTIVE 
                   ACT OF 2003.

       (a) Reauthorization.--Section 313 of the DC School Choice 
     Incentive Act of 2003 (title III of division C of Public Law 
     108-199, 118 Stat. 134) is amended by striking ``fiscal year 
     2004 and such sums as may be necessary for each of the 4 
     succeeding fiscal years'' and inserting ``fiscal year 2010''.
       (b) Severability.--Notwithstanding section 7, if any 
     provision of this Act (other than this section), and 
     amendment made by this Act (other than by this section), or 
     the application of such provision or amendment to any person 
     or circumstance is held to be unconstitutional, this section, 
     the amendment made by this section, and the application of 
     such to any person or circumstance shall not be affected 
     thereby.

  Mr. ENSIGN. Madam President, I rise to offer a DC voucher program for 
low-income children at or below 185 percent of the Federal Poverty 
Line. Children would be eligible to receive up to $7,500 to attend a 
private school in the District.
  It has been said that education, especially K-12 education is a civil 
right. I

[[Page 5921]]

 believe it is. In Washington, DC, public schools are failing too many 
of our kids--especially our low-income kids. These children are trapped 
in schools that are failing.
  About half the kids in Washington, DC, public schools do not 
graduate, and this is not because of money. The District spends perhaps 
the most in the country, on education. They spend almost $15,000 a year 
per student per year in public schools. That is almost three times the 
amount we spend per student per year in Nevada. Yet the performance of 
the public schools in the District is pathetic. There are very few 
Members of Congress who would allow their kids to go to these failing 
schools.
  The reason I am offering my amendment today, which would reauthorize, 
for 1 year, a very valuable voucher program, is because the upcoming 
Omnibus appropriations bill basically guts the program. We need to make 
sure this program is in place in time for parents to plan for their 
children's education in the fall.
  This is an important amendment. This is a civil rights amendment. We 
are talking about the right to a DC Representative voting here, we 
should care enough about our children to give them the right to a good 
education. That is what this amendment is about. Now, we are going to 
try to work this out. We may not be offering this amendment if we can 
get an agreement from the majority leader for time on the floor 
sometime this spring to be able to debate a full bill. That is what I 
would hope we could be able to do. If not, then we will hope for a vote 
on this amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, if I may very briefly respond to my 
friend from Nevada, I appreciate the statement he has made. Personally, 
I agree with him on this DC scholarship program which I supported in 
past years. The authorization is running out.
  The Homeland Security and Governmental Affairs Committee, as my 
friend knows, actually still possesses jurisdiction over matters 
related to the District of Columbia. So we would be the proper 
committee to consider an authorization bill.
  As I have said to my friend, I do not know what I would support. I do 
not know what the outcome of the committee would be. But I appreciate 
the spirit in which he has presented this amendment. I agree with him 
totally that we ought to be reauthorizing this program, and we will 
work together to see, with the majority leader, whether we can get an 
agreement that there will be floor time with a time limit given to a 
debate and an attempt to reauthorize the program when it expires, which 
I believe is in this fiscal year, meaning that it would affect the 
school year that begins in September.
  So I will pursue that with the leader and will continue our 
conversations. I thank him for offering the amendment.
  I now yield the floor to our distinguished colleague from California.
  The PRESIDING OFFICER. The Senator from California.


                           Amendment No. 575

  Mrs. FEINSTEIN. Madam President, I thank the manager of the bill. I 
rise today to speak in strong opposition to amendment No. 575 offered 
by Senator Ensign. This amendment is not the instant amendment that he 
just spoke about; it is the amendment that essentially would repeal all 
commonsense gun laws in the District of Columbia.
  I believe the amendment is reckless. I believe it is irresponsible. I 
believe it will lead to more weapons and more violence on the streets 
of our Nation's Capital. It will endanger the citizens of the District, 
the Government employees who work here, our elected officials, and 
those who visit this great American Capitol. And, of course, if 
successful, it will be the first new step in a march to remove all 
commonsense gun regulations all over this land.
  The Ensign amendment repeals gun laws promoting public safety, 
including DC laws that the U.S. Supreme Court indicated were 
permissible under the second amendment in the Heller decision. I 
strongly disagree with the Supreme Court decision in Heller that the 
second amendment gives individuals a right to possess weapons for 
private purposes not related to State militias, and that the 
Constitution does not permit a general ban on handguns in the home. But 
that is the law. It has been adjudicated. It has gone up to the highest 
Court, and I am one who believes if we do not like the law, we should 
try to make changes through the proper legal channels. However, it is 
important to note that Heller also stands for the proposition that 
reasonable, commonsense gun regulations are entirely permissible.
  As the author of the original assault weapons ban that was enacted in 
1994, I know commonsense gun regulations do make our communities safer, 
while at the same time respecting the rights of sportsmen and others to 
keep and bear arms.
  Just yesterday, the Department of Justice announced the arrest of 52 
people in California, Minnesota, and Maryland. In addition to seizing 
12,000 kilograms of cocaine and more than 16,000 pounds of marijuana, 
the DEA also seized 169 illegal firearms from members of the Sinoloa 
Cartel.
  Where did they get those guns? It would be interesting to find out 
because this cartel is one of several that law enforcement believes is 
responsible for kidnappings and murders within the United States in 
addition to engaging in violent gun crimes.
  In talking about the Sinoloa Cartel yesterday, Attorney General 
Holder noted that reinstituting the assault weapons ban would benefit 
the United States, as well as help stop the flood of weapons being sent 
from the United States to Mexico for use by drug cartels to cause 
violence on both sides of the border.
  I am prepared to wage the assault weapons battle again and intend to 
do so. I have been quiet about this because there are many pressing 
needs of this Nation. But with the help of the President, the 
administration, and the people of this great country, we do need to 
fight back against these kinds of amendments.
  Justice Scalia wrote in the majority opinion on the Heller case that 
a wide variety of gun laws are ``presumptively lawful,'' including the 
laws ``forbidding the carrying of firearms in sensitive places'' and 
regulations governing ``the conditions and qualifications of the 
commercial sale of arms.''
  I cannot think of any place more sensitive than the District of 
Columbia. Even bans on ``dangerous and unusual weapons'' are completely 
appropriate under the Heller decision. So it is interesting to me that 
you have this decision, and then you have the Senate moving even to 
obliterate what is allowable under the decision.
  Senator Ensign's amendment completely ignores Heller's language and 
takes the approach that all guns for all people at all times is called 
for by Heller. It is not.
  We have all seen the tragic consequences of gun violence: the 
massacre of students at Virginia Tech University in 2007, the murders 
at Columbine High School in Colorado, the North Hollywood shootout 
where bank robbers carrying automatic weapons and shooting armor-
piercing bullets shot 10 Los Angeles Police Department SWAT officers 
and seven civilians before being stopped.
  We have seen criminal street gangs able to buy weapons at gun shows 
and out of the back seats or the trunks of automobiles. We have seen 
their bullets kill hundreds, if not thousands of people across this 
great land--men, women, and children.
  I remember one case in the San Francisco Bay area not long ago where 
a youngster taking a piano lesson in a home had a bullet from a gang 
member pierce the wall of the home, cut his spine, and today he is a 
paraplegic. It is unbelievable for me to think of the ease with which 
people can buy weapons.
  As Senator Schumer said, if this amendment becomes law, even if you 
cannot see, even if you cannot pass a sight test, you can have access 
to firearms. That is not what this Nation should encourage. Those 
incidents and the gun violence that occurs every day across this 
country show us that we

[[Page 5922]]

should be doing more, not less, to keep guns out of the hands of 
criminals and the mentally ill and not give them unfettered access to 
firearms.
  It is worth noting just how far this amendment goes in repealing DC 
law and just how unsafe it will make the streets of this Capitol. Here 
is what it would do: It would repeal DC's ban on semiautomatic weapons, 
including assault weapons. If this amendment becomes law, military-
style assault weapons with high-capacity magazines will be allowed to 
be stockpiled in homes and businesses in the District, even near 
Federal buildings such as the White House and the Capitol. Even the .50 
caliber sniper rifle, with a range of over 1 mile, will be allowed in 
DC under this amendment. This is a weapon capable of firing rounds that 
can penetrate concrete and armor plating. And at least one model of the 
.50 caliber sniper rifle is easily concealed and transported. One gun 
manufacturer describes this model as a ``lightweight and tactical'' 
weapon and capable of being collapsed and carried in ``a very small 
inconspicuous package.''
  Is this what we want to do? There is simply no good reason anyone 
needs semiautomatic, military-style assault weapons in an urban 
community. It is unfathomable to me that the same high-powered sniper 
rifle used by our Armed Forces will be permitted in the Nation's 
Capital. Yet this is exactly what the amendment would allow if passed 
by the Senate.
  Next, the amendment would repeal existing Federal anti-gun 
trafficking laws. For years, Federal law has banned gun dealers from 
selling handguns directly to out-of-State buyers who are not licensed 
firearms dealers. This has helped substantially in the fight against 
illegal interstate gun trafficking, and it has prevented criminals from 
traveling to other States to buy guns.
  Senator Ensign's amendment repeals this longstanding Federal law and 
allows DC residents to cross State lines to buy handguns in neighboring 
States. Illegal gun traffickers will be able to easily obtain large 
quantities of firearms outside of DC and then distribute those guns to 
criminals in DC and in surrounding States.
  And no one should be so naive as to say that this amendment will not 
do this. It will. The amendment repeals DC law restricting the ability 
of dangerous and unqualified people to obtain guns. The amendment also 
repeals many of the gun regulations that the Supreme Court said were 
completely appropriate after Heller.
  So all of those who will vote for this amendment should not do so 
thinking they are just complying with the Heller decision. This is part 
of a march forward by gun lobby interests in this country to begin to 
remove all commonsense regulations, and no one should think it is 
anything else.
  This would repeal the DC prohibition on persons under the age of 21 
from possessing firearms, and it repeals all age limits for the 
possession of long guns, including assault weapons.
  Do we really want that? I think of the story of an 11-year-old who 
had a reduced barrel shotgun and just recently killed somebody with it. 
Is this what we want to see all over this country, the ability of 
virtually anyone to obtain a firearm regardless of their age? I don't 
think so.
  The amendment even repeals the DC law prohibiting gun possession by 
people who have poor vision. I heard Senator Schumer speak about this 
yesterday afternoon. Unbelievably, under this amendment, the District 
would be barred from having any vision requirement for gun use, even if 
someone is blind. Is this the kind of public policy we want to make for 
our Nation? Is this how co-opted this body is to the National Rifle 
Association and others? I hope not.
  One of the reasons we have 6-year terms is to allow us to make 
difficult decisions. There is no higher charge than protecting our 
public safety. We should protect individuals. The way we protect 
individuals is by enacting public policy that is prudent, reasonable, 
and subject to common sense. This amendment does none of the above.
  I ask my colleagues to think carefully about this amendment, because 
if it succeeds, trust me, the march for similar legislation will be on. 
I introduced the assault weapons legislation. I survived. I had an 
election in 1994, just after I had introduced it. I survived. The 
people of my State want commonsense gun control. They don't want local 
jurisdictions stripped of any ability to enact prudent regulation.
  The Presiding Officer is in the chair. The husband of one of her 
colleagues, going home on the Long Island train, was shot and killed by 
someone who never should have had a weapon. How many of these incidents 
do we have to have? How many businesses employing people who are 
mentally ill have to suffer when they have a grudge against an 
employee, and kill 6, 7, 8, 9, or 10 people? How many schools do we 
have to have where aggrieved students go out and acquire the most 
powerful weapons and come into cafeterias, libraries, or classrooms and 
mow down students? A vote for this amendment, any way we look at it, 
makes this easier to happen.
  I believe passionately about this. I will never forget, many years 
ago, before I was mayor, walking into the robbery of a corner grocery 
store. When people die of gunshot wounds, it is not the way it is on 
television or in the movies. I saw brain matter all over the walls. I 
saw the husband, a proprietor, the wife, a proprietor. This individual 
who came in even shot the dog. People are capable of terrible 
criminality. We should not encourage that criminality by making their 
access to weapons so very easy.
  As I say, this is the first step in a march to see that there is no 
ability to enact prudent gun regulation throughout the United States.
  I ask every colleague, before they vote for this, to think about the 
people they represent and whether society is going to be safer because 
of their vote. How deep have we sunk in catering to these interests? 
For shame.
  The amendment before the Senate repeals all firearm registration 
requirements in the District, making it even more difficult for law 
enforcement to trace guns used in crimes and track down the registered 
owner. The amendment repeals all existing safe-storage laws and 
prohibits the District from enacting any additional safe-storage laws. 
After the Heller decision, the District passed emergency legislation to 
allow guns to be unlocked for self-defense, but requiring that they 
otherwise be kept locked to keep guns out of the hands of children and 
criminals. We all ought to want that. The Ensign amendment repeals even 
this modest limitation and prevents the District of Columbia City 
Council from enacting any law that discourages--whatever that means--
gun ownership or requiring the safe storage of firearms. How can we, in 
the Capital of the United States where we have had so many tragic 
events, possibly do this? This is simply ridiculous and goes well 
beyond the Supreme Court's ruling in Heller.
  Think about what this means. Consider that every major gun 
manufacturer recommends that guns be kept unloaded, locked, and kept in 
a safe place. Under this amendment, the District could not enact any 
legislation requiring that guns be stored in a safe place, even in 
homes with children. How can anyone believe this broad-brush amendment 
is the right thing to do? How can any of us believe it provides 
protection for the people we represent?
  Let me make one other point. The American people clearly do not agree 
with this amendment. Last fall, when a virtually identical bill was 
being considered in the House of Representatives, a national poll found 
that 69 percent of Americans opposed Congress passing a law to 
eliminate the District's gun laws--69 percent. That is about as good as 
we get on any controversial issue. Additionally, 60 percent of 
Americans believe Washington will become less safe if Congress takes 
this step. Is this what we want? Do we want the Capital of the United 
States to become less safe? I don't think so. Today, if this amendment 
passes in the Senate, it will be directly against the wishes of the 
American people. It will not pass because it is good public policy--it 
will only be passed to placate the National Rifle Association. I say 
for shame.

[[Page 5923]]

  As a former mayor who saw firsthand what happens when guns fall into 
the hands of criminals, juveniles, and the mentally ill, I believe this 
amendment places the families of the District of Columbia in great 
jeopardy. The amendment puts innocent lives at stake. It is an affront 
to the public safety of the District. It is an affront to local home 
rule. This isn't just a bad amendment; it is a very dangerous one. I 
very strongly urge Senators to join me in opposing it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I appreciate the debate on several 
key amendments. I also want to recognize my colleague from California 
and her strong support--indeed, key position--on the voucher program, 
the DC scholarship program that she has been one of the primary 
architects of and wants to get measurables on it. It is in the 
subcommittee on appropriations on which I serve, and she has been a key 
person on that. It is my hope we can work that out, whether it is going 
to be at a later time for reauthorization or if we can pass it here 
today. It is a key program, and I want to recognize what my colleague 
has done on that historically. That is what I come to the floor to talk 
about, as well as a couple of other things that are coming up but 
particularly the DC scholarship program. It is an amendment. We have it 
appropriated in the appropriations bill, but it is required for 
reauthorization. It needs to be reauthorized. My hope is that the 
majority leader will say, yes, we will bring this up for 
reauthorization and give us floor time to do that. I understand the 
manager of this bill has said he would bring it up in his committee and 
do a markup in committee.
  I have worked for this program for some period of time. I have worked 
with the students and parents in this program. They love it. They 
appreciate the chance to succeed in a failed school system. The DC 
Opportunity Scholarship Program has received applications from over 
7,000 low-income students, has served over 2,600 of these children. We 
have far more applicants than we do slots. When these students entered 
the program, they had average math and reading test scores in the 
bottom third of all test takers. Recent evaluation by the U.S. 
Department of Education--this goes back to last year--affirms academic 
gains among scholarship students less than 2 years after receiving a 
scholarship. Last year, after less than 1 year in the program, two 
subgroups of students, representing 83 percent of participating 
students, showed positive results in math, and both years showed 
overwhelming parental satisfaction. Parents like it. Students are doing 
better. It is working.
  I certainly wish to salute Mayor Fenty and DC school chancellor 
Michelle Rhee for making education reform and support for this program 
something important in the District. They made this a high priority.
  Certainly, we have to get the schools functioning in the District of 
Columbia. This is a piece of it that is working for 1,700 students. We 
need it reauthorized to be able to continue to move it forward. It 
would be heartless for us not to do it.
  I recognize a number of people have a problem with it on this bill. I 
understand that. If there is a chance we can get an agreement that the 
reauthorization would take place later, that would be a wise route to 
go, and then follow through regular order. But this one is working and 
is working well. It is being well received by parents and students. It 
has an odd sort of support base where it has both left and right. It 
has a lot of people in a low-income situation supporting it. It is one 
of those pieces of legislation that have a broad base of support 
ideologically and practically. People want to see it moving forward and 
have it succeed as an overall program. I am very hopeful this Congress 
can do that.
  Two other quick points. One is coming up on the fairness doctrine 
that will be considered. The fairness doctrine, to educate my 
colleagues--I am sure everybody is familiar with it--was promulgated by 
the FCC in 1949 to ensure that contrasting viewpoints would be 
presented on radio and television.
  In 1985, the FCC began the process of repealing the doctrine after 
concluding that it actually resulted in broadcasters limiting coverage 
of controversial issues of public importance.
  Now we are hearing from some voices saying this doctrine should be 
put back in place. I urge colleagues to not do that. This isn't the way 
for us to get a good discussion going in the public marketplace. 
Indeed, the results in the past, and I believe today, would be that the 
doctrine would actually result in less, not more, broadcasting of 
important issues to the public. Airing controversial issues would 
subject broadcasters to regulatory burdens and potentially severe 
liabilities. They simply would say: We will not put anything on.
  Just think about the changing landscape in broadcast radio and 
television that has taken place since 1949. These numbers are 
startling. In 1949, there were 51 television stations in the country 
and 2,500 radio stations. Maybe a lot of people wish we would go back 
to that era of less media, but we will not. In 1958, there were 1,200 
television stations and 9,800 radio stations. Today, there are 1,800 
television stations and 14,000 radio stations. There is simply no 
scarcity to justify content mandates such as the fairness doctrine that 
would be a regulatory nightmare for radio and television stations. 
Plus, we have all the new media, social networking, and individual 
citizen access to information on the Internet that does not warrant 
this being put back into place.
  Finally, to comment on the second amendment rights, the Supreme 
Court, in a historic ruling, has found that second amendment rights 
apply to the individual, and that applies to individuals across the 
country, that applies to individuals in the District of Columbia. I 
think those should be continued and guaranteed and supported by this 
body as well. I think it would be appropriate for us to support that 
and support that in this legislation.
  Madam President, in conclusion, I would like to have printed in the 
Record two editorials in agreement from two publications that 
frequently do not agree. One is from the Wall Street Journal and the 
other is from the Washington Post. Both are in support of the DC 
voucher program, saying it works--it works for kids, it works for 
parents--and is something that should be continued. I have never had 
printed in the Record before editorials from those two publications at 
the same time agreeing on the same topic, particularly in education. I 
think what it says is that this one is working and should be continued.
  So I ask unanimous consent that the editorials be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Feb. 25, 2009]

                         Obama's School Choice

       President Obama made education a big part of his speech 
     Tuesday night, complete with a stirring call for reform. So 
     we'll be curious to see how he handles the dismaying attempt 
     by Democrats in Congress to crush education choice for 1,700 
     poor kids in the District of Columbia.
       The omnibus spending bill now moving through the house 
     includes language designed to kill the Opportunity 
     Scholarship Program offering vouchers for poor students to 
     opt out of rotten public schools. The legislation says no 
     federal funds can be used on the program beyond 2010 unless 
     Congress and the D.C. City Council reauthorize it. Given that 
     Democrats control both bodies--and that their union backers 
     hate school choice--this amounts to a death sentence.
       Republicans passed the program in 2004, with help from 
     Democratic Senator Dianne Feinstein, and it has been 
     extremely popular. Families receive up to $7,500 a year to 
     attend the school of their choice. That's a real bargain, 
     given that D.C. public schools spend $14,400 per pupil on 
     average, among the most in the country.
       To qualify, a student's household income must be at or 
     below 185% of the poverty level. Some 99% of the participants 
     are minority, and the average annual income is $23,000 for a 
     family of four. A 2008 Department of Education evaluation 
     found that participants had higher reading scores than their 
     peers who didn't receive a scholarship, and there are four 
     applicants for each voucher.
       Vouchers also currently exist in Arizona, Florida, Georgia, 
     Ohio, Louisiana, Utah and

[[Page 5924]]

     Wisconsin. And school choice continues to proliferate 
     elsewhere in the form of tax credits and charter schools. The 
     District's is the only federally funded initiative, however, 
     and local officials from former Mayor Anthony Williams to 
     current Mayor Adrian Fenty and Schools Chancellor Michelle 
     Rhee support its continuation. As Ms. Rhee put it in a 
     December 2007 interview with the Journal, ``I would never, as 
     long as I am in this role, do anything to limit another 
     parent's ability to make a choice for their child. Ever.''
       Ms. Rhee is working to reform all D.C. public schools, 
     which in 2007 ranked last in math and second-to-last in 
     reading among all U.S. urban school systems on the federal 
     National Assessment of Educational Progress. Without the 
     vouchers, more than 80% of the 1,700 kids would have to 
     attend public schools that haven't made ``adequate yearly 
     progress'' under No Child Left Behind. Remember all of those 
     Members of Congress standing and applauding on Tuesday as Mr. 
     Obama called for every American child to get some education 
     beyond high school? These are the same Members who protect 
     and defend a D.C. system in which about half of all students 
     fail even to graduate from high school.
       On Tuesday, Mr. Obama spoke of the ``historic investment in 
     education'' in the stimulus bill, which included a 
     staggering, few-strings-attached $140 billion to the 
     Department of Education over two years. But he also noted 
     that ``our schools don't just need more resources; they need 
     more reform,'' and he expressed support for charter schools 
     and other policies that ``open doors of opportunity for our 
     children.''
       If he means what he says, Mr. Obama won't let his fellow 
     Democrats consign 1,700 more poor kids to failing schools 
     he'd never dream of letting his own daughters attend.
                                  ____


               [From the Washington Post, Feb. 25, 2009]

                           Voucher Subterfuge

       Congressional Democrats want to mandate that the District's 
     unique school voucher program be reauthorized before more 
     federal money can be allocated for it. It is a seemingly 
     innocuous requirement. In truth it is an ill-disguised bid to 
     kill a program that gives some poor parents a choice 
     regarding where their children go to school. Many of the 
     Democrats have never liked vouchers, and it seems they won't 
     let fairness or the interests of low-income, minority 
     children stand in the way of their politics. But it also 
     seems they're too ashamed--and with good reason--to admit to 
     what they're doing.
       At issue is a provision in the 2009 omnibus spending bill 
     making its way through Congress. The $410 billion package 
     provides funds for the 2009-10 school year to the D.C. 
     Opportunity Scholarship Program, a pioneering effort that 
     awards scholarships of up to $7,500 a year for low-income 
     students to attend private schools. But language inserted by 
     Democrats into the bill stipulates that any future 
     appropriations will require the reauthorization of the 
     program by Congress and approval from the D.C. Council.
       We have no problem with Congress taking a careful look at 
     this initiative and weighing its benefits. After all, it was 
     approved in 2004 as a pilot program, subject to study. In 
     fact, this is the rare experimental program that has been 
     carefully designed to produce comparative results. But the 
     proposed Democratic provision would short-circuit this study. 
     Results are not due until June, and an additional year of 
     testing is planned. Operators of the program need to accept 
     applications this fall for the 2010-11 school year, and 
     reauthorizations are complicated, time-consuming affairs. 
     Indeed, staff members on various House and Senate committees 
     scoffed yesterday when we asked about the chances of getting 
     such a program reauthorized in less than a year. Legislation 
     seeking reauthorization has not even been introduced.
       If the Democratic leadership is so worried about process, 
     it might want to review a recent report from the 
     Congressional Budget Office listing the hundreds of millions 
     of dollars that have been appropriated to programs whose 
     authorizations have expired. Many of these programs get far 
     more than the $14 million allocated to the Opportunity 
     Scholarships. House Minority Leader John A. Boehner (R-Ohio) 
     was right to call out the Democrats for this back-door 
     attempt to kill the voucher program. The attention should 
     embarrass congressional Democrats into doing the right thing. 
     If not, city leaders, including D.C. Mayor Adrian M. Fenty 
     (D), need to let President Obama know that some 1,800 poor 
     children are likely to have their educations disrupted.

  Mr. BROWNBACK. Madam President, I yield the floor.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I ask unanimous consent that the 
Senate now debate concurrently the Durbin amendment No. 591 and the 
DeMint amendment No. 573; that no amendments be in order to either 
amendment prior to a vote in relation to the amendment; with the time 
equally divided and controlled between Senators Durbin and DeMint or 
their designees; that at 2 p.m. today, the Senate proceed to vote in 
relation to the Durbin amendment No. 591, to be followed by a vote in 
relation to the DeMint amendment No. 573; that prior to the second 
vote, there be 2 minutes of debate equally divided and controlled in 
the usual form, and the second vote be 10 minutes in duration.
  The PRESIDING OFFICER. Is there objection?
  The Senator from South Carolina.
  Mr. DeMINT. Madam President, reserving the right to object--and I 
will not object--will the time be equally divided between now and 2 
o'clock?
  Mr. LIEBERMAN. That was my understanding. As a point of 
clarification, it actually is as I suggested earlier, which is that the 
floor is open for debate from now until 2 and that the time is equally 
divided. Obviously, if others want to come to the floor and speak about 
something else, they can ask unanimous consent to do that.
  Mr. DeMINT. Madam President, I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. I thank the Chair.
  The PRESIDING OFFICER. The Senator from South Carolina.


                           Amendment No. 573

  Mr. DeMINT. Madam President, I ask unanimous consent to set aside the 
pending amendment and call up DeMint amendment No. 573.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from South Carolina [Mr. DeMint] proposes an 
     amendment numbered 573.

  Mr. DeMINT. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

    (Purpose: To prevent the Federal Communications Commission from 
                 repromulgating the fairness doctrine)

       At the end of the bill add the following:

     SEC. 9. FAIRNESS DOCTRINE PROHIBITED.

       (a) Limitation on General Powers: Fairness Doctrine.--Title 
     III of the Communications Act of 1934 is amended by inserting 
     after section 303 (47 U.S.C. 303) the following new section:

     ``SEC. 303A. LIMITATION ON GENERAL POWERS: FAIRNESS DOCTRINE.

       ``Notwithstanding section 303 or any other provision of 
     this Act or any other Act authorizing the Commission to 
     prescribe rules, regulations, policies, doctrines, standards, 
     guidelines, or other requirements, the Commission shall not 
     have the authority to prescribe any rule, regulation, policy, 
     doctrine, standard, guideline, or other requirement that has 
     the purpose or effect of reinstating or repromulgating (in 
     whole or in part)--
       ``(1) the requirement that broadcasters present or 
     ascertain opposing viewpoints on issues of public importance, 
     commonly referred to as the `Fairness Doctrine', as repealed 
     in In re Complaint of Syracuse Peace Council against 
     Television Station WTVH, Syracuse New York, 2 FCC Rcd. 5043 
     (1987); or
       ``(2) any similar requirement that broadcasters meet 
     programming quotas or guidelines for issues of public 
     importance.''.
       (b) Severability.--Notwithstanding section 7(a), 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 
     amendment made by subsection (a) and the application of such 
     amendment to any other person or circumstance shall not be 
     affected by such holding.

  Mr. DeMINT. Madam President, I ask unanimous consent to add as 
cosponsors to my amendment Senators Vitter, Inhofe, Wicker, Bond, 
Bennett, Enzi, Barrasso, Brownback, and Alexander.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeMINT. Thank you, Madam President.
  This has been a good debate, not just about DC voting rights but 
constitutional rights in our country, and if we are going to go by our 
own opinions and good intentions or are we going to follow the 
Constitution. Clearly, a lot of us wish to give fair representation to 
everyone who lives in the District of Columbia. But our oath of office 
is not to our good intentions, it is to protect and defend the 
Constitution of the United States.
  The Constitution is very clear that Congressmen and Senators are 
allocated only to States. The District of

[[Page 5925]]

Columbia was set up as a neutral entity, certainly where people will 
live and work associated with the business of the Federal Government, 
but there is nothing in the Constitution that would give a Congressman 
or Senators to this Federal District of Columbia. So we are talking 
about a constitutional issue.
  We have had other constitutional issues, such as the Bill of Rights 
guarantee to bear arms, and there will be an amendment to that effect 
with the bill. I wish to bring up another constitutional issue, which 
is the right of free speech and the freedom of the press.
  A number of Members of Congress have been talking about the annoyance 
of having radio talk show hosts talk about what we are doing here. I do 
not blame the other side for being annoyed when a radio talk show host 
actually describes what is in a bill, since we have gotten in the habit 
of not actually reading them ourselves. When we have radio talk show 
hosts all around the country going through page by page, contradicting 
what is actually being said here, I can understand that people wish to 
muzzle those radio talk show hosts. That could be the opinion of some 
of those in Congress today, but it happens to go against the 
Constitution when we try to decide what people can say and what they 
believe.
  There is actually a doctrine that was mentioned by the Senator from 
Kansas called the fairness doctrine that is one of those political 
doublespeak titles that is radio censorship that actually tries to 
control what radio talk show hosts could say. That doctrine was 
dispensed with by Reagan, and since then we have thousands of radio 
talk shows with wide varieties of opinion. But many are starting to 
talk about bringing back this radio censorship idea to try to force 
radio stations to present alternative opinions every time a radio talk 
show host presents an opinion of their own.
  What this would do is create a dysfunctional situation where no radio 
station could afford to have a talk show host express an opinion of any 
kind if they had to go out and find someone to express the opposite 
opinion and in the meantime face lawsuit after lawsuit from the ACLU 
and others. Because whose opinion is going to determine what is fair, 
what is balanced, what is diverse? But the whole implication here is 
that the Federal Government and the Federal Communications Commission 
are somehow going to decide for us what is fair and what is balanced 
and what is diverse.
  The amendment I am offering today, which we call the Broadcaster 
Freedom Act, would prohibit the Federal Communications Commission from 
reestablishing any part of what is called the ``fairness doctrine'' 
into their regulatory structure today.
  Plain and simple, most people here have said they do not want it to 
come back. President Obama said last week he is against the fairness 
doctrine. So who could oppose us making it a law that some bureaucrat 
over at the Federal Communications Commission could not write into 
regulations all or parts of this censorship of radio talk shows across 
the country?
  It is a pretty simple amendment, but I have a feeling it is getting 
ready to sound lot more complicated when the other side starts 
presenting what is in it. We have found in this body that the facts, 
the truths, sometimes do not make a lot of difference. But anyone who 
votes against my amendment, the Broadcaster Freedom Act, is voting 
against the Constitution. They are voting against the freedom of the 
press. They are voting against the freedom of speech in this country.
  The one hope we have to turn this Government around, to stop this 
spending, and the intervention in all areas of our life, is a free 
press that can tell people the truth about what is going on. More and 
more, we have the radio talk show hosts and the bloggers and some cable 
news that every day are telling Americans more about what we are doing, 
and Americans are getting more informed, they are getting more engaged 
and increasingly more outraged about what we are doing.
  I encourage my colleagues to support my amendment and to vote against 
this side by side that is being presented by the Democratic majority. 
What we are seeing in this side by side is the real intention of the 
Democratic majority as far as dealing with this fairness doctrine. They 
are going to propose that we as a Congress direct the Federal 
Communications Commission--that we are going to say: ``shall take 
actions to encourage and promote diversity in communication media 
ownership.''
  Now, they are not just saying radio here. This is ``communication.'' 
This includes the Web, the Internet, the blogs, blogisphere, 
television, newspapers. This language would direct the Federal 
Communications Commission to take action to enforce diversity in 
communication. This is Soviet-style language that you are going to get 
some rosy picture of in a minute. But it is so open and so vague that 
about every communication outlet in this country is going to be faced 
with accusations that their ownership is not diverse.
  What does ``diverse'' mean? Does it mean ``white and black''? What 
they are after is what they believe, what their opinions are. If this 
were applied to our offices here in the Senate, we could not say 
anything, I could not express my opinion today without being obligated 
by law to go find somebody to say something completely opposite of what 
I am saying. This is not freedom. Anyone who votes for this alternative 
is voting to repress the freedom of speech in this country, the freedom 
of media.
  The second part of what they have after ``promote diversity in 
communication media''--all media; only the lawyers and the bureaucrats 
are going to tell us what that means--is ``to ensure that broadcast 
station licenses are used in the public interest.'' That is already a 
law, and that is good, and television and radio stations that use the 
public airwaves all over the country are held accountable by current 
law to do things in the public interest, and many of them are very good 
at that, and it is very helpful in our communities.
  But I will ask my colleagues not to let this distraction confuse them 
about the real intention. If we pass the broadcaster freedom amendment 
today, we are going to close the front door to taking away the freedom 
of speech in this country. But this alternative opens the backdoor to 
what the Democratic majority is after; that is, to muzzle this 
annoyance of people on the radio who are telling the truth about what 
is going on in this Congress.
  If they can go out and threaten a station that they are not diverse 
in their ownership, and some judge or some bureaucrat is going to 
decide whether they are diverse--and who knows what that means--we are 
going to create such risk and such liability and such intimidation that 
this will not even look like America in a few years.
  This is dangerous material that is being offered on the other side. I 
will encourage my colleagues to remember our oath of office. It has 
nothing to do with enforcing our opinions or some judge's opinion on 
some radio station out there that is trying to give its opinion to the 
American people. We are dangerously close to the enslavement of 
socialism in this country with the expansion of Government on every 
front.
  This is intolerable. Do not let the pretty language you are getting 
ready to hear confuse you because this is against everything we swear 
an oath to in this Congress. I encourage my colleagues to vote against 
the Durbin amendment, vote for the Broadcaster Freedom Act, and I would 
appreciate their support.
  Thank you, Madam President, and I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Illinois.


                           Amendment No. 591

  Mr. DURBIN. Madam President, I am beginning to believe the Senator 
from South Carolina opposes my amendment. He has called it 
unconstitutional, Communist, socialistic, enslavement, and he is just 
getting started. So I wish to explain what the debate is all about.
  It is a fundamental question, and it is one I have reflected on. The 
fairness doctrine is the idea that broadcasters

[[Page 5926]]

should cover issues important to local viewers and should cover these 
issues fairly; in other words, allow for different viewpoints to be 
heard and allow those ideas to be presented in a way that is balanced 
or, as one of the networks say, fair and balanced.
  The fairness doctrine isn't a new idea; it is one that has been 
around in some shape or form since the 1920s, and it was formally 
adopted by the Federal Communications Commission as a standard in 
1949--60 years ago. Back then, though, the world was a lot different. 
Television was in its infancy. It was just starting. In the 1950s, of 
course, there emerged three major television networks--NBC, ABC, and 
CBS. Congress and the FCC had a legitimate concern that these three 
networks and their local stations could abuse their power, because when 
you broadcast to radio and television consumers, you are not using 
something you own, you are using the public airways. We own it. All of 
us collectively as Americans own it. We license those who use it and 
say: You are allowed to broadcast your television signal or your radio 
signal and you have to do it under certain rules and regulations. 
Listening to the Senator from South Carolina, he is basically saying: 
Government, step aside. If a private entity wants to get involved in 
broadcasting, that is an exercise of free speech.
  Well, historically, the courts have not agreed with my friend from 
South Carolina. They have said that you can impose reasonable 
obligations on those who have licenses to use the airwaves. They don't 
own the airwaves; the public owns the airwaves, and there is a public 
interest in reaching certain goals in those airwaves. One of those 
public interests was expressed and defined for many years as the 
fairness doctrine. The fairness doctrine basically said Americans are 
entitled to hear both sides of the story so there is balance and 
fairness in the news and in the expressions of ideas on these radio and 
TV stations. The fairness doctrine was clearly I think American, not 
Communist; constitutional--no one struck it as unconstitutional during 
the period of time it was in effect--and I don't know about the 
enslavement of socialism; I will have to reflect on that for a minute. 
But the fact is, it was the law of the land. The mightiest broadcast 
stations, radio and TV stations that could have gone to court, I say to 
my friend from South Carolina, and challenge that idea as 
unconstitutional were not successful in doing so. It is hard to imagine 
we would restrict their broadcasting and they wouldn't challenge it if 
it was unconstitutional. Well, that is a fact. Facts sometimes are hard 
to deal with in debates such as this, but that was the reality.
  That was then and this is now. The world has changed. The world of 
broadcasting has changed. We still have the major networks--ABC, NBC, 
and CBS--but we also have CNN, FOX News, MSNBC, and hundreds of other 
channels on cable TV. We have public broadcasting. We have more than 
14,000 AM and FM radio stations, hundreds of satellite radio stations, 
and we have the Internet. It is clear that technology has changed 
dramatically since 1949 and the institution of the fairness doctrine. 
There are more ways now than ever to hear a variety of perspectives on 
a number of issues.
  So when the fairness doctrine was repealed in 1987, many of us 
objected. The basic argument: Americans have the right to hear both 
sides of the story; television and radio stations should still hold 
themselves to that standard. Let the American people decide. Don't let 
one major network jam through a political viewpoint over the public 
airwaves that the American people, frankly, have to take or leave. I 
thought that was the right position then in 1987, but I will tell my 
colleagues the world has changed.
  President Obama has said while on the campaign trail and in the White 
House that he doesn't support reinstating the fairness doctrine, and 
neither do I. You will find no mention of the fairness doctrine on the 
White House Web site; you will find no effort to reinstitute the 
fairness doctrine in my amendment. Because, quite honestly, now it 
isn't a question of NBC giving me one point of view and I have to take 
it or leave it. We all know what happens when you go home with the 
remote control; you have more choices than you know what to do with. 
That gives a variety of opinions an opportunity to be expressed on 
television--the same thing is true on radio--for Americans to hear a 
different point of view. If they want to switch from Rachel Maddow to 
Bill O'Reilly, they will hear a much different view of the world. It is 
there. It reflects the reality of technology and media today.
  So I think it is interesting that the Senator from South Carolina 
still bangs away at this notion that some people on the floor want to 
reinstate the fairness doctrine. I don't. There may be others who do. 
My amendment has nothing to do with that.
  The amendment Senator DeMint has written was not carefully written. I 
don't know if he understands some of the language he included. I call 
his attention to a paragraph in his amendment, paragraph 2 of section 
303A. It seems like a very general statement that shouldn't cause any 
trouble, but I am afraid it does, because after he goes after 
eliminating the fairness doctrine, he also includes any similar 
requirement that broadcasters meet program and quotas or guidelines for 
issues of public importance. Now, that is a problem. I don't know if he 
understands it is a problem, but it is. This amendment does more than 
ban the FCC from doing something it wasn't going to do anyway. 
Incidentally, nobody is talking about reinstating the fairness 
doctrine. This is the ``bloody shirt.'' That term is a political term 
that came about after the Civil War when people would come to the floor 
and try to inflame passions, and they said: You are waving the bloody 
shirt of the war; stop that. Let's have a rational conversation.
  Well, the rightwing broadcasters on their side, conservative 
broadcasters, have been waving this bloody shirt of the fairness 
doctrine for months. They love this. They have set up this kind of 
false choice that you are going to take away the right of free speech 
and they are trying to impose the fairness doctrine. It hasn't 
happened, it isn't going to happen, and I am not trying to make it 
happen.
  The DeMint amendment also contains a provision which I read to my 
colleagues that seriously cripples the FCC's ability to ensure 
responsible broadcasting. Remember: Public airwaves that the radio and 
TV station owners apply for a license from the Government to use to 
make money. The public airwaves truly are the property of the American 
people. We say to broadcasters that in return for a license to use 
those airwaves, your Government is going to ask that you use them in 
the public interest. Now, what does it mean to say we use the airwaves 
in the public interest? According to Senator DeMint, it is the 
enslavement of socialism. Well, here are the 14 major elements listed 
by the FCC when it comes to defining the public interest: Opportunity 
for local self-expression, development and use of local talent, 
programs for children, religious programs, educational programs, public 
affairs programs, editorialization by licensees, political broadcasts, 
agricultural programs, news programs, weather and market services, 
sports programs, service to minority groups, and entertainment 
programming.
  Senator DeMint's amendment--that second paragraph I read which has 
not been carefully written--goes way beyond stopping the fairness 
doctrine; it undermines the FCC's ability to make sure broadcasters 
meet these public interest obligations. So what. What if the public 
interest requirement disappeared tomorrow? What difference would it 
make? Let me tell my colleagues the difference it would make. There 
would be no requirement that your local station provide local news and 
weather. There would be no requirement that your local television 
station provide children with programming that is free from sex and 
violence. There would be no requirement to make sure advertising to 
children is subject to appropriate limitations and no requirement to 
provide a minimum amount of educational programming on each channel. 
Does that have anything to do with the fairness doctrine?

[[Page 5927]]

It doesn't. What Senator DeMint is doing is undermining broadcasting in 
the public interest.
  If a station decided to run a religious program, they would be doing 
it in the public interest. Senator DeMint removes that definition of 
public interest. In fact, he says--let's go back to the exact language 
of his amendment. He says, ``any similar requirement that broadcasters 
meet programming quotas or guidelines for issues of public 
importance.'' So his language goes too far.
  What we have tried to do is to make sure we don't limit the FCC's 
ability to protect the most vulnerable and impressionable viewers and 
listeners in America--our kids and our grandkids. The DeMint amendment 
takes away that requirement of licensees, radio and TV licensees, to 
protect children from sex and violence. They might do it anyway, they 
might not, but there would be no license requirement under the DeMint 
language.
  I still believe broadcasters who use public airwaves should use them 
in a fair and reasonable way in the public interest, and I believe the 
FCC should be able to enforce this. If the DeMint amendment is passed 
and if it became law, if you wanted to enforce the fact that on 
Saturday morning, when a lot of kids are watching television, the local 
television station is running a gory movie or one that is on the edge 
when it comes to sexual content, it would be hard, if not impossible, 
to do it. I am sure that is not the Senator's intent, but that 
paragraph was very poorly written, and that is why I change it.
  Now, there is also the suggestion by the Senator from South Carolina 
that if we encourage diversity of media ownership, somehow that is 
communistic. From my point of view, it is not. Diversity of ownership 
opens the public airwaves to a variety of different owners. I am not 
saying here--and no one is suggesting--that the law for the Federal 
Communications Commission says you can give this license to a 
Republican and this one to a Democrat or this one to a liberal and this 
one to a conservative. When I talk about diversity of media ownership, 
it relates primarily to gender and race and other characteristics of 
that nature. We don't mandate it, even though you would think we did 
when you hear Senator DeMint read from my amendment. What we say is the 
Commission shall take actions to encourage and promote diversity in 
communications media ownership. I don't think that is a mandate to give 
licenses to any one group; it just says ``take actions to promote and 
encourage,'' something that is already in the law.
  I might say to the Senator, section 307B of the Communications Act--
and I hope you will have your staff look at it--requires that the FCC 
ensure that license ownership be spread among diverse communities. It 
is there already. It is there already. This enslavement of socialism, 
in the words of the Senator from South Carolina, is already there. I 
don't think this is socialistic, communistic or unconstitutional. It is 
in the law. So to say we are going to promote what the law already says 
is hardly a denial of basic constitutional freedoms. Second, the 
Communications Act requires the FCC to eliminate market entry barriers 
for small businesses to increase the diversity of media voices. That is 
section 257, which I hope your staff will look at too.
  To argue that what I am putting in here is a dramatic change in the 
law or is going to somehow muzzle Rush Limbaugh is not the case. What 
we are suggesting is, it is best that we follow the guidelines already 
in the law to promote and encourage diversity in media ownership. Even 
with cable, satellite, and Internet, broadcast TV and radio, there are 
still important ways we learn about what is going on in our communities 
and in our country.
  The Senator from South Carolina went on to say this amendment would 
affect the Internet and blogs. I have to remind the Senator they are 
not licensed. They don't have FCC licenses. They are not affected by 
this debate. You can start a blog tomorrow, I can, too, and I don't 
have to go to the FCC for approval. They certainly cannot monitor that 
blog to determine whether it is in the public interest. That is not the 
law. The Senator is on this rampage and, yet, when you look at the 
facts, they do not apply to the Internet or blogs.
  We should be concerned, however, that the policies of the last decade 
have led to bigger and more consolidated media outlets controlling more 
of the stations and more of the content. As a result of these policies 
today, women and minorities are less likely to own media stations, even 
though the existing law says that is a goal when it comes to licensure. 
Nationwide, women own just 5 percent of all broadcast TV stations. 
Racial or ethnic minorities own just 3.3 percent. In Chicago, the city 
I am proud to represent--diverse and vibrant with many significant 
minority communities--there is only one commercial TV station owned by 
a racial or ethnic minority. The numbers are almost as dismal in radio. 
Nationwide, women own just 6 percent of broadcast stations; minorities, 
7.7 percent. In Chicago, only four radio stations are owned by 
minorities. That is about 5 percent of the radio stations in Chicago, 
less than the national average.
  The content of the media should reflect the diversity of America. 
These statistics show this is not currently the case. The law says that 
should be our goal. The existing law says that should be our goal. I 
restate the existing law, and the Senator from South Carolina calls it 
communism. I don't think it is. I think it is still a worthy goal so 
that there is diversity in ownership, diversity in stations. I am 
acknowledging the obvious.
  I am acknowledging the obvious: We are no longer in the world of 
three television networks; we are in a world where we have many 
different choices. I ask that we reaffirm diversity and media ownership 
so there will be choices. I hope the Senator from South Carolina cannot 
argue that we should not have choices, that we cannot turn the dial to 
our favorite stations, or punch the remote control to reach those 
stations. I think that as long as America has those choices, it serves 
the original goal of letting us hear different sides of the story and 
doesn't reimpose the fairness doctrine, which none of us are asking 
for.
  We need to make the media more accessible to all voices in America. 
Isn't that what we are all about in this country? Don't we basically 
say we trust the people of this country to hear both sides of the story 
and make up their own minds? We sure do. We give them a right to vote. 
I guess that is the most instructive delegation of authority you can 
give to a person: you get to pick your leadership based on your 
opinion.
  All I am asking is that we encourage diversity of media ownership so 
there are more options, more opinions being shared, and Americans can 
choose the ones they want. I will repeat so my friend from South 
Carolina understands clearly, I do not favor the reinstatement of the 
fairness doctrine. The world has changed. The world of media and 
technology has changed. I believe Americans are entitled to hear 
different points of view, and that is why I restate the existing law--
and I have given citations for both sections of the Communications 
Act--which is that we need to have more diversity in media ownership in 
America. I have not proposed taking away a license from anybody or 
giving one to anybody. Setting this as a goal is as American as apple 
pie and has nothing to do with communism or Marxism.
  I say to the Senator I was careful in writing this amendment, so I 
included a section very similar to his section (2) but narrowing it to 
the issue of fairness. I say--and this is so short that I will read 
parts:

       The Commission shall take actions to encourage and promote 
     diversity in communication ownership and ensure that 
     broadcast station licenses are used in the public interest.

  That is so there is diversity in ownership and we protect kids from 
sex and violence. If the Senator thinks that is communism, I disagree 
with him.
  Then I say:

       Nothing in section 303A--

  Which is what we are talking about in this amendment--


[[Page 5928]]

     shall be construed to limit the authority of the commission 
     regarding matters unrelated to a requirement that 
     broadcasters present or ascertain opposing viewpoints on 
     issues of public importance.

  I protect what I think was the intent of his amendment to prohibit 
the reinstitution of the fairness doctrine, which nobody has suggested, 
but to make it clear that is as far as we go. We are not eliminating 
the requirement of broadcasting in the public interest for obvious 
reasons: We want to protect kids; we want to protect families; we want 
to keep sex and violence away from kids; and make sure there is local 
news and weather so people can turn on the TV stations and learn about 
it.
  All of these things, from my point of view, are constructive, and I 
hope we all agree. The Senator from South Carolina has said that old 
Durbin will argue for the fairness doctrine. Let's correct the record. 
I am not doing that. The fairness doctrine, in 2009, doesn't make 
sense. It might have made sense in 1948. We should not reinstitute 
that, but let's not give up on fairness. Let's make sure American 
viewers of television and listeners of radio have choices. Making those 
choices can form an opinion that leads to their expression of points of 
view and their votes. There is nothing wrong with that.
  For the people who want to take a license and use the airwaves, there 
are basic rules. We don't want you to put gory movies and sex on 
television during early morning hours on a Saturday when kids are 
watching. We want you to be careful in your content so you don't do 
something that is abusive of your use of our public airwaves.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. DeMINT. Madam President, I always enjoy a good debate with the 
Senator from Illinois. He is certainly good at what he does and, in 
this case, that is confusing facts. The good news for us and all 
Americans is, this afternoon, on radio talk shows all across the 
country, they can find out what is in both of these amendments and what 
it really means. They are not going to hear it here today. There have 
been a lot of distortions but interesting admissions.
  Certainly, the Senator from Illinois made it very clear that he 
should be a part of determining what is fair and balanced and how we 
should determine what is both sides. He mentioned there are 14,000 
radio stations. What he does with his amendment is he orders ``shall 
take action to encourage and promote diversity and communication media 
ownership.'' He wants our FCC to monitor 14,000 radio stations to 
decide if their ownership is diverse. He said it doesn't apply to the 
Internet, but we do regulate the Internet. We regulate everything in 
America, folks--everything that a Federal dollar touches.
  Believe me, this language is not just about radio stations; it is 
about doing the impossible, and that is to centrally manage the 
ownership of radio and other communications in this country. It goes 
back to his original opinion that, yes, he believes there should be 
fair and balanced perspective presented in the media. But what he 
believes--and what many on his side believe--is that fairness should be 
determined by those of us in Government rather than the listeners and 
viewers who tune into that radio or the TV station or go to that Web 
site.
  It is not for us to determine what is fair and balanced. His 
distortion about my amendment and what it does is exactly wrong. We do 
not address or change in any way the requirements of radio stations to 
act in the public interest. The nonsense about children's programming 
and indecency has nothing to do with this. It is another section in the 
law. I don't affect that in any way.
  What this is about is, saying to your face, America, that they are 
not for reinstating the censorship of radio, while at the same time 
introducing an amendment that would allow us to go in and make our 
judgment, our opinion, about what is diverse ownership of a radio 
station.
  Let me read again what this provision in my amendment addresses. He 
says it takes away the public interest clause. It has nothing to do 
with that. But it prohibits this backdoor approach to getting back to 
the principles of the fairness doctrine by saying broadcasters do not 
have to meet programming quotas and guidelines. In other words, we 
can't decide how many opinions they have to offer and what the 
guidelines for those opinions are. It is not for us to say. They have 
to fulfill their public interest obligations. We don't change that. But 
this clause would keep the good Senator from Illinois and those on his 
side who want to censor radio from allowing the FCC to go in and set 
some kind of quotas on how often, how they need to state their 
opinions, and the guidelines for that. It creates a license for us to 
go in and determine what opinions, how many opinions, and basically it 
is the fairness doctrine through the back door.
  I will restate that this Broadcasters Freedom Act protects the 
constitutional rights of freedom of speech and freedom of the press. It 
does nothing to dislodge or change the requirement that public 
stations--radio or whatever communications--meet the current law 
requirements to act in the public good. But it does keep us, as a 
government, from setting quotas and guidelines of what opinions can be 
expressed and how often they can be expressed.
  Mr. LIEBERMAN. Will the Senator yield for a question?
  Mr. DeMINT. Yes.
  Mr. LIEBERMAN. On that last point, am I correct in reaching the 
conclusion--and that second clause is prohibiting any similar 
requirement that broadcasters meet programming quotas or guidelines for 
issues of public importance--that you do not intend to affect or 
dislodge in any way existing FCC laws or guidelines with regard to, for 
instance, decency standards, language, or sexually loaded content, or 
violent content that currently prevails?
  Mr. DeMINT. The Senator is right. We have legal opinions on that, and 
it doesn't overrule any existing commission regulations. We asked the 
broadcasters' legal counsel, and this is intended to narrow this 
fairness doctrine backdoor approach of controlling what people say by 
establishing quotas and guidelines about how that is done. I thank the 
Senator for that question.
  We have probably talked enough about this subject. I reserve the 
remainder of my time. I yield the floor and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DeMINT. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeMINT. Madam President, I ask unanimous consent that the time 
during the quorum call be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeMINT. I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. VOINOVICH. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 587

  Mr. VOINOVICH. Madam President, today I speak as a Member of the 
Senate, but also as a former chairman and now ranking member of the 
Oversight of Government Management, the Federal Workforce, and the 
District of Columbia Subcommittee. I have had a relationship with the 
District for quite some period of time and have been very interested in 
the District and also in the District's reaching out in terms of 
providing a quality education for the boys and girls who live in the 
District, understanding that this is the Nation's Capital and it should 
be the shining city on a hill where people can come from all over 
America and see the very best we have in our country in terms of 
educational opportunities and, I also feel, the opportunity of people 
to have the right to vote.
  As a result of my concerns about the ways to rectify the lack of 
voting representation for the District, I have approached this bill 
with the belief that

[[Page 5929]]

citizens who pay taxes and serve in the military should have House 
representation so long as such representation conforms to the 
Constitution.
  Although a constitutional amendment would provide the clearest 
constitutional means to ensure District residents are provided House 
representation, after studying the legal arguments, I have concluded 
that there are sufficient indicia and precedent that the Constitution's 
District clause grants Congress the constitutional authority to give 
the District a House Member. As for any argument that the bill is 
unconstitutional, I need only to say that I believe any ambiguity and 
disagreement will be resolved quickly by the courts.
  After weighing the constitutional arguments and equities, I have 
decided to support this legislation--in fact, I am a cosponsor of this 
legislation--on one condition: We must also continue to give the 
families of the District a vote on how their children are educated.
  Accordingly, I am proud to join Senator Ensign in offering an 
amendment to reauthorize the District of Columbia Scholarship Program 
for an additional year. Perhaps one may wonder why am I so concerned 
about this issue. It is because of the fact that when I was Governor of 
Ohio, we started a scholarship program in Ohio for children who were 
not members of the public schools. That experiment has worked to the 
benefit of thousands of children, particularly in the Cleveland 
district, who have gone through the system and are now in college. I 
meet with them, and they tell me: Were it not for the Cleveland 
Scholarship Program where I had a choice to go to another school, I 
don't believe I would be in college today and be as successful as I 
have been.
  When I instituted that program, it was said it was unconstitutional. 
I am pleased to say that several years ago, the U.S. Supreme Court said 
that providing scholarships to nonpublic school systems fit in with the 
Constitution of our country.
  When we had an opportunity to help the District, we provided $14 
million for public schools, $14 million for charters, and $14 million 
for the scholarship program. It is a critical component of a three-
sector education strategy to provide a quality education to every child 
in the District, regardless of income or neighborhood.
  The program provides up to $7,500 per student per year to fund 
tuition, fees, and transportation expenses for K-12 for low-income DC 
families.
  To qualify, students must live in the District and have a household 
income of no more than 185 percent of the Federal poverty level. In 
2008, that was about $39,000 per family of four. In fact, the average 
income for families using scholarships in 2008 was just over $24,000.
  Since its inception, the program has served over 2,600 students. They 
have about 7,500 who would like to get in the program, but they do not 
have a place for them. Entering students had average math and reading 
test scores in the bottom third.
  A recent evaluation of the Department of Education reaffirms academic 
gains among participants less than 2 years after receiving a 
scholarship. They are benefiting from it. We need more time to see how 
it works out. I wish to underscore that I think this is part of this 
whole package we put together.
  Many Members of this body are unaware of the fact that today the 
people who live in the District can go to any public college in the 
United States and we provide up to $10,000 for out-of-State tuition. 
They are not aware of the fact that Don Graham over at the Washington 
Post got the business community together and set up the Washington 
scholarship program, the CAP program, and $2,500 is available for 
youngsters. Or that the Gates Foundation thinks so much of what is 
happening in the District that they provided another $120 million to 
keep kids in school in the two worst dropout districts in the District 
of Columbia.
  There are some wonderful things happening in the District, and yet--
and yet--there are some people here, because of special interest 
groups, who want to do away with the scholarship program. They want to 
deny these children an opportunity to have this educational 
opportunity, this smorgasbord we have available to them.
  What this amendment does is it extends for 1 year that program as we 
look at it and see how it goes through its metamorphosis.
  I have to say to my colleagues on the other side of the aisle and 
this side of the aisle, if you want to do something that is disastrous 
to the kids in the District in terms of public relations and the 
interest of all these people in the District, go ahead and make it 
impossible for this program to keep going.
  Think about this: the Gates Foundation, the College Assistance 
Program--great things are happening in the District today. What a 
terrible message it would send to the rest of the country and those who 
care about education in the District if we were denied this 
opportunity, this experiment to continue in the District.
  I ask unanimous consent to have printed in the Record two editorials, 
one on January 26 titled ``School Vouchers, District parents know why 
the program should continue.'' The demand for it is tremendous. They 
want it. And a recent editorial, ``Hoping no one notices, congressional 
Democrats step between 1,800 DC children and a good education.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Jan. 26, 2009]

School Vouchers--District Parents Know Why the Program Should Continue.

       Early surveys of D.C. parents of children receiving federal 
     school vouchers showed many of them liked the program because 
     they believed their children were in safe schools. Over time, 
     a new study shows, their satisfaction has deepened to include 
     an appreciation for small class sizes, rich curricula and 
     positive change in their sons and daughters. Above all, what 
     parents most value is the freedom to choose where their 
     children go to school.
       Here, for example, is what one parent told University of 
     Arkansas researchers studying the District's Opportunity 
     Scholarship Program: ``I know for a fact they would never 
     have received this kind of education at a public school. . . 
     . I listen to them when they talk, and what they are saying, 
     and they articulate better than I do, and I know it's because 
     of the school, and I like that about them, and I'm proud of 
     them.'' Overall, researchers found that choice boosts 
     parents' involvement in their children's education.
       Whether they continue to have such a choice could be 
     determined soon. The program that provides scholarships of up 
     to $7,500 per year for low-income students to attend private 
     schools is funded only through the 2009-10 school year. 
     Unusually restrictive language being drafted for the omnibus 
     budget bill would forbid any new funding unless Congress 
     reauthorizes the program and the District passes legislation 
     in agreement. Yet results of the Education Department's 
     scientific study of the program are not expected until June.
       We hope that, despite his stated reservations about 
     vouchers, President Obama includes money in his upcoming 
     budget to safeguard the interests of children in this 
     important local program and to preserve an unusually rigorous 
     research study. Mr. Obama and his education secretary, Arne 
     Duncan, say they eschew ideology in favor of what serves the 
     interests of children. Here's a chance to help 1,716 of them.
                                  ____


               [From the Washington Post, Feb. 25, 2009]

Voucher Subterfuge--Hoping No One Notices, Congressional Democrats Step 
            Between 1,800 D.C. Children and a Good Education

       Congressional Democrats want to mandate that the District's 
     unique school voucher program be reauthorized before more 
     federal money can be allocated for it. It is a seemingly 
     innocuous requirement. In truth it is an ill-disguised bid to 
     kill a program that gives some poor parents a choice 
     regarding where their children go to school. Many of the 
     Democrats have never liked vouchers, and it seems they won't 
     let fairness or the interests of low-income, minority 
     children stand in the way of their politics. But it also 
     seems they're too ashamed--and with good reason--to admit to 
     what they're doing.
       At issue is a provision in the 2009 omnibus spending bill 
     making its way through Congress. The $410 billion package 
     provides funds for the 2009-10 school year to the D.C. 
     Opportunity Scholarship Program, a pioneering effort that 
     awards scholarships of up to $7,500 a year for low-income 
     students to attend private schools. But language inserted by 
     Democrats into the bill stipulates that any future 
     appropriations will require the reauthorization of the 
     program by Congress and approval from the D.C. Council.

[[Page 5930]]

       We have no problem with Congress taking a careful look at 
     this initiative and weighing its benefits. After all, it was 
     approved in 2004 as a pilot program, subject to study. In 
     fact, this is the rare experimental program that has been 
     carefully designed to produce comparative results. But the 
     proposed Democratic provision would short-circuit this study. 
     Results are not due until June, and an additional year of 
     testing is planned. Operators of the program need to accept 
     applications this fall for the 2010-11 school year, and 
     reauthorizations are complicated, time-consuming affairs. 
     Indeed, staff members on various House and Senate committees 
     scoffed yesterday when we asked about the chances of getting 
     such a program reauthorized in less than a year. Legislation 
     seeking reauthorization has not even been introduced.
       If the Democratic leadership is so worried about process, 
     it might want to review a recent report from the 
     Congressional Budget Office listing the hundreds of millions 
     of dollars that have been appropriated to programs whose 
     authorizations have expired. Many of these programs get far 
     more than the $14 million allocated to the Opportunity 
     Scholarships. House Minority Leader John A. Boehner (R-Ohio) 
     was right to call out the Democrats for this back-door 
     attempt to kill the voucher program. The attention should 
     embarrass congressional Democrats into doing the right thing. 
     If not, city leaders, including D.C. Mayor Adrian M. Fenty 
     (D), need to let President Obama know that some 1,800 poor 
     children are likely to have their educations disrupted.

  Mr. VOINOVICH. Madam President, do you know why? It is because of the 
National Education Association. They do not want it to happen. They 
fought it in my State. The Ohio school boards fought it. I will never 
forget going up for an endorsement in 2004 when I ran last time. When I 
ran in 1998, I got support from the Ohio Education Society. They said: 
No Governor has done more for education than George Voinovich. So I 
came to Washington. They kind of forgave me for the scholarship program 
in Cleveland. They kind of let that go.
  Madam President, 2004 came along, and I went through the whole 
endorsement procedure. I did everything. After it was over, many people 
came up to me and said: George, you absolutely did a fabulous job with 
your presentation, what you are trying to do with education on the 
national level and you are concerned about it. But we got the word from 
Washington that you are not going to be endorsed because you have 
broken the rule in supporting scholarships, supporting an opportunity 
for kids to have another opportunity to go to school and try something 
new.
  I want to say this. In this country of ours, we cannot survive with 
half the kids in our urban districts dropping out of school. I am glad 
the President spoke about it in his State of the Union. I am glad the 
President talked about charter schools. But the real question is, Is he 
going to stand up and are the Democrats on the other side of the aisle 
and some Republicans going to stand up to the National Education 
Association, the National School Boards Association and some of these 
groups that want to keep things as they are?
  I am going to tell you something, Madam President. We will never make 
it. I want everybody to understand that I am for this bill, voting 
rights, but I am not going to support this bill unless I am convinced 
we are going to have an opportunity to debate this issue in the Senate 
and keep this program going for the boys and girls who are benefiting 
from it, the same kind of program that benefited so many thousands of 
people in the State of Ohio.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I thank my friend from Ohio. He 
speaks with such admirable passion about the needs of children who 
obviously are not his. He has a record on this issue. He knows, as I 
do, though, that some groups may disapprove, oppose this DC low-income 
student scholarship program. One group that doesn't oppose it--in fact, 
enthusiastically supports it--is the parents of low-income children in 
the District who have oversubscribed by multiples for this program 
every year.
  We are going to have conversations during this discussion. I support 
this program, as my friend from Ohio knows. Hopefully, we can get to a 
point where we can have an agreement that will get some floor time for 
this discussion. As I said earlier, since the Homeland Security and 
Governmental Affairs Committee has tucked within it jurisdiction over 
matters related to the District of Columbia, we would, I believe, be 
the authorizing committee.
  I am certainly committed to holding a hearing on the reauthorization 
bill. The Senator from Ohio rightly wants to guarantee by one means or 
another that there will be floor debate on this issue in a timely way; 
that is, so that we can consider it in plenty of time for the DC school 
system to act.
  Most of all, I tell him I admire the strength of his position because 
it is a position that cares for children. It is not against anything. 
It is for a good education for all our children. I thank him. I admire 
him.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of Colorado). The clerk will call 
the roll.
  The 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.


                           Amendment No. 591

  Mr. DURBIN. Mr. President, I ask unanimous consent that the pending 
amendment be set aside and that the clerk report the amendment which I 
have pending at the desk.
  The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Illinois [Mr. Durbin] proposes an 
     amendment numbered 591.

  Mr. DURBIN. I ask unanimous consent that the amendment be considered 
as read.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To encourage and promote diversity in communication media 
   ownership, and to ensure that the public airwaves are used in the 
                            public interest)

       At the end of the bill add the following:

     SEC. 9. FCC AUTHORITIES.

       (a) Clarification of General Powers.--Title III of the 
     Communications Act of 1934 is amended by inserting after 
     section 303 (47 U.S.C. 303) the following new section:

     ``SEC. 303B. CLARIFICATION OF GENERAL POWERS.

       ``(a) Certain Affirmative Actions Required.--The Commission 
     shall take actions to encourage and promote diversity in 
     communication media ownership and to ensure that broadcast 
     station licenses are used in the public interest.
       ``(b) Construction.--Nothing in section 303A shall be 
     construed to limit the authority of the Commission regarding 
     matters unrelated to a requirement that broadcasters present 
     or ascertain opposing viewpoints on issues of public 
     importance.''.
       (b) Severability.--Notwithstanding section 7(a), 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 
     amendment made by subsection (a) and the application of such 
     amendment to any other person or circumstance shall not be 
     affected by such holding.

  Mr. DURBIN. Mr. President, 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.
  Mrs. LINCOLN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. LINCOLN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mrs. Lincoln and Mr. Chambliss are printed in today's 
Record under ``Morning Business.'')
  Mr. CHAMBLISS. Mr. President, 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. BROWN. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              Buy America

  Mr. BROWN. Mr. President, we are in the worst recession since the 
Great Depression. We have been in a recession

[[Page 5931]]

in my State longer than the official 13 months that economists have 
noted. With the economic recovery package signed into law last week, we 
took a major step toward getting our economy on the path for success 
and toward rebuilding and strengthening the Nation's middle class. The 
economic recovery package means billions of dollars to help shore up 
State budgets and help States pay for essential programs such as 
Medicaid and unemployment insurance. The economic recovery package 
means money for job-creating efforts from shovel-ready projects to 
long-term investment in new technology.
  In this economic crisis, we have seen demand for manufactured goods 
slow to a crawl. Coupled with the unavailability of credit, many 
manufacturers have ceased or idled operations. American manufacturing 
shed 800,000 jobs last year, nearly one-third of all job losses. Last 
week many people probably missed the bad news on manufacturing released 
by the Federal Reserve. The Fed reported that output in manufacturing 
fell 2.5 percent in January. That means manufacturing lost 207,000 jobs 
in January alone. That is on top of manufacturing falling nearly 3 
percent in December. This puts manufacturing's decline over the last 3 
months at a shocking 26.7 percent.
  That is why this recovery package is so important. The recovery 
package has two key objectives: stimulate the economy and create jobs. 
The Government is investing billions of tax dollars in infrastructure, 
in safety net programs and alternative energy development. It is common 
sense to ensure that Federal funds for this recovery are used to buy 
American products and to help promote manufacturing and job creation.
  Studies across the board say more jobs are created when we have 
strong domestic sourcing requirements. One recent study estimates 33 
percent more manufacturing jobs will be created with ``Buy America''. 
When we utilize domestically manufactured goods, the more jobs we will 
create and the greater the stimulus will be to our economy, an economy 
that has been the engine of growth for the world. The American people 
clearly have spoken out that they want this ``Buy America'' provision. 
``Buy America'' is common sense. The majority of Americans know that. 
Some 84 percent favored strong ``Buy America'' provisions in the 
stimulus.
  Last week in Cleveland I visited ArcelorMittal Steel, a steel 
manufacturer that employs lots of people but is a foreign-owned 
company. I met with the plant manager and his staff. I met with union 
workers, including some who were recently laid off. This company, 
similar to all steel companies, is down 45 percent of its capacity. 
They are forced to lay off workers because the demand for steel has 
declined--steel for autos, steel for household appliances, steel for 
infrastructure projects. We talked about ``Buy America'' provisions and 
how that can help the plant get up and running again. It is important 
to note that ArcelorMittal is an international company. Its 
headquarters is not located in the United States. Yet that company 
believes ``Buy America'' provisions make sense, a foreign-based company 
that supports ``Buy America'' provisions in the recovery package. There 
are more foreign-based companies with American factories such as 
ArcelorMittal that can benefit from the stimulus. I hope ``Buy 
America,'' if properly implemented and properly enforced, will help 
manufacturers such as ArcelorMittal and even attract new foreign 
investment in the United States. We need to make sure these provisions 
are properly implemented. We need to make sure that when a State or 
local government requests a waiver on ``Buy America'' provisions, the 
agency makes the request known. We need transparency so that, at the 
very least, the taxpayers know if dollars are going to domestic or 
foreign manufacturers.
  There are good reasons on occasion to have waivers. Sometimes 
domestic steel or iron or cement might be too costly for a project to 
make sense. Sometimes the right product in the right quantity may not 
be available at the right time. Waivers are fine if implemented 
correctly, fairly, and with transparency. But that has not always been 
the case. Since 2001, the Federal Highway Administration has granted 54 
``Buy America'' waivers. The Federal Transit Administration has granted 
more than 40 waivers. Most were granted based on the product not being 
available in the United States. When the waiver request is not known by 
anyone except the Federal agency that receives it, how do we know the 
products are not made in America? Waivers can be fine but not if they 
are granted without transparency. We have a responsibility to the 
taxpayer to ensure that these dollars are creating American jobs.
  Americans, whether they are in Denver or Columbus, have supported 
``Buy America'' in large numbers. We know that, when the President 
spoke down the hall in the House about this stimulus package and about 
our efforts. We also know, if we are going to ask Americans to reach 
into their pockets and spend tens of millions of dollars on 
infrastructure projects, as Americans have said they would, we also 
need to know this will create the jobs we promised.
  The American people want three things: Accountability, which we give 
in this package; they want to know that this infrastructure is done by 
American workers; and they want to know their tax dollars are used to 
buy materials made in America for these projects that American workers 
are building.
  We have a responsibility to give American manufacturers the 
opportunity to bid on the steel and iron and cement and the concrete 
that will be in demand for these massive investments. ``Buy America'' 
is significant because it helps ensure we have a diverse and strong 
manufacturing base.
  Textbook trade theory says that making companies more and more 
specialized in one sector is an unquestionable good, but that is not 
always true. We have seen countries such as Great Britain 
overspecialize in finance while neglecting manufacturing. Some might 
say that has happened here. The people screaming bloody murder about 
``Buy America'' are the same people who oversold the benefits of free 
trade. These are entrenched interests, companies that, for instance, 
outsource their manufacturing, move their manufacturing plants abroad. 
They import products back into the United States, and they use cheap 
labor. That is so much of the story. In opposing ``Buy America,'' 
companies would say: We want to be able to sell our products overseas. 
That is not the real story. The real story is these companies want to 
outsource their production to China, use very inexpensive labor, take 
advantage of no worker safety rules in China, take advantage of very 
weak environmental rules in China, make those products there and then 
import them back into the United States, outsource the jobs to China, 
make the products there, and bring the products back to the United 
States. We know what that does to American employment. We also know 
what it does for food safety, toy safety, vitamins, all the things we 
have seen, contaminants in the food and toys. We cannot afford this any 
longer. We cannot be a healthy economy without strong manufacturing. A 
healthy economy is a balanced one, not overly dependent on one sector.
  Let me be clear. ``Buy America'' is not about slowing international 
trade. The editorial boards and pundits may scream trade war when the 
Congress considers how it will spend taxpayer dollars, but there is no 
danger of a trade war. There is no danger of protectionism. We are a 
country with the most open markets in the world. We are a country with 
an $800 billion trade deficit, $2 billion a day going out of the 
country rather than money coming into the country. How can we be called 
protectionist when we have that policy?
  The United States will continue to have the most open market in the 
world, and we should. The United States is a signatory to the World 
Trade Organization and other trade deals that actually limit policies 
that countries can use on things such as ``Buy America'' or on climate 
change

[[Page 5932]]

or on food and product safety. That, in itself, is a subject matter for 
further debate.
  This is about using tax dollars in the best way to create jobs in 
Illinois, Colorado, and in Ohio. Now that the provisions are in the 
bill, Congress will work with the Obama administration in implementing 
them with transparency and accountability. It is the right thing to do. 
It will put Americans back to work. Americans demand that their tax 
dollars be spent on American workers using American products to build 
this infrastructure to make a better economy.
  I thank the Chair.
  Mr. FEINGOLD. Mr. President, the fairness doctrine was repealed by 
the FCC over 20 years ago. I do not support its reinstatement because I 
don't like the idea of the government micromanaging speech. I also have 
serious questions about whether it would be constitutional to reinstate 
the fairness doctrine, given the wide variety of media outlets 
available for the expression of different points of view. That is why I 
voted for the amendment offered by Senator DeMint banning the fairness 
doctrine.
  Unfortunately, that amendment was drafted so broadly that it could 
have also restricted the FCC from encouraging localism and ensuring 
that broadcasters are living up to their public interest 
responsibilities. These are responsibilities that broadcasters agree to 
when they are provided a segment of spectrum--a valuable piece of 
public property--and they should not be undone. I supported the Durbin 
amendment to clarify that public interest obligations remain, while 
ensuring that the fairness doctrine does not return.
  Mr. DORGAN. My vote on the DeMint amendment, No. 573, should not be 
construed as a vote in favor of restoring the fairness doctrine. I do 
not favor restoring the fairness doctrine.
  However, the DeMint amendment went much further than legislating on 
the fairness doctrine. His amendment would have prohibited the FCC from 
establishing any program guidelines at all no matter how reasonable. 
For example, his amendment would have prohibited the FCC from 
establishing guidelines for children's programs or guidelines to 
prohibit violent programming during a family viewing hour in the 
evening. These are just two examples that the DeMint amendment would 
have prohibited.
  To be clear, I support the provision in the DeMint amendment that 
would have precluded the restoration of the fairness doctrine. My view 
is that the fairness doctrine is not appropriate for today's market. I 
do support the creation of reasonable public interest standards that 
attach to a broadcast license dealing with localism issues and 
community responsibility. But, I could not vote for such a broad 
amendment that would have stripped from FCC reasonable and appropriate 
regulation of the type described above.


                           Amendment No. 591

  The PRESIDING OFFICER (Mr. Bennet). The Senator from Illinois.
  Mr. DURBIN. It is my understanding the vote is scheduled for 2 
o'clock.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DURBIN. I ask unanimous consent that it be moved until 2 minutes 
after 2 and I be allowed to speak and there be response.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, before us is a debate on the fairness 
doctrine. Sixty years ago, the Federal Communications Commission said 
radio and TV stations had to tell Americans both sides of the story. In 
those days, television was just starting. In the 1950s, three networks 
emerged and the fairness doctrine applied for decades. Then, in 1987, 
the FCC canceled the fairness doctrine, and there has been a debate 
ever since whether we should return to it.
  Well, if you want to argue whether Americans should hear both sides 
of every story to make up their minds, I think it is a pretty basic 
concept. But while we were debating whether to return to the fairness 
doctrine, media and technology changed dramatically. It is no longer 
three networks, it is 200 channels, cable channels, and all sorts of 
opportunities for information.
  So the fairness doctrine in its day was the right thing for the right 
reason. Today it is not. Senator DeMint wants to eliminate it--make 
sure no one brings it back. No one is planning on bringing it back. 
There is no problem with that. But he included some language in his 
amendment that goes too far. It takes away the authority of the Federal 
Communications Commission to basically determine that radio and TV 
stations use their Federal licenses in the public interest. What does 
that mean?
  It means the FCC can tell a television station it cannot put on a 
violent movie early on Saturday morning when kids are tuning in to 
cartoons. It cannot put on something with sexual tones to it at a time 
when children and family are watching. There are limitations because it 
is using America's airwaves to make money. Use them responsibly in the 
public interest. I think it was inadvertent, but, in fact, he removed 
that. He removed that authority of the FCC.
  My amendment says two things. It is the first amendment we will vote 
on. First, the existing statutory requirement for diversity in media 
ownership is going to be encouraged so we have more and more different 
people applying for licenses for radio and TV stations. There is 
nothing wrong with that, as I see it. It is already in the law. 
Secondly, do not take away the FCC's power to say to public licensees 
of television and radio: Operate in the public interest. Make sure you 
have local news and weather. Make sure you do not have sexual content 
and violence on children's shows--basic things that are common sense.
  I do not think the Senator from South Carolina wanted to change that. 
He did inadvertently. My amendment cleans it up. If the Durbin 
amendment is adopted, I encourage people to support both the Durbin 
amendment and the DeMint amendment. If my amendment is not adopted, I 
hope they will reconsider their support for Senator DeMint's amendment.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, I am going to proceed for a few moments 
on leader time.
  The PRESIDING OFFICER. The Senator may proceed.
  Mr. McCONNELL. Mr. President, in recent months, a number of our 
colleagues on the other side of the aisle have expressed support for 
reinstating the so-called fairness doctrine. But let's be honest. The 
fairness doctrine was anything but fair. It amounted to Government 
control over political speech, and in the end it actually resulted in 
less, not more, political discourse over the airwaves because 
broadcasters did not want to deal with all of its redtape. That is 
precisely why the Federal Communications Commission repealed it back in 
1987, and why we must keep it from being reinstated now.
  The reality behind this so-called fairness doctrine is that some of 
my friends on the other side do not like what they are hearing on the 
radio these days. So instead of addressing the criticisms head on, they 
want to silence them.
  Americans will not stand for that, and we will not let it happen. 
Government is not the speech police, and I will not support--and I am 
confident the American people do not support--efforts to restrict free 
speech.
  The Founding Fathers enshrined the right to free speech in the very 
first amendment to the Constitution because they knew it was 
fundamental--that it was the one right without which the others would 
lose their force. They also knew future generations would have to 
continue to defend that right from those who viewed it as an obstacle 
to their goals.
  We should adopt the DeMint amendment to kill the so-called fairness 
doctrine once and for all.
  I yield the floor.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
591 offered by the Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask for the yeas and nays.

[[Page 5933]]

  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 57, nays 41, as follows:

                      [Rollcall Vote No. 70 Leg.]

                                YEAS--57

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--41

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Specter
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--1

       
     Kennedy
       
  The amendment (No. 591) was agreed to.
  Mr. DURBIN. Mr. President, I move to reconsider the vote.
  Mr. NELSON of Nebraska. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 573

  The PRESIDING OFFICER. There will now be 2 minutes of debate, equally 
divided, before a vote in relation to amendment No. 573 offered by the 
Senator from South Carolina. Who yields time?
  The Senator from South Carolina.
  Mr. DeMINT. Mr. President, if I could have my colleagues' attention 
for just a moment, I think this should be an easy vote for all of us. 
President Obama has expressed his opposition to the fairness doctrine. 
Senator Durbin has expressed his opposition to the fairness doctrine. 
This amendment, the Broadcasters Freedom Act, prohibits the Federal 
Communications Commission from implementing all or part of the fairness 
doctrine, which has been repealed.
  I wish to clear up one misunderstanding that has been stated on the 
other side. This amendment does not affect the public interest 
requirements of broadcast radio. It does not change children's 
programming or opposition to indecency. What it does is, it prohibits 
quotas and guidelines on programming, which is another way to prohibit 
the implementation of the fairness doctrine.
  While the fairness doctrine is a direct and obvious method to burden 
and chill broadcaster speech, there are also several indirect ways that 
are not as well-known, but no less available to proponents of limiting 
the freedom of our national media.
  Last year's FCC Localism Notice of Proposed Rulemaking--MB Docket No. 
04-233, released January 24, 2008, ``Localism Notice''--contained a 
number of ``tentative conclusions'' that, if adopted, would result in 
greater regulation of broadcaster speech.
  First, the FCC proposed to reintroduce license renewal processing 
``guidelines'' that would measure specific categories of speech aired 
by broadcasters. The guidelines would pressure broadcasters to air 
Commission-specified amounts of programming in Commission-defined 
program categories. Although the Localism Notice does not specify which 
categories broadcasters would be measured by, political programming, 
public affairs programming, and local news are mentioned as possible 
types of programming to be regulated. Broadcasters that do not meet the 
thresholds to the Commission's satisfaction would risk losing their 
license to broadcast.
  While ostensibly the renewal processing guidelines are meant to 
increase the total amount of local programming, the adjective ``local'' 
is ill-defined in this proceeding. It could be expanded to include an 
almost limitless array of speech and could shift with the political 
winds.
  My amendment, DeMint No. 573, would not eliminate the FCC's power to 
develop license renewal processing guidelines completely, but only its 
authority to develop processing guidelines that mimic its past 
authority under the fairness doctrine, hence the language which limits 
it to quotas or guidelines for issues of public importance.
  The second way in which the Commission has proposed to indirectly 
regulate broadcaster speech is by return of ascertainment requirements, 
which would mandate that every broadcaster develop and meet with an 
``advisory board'' made up of community groups and local officials that 
would ``inform the stations' programming decisions.'' This proposal 
would make broadcasters very vulnerable to pressure or even harassment 
by groups that do not approve of their programming.
  A similar ascertainment requirement was eliminated in the early 1980s 
after the Commission determined that the rule did more to create 
bureaucratic burdens than it did to improve broadcasting.
  Like the processing guidelines, the ascertainment requirement could 
become a factor for broadcasters at license renewal. Groups that feel a 
local broadcaster did not listen to their suggestions through the 
advisory board--suggestions to, for example, air more programming that 
addresses whatever social or political issue is of concern to these 
groups--could challenge the broadcasters' license and argue that the 
broadcaster ignored the ``needs and interests'' of their local 
community. Talk radio would be particularly vulnerable to this type of 
harassment, as would religious broadcasters.
  Again, my amendment, DeMint No. 573, would not eliminate the 
Commission's authority to mandate ascertainment completely, but only 
its authority to mandate that broadcasters seek out opposing viewpoints 
on ``issues of public importance.''
  I encourage all of my colleagues to support this amendment.
  The PRESIDING OFFICER. Who yields time in opposition?
  Mr. LIEBERMAN. Mr. President, I yield back the time on our side.
  Mr. DeMINT. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second. The question is on agreeing to the amendment.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER (Mr. Merkley). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 87, nays 11, as follows:

                      [Rollcall Vote No. 71 Leg.]

                                YEAS--87

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Durbin
     Ensign
     Enzi
     Feingold
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Kaufman
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reid
     Risch
     Roberts
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe

[[Page 5934]]


     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Wicker
     Wyden

                                NAYS--11

     Bingaman
     Conrad
     Dorgan
     Feinstein
     Harkin
     Johnson
     Kerry
     Reed
     Rockefeller
     Sanders
     Whitehouse

                             NOT VOTING--1

       
     Kennedy
       
  The amendment (No. 573) was agreed to.
  Mr. LIEBERMAN. Mr. President, I move to reconsider the vote, and I 
move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LIEBERMAN. Mr. President, I have a unanimous consent request that 
has been agreed to on both sides. It is as follows: I ask unanimous 
consent that amendments Nos. 579 and 587 be withdrawn and that when the 
Senate resumes consideration of the Ensign amendment No. 575, the 
second-degree amendment No. 576 be withdrawn; that there then be 30 
minutes of debate prior to a vote in relation to the Ensign amendment, 
with no amendment in order to the amendment prior to a vote, with the 
time equally divided and controlled between Senators Ensign and 
Feinstein or their designees; and further, that Senator Feinstein's 15 
minutes begin at 3:30 p.m.; that at 3:45 p.m., the Senate proceed to 
vote in relation to amendment No. 575; that upon disposition of 
amendment No. 575, no further amendments be in order; that the 
substitute amendment, as amended, be agreed to, the bill, as amended, 
be read a third time, and the Senate proceed to vote on passage of the 
bill; that passage of the bill be subject to a 60-vote threshold; that 
if the bill achieves that threshold, then the motion to reconsider be 
laid upon the table; provided further that the cloture motion be 
withdrawn, with this addendum: that 2 minutes of Senator Ensign's time 
be reserved to occur at 3:45 p.m., with the vote occurring with respect 
to Ensign amendment No. 575 following Senator Ensign's 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from South Dakota.


                      Amendment No. 579 Withdrawn

  Mr. THUNE. Mr. President, I had filed an amendment and have pending 
at the desk amendment No. 579, which is a concealed carry amendment. I 
talked about it yesterday on the floor of the Senate. I would like to 
have had a vote on it and certainly believe it is something the Senate 
ought to consider. It is worth voting on.
  My State of South Dakota is one of many States around the country 
that has concealed carry laws. What my amendment simply would have done 
is allowed those who have concealed carry permits in a particular State 
to have reciprocity with other States that have concealed carry laws, 
respectful of the laws of those other States, but it would have allowed 
people of this country under the second amendment to exercise the 
individual right to carry firearms insofar as they are adhering and 
following the laws of the State not only in which they reside but the 
State in which they would be carrying that firearm. That is something 
for which I think there is a lot of support.
  I introduced a bill in the Senate. It has 19 cosponsors. As I said, I 
offered the amendment to this particular piece of legislation. My 
understanding is the other side does not want to vote on it. What I 
have tried to ascertain is whether the chairman of the Judiciary 
Committee, the Senator from Vermont, Mr. Leahy, would be willing to 
hold a hearing. He informs me he will do that. I will have a hearing on 
the bill itself.
  With that understanding, Mr. President, my intention is to withdraw 
amendment No. 579 and hope that we will have an opportunity to consider 
it at some point at a future date.
  The PRESIDING OFFICER. The amendment has been withdrawn.
  The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank my friend from South Dakota. I 
just want to say as a manager of the bill, I was present at the 
conversation with Senator Leahy, the chairman of the Judiciary 
Committee, and Senator Thune. The conversation was exactly as reported.
  Senator Leahy could not be here because he had other pressing 
business, but he asked me to represent to our colleagues that the 
Judiciary Committee will hold a hearing on the amendment offered by 
Senator Thune and now withdrawn.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, the last amendment is going to be debated 
soon. Senator Ensign is here to begin that debate.
  Both Senator McConnell and I would like to make some brief remarks.
  (The remarks of Mr. Kyl and Mr. McConnell are printed in today's 
Record under ``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Nevada.


                           Amendment No. 575

  Mr. ENSIGN. Mr. President, I wish to take a little bit of time to 
refute some of the inaccuracies about my amendment dealing with the 
repeal of the gun ban in the District of Columbia. This really is about 
restoring second amendment rights to residents who live here in the 
District of Columbia. We have a constitutional right and duty to deal 
with matters dealing with the District of Columbia.
  Last year, the Supreme Court ruled that the laws that had been passed 
by the city council in the District of Columbia were in fact 
unconstitutional because the District of Columbia did not recognize 
there was a constitutional right to the individual--not just a militia 
but to the individual--to keep and bear arms. Since then, the District 
of Columbia has attempted to subvert what the Supreme Court said by 
putting very burdensome types of laws to make it more and more 
difficult for District residents to own a gun in order to protect 
themselves in their own homes.
  It is interesting. If you go back to what the Founders talked about, 
as far as the second amendment, look at James Madison. He wrote in 
Federalist No. 46:

       . . . the advantage of being armed, which the Americans 
     possess over the people of almost every other nation . . . 
     forms a barrier against the enterprises of ambition, more 
     insurmountable than any which a simple government of any form 
     can admit of.

  Washington, DC, has blatantly violated this right for more than 30 
years, and it has led to catastrophic results. This chart reflects the 
murder rates in Washington, DC, relative to 48 other of the largest 
cities, excluding Chicago, from the top 50 list. And this is all 
weighted by population. You can see here, and especially as we go 
forward, when other crime rates in the country were actually going down 
and murder rates in the country were going down, as Washington, DC, was 
enacting more and more gun ban laws and stricter gun ban laws, the 
murder rate in Washington, DC, continued to rise.
  It has been characterized that this bill would allow a 10-year-old to 
carry shotguns in the streets of Washington, DC. That is completely 
ridiculous. That is a scare tactic. Our amendment basically ensures the 
individual's second amendment right. It removes the tremendous barriers 
and burdens on law-abiding citizens to be able to have the protection 
they want, to protect themselves in their own homes.
  Right now, we know that if a criminal in Washington, DC, wants to get 
a gun, they will get a gun. We are making it difficult for the people 
who actually abide by the law to get a gun. We want law-abiding 
citizens to have the arms, not just the criminals. That is what this 
amendment is really all about.
  You are probably going to hear some people say that Washington, DC, 
is just trying, within the Supreme Court decision, to enact laws that 
will put reasonable restrictions on guns. I would say that is not the 
case, and the reason it is not the case is they are actually trying to 
make technical changes in the law which they think will restrict 
people's rights to keep and bear arms. It is going against the intent 
of what the Supreme Court has enacted.
  People across the United States have recognized for a long time how 
important it is for individuals to be able to keep and bear arms.

[[Page 5935]]

  Around the world, we often hear asked: Well, why does Great Britain 
have a lower murder rate than the United States? Well, first of all, 
there are a lot of cultural differences between the United States and 
Great Britain. But also, since Great Britain enacted some of its 
strictest gun control laws, murder rates have actually gone up in 
London.
  In case after case where you look to find out whether gun control 
laws actually are effective in reducing crime, the statistics are 
pretty overwhelming against it. Criminals will get the guns. They get 
them on the black market or they go someplace, but they get their guns. 
The question is, Are law-abiding citizens going to be able to protect 
themselves in their own homes?
  That is what this amendment is attempting to do, to say to citizens 
who live in the District of Columbia: We are going to protect your 
second amendment rights. The laws the District of Columbia has enacted 
to own a gun are stricter than what we require in Nevada to get a 
concealed weapons permit.
  Mr. President, I believe it is high time this body give the citizens 
who live in the District of Columbia that second amendment right to 
keep and bear arms in order to protect themselves in their own homes, 
so I urge my colleagues to support this amendment.
  Mr. President, I will save a couple of minutes right before the vote 
to be able to conclude my remarks, but how much time remains on my 
side?
  The PRESIDING OFFICER. There is 9 minutes remaining.
  Mr. ENSIGN. Mr. President, I reserve the remainder of my time, and I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SCHUMER. 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. SCHUMER. Mr. President, I rise now for the second time in strong 
opposition to Senator Ensign's amendment. This is a dangerous amendment 
that goes far beyond anything the Supreme Court contemplated in the 
Heller decision. If you have been committed to a mental institution, if 
you can't pass a vision test, this forces the District of Columbia to 
still allow you to have a gun. That doesn't make any sense.
  Americans basically believe in the Heller decision, which says there 
is a right to bear arms in the Constitution. But Americans have the 
good sense to know that no amendment is absolute. We put limitations on 
the first amendment--libel laws, pornography; you can't falsely scream 
``fire'' in a crowded theater. We put limits on every other amendment. 
Why is it that some in the gun lobby say there should be no limitation 
on the second amendment? They support limitations on the first 
amendment. I am sure most of them feel antipornography laws are 
justified.
  Just as those on the left, I believe, are wrong to say the first 
amendment should be broad, the fourth amendment should be broad, the 
fifth amendment should be broad, but the second amendment should be 
seen through the pinhole of only militias, those on the other side are 
equally wrong when they do the converse and say the first amendment 
should be narrow, the fourth amendment should be narrow, the fifth 
amendment should be narrow, but the second amendment should have almost 
no limitation.
  Isn't it reasonable to say that someone who has been in a mental 
institution shouldn't automatically get a gun? Isn't it reasonable to 
say that if someone fails a vision test, they should not automatically 
get a gun? Of course it is. But because we get into sort of a macho 
game here of, hey, we are going to show there should be no limitations 
on the second amendment, we end up hearing about fundamentally absurd 
propositions that those who fail vision tests should be allowed a gun. 
It defies common sense to say that someone who is voluntarily committed 
to a mental institution should be allowed to get a gun. In fact, 
limitations on access to guns by the mentally ill was one of the few 
things Justice Scalia, a strong second amendment supporter, 
specifically said would be okay after Heller.
  Let me just say to my colleagues, we are only a few years after 
Virginia Tech and the pain and tragedy for the parents who anguish 
every day for their lost sons and daughters. They came to us and 
lobbied us and said: Please just pass minimal laws to prevent those who 
are mentally ill from getting a gun. Now we are saying that in the 
District of Columbia that will be OK.
  As for the vision, there cannot be a more reasonable restriction than 
the requirement that someone see before they are allowed on the streets 
with a gun. We wouldn't want that in our communities where we live. Why 
would we impose it on the District of Columbia? The District of 
Columbia has the highest per capita homicide rate in the United States. 
I understand, if you are from, say, Wyoming--there are broad, open 
spaces, very low crime rate--that the rules on guns should be different 
than the rules in Washington, DC and New York City. I understand that. 
I accept it, as someone who has been an advocate of gun control.
  But why are we imposing those laws that may work in Wyoming on the 
people of the District of Columbia? Firearms cause more needless damage 
in Washington, DC than anywhere else. The Heller decision made it clear 
that Washington, DC could impose reasonable restrictions on the right 
to bear arms and that was perfectly consonant with the Constitution. 
Every Justice of the Supreme Court, including those who are the most 
conservative, such as Justice Scalia, such as Justice Thomas, believe 
there can be some limitation imposed. Because the NRA does not, too 
many in this country, and in this Chamber, jump when they say so.
  It is wrong. It makes people's lives less safe. It is unfortunate. I 
hope this body will have the courage to reject the Ensign amendment 
while still affirming the right to bear arms as certified in the Heller 
case.
  I yield the floor.
  Mr. HATCH. Mr. President, I rise to support final passage of S. 160, 
the District of Columbia House Voting Rights Act.
  I have spoken and written many times about my conclusion that the 
Constitution allows Congress to provide a House seat for the people of 
the District of Columbia.
  And I have said for more than 30 years that Americans living in the 
District should have all the rights of citizenship, including voting 
rights.
  The bill would also give an additional seat temporarily to the State 
next qualifying for one under the 2000 census.
  I believe the bill before us is a constitutional and balanced way to 
achieve these important goals.
  Article I, section 2, states that the House shall be composed of 
Members elected by the ``People of the several States.''
  The District did not yet exist when those words were drafted.
  The observation that this provision does not itself provide a House 
seat for the people of the District begs rather than answers the 
constitutional question.
  That question is whether the House Composition Clause prohibits 
Congress from providing for the people of the District what the 
Constitution provides for the people of the States.
  The Constitution uses the word ``States'' in various provisions.
  Opponents of this bill have argued that some of those cannot include 
the District.
  Once again, that observation begs rather than answers the 
constitutional question.
  For more than two centuries, the Supreme Court has held that other 
provisions framed in terms of ``States'' can indeed apply to the 
District.
  Or, even more relevant to the bill before us today, the Supreme Court 
has ruled that Congress can legislatively do for the District what the 
Constitution does for States.
  I believe the House Composition Clause falls in this category.
  The Supreme Court has held, for example, that Congress could apply to 
the District the direct taxes that the

[[Page 5936]]

original Constitution apportioned among the several States.
  Opponents of the bill before us have not even attempted to explain 
why the phrase ``the several States'' can apply to the District, which 
is obviously not a State, but the phrase ``the People of the several 
States'' cannot apply to the District, which obviously has population.
  The Supreme Court has held that Congress can extend to the District 
Federal court jurisdiction over lawsuits by citizens of different 
States.
  The great Chief Justice John Marshall wrote in 1805 that while the 
Constitution does itself extend such diversity jurisdiction to the 
District, ``this is a subject for legislative . . . consideration.''
  He added that the contrary conclusion, which I take to be the 
position of those opposing the bill before us today, would be simply 
extraordinary.
  Those opponents have not even attempted to explain why extending 
diversity jurisdiction to the District is a subject for legislative 
consideration but extending House representation to the people of the 
District is not.
  The Supreme Court has held that Congress can extend to the District 
the restrictions the fourteenth amendment imposes upon the States.
  Once again, the Court suggested that Congress's plenary authority 
over the District would be a sufficient basis for such legislation.
  Opponents of S. 160 have cited the decision in Adams v. Clinton for 
the proposition that the Constitution does not provide a right to 
congressional representation for the District.
  I agree.
  That decision did not say, however, that Congress was precluded from 
doing so.
  In fact, the court said the opposite.
  The court in Adams said that while it lacked authority to grant such 
representation in the name of the Constitution, the plaintiffs could 
``plead their case in other venues,'' including ``the political 
process.''
  That is precisely what the bill before us represents and opponents of 
S. 160 have not even attempted to explain otherwise.
  Let me repeat, the constitutional question is not whether the 
Constitution itself grants House representation to the people of the 
District. It does not.
  The constitutional question is whether Congress may, under its 
explicit and plenary authority over the District, legislatively provide 
for the people of the District what the Constitution provides for the 
people of the States.
  Those who say that the word ``States'' necessarily excludes the 
District must at least try to show that the many judicial precedents 
saying otherwise either were wrongly decided or are somehow irrelevant 
to this bill. They have not even attempted to do either.
  I believe that the foundational principle of representation and 
suffrage, the legislative actions by America's Founders, two centuries 
of judicial precedent, and Congress's explicit legislative authority 
over the District in all cases whatsoever combine to allow Congress to 
enact the bill before us today.
  One of my predecessors as a Senator from Utah, George Sutherland, was 
later appointed to the Supreme Court.
  He wrote for the Court in 1933 what I believe is relevant to this 
debate today:

       The District [of Columbia] was made up of portions of two 
     states of the original states of the Union, and was not taken 
     out of the Union by the cession. Prior thereto its 
     inhabitants were entitled to all the rights, guarantees, and 
     immunities of the Constitution. . . . We think it is not 
     reasonable to assume that the cession stripped them of those 
     rights.

  More than 30 years ago, I made the same argument on this floor and 
later argued that one way to achieve this goal was by giving the people 
of the District representation in the House.
  The defeat of the retrocession amendment offered by the Senator from 
Arizona showed that the underlying bill is the only legislative vehicle 
for providing this representation.
  I voted for that amendment as a vote on the idea of retrocession, 
which I find has some general merit.
  Even with my vote, however, the Senate resoundingly defeated it.
  So I urge the Senate to pass this bill.
  It constitutionally gives one House seat to the people of the 
District.
  It fairly gives another seat to the State qualifying for one under 
the last census.
  It explicitly and implicitly disclaims Senate representation for the 
District.
  It provides for expedited judicial review.
  In short, I believe this is a sound and fair way to strengthen our 
system of self-government so that Americans can exercise the most 
precious right available in a free country, the right to participate in 
electing those who govern us.
  Mr. FEINGOLD. Mr. President, I am pleased to support this bill, and 
congratulate the Senator from Connecticut and the Senator from Utah for 
their tireless efforts. Senator Lieberman and Senator Hatch have put 
forward innovative, bipartisan legislation that will strengthen our 
democracy. I also want to recognize the contribution of the majority 
leader, who, by championing this issue, renews and fulfills our 
country's commitment to equality, democracy, and justice.
  When I watch my colleagues on the floor today, I see the spirit of 
Paul Douglas, Hubert Humphrey, and Everett Dirksen. This legislation is 
part of the struggle to fulfill the promise of America that led to the 
landmark civil rights bills of 1957, 1964, and 1965. Today, we follow 
in the footsteps of some of our greatest predecessors. We are here to 
right a historic wrong, to enfranchise hundreds of thousands of our 
fellow Americans by giving them a vote in Congress.
  The struggle to give Washington, DC, a vote in the House of 
Representatives has already been historic. I was disappointed that the 
Senate was the graveyard for this bill in 2007. By using a filibuster 
to prevent the bill from even reaching the floor at that time, 
opponents of this bill recalled history, too--an unfortunate history we 
should not revisit. I am sure that I do not need to remind anyone here 
that for decades the Senate was an implacable bulwark that no civil 
rights bill could breach. Unfortunately, when this great institution 
was faced a year and a half ago with a new kind of voting rights bill, 
it did not rise to the challenge.
  Now we have a chance to correct this breach of American principles 
and pass the District of Columbia House Voting Rights Act of 2009. And 
so now is the time to remedy the injustice being done to Americans 
residing in the District of Columbia, and stop this violation of their 
fundamental rights. Now is the time to take action on this legislation 
and to finally give the disenfranchised District at least a partial say 
in the decisions of the Congress, to make the ``People's House'' a body 
that truly represents all of the people of this Nation.
  In 1964, the Supreme Court stated that ``[n]o 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, as good citizens, we must live.'' It is 
time for Congress to live up to those words. At a time when Americans 
whose families wait for them at home in the District are fighting for 
our country overseas, it is a cruel and bitter irony that their own 
country denies them the right to representation in the House.
  With all of the difficult issues and momentous decisions facing this 
Congress, the people of DC deserve a voice in it, now more than ever. 
As of February 14, 29 DC residents have been killed or wounded in Iraq 
or Afghanistan, wars that their elected representative had no say in 
commencing or funding. Approximately 1,500 homes are in foreclosure or 
pre-foreclosure, unemployment has gone up over 3 percent in the last 
year, to 8.8 percent. Just like all other Americans, the residents of 
the District want to participate in the crucial and difficult debates 
this Congress is having over foreign and economic policy. They want to 
set a new course for this country. Their voices should count just as 
much as their fellow citizens'.
  Opponents of this bill have asserted that it is unconstitutional. I 
chaired a Judiciary Committee hearing in May 2007 to examine whether 
the Constitution, perhaps the greatest testament to

[[Page 5937]]

democracy and freedom in human history, prevents the elected 
legislature of the people of this country from granting the most basic 
right of citizenship to the people of the District of Columbia. The 
hearing confirmed that while this is not an easy question of 
constitutional interpretation, there are strong arguments for the 
bill's constitutionality. Our conclusions were strengthened by the 
finding of the Committee on Homeland Security and Governmental Affairs 
that Congress's authority to legislatively extend House representation 
is supported by two centuries of judicial precedent.
  In light of the historic wrong that this bill will correct, the case 
for its constitutionality is certainly strong enough to justify 
enacting it and letting the Supreme Court make the final decision. The 
Constitution grants Congress the power of ``exclusive legislation, in 
all cases whatsoever,'' over the District; I believe that we can use 
that authority to ensure that this Government's just powers are derived 
from the consent of the governed. Moreover, the basic sweep of the 
Constitution, its very essence, is to protect the fundamental rights of 
the citizens of this country, including the right to be represented in 
Congress.
  The other fundamental document of our founding, the Declaration of 
Independence, laid out a list of grievances against the King of Great 
Britain, including the following:

       He has refused to pass other Laws for the Accommodation of 
     large Districts of People, unless those People would 
     relinquish the Right of Representation in the Legislature, a 
     Right inestimable to them, and formidable to Tyrants only.

  That inestimable right has been denied to the residents of the 
District of Columbia for far too long.
  We in Congress have a duty to fulfill the promise of democracy for DC 
residents. Those who rely on constitutional arguments to oppose this 
bill should ask themselves what the Framers would think today, if they 
were faced with the question of whether their handiwork should be used 
to prevent Congress from granting over a half million people the most 
basic right in a democracy--the right of representation in the 
legislature. It is simply inconceivable to me that those great and 
brave patriots would be comfortable with such a blatant injustice.
  I hope that we finally have the votes to right this historic wrong. I 
urge my colleagues to support the District of Columbia House Voting 
Rights Act of 2009, and grant the most basic of democratic rights to 
the people of the District.
  Mr. CORNYN. Mr. President, I ask unanimous consent a Washington Times 
article by George Smith on February 13, 2009; testimony by John P. 
Elwood, Deputy Assistant Attorney General before the Subcommittee on 
the Constitution, Civil Rights, and Property Rights, Senate Committee 
on the Judiciary on May 23, 2007; and a Statement of Administration 
Policy from September 18, 2007, be printed in the Record.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Feb. 13, 2009]

                       Not on Constitution Avenue

                          (By George C. Smith)

       As the Obama administration commences its reign of one-
     party government, attention has understandably focused on the 
     president's economic stimulus program and his new approach to 
     the foreign terrorist threat.
       But preoccupation with these topics should not divert 
     attention from what may be the most ominous, and radical, 
     collaboration between the new president and the Democratic-
     controlled Congress: the enactment of blatantly 
     unconstitutional legislation to bypass the constitutional 
     amendment process and give the District of Columbia a seat in 
     the House of Representatives in a crass triumph of raw 
     political power over the rule of law.
       With relentless clarity, in provision after provision, the 
     Constitution specifies that representation in both Houses of 
     Congress is limited to the states--and the District of 
     Columbia is not a state. The very first sentence of the 
     Constitution says, ``All legislative powers herein granted 
     shall be vested in a Congress of the United States''--not a 
     Congress of the United Entities, Districts, Territories or 
     Enclaves. The second sentence then specifies that the House 
     of Representatives is to be composed of members ``chosen by 
     the people of the several States.'' All told, no fewer than 
     11 constitutional provisions make it clear that congressional 
     representation is linked inextricably to statehood.
       If there were any plausible doubt that congressional 
     representation was intentionally limited to the states when 
     the Constitution was drafted in 1787, it would have been 
     conclusively removed when the 39th Congress reiterated that 
     ``Representatives shall be apportioned among the several 
     States'' when it revisited the question of congressional 
     apportionment in drafting the 14th Amendment in 1866. (In 
     1866 as well as in 1787, there was no ambiguity and no 
     mistake in the express linkage of congressional 
     representation to statehood.)
       This does not mean, however, that the District of Columbia 
     cannot obtain congressional representation. It only means it 
     must do so by means of a constitutional amendment, as plainly 
     provided in Article V of the Constitution.
       For more than 200 years, this understanding of the 
     Constitution (intelligible to any literate 12-year-old who 
     reads its text) was accepted even by ardent advocates of D.C. 
     representation. On repeated occasions in the 1960s and 197os, 
     for example, the Democratic-controlled House Judiciary 
     Committee ruefully acknowledged that a constitutional 
     amendment was ``essential'' if D.C. were to receive such 
     representation. They expressly recognized that the 
     Constitution did not allow Congress to grant D.C. 
     representation by simple legislation, and proceeded to 
     propose the constitutional amendment that was necessary. The 
     amendment failed to achieve ratification, but the rule of law 
     was honored.
       The constitutional text limiting congressional 
     representation to the states has not changed during the past 
     several years. Nor have judicial interpretations of that 
     text, which have consistently acknowledged that limitation. 
     What has changed, however, is the willingness of D.C. 
     representation advocates to run roughshod over the 
     Constitution because they now have the raw political power to 
     pass a statute awarding the District a seat in the House by 
     main force.
       As a fig leaf to cover up their brute power play, they 
     invoke the risible theory that a constitutional provision 
     authorizing Congress to exercise legislative jurisdiction 
     over federal enclaves--including the District, but also 
     including military reservations, park lands and similar 
     enclaves--enables Congress to override express constitutional 
     requirements, including the limitation of congressional 
     representation to states, as long as they are doing so on 
     behalf of the District. Oddly, this interpretation of the 
     Enclave Clause somehow escaped the grasp of the Framers, the 
     courts, and Congress for more than two centuries.
       Apart from the fact that the Supreme Court has flatly held 
     that Congress' power under the Enclave Clause is indeed 
     limited by other constitutional requirements, the absurdity 
     of the theory is demonstrated by considering its logical 
     consequences. It would enable Congress to undercut the entire 
     structure of state-based congressional representation--in the 
     Senate as well as in the House--by extending representation 
     to an unlimited variety of enclaves and territories by simply 
     passing statutes reflecting evanescent political majorities. 
     A more radical subversion of constitutional government would 
     be difficult to imagine.
       During the 110th Congress, it was only President Bush's 
     veto threat, and a razor-thin sufficiency of Republican 
     Senate votes to sustain a filibuster, that prevented 
     enactment of the D.C. House seat legislation--what liberal 
     legal scholar Jonathan Turley referred to as the most 
     ``premeditated'' unconstitutional act in decades. But with 
     Barack Obama's election and solid Democrat majorities in both 
     Houses, there is no longer a finger in the dike. D.C. 
     Delegate Eleanor Holmes Norton has asserted that Mr. Obama 
     has committed to signing such legislation.
       Significantly, the Justice Department carefully and 
     forcefully opined and testified during the last Congress that 
     the D.C. House legislation is patently unconstitutional. 
     Given the current president's apparent commitment to sign the 
     bill, however, it is difficult to envisage the new political 
     appointees of the Obama Justice Department raising any 
     constitutional objections to this grotesque power play. 
     Interestingly, however, former Clinton-era Solicitor General 
     Walter Dellinger recently observed that the persons named by 
     the president-elect to advise him on such constitutional 
     issues at the Justice Department ``bring a stature to the job 
     that will allow them to say no to the president when no is 
     the correct answer.'' ``No'' obviously remains the correct 
     answer to the question of whether the president should sign 
     D.C. House seat legislation that repudiates the 
     Constitution's text, more than 200 years of unwavering 
     historical practice and repeated pronouncements of the 
     federal judiciary. But only the delusional would expect that 
     the new president's men and women at Justice would stand with 
     the Constitution against the menacing force of raw political 
     power.

[[Page 5938]]

     
                                  ____
          CONSTITUTIONALITY OF D.C. VOTING RIGHTS ACT OF 2007

       S. 1257, a bill to grant the District of Columbia 
     representation in the House of Representatives as well as to 
     provide an additional House seat for Utah, violates the 
     Constitution's provisions governing the composition and 
     election of the United States Congress.

 Testimony Before the Subcommittee on the Constitution, Civil Rights, 
         and Property Rights, Senate Committee on the Judiciary

       Thank you for the opportunity to discuss the Department's 
     views on S. 1257, a bill to grant the District of Columbia 
     representation in the House of Representatives as well as to 
     provide an additional House seat for Utah. For the same 
     reasons stated in the Statement of Administration Policy on 
     the House version of this legislation, the Administration 
     concludes that S. 1257 violates the Constitution's provisions 
     governing the composition and election of the United States 
     Congress. Accordingly, if S. 1257 were presented to the 
     President, his senior advisors would recommend that he veto 
     the bill. I will confine my testimony to the constitutional 
     issues posed by the legislation.
       The Department's constitutional position on the legislation 
     is straightforward and is dictated by the unambiguous text of 
     the Constitution as understood and applied for over 200 
     years. Article I, section 2 of the Constitution provides:
       ``The House of Representatives 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.''
       This language, together with the language of eleven other 
     explicit constitutional provisions, including the Twenty-
     Third Amendment ratified in 1961,\1\ ``makes clear just how 
     deeply Congressional representation is tied to the structure 
     of statehood.''\2\ The District of Columbia is not a State. 
     In the absence of a constitutional amendment, therefore, the 
     explicit provisions of the Constitution do not permit 
     Congress to grant congressional representation to the 
     District through legislation.
       Shortly after the Constitution was ratified, the District 
     of Columbia was established as the Seat of Government of the 
     United States in accordance with Article I, Sec. 8, cl. 17 of 
     the Constitution. The Framers deliberately placed the capital 
     in a federal enclave that was not itself a State to ensure 
     that the federal Government had the ability to protect itself 
     from potentially hostile state forces. The Framers also gave 
     Congress ``exclusive'' authority to enact legislation for the 
     internal governance of the enclave to be chosen as the Seat 
     of Government--the same authority Congress wields over the 
     many other federal enclaves ceded by the States.
       Beginning even before the District of Columbia was 
     established as the Seat of Government, and continuing to 
     today, there have been determined efforts to obtain 
     congressional representation for the District. Apart from the 
     various unsuccessful attempts to secure such representation 
     through litigation, such efforts have consistently recognized 
     that, because the District is not a State, a constitutional 
     amendment is necessary for it to obtain congressional 
     representation. S. 1257 represents a departure from that 
     settled constitutional and historical understanding, which 
     has long been recognized and accepted by even ardent 
     proponents of District representation.
       One of the earliest attempts to secure congressional 
     representation for the Seat of Government was made by no less 
     a constitutional authority than Alexander Hamilton at the 
     pivotal New York ratifying convention. Recognizing that the 
     proposed Constitution did not provide congressional 
     representation for those who would reside in the Seat of 
     Government, Hamilton offered an amendment to the Enclave 
     Clause that would have provided:
       ``That When the Number of Persons in the District of 
     Territory to be laid out for the Seat of the Government of 
     the United States, shall according to the Rule for the 
     Apportionment of Representatives and Direct Taxes Amount to 
     [left blank] such District shall cease to be parcel of the 
     State granting the Same, and Provision shall be made by 
     Congress for their having a District Representation in that 
     Body.''\3\
       Hamilton's proposed amendment was rejected. Other 
     historical materials further confirm the contemporary 
     understanding that the Constitution did not contemplate 
     congressional representation for the District and that a 
     constitutional amendment would be necessary to make such 
     provision.\4\ These historical facts refute the contention by 
     proponents of S. 1257 that the Framers simply did not 
     consider the lack of congressional representation and, if 
     they had considered it, that they would have provided such 
     representation. In fact, Framers and ratifiers did consider 
     the question and rejected a proposal for such representation.
       In more recent years, major efforts to provide 
     congressional representation for the District were pursued in 
     Congress in the 1960s and 1970s, but on each occasion 
     Congress expressly recognized that obtaining such 
     representation would require either Statehood or a 
     constitutional amendment. For example, when the House 
     Judiciary Committee favorably recommended a constitutional 
     amendment for District representation in 1967, it stated as 
     follows:
       ``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. This is 
     the case because provisions for elections of Senators and 
     Representatives in the Constitution are stated in terms of 
     the States, and the District of Columbia is not a State.''\5\
       Congress again considered the District representation issue 
     in 1975, and the House Judiciary Committee again expressly 
     acknowledged that, ``[i]f the citizens of the District are to 
     have voting representation in Congress, a constitutional 
     amendment is essential; statutory action will not 
     suffice.''\6\
       Of course, the courts have not directly reviewed the 
     constitutionality of a statute purporting to grant the 
     District representation because, for the reasons so 
     forcefully reiterated by the House Judiciary Committee, 
     Congress has not previously considered such legislation 
     constitutionally permissible. But numerous federal courts 
     have emphatically concluded that the existing Constitution 
     does not permit the provision of congressional representation 
     for the District. In Adams v. Clinton, a three-judge court 
     stated, in a decision affirmed by the Supreme Court, that 
     ``the Constitution does not contemplate that the District may 
     serve as a state for purposes of the apportionment of 
     congressional representation'' and stressed that Article I 
     ``makes clear just how deeply Congressional representation is 
     tied to the structure of statehood.'' 90 F. Supp. 2d 35, 46-
     47 (D.D.C.), aff'd, 531 U.S. 941 (2000); see generally S. Ry. 
     Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 462 
     (1979) (stating that summary affirmance is a precedential 
     ruling on the merits). In Banner v. United States, 428 F.3d 
     303 (D.C. Cir. 2005) (per curiam), a panel of the D.C. 
     Circuit that included Chief Justice John Roberts flatly 
     concluded: ``[t]he Constitution denies District residents 
     voting representation in Congress. . . . Congress is the 
     District's Government, see U.S. Const. art. I, Sec. 8, cl. 
     17, and the fact that District residents do not have 
     congressional representation does not alter that 
     constitutional reality.'' Id. at 309.\7\ The court added: 
     ``[i]t is beyond question that the Constitution grants 
     Congress exclusive authority to govern the District, but does 
     not provide for District representation in Congress.'' Id. at 
     312. And in explaining why the Constitution does not permit 
     the District's delegate in Congress to have the voting power 
     of a Representative in Michel v. Anderson, 817 F. Supp. 126 
     (D.D.C. 1993), the court stressed that the legislative power 
     ``is constitutionally limited to `Members chosen . . . by the 
     People of the several States.' U.S. Const. Art. I, Sec. [2], 
     cl. 1.'' Id. at 140.
       The numerous explicit provisions of the constitutional 
     text; the consistent construction of those provisions 
     throughout the course of American history by courts, 
     Congress, and the Executive;\8\ and the historical evidence 
     of the Framers' and ratifiers' intent in adopting the 
     Constitution conclusively demonstrate that the Constitution 
     does not permit the granting of congressional representation 
     to the District by simple legislation.
       We are aware of, and not persuaded by, the recent and novel 
     claim that this legislation should be viewed as a 
     constitutional exercise of Congress's authority under the 
     Enclave Clause, U.S. Const. art. I, Sec. 8, cl. 17, to 
     ``exercise exclusive legislation'' over the Seat of 
     Government and other federal enclaves. That theory is 
     insupportable. First, it is incompatible with the plain 
     language of the many provisions of the Constitution that, 
     unlike the Enclave Clause, are directly and specifically 
     concerned with the composition, election, and very nature of 
     the House of Representatives and the Congress. Those 
     provisions were the very linchpin of the Constitution, 
     because it was only by reconciling the conflicting wishes of 
     the large and small States as to representation in Congress 
     that the Great Compromise that enabled the Constitution's 
     ratification was made possible. Consequently, every word of 
     Article I's provisions concerning the composition and 
     election of the House and the Senate--and particularly the 
     words repeatedly linking congressional representation to 
     ``each State'' or ``the People of the several States''--was 
     carefully chosen. In contrast, the Enclave Clause has nothing 
     to do with the composition, qualifications, or election of 
     Members of Congress. Its provision for ``exclusive 
     legislation'' concerns legislation respecting the internal 
     operation of ``such District'' and other enclaves. The 
     Enclave Clause gives Congress extensive legislative authority 
     ``over such District,'' but that authority plainly does not 
     extend to legislation affecting the entire Nation. S. 1257 
     would alter the very nature of the House of Representatives. 
     By no reasonable construction can the narrowly focused 
     provisions of the Enclave Clause be construed to give 
     Congress such sweeping authority.
       Second, whatever power Congress has under the Enclave 
     Clause is limited by the other provisions of the 
     Constitution. As stated by the Supreme Court in Binns v. 
     United States, 194

[[Page 5939]]

       U.S. 486 (1904), the Enclave Clause gives Congress plenary 
     power over the District ``save as controlled by the 
     provisions of the Constitution.'' Id. at 491. As the Supreme 
     Court has further explained, the Clause gives Congress 
     legislative authority over the District and other enclaves 
     ``in all cases where legislation is possible.''\9\ The 
     composition, election, and qualifications of Members of the 
     House are expressly and specifically governed by other 
     provisions of the Constitution that tie congressional 
     representation to Statehood. The Enclave Clause gives 
     Congress no authority to deviate from those core 
     constitutional provisions.
       Third, the notion that the Enclave Clause authorized 
     legislation establishing congressional representation for the 
     Seat of Government is contrary to the contemporary 
     understanding of the Framers and the consistent historical 
     practice of Congress. As I mentioned earlier, the amendment 
     unsuccessfully offered by Alexander Hamilton at the New York 
     ratifying convention to authorize such representation when 
     the Seat of Government's population reached a certain level 
     persuasively demonstrates that the Framers did not read the 
     Enclave Clause to authorize or contemplate such 
     representation. Other contemporaneous historical evidence 
     reinforces that understanding. See supra n. 4. Moreover, 
     Congress's consistent recognition in practice that 
     constitutional amendments were necessary not only to provide 
     congressional representation for the District, but also to 
     grant it electoral votes for President and Vice President 
     under the 23rd Amendment, belies the notion that the Enclave 
     Clause has all along authorized the achievement of such 
     measures through simple legislation. Given the enthusiastic 
     support for such measures by their congressional proponents, 
     it is simply implausible that Congress would not previously 
     have discovered and utilized that authority as a means of 
     avoiding the enormous difficulties of constitutional 
     amendment.
       Fourth, the proponents' interpretation of the Enclave 
     Clause proves far too much; the consequences that would 
     necessarily flow from acceptance of that theory demonstrate 
     its implausibility. As the Supreme Court has recognized, 
     ``[t]he power of Congress over the federal enclaves that come 
     within the scope of Art. I, 8, cl. 17, is obviously the same 
     as the power of Congress over the District of Columbia.''\10\ 
     It follows that if Congress has constitutional authority to 
     provide congressional representation for the District under 
     the Enclave Clause, it has the same authority for the other 
     numerous federal enclaves (such as various military bases and 
     assorted federal lands ceded by the States). But that is not 
     all. The Supreme Court has also recognized that Congress's 
     authority to legislate respecting the U.S. territories under 
     the Territories Clause, U.S. Const. art. IV, 3, cl. 2, is 
     equivalent to its ``exclusive legislation'' authority under 
     the Enclave Clause. See, e.g., Binns, 194 U.S. at 488. If the 
     general language of the Enclave Clause provides authority to 
     depart from the congressional representational provisions of 
     Article I, it is not apparent why similar authority does not 
     reside in the Territories Clause, which would enable Congress 
     to enact legislation authorizing congressional representation 
     for Puerto Rico, the Virgin Islands, and other territories. 
     These unavoidable corollaries of the theory underlying S. 
     1257 demonstrate its invalidity. Given the great care with 
     which the Framers provided for State-based congressional 
     representation in the Composition Clause and related 
     provisions, it is implausible to suggest that they would have 
     simultaneously provided for the subversion of those very 
     provisions by giving Congress carte blanche to create an 
     indefinite number of additional seats under the Enclave 
     Clause.
       Finally, we note that the bill's proponents conspicuously 
     fail to address another logical consequence that flows from 
     the Enclave Clause theory: If Congress may grant the District 
     representation in the House by virtue of its purportedly 
     expansive authority to legislate to further the District's 
     general welfare, it follows logically that it could use the 
     same authority to grant the District (and other enclaves and 
     territories) two Senators as well.
       At bottom, the theory that underlies S. 1257 rests on the 
     premise that the Framers drafted a Constitution that left the 
     door open for the creation of an indefinite number of 
     congressional seats that would have fatally undermined the 
     carefully crafted representation provisions that were the 
     linchpin of the Constitution. Such a premise is contradicted 
     by the historical and constitutional record.
       The clear and carefully phrased provisions for State-based 
     congressional representation constitute the very bedrock of 
     our Constitution. Those provisions have stood the test of 
     time in providing a strong and stable basis for the 
     preservation of constitutional democracy and the rule of law. 
     If enacted, S. 1257 would undermine the integrity of those 
     critical provisions and open the door to further deviations 
     from the successful framework that is our constitutional 
     heritage. If the District is to be accorded congressional 
     representation without Statehood, it must be accomplished 
     through a process that is consistent with our constitutional 
     scheme, such as amendment as provided by Article V of the 
     Constitution.
                                                   John P. Elwood,
                                Deputy Assistant Attorney General.


                                endnotes

     \1\E.g., U.S. Const. art. I, Sec. Sec. 2-4; art. II, Sec. 1, 
     cl. 2; amend. XIV, Sec. 2; amend. XVII; amend. XXIII, Sec. 1.
     \2\Adams v. Clinton, 90 F. Supp. 2d 35, 46-47 (D.D.C.), 
     aff'd, 531 U.S. 940, 941 (2000).
     \3\The Papers of Alexander Hamilton 189-90 (Harold C. Syrett 
     ed., 1962) (emphasis added).
     \4\See 10 Annals of Congress 991, 998-99 (1801) (remarks of 
     Rep. John Dennis of Maryland) (stating that because of 
     District residents' ``contiguity to, and residence among the 
     members of [Congress],'' that ``though they might not be 
     represented in the national body, their voice would be heard. 
     But if it should be necessary [that they be represented], the 
     Constitution might be so altered as to give them a delegate 
     to the General Legislature when their numbers should become 
     sufficient''); see also 5 The Documentary History of the 
     Ratification of the Constitution 621 (Merrill Jensen, John P. 
     Kaminski & Gaspare J. Saladino eds., 1976) (statement by 
     Samuel Osgood, a delegate to the Massachusetts ratifying 
     convention, that he could accept the Seat of Government 
     provision only if it were amended to provide that the 
     District be ``represented in the lower House,'' though no 
     such amendment was ultimately included in the amendments 
     recommended by the Massachusetts convention).
     \5\Providing Representation of the District of Columbia in 
     Congress, H.R. Rep. No. 90-819, at 4 (1967) (emphasis added).
     \6\Providing Representation of the District of Columbia in 
     Congress, H.R. Rep. No. 94-714, at 4 (1975).
     \7\Judge Roberts was a member of the D.C. Circuit when Banner 
     was briefed and argued, but was serving as Chief Justice when 
     the opinion issued. See Banner, 428 F.3d at 304-05 n.l.
     \8\See, e.g., Letter for Mr. Benjamin Zelenko, Committee on 
     the Judiciary, House of Representatives, from Martin F. 
     Richman, Acting Assistant Attorney General, Office of Legal 
     Counsel (Aug. 11, 1967) (expressing the view that ``a 
     constitutional amendment is essential'' for the District to 
     obtain voting representation in Congress in the 
     recommendations for the Committee Report on a proposed 
     constitutional amendment); District of Columbia 
     Representation in Congress: Hearings on S.J. Res. 65 Before 
     the Subcomm. on the Constitution of the Comm. on the 
     Judiciary, 95th Cong. 16-29 (1978) (statement of John M. 
     Harmon, Assistant Attorney General, Office of Legal Counsel). 
     In endorsing a constitutional amendment as the means of 
     obtaining congressional representation for the District, Mr. 
     Harmon discussed the alternative ways of obtaining such 
     representation, particularly the option of statehood 
     legislation. Conspicuous by its absence was any suggestion 
     that such representation could be provided through 
     legislation granting the District a seat.
     \9\O'Donoghue v. United States, 289 U.S. 516, 539 (1993) 
     (citation omitted).
     \10\Paul v. United States, 371 U.S. 245, 263-64 (1963).
                                  ____

         Executive Office of the President, Office of Management 
           and Budget, Washington, DC, September 18, 2007.

                   Statement of Administration Policy


     S. 1257--District of Columbia House Voting Rights Act of 2007

       The Administration strongly opposes passage of S. 1257. The 
     bill violates the Constitution's provisions governing the 
     composition and election of the United States Congress. 
     Accordingly, if S. 1257 were presented to the President, his 
     senior advisors would recommend that he veto the bill.
       The Constitution limits representation in the House to 
     Representatives of States. Article I, Section 2 provides: 
     ``The House of Representatives 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.'' The Constitution also contains 11 other 
     provisions expressly linking congressional representation to 
     Statehood.
       The District of Columbia is not a State. Accordingly, 
     congressional representation for the District of Columbia 
     would require a constitutional amendment. Advocates of 
     congressional representation for the District have long 
     acknowledged this. As the House Judiciary Committee stated in 
     recommending passage of such a constitutional amendment in 
     1975:
       ``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. This is 
     the case because provisions for elections of Senators and 
     Representatives in the Constitution are stated in terms of 
     the States, and the District of Columbia is not a State.''
       Courts have reached the same conclusion. In 2000, for 
     example, a three-judge panel concluded ``that the 
     Constitution does not contemplate that the District may serve 
     as a state for purposes of the apportionment of congressional 
     representatives.'' Adams v. Clinton, 90 F. Supp. 2d 35, 46-47 
     (D.D.C. 2000). The Supreme Court affirmed that decision. 
     Furthermore, Congress's own Research Service found that, 
     without a constitutional amendment, it is ``likely that the 
     Congress does not have authority to grant voting 
     representation in the House of Representatives to the 
     District of Columbia.''
       Claims that S. 1257 should be viewed as an exercise of 
     Congress's ``exclusive'' legislative authority over the 
     District of Columbia as the seat of the Federal government 
     are not persuasive. Congress's exercise of legislative 
     authority over the District of Columbia is qualified by other 
     provisions of the Constitution, including the Article I 
     requirement that representation in the House of 
     Representatives is limited to the ``several States.'' 
     Congress cannot vary that constitutional requirement under 
     the guise of the

[[Page 5940]]

     ``exclusive legislation'' clause, a clause that provides the 
     same legislative authority over Federal enclaves like 
     military bases as it does over the District.
       For all the foregoing reasons, enacting S. 1257's extension 
     of congressional representation to the District would be 
     unconstitutional. It would also call into question (by 
     subjecting to constitutional challenge in the courts) the 
     validity of all legislation passed by the reconstituted House 
     of Representatives.

  Mr. KYL. Mr. President, I ask unanimous consent the testimony by 
Professor Jonathan Turley before the House Judiciary Committee 
September 14, 2006, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   District of Columbia Voting Rights


      Statement of Jonathan Turley, Committee on House Judiciary, 
                      Subcommittee on Constitution

       It is an honor to be asked to testify on the important 
     question of the representational status of the District of 
     Columbia in Congress. Due to the short period for the 
     preparation of written testimony and a family emergency, the 
     committee staff has permitted me to submit this summary of 
     the testimony that I will offer on September 14, 2006. A full 
     written statement is being completed and will be available at 
     the hearing.
     General Comments
       There should be general agreement that the current non-
     voting status of the District is fundamentally at odds with 
     the principles and traditions of our constitutional system. 
     As Justice Black stated in Wesberry v. Sanders: ``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, as 
     good citizens, we must live. Other rights, even the most 
     basic, are illusory if the right to vote is undermined.''
       Yet, unlike many issues before Congress, there has always 
     been a disagreement about the means rather than the ends of 
     full representation for the District residents. Regrettably, 
     I believe that H.R. 5388 is the wrong means. Despite the best 
     of motivations, the bill is fundamentally flawed on a 
     constitutional level and would only serve to needlessly delay 
     true reform for District residents. Indeed, there would be an 
     inevitable and likely successful legal challenge to a bill. 
     Even if successful, this bill would ultimately achieve only 
     partial representational status. Frankly, giving the District 
     only a vote in the House is the equivalent of allowing Rosa 
     Parks to move halfway to the front of the bus in the name of 
     progress. District residents deserve full representation and, 
     while this bill would not offer such reform, there are 
     alternatives, including a three-phased proposal that I have 
     advocated in the past.
     The Original Purpose and Diminishing Necessity of the Federal 
         Enclave
       The creation of the federal enclave was the direct result 
     of the failure of state officials to protect Congress during 
     a period of unrest. On January 1, 1783, Congress was meeting 
     in Philadelphia when they were surprised by a mob of 
     Revolutionary War veterans demanding their long-overdue back 
     pay. It was a period of great discontentment with Congress 
     and the public of Pennsylvania was more likely to help the 
     mob than to help suppress it. Indeed, when Congress called on 
     state officials to call out the militia, they refused. 
     Congress was forced to flee, first to Princeton, N.J., then 
     to Annapolis and ultimately to New York City.
       When the framers gathered again in Philadelphia in the 
     summer of 1787 to draft a new constitution, the flight from 
     that city five years before was still prominent in their 
     minds. Madison and others called for the creation of a 
     federal enclave or district as the seat of the federal 
     government--independent of any state and protected by federal 
     authority. Only then, Madison noted could they avoid ``public 
     authority [being] insulted and its proceedings . . . 
     interrupted, with impunity.''
       In addition to the desire to be free of the transient 
     support of an individual state, the framers advanced a number 
     of other reasons for creating this special enclave. There was 
     a fear that a state (and its representatives in Congress) 
     would have too much influence over Congress, by creating ``a 
     dependence of the members of the general government.'' There 
     was also a fear that the symbolic honor given to one state 
     would create in ``the national councils an imputation of awe 
     and influence, equally dishonorable to the Government and 
     dissatisfactory to the other members of the confederacy.'' 
     There was also a view that the host state would benefit too 
     much from ``[t]he gradual accumulation of public improvements 
     at the stationary residence of the Government.
       The District, therefore, was created for the specific 
     purpose of being a non-State without direct representatives 
     in Congress. The security and operations of the federal 
     enclave would remain the collective responsibilities of the 
     entire Congress--of all of the various states. While I 
     believe that this purpose is abundantly clear, I do not 
     believe that most of these concerns have continued relevance 
     for legislators. Since the Constitutional Convention, courts 
     have recognized that federal, not state, jurisdiction governs 
     federal lands. Moreover, the federal government now has a 
     large security force and is not dependent on the states for 
     security. Finally, the position of the federal government 
     vis-a-vis the states has flipped with the federal government 
     now the dominant party in this relationship. The real 
     motivating purposes of the creation of the federal enclave, 
     therefore, no longer exist. What remains is the symbolic 
     question of whether the seat of the federal government should 
     be on neutral ground. It is a question that should not be 
     dismissed as insignificant. To the contrary, I personally 
     believe that the seat of the federal government should remain 
     completely federal territory as an important symbol of the 
     equality of all states in the governance of the nation. The 
     actual seat of government, however, is a tiny fraction of the 
     existing federal district.
     The Unconstitutionality of H.R. 5388
       I believe that the Dinh/Starr analysis is fundamentally 
     flawed and that H.R. 5388 would violate the clear language 
     and meaning of Article I. To evaluate the constitutionality 
     of the legislation, it is useful to follow a classic 
     constitutional interpretation that begins with the text, 
     explores the original meaning of the language, and then 
     considers the implications of the rivaling interpretations 
     for the constitutional system. I believe that this analysis 
     clearly shows that the creation of a vote in the House of 
     Representatives for the District would do great violence to 
     our constitutional traditions and process. To succeed, it 
     would require the abandonment of traditional interpretative 
     doctrines and would allow for future manipulation of one of 
     the most essential and stabilizing components of the 
     Madisonian democracy: the voting rules for the legislative 
     branch.
     1. Textual Analysis
       Any constitutional analysis necessarily begins with the 
     text of the relevant provision or provisions. In this case, 
     there are two central provisions. The most important textual 
     statement relevant to this debate is found in Article I, 
     Section 2 that states unambiguously that the House of 
     Representatives shall be composed of members chosen ``by the 
     people of the several states.'' As with the Seventeenth 
     Amendment election of the composition of the Senate, the text 
     clearly limits the House to the membership of representatives 
     of the several states. The second provision is the District 
     Clause found in Article I, Section 8 which gives Congress the 
     power to ``exercise exclusive Legislation in all Cases 
     whatsoever, over such District.''
       On its face, the reference to ``the people of the several 
     states'' is a clear restriction of the voting membership to 
     actual states. This is evidenced in a long line of cases that 
     exclude District residents from benefits or rights given to 
     citizens of states under the Constitution.
       It has been argued by both Dinh and Starr that the textual 
     clarity in referring to states is immaterial because other 
     provisions with such references have been interpreted as 
     nevertheless encompassing District residents. This argument 
     is illusory in my view. The major cases extending the meaning 
     of states to the District involve an irreconcilable conflict 
     between a literal interpretation of the term ``state'' and 
     the expressed inherent rights of all American citizens under 
     the equal protection clause and other provisions. District 
     citizens remain U.S. citizens, even though they are not state 
     citizens. The creation of the federal district removed one 
     right of citizens--voting in Congress--in exchange for the 
     status conferred by resident in the Capitol City. It was 
     never intended to turn residents into noncitizens with no 
     constitutional rights.
       The upshot of these opinions is that a literal 
     interpretation of the word ``states'' would produce facially 
     illogical and unintended consequences. Since residents remain 
     U.S. citizens, they must continue to enjoy those protections 
     accorded to citizens. Otherwise, they could all be enslaved 
     or impaled at the whim of Congress.
     2. Original and Historical Meaning
       Despite some suggestions to the contrary, the absence of a 
     vote in Congress was clearly understood as a defining element 
     of a federal district. During ratification, various leaders 
     objected to the disenfranchisement of the citizens in the 
     district and even suggested amendments that would have 
     addressed the problem. One such amendment was offered by 
     Alexander Hamilton, who wanted the District residents to be 
     able to secure representation in Congress once they grew to a 
     reasonable size. Neither this nor other such amendments 
     offered in states like North Carolina and Pennsylvania were 
     adopted.
       Whatever ambiguity existed over continuing authority of 
     Maryland or Virginia, the disenfranchisement of citizens from 
     votes in Congress was clearly understood. Indeed, not long 
     after the cessation, a retrocession movement began. Members 
     questioned the need to ``keep the people in this degraded 
     situation'' and objected to the subjection of American 
     citizens to ``laws not made with their own consent.'' At the 
     time of the ratification, leaders knew and openly discussed 
     the non-voting status of the District in the clearest and 
     strongest possible language.

[[Page 5941]]

       This debate in 1804 leaves no question as to the early 
     understanding of the status of the District as a non-state 
     without representational status. Much of this debate followed 
     the same lines of argument that we hear today. While 
     acknowledging that ``citizens may not possess full political 
     rights,'' leaders like John Bacon of Massachusetts noted that 
     they had special status and influence as residents of the 
     Capitol City. Yet, retrocession bills were introduced within 
     a few years of the actual cessation--again prominently citing 
     the lack of any congressional representation as a motivating 
     factor. Indeed, the retrocession of Virginia highlights the 
     original understanding of the status of the District. 
     Virginians contrasted their situation with those residents of 
     Washington. Washingtonians, however, were viewed as 
     compensated for their loss of political representation. As a 
     committee noted in 1835, ``[o]ur situation is essentially 
     different, and far worse, than that of our neighbors on the 
     northern side of the Potomac. They are citizens of the 
     Metropolis, of a great, and noble Republic, and wherever they 
     go, there clusters about them all those glorious 
     associations, connected with the progress and fame of their 
     country. They are in some measure compensated in the loss of 
     their political rights.''
       Much is made of the ten-year period during which District 
     residents voted with their original states--before the 
     federal government formally took over control of the 
     District. This, however, was simply a transition period 
     before the District became the federal enclave.
     3. Policy Implications
       There are considerable risks and problems with this 
     approach to securing a vote in Congress for the District. 
     First, by adopting a liberal interpretation of the meaning of 
     states in Article I, the Congress would be undermining the 
     very bedrock of our constitutional system. The membership and 
     division of Congress was carefully defined by the Framers. 
     The legislative branch is the engine of the Madisonian 
     democracy. It is in these two houses that disparate factional 
     disputes are converted into majoritarian compromises--the 
     defining principle of the Madisonian system. By allowing 
     majorities to manipulate the membership rolls would add a 
     dangerous instability and uncertainty to the system.
       Second, if successful, this legislation would allow any 
     majority in Congress to manipulate the voting membership of 
     the House. This is not the only federal enclave and there is 
     great potential for abuse and mischief in the exercise of 
     such authority. Third, while the issue of Senate 
     representation is left largely untouched in the Dinh/Starr 
     analysis, there is no obvious principle that would prevent a 
     majority from expanding its ranks with two new Senate seats 
     for the District. Two Senators and a member of the House 
     would be a considerable level of representation for a non-
     state with a small population. Yet, this analysis would 
     suggest that such a change could take place without a 
     constitutional amendment.
       Finally, H.R. 5388 would only serve to delay true 
     representational status for district residents. On a 
     practical level, this bill would likely extinguish efforts at 
     full representation in both houses. During the pendency of 
     the litigation, it is highly unlikely that additional 
     measures would be considered--delaying reforms by many years. 
     Ultimately, if the legislation is struck down, it would leave 
     the campaign for full representation in shambles.
     The Problematic Basis for Awarding an At-Large Seat to Utah
       The proposal of awarding an at-large seat to Utah is an 
     admittedly novel question that would raise issues of first 
     impression for the courts. However, I am highly skeptical of 
     the legality of this approach, particularly under the ``one-
     man, one-vote'' doctrine established in Wesberry v. Sanders, 
     376 U.S. 1 (1964). This is a question that leads to some 
     fairly metaphysical notions of overlapping representation and 
     citizens with 1.4 representational status. On one level, the 
     addition of an at-large seat would seem to benefit all Utah 
     citizens equally since they would vote for two members. Given 
     the deference to Congress under the ``necessary and proper'' 
     clause, an obvious argument could be made that it does not 
     contravene the ``one man, one vote'' standard.
       However, there are various reasons why a federal court 
     would be on good ground to strike down this portion of H.R. 
     5388. First, while the Supreme Court has not clearly 
     addressed the interstate implications of ``one man, one 
     vote,'' this bill would likely force it to do so. Awarding 
     two representatives to each resident of Utah creates an 
     obvious imbalance vis-a-vis other states. House members are 
     expected to be advocates for this insular constituency. Here, 
     residents of one state could look to two representatives to 
     do their bidding while other citizens would limited to one. 
     Given racial and cultural demographic differences between 
     Utah and other states, this could be challenged as diluting 
     the power of minority groups in Congress.
       Second, while interstate groups challenge the increased 
     representation for Utah citizens, the at-large seat could 
     also be challenged by some intrastate groups as diluting 
     their specific voting power. If Utah simply added an 
     additional congressional district, the ratio of citizens to 
     members would be reduced. The additional member would 
     represent a defined group of people who have unique 
     geographical and potentially racial or political 
     characteristics. However, by making the seat at large, these 
     citizens would now have to share two members with a much 
     larger and more diffuse group--particularly in the 
     constituency of the at-large member. It is likely that the 
     member who is elected at large would be different from one 
     who would have to run in a particular district such as a more 
     liberal or diverse section of the Salt Lake City population.
       Third, this approach would be used by a future majority of 
     Congress to manipulate voting in Congress and to reduce 
     representation for insular groups. Rather than creating a new 
     district that may lean toward one party or have increased 
     representation of one racial or religious group, Congress 
     could use at-large seats under the theory of this 
     legislation. Moreover, Congress could create new forms of 
     represented districts for overseas Americans or for federal 
     enclaves. The result would be to place Congress on a slippery 
     slope where transient majorities tweak representational 
     divisions for their own advantage.
       Finally, while it would be difficult to predict how this 
     plan would fare under a legal challenge, it is certain to be 
     challenged. This creates the likelihood of Congress having at 
     least one member (or two members if you count the District 
     representative) who would continue to vote under a 
     considerable cloud of questioned legitimacy. In close votes, 
     this could produce great uncertainty as to the finality or 
     legitimacy of federal legislation. This is entirely 
     unnecessary. If a new representative is required, it is 
     better to establish a fourth district not just a fourth at-
     large representative for legal and policy reasons.
     A Modified Retrocession Proposal
       One hundred and sixty years ago, Congress retroceded land 
     back to Virginia under its Article I authority. Retrocession 
     has always been the most direct way of securing a resumption 
     of voting rights for District residents. Most of the District 
     can be simply returned from whence it came: state of 
     Maryland. The greatest barrier to retrocession has always 
     been more symbolic rather than legal. Replacing Washington, 
     DC with Washington, MD is a conceptual leap that many are 
     simply not willing to make. However, it is the most logical 
     resolution of this problem.
       For a number of years, I have advocated the reduction of 
     the District of Columbia to the small area that runs from the 
     Capitol to the Lincoln Memorial. The only residents in this 
     space would be the First Family. The remainder of the current 
     District would then be retroceded to Maryland. However, I 
     have also proposed a three-phase process for retrocession. In 
     the first phase, a political transfer would occur immediately 
     with the District securing a house seat as a Maryland 
     district and residents voting in Maryland statewide 
     elections. In the second phase, incorporation of public 
     services from education to prisons to law enforcement would 
     occur. In the third phase, any tax and revenue incorporation 
     would occur.
       These phases would occur over many years with only the 
     first phase occurring immediately upon retrocession. Indeed, 
     I recommend the creation of a three-commissioner body like 
     the one that worked with George Washington in the 
     establishment of the original federal district. These 
     commissioners would recommend and oversee the incorporation 
     process. Moreover, Maryland can agree to continue to treat 
     the District as a special tax or governing zone until 
     incorporation is completed. Indeed, Maryland may chose to 
     allow the District to continue in a special status due to 
     this unique position. The fact is that any incorporation is 
     made easier, not more difficult, by the District's historic 
     independence. Like most cities, it would continue to have its 
     own law enforcement and local governing authority. However, 
     it would also benefit from incorporation into Maryland 
     educational system and other statewide programs related to 
     prisons and other public needs.
       In my view, this approach would be unassailable on a legal 
     level and highly efficient on a practical level. I realize 
     that there remains a fixation with the special status of the 
     city, but much of this status would remain. While the city 
     would not technically be the seat of government, it would 
     obviously remain for all practical purposes our Capitol City.
       Regardless of what proposal is adopted, I strongly 
     encourage you not to move forward with H.R. 5388. It is an 
     approach that achieves less representation than is deserved 
     for the District by means that asserts more power than is 
     held by the Congress. It is certainly time to right this 
     historical wrong, but, in our constitutional system, it is 
     often more important how we do something than what we do. 
     This is the wrong means to a worthy end. However, it is not 
     the only means and I encourage the members to direct these 
     considerable energies toward a more lasting and complete 
     resolution of the status of the District of Columbia in 
     Congress.

                                              Jonathan Turley,

                                                Shapiro Professor,
                          George Washington University Law School.


[[Page 5942]]

  Mr. McCONNELL. Mr. President, I commend to my fellow Senators the 
April 3, 1987 U.S. Justice Department Office of Legal Policy Report to 
the Attorney General entitled ``The Question of Statehood for the 
District of Columbia.'' I ask unanimous consent that the Executive 
Summary and section titled ``Proposals for Giving Representation in 
Congress to the District of Columbia, Voting Member in the House of 
Representatives'' be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Executive Summary

       Efforts to admit the District of Columbia to the Union as a 
     state should be vigorously opposed. Granting the national 
     capital statehood through statutory means raises numerous 
     troubling constitutional questions. After careful 
     consideration of these issues, we have concluded that an 
     amendment to the Constitution would be required before the 
     District of Columbia may be admitted to the Union as a state. 
     Statehood for the Nation's capital is inconsistent with the 
     language of the Constitution, as well as the intent of its 
     Framers, and would work a basic change in the federal system 
     as it has existed for the past two hundred years. Under our 
     Constitution, power was divided between the states and the 
     federal government in the hope, as Madison wrote, that 
     ``[t]he different governments will control each other,'' thus 
     securing self-government, individual liberty, and the rights 
     of minorities. In order to serve its function in the federal 
     structure a state must be independent of the federal 
     government. However, the District of Columbia is not 
     independent; it is a political and economic dependency of the 
     national government.
       At the same time, it is essential that the federal 
     government maintain its independence of the states. If the 
     District of Columbia were now admitted to statehood, it would 
     not be one state among many. Because it is the national 
     capital, the District would be primus inter pares, first 
     among equals. The ``State of Columbia . . . could come 
     perilously close to being the state whose sole business is to 
     govern, to control all the other states. It would be the 
     imperial state; it would be `Rome on the Potomac.''' It was 
     this very dilemma that prompted the Founders to establish the 
     federal capital in a district located outside of the borders 
     of any one of the states, under the exclusive jurisdiction of 
     Congress. Their reasons for creating the District are still 
     valid and militate against granting it statehood.
       Many have recognized the fundamental flaws in plans to 
     grant the District of Columbia statehood. For instance, while 
     testifying in support of the proposed 1978 District 
     amendment, which would have treated the District of Columbia 
     ``as if it were a State'' for purposes of national elections, 
     Senator Edward Kennedy dismissed what he called ``the 
     statehood fallacy,'' and stated that, ``[t]he District is 
     neither a city nor a State. In fact, statehood may well be an 
     impossible alternative, given the practical and 
     constitutional questions involved in changing the historical 
     status of the Nation's Capital.'' A pamphlet entitled 
     ``Democracy Denied'' circulated in support of the 1978 
     amendment, and fully endorsed by District Delegate Walter E. 
     Fauntroy, plainly acknowledged that granting statehood to the 
     District of Columbia ``would defeat the purpose of having a 
     federal city, i.e., the creation of a district over which the 
     Congress would have exclusive control.'' That pamphlet also 
     recognized that statehood ``presents a troublesome problem 
     with the 23rd Amendment if the federal district were to be 
     wiped out by legislation.'' Indeed, Delegate Fauntroy has 
     opposed statehood for the District in the past, correctly 
     pointing out that ``this would be in direct defiance of the 
     prescriptions of the Founding Fathers.'' As former Senator 
     Mathias of Maryland stated, ``[i]t is not a State . . . it 
     should not be a State.''
       These points are well taken. The factors that mitigated 
     against statehood for the District of Columbia in 1978 have 
     not changed. The rejection of the District voting rights 
     constitutional amendment by the states does not make 
     statehood any more desirable, or any less constitutionally 
     suspect, today than it was a decade ago. Granting statehood 
     to the District of Columbia would defeat the purpose of 
     having a federal city, would be in direct defiance of the 
     intent of the Founders, and would require an amendment to the 
     Constitution.


  I. Need for an Amendment to the Constitution Before the District of 
            Columbia May Be Admitted to the Union as a State

       Even if statehood for the District of Columbia represented 
     sound policy, we do not believe that it can be accomplished 
     merely by a statute admitting the District to the Union. The 
     Constitution contemplates a federal district as the seat of 
     the general government, and would have to be amended. The 
     Department of Justice has long taken this position. In 1978, 
     Assistant Attorney General John M. Hannon concluded on behalf 
     of the Carter Administration that, ``it was the intent of the 
     Framers that the actual seat of the Federal Government, as 
     opposed to its other installations, be outside any State and 
     independent of the cooperation and consent of the State 
     authorities . . . . If these reasons have lost validity, the 
     appropriate response would be to provide statehood for the 
     District by constitutional amendment rather than to ignore 
     the Framers' intentions.''
       The retention of federal authority over a truncated, 
     federal service area would not answer this constitutional 
     objection. The language of the Constitution grants Congress 
     exclusive authority over the district that became the seat of 
     government, not merely over the seat of the government. The 
     district that became the seat of government is the District 
     of Columbia. It does not appear that Congress may, consistent 
     with the language of the Constitution, abandon its exclusive 
     authority over any part of the District.
       Further, the Twenty-third Amendment requires that ``[t]he 
     District constituting the seat of Government of the United 
     States'' appoint electors to participate in the Electoral 
     College. The amendment was proposed, drafted and ratified 
     with reference to the District of Columbia. When the states 
     adopted this amendment, they confirmed the understanding that 
     the District is a unique juridical entity with permanent 
     status under the Constitution. Another amendment would be 
     necessary to remake this entity.
       Finally, we believe that Congress' ability to admit the 
     District of Columbia into the Union as a new state would 
     depend upon the consent of the legislature of the original 
     ceding state. Article IV, section 3 of the Constitution 
     provides that: ``no new State shall be formed or erected 
     within the Jurisdiction of any other State; nor any State be 
     formed by the Junction of two or more States, or parts of 
     States, without the Consent of the legislatures of the States 
     concerned as well as of the Congress.'' Accordingly, the 
     consent of Maryland would be necessary before the District of 
     Columbia could be admitted to the Union. Should Maryland 
     refuse to consent, the area that is now the District of 
     Columbia could not be made a state without amendment of 
     Article IV, section 3.
       Thus, before the District of Columbia may be admitted to 
     the Union as a state, the Constitution would have to be 
     amended. Such an amendment, however, would be unwise.


 II. The Sound Historical Reasons for a Federal District Still Operate 
                                 Today

       In the Founders' view, a federal enclave where Congress 
     could exercise complete authority, insulating itself from 
     insult and securing its deliberations from interruption, was 
     an ``indispensible necessity.'' They settled upon the device 
     of a federal district as the means by which the federal 
     government might remain independent of the influence of any 
     single state, to avoid, in the words of Virginia's George 
     Mason, ``a provincial tincture to ye Natl. deliberations.''
       The passing years have, if anything, increased the need for 
     ultimate congressional control of the federal city. The 
     District is an integral part of the operations of the 
     nation's government, which depends upon a much more complex 
     array of services, utilities, transportation facilities, and 
     communication networks than it did at the Founding. If the 
     District were to become a state, its financial problems, 
     labor troubles, and other concerns would still affect the 
     federal government's operations. Congress, however, would be 
     deprived of a direct, controlling voice in the resolution of 
     such problems. In a very real sense, the federal government 
     would be dependent upon the State of Columbia for its day to 
     day existence.
       The retention of congressional authority over a much 
     reduced federal enclave would not solve this problem. The 
     Founder's contemplated more than a cluster of buildings, 
     however grand, and their surrounding parks and gardens as the 
     national capital. The creation of a new ``federal town'' was 
     intended, in large part so that Congress could independently 
     control the basic services necessary to the operation of the 
     federal government. As former Senator Birch Bayh pointed out 
     in 1978, ``when our Founding Fathers established this as a 
     capital city . . . they did not just establish a place that 
     should be the Federal city and say this is where the Federal 
     buildings are. But they envisioned this as a viable city, a 
     capital city with people who work, have businesses, and have 
     transportation lines, and homes. The essential establishment 
     of the Nation's Capital was not an establishment of the 
     Nation's Federal buildings but the Nation's city.''
       Further, there remain virtually insurmountable practical 
     problems with District statehood. The operations of the 
     federal government sprawl over the District. As a result, the 
     new ``state'' would be honeycombed with federal 
     installations, its territory fragmented by competing 
     jurisdictions. As Assistant Attorney General Patricia Wald 
     asked while testifying on behalf of the Carter 
     Administration, regarding the proposed 1978 District 
     amendment, ``[w]ould the remaining non-Federal. area 
     constitute in any real sense a geographically homogeneous 
     entity that justifies statehood?'' It was for these very 
     reasons that former Mayor Washington expressed doubts about 
     statehood for the District. In 1975 he commented that the 
     city of Washington is ``so physically, and economically and 
     socially bound together that I would have problems with 
     statehood

[[Page 5943]]

     in terms of exacting from it some enclaves, or little 
     enclaves all around the city. Ultimately, it seems to me, 
     that would erode the very fabric of the city itself, and the 
     viability of the city.''
       Finally, in a very real sense the District belongs not only 
     to those who reside within its borders, but to the Nation as 
     a whole. In opposing statehood for the District in 1978, 
     Senator Bayh, an otherwise ardent proponent of direct 
     District participation in congressional elections, eloquently 
     summed up the objection: ``I guess as a Senator from Indiana 
     I hate to see us taking the Nation's Capital from [5,000,000] 
     Hoosiers. It is part ours. I do not see why the District 
     should be a State because it is, indeed, the Nation's 
     Capital.''


    III. The District of Columbia is Not Independent of the Federal 
                               Government

     A. Dependence on the Federal Establishment
       The states of the American Union are more than merely 
     geographic entities: Each is what has been termed ``a proper 
     Madisonian society''--a society composed of a ``diversity of 
     interests and financial independence.'' It is this diversity 
     which guards the liberty of the individual and the rights of 
     minorities. As Madison wrote, ``the security for civil rights 
     . . . consists in the multiplicity of interests . . . The 
     degree of security . . . will depend on the number of 
     interests . . . and this may be presumed to depend on the 
     extent of country and number of people comprehended under the 
     same government.''
       The District of Columbia lacks this essential political 
     requisite for statehood. It has only one significant 
     ``industry,'' government. As a result, the District has one 
     monolithic interest group, those who work for, provide 
     services to, or otherwise deal with, the federal government. 
     The national government was, historically, the city's only 
     reason for being. Close to two-thirds of the District's 
     workforce is employed either directly or indirectly in the 
     business of the federal government. Indeed, in 1982 the 
     District government maintained that, in the Washington 
     Metropolitan area, for every federal worker laid off as a 
     result of government reductions in force, one person would be 
     thrown out of work in the private sector.
       The implications of this monolithic interest are far 
     reaching. For instance, the Supreme Court, in Garcia v. San 
     Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), 
     has recently decided that the delicate balance between 
     federal and state power is to be guarded primarily by the 
     intrinsic role the states play in the structure of the 
     national government and the political process. The 
     congressional delegation from the District of Columbia, 
     however, would have little interest in preserving the balance 
     between federal and state authority entrusted to it by 
     Garcia. The continued centralization of power in the hands of 
     the national government would, in fact, be to the direct 
     benefit of ``Columbia'' and its residents. Hence; the system 
     of competing sovereignties-designed to preserve our 
     fundamental liberties would be compromised.
     B. Economic Dependence
       In addition to political independence and diversity, a 
     state must have ``sufficient population and resources to 
     support a state government and to provide its share of the 
     cost of the Federal Government.'' The District of Columbia 
     simply lacks the resources both to support a state government 
     and to provide its fair share of the cost of the federal 
     government. The District is a federal dependency. Annually, 
     in addition to all other federal aid programs, it receives a 
     direct payment from the federal treasury of a half billion 
     dollars; some $522 million was budgeted for the District in 
     Fiscal 1987, $445 million to be paid directly to the 
     District's local government. All in all, District residents 
     outstrip the residents of the states in per capita federal 
     aid by a wide margin. For instance, in 1983 the District 
     received $2,177 per capita in federal aid, some five and one-
     half times the national average of $384.
       Not surprisingly, Washington Mayor Marion Barry has plainly 
     stated that the District would still ``require the support of 
     the Federal Government'' if statehood were granted. The 
     continuation of federal support is ordinarily justified 
     because of the percentage of federal land in the District of 
     Columbia that cannot be taxed by the local government. 
     However, the federal government owns a greater percentage of 
     the land area of 10 states, each of which bears the full 
     burdens of statehood without the sort of massive federal 
     support annually received by the District of Columbia. If the 
     District aspires to statehood, it must be prepared to stand 
     as an equal with the other states in its fiscal affairs.


                               Conclusion

       The District of Columbia should not be granted statehood. 
     In our considered opinion, an amendment to the Constitution 
     would be needed before the District could be admitted as a 
     state, and in any case, the reasons that led the Founder's to 
     establish the national capital in a district outside the 
     borders of any state are still valid. The District's special 
     status is an integral part of our system of federalism, which 
     itself was a compromise between pure democracy and the need 
     to secure individual liberties and minority rights. The 
     residents of the District enjoy all of the rights of other 
     citizens, save the right to vote in congressional elections. 
     They exchanged this right, as Mr. Justice Story wrote, for 
     the benefits of living in the ``metropolis of a great and 
     noble republic.'' Instead, ``their rights [are] under the 
     immediate protection of the representatives of the whole 
     Union.'' This was the price of the national capital, and 
     District residents have enjoyed the fruits of this bargain 
     for almost two centuries.
                                  ____



III. Proposals for Giving Representation in Congress to the District of 
                                Columbia

       The numerous schemes proposed over the last two hundred 
     years to give the residents of the federal district some sort 
     of direct voting representation in Congress may be distilled 
     into five basic proposals: (1) legislation to allow the 
     District a voting member in the House of Representatives 
     alone; (2) retrocession of the District of Columbia to 
     Maryland, retaining a truncated federal district; (3) 
     allowing District residents to vote as residents of Maryland 
     in national elections; (4) an amendment to the Constitution 
     to give the District full representation in both House and 
     Senate as if it were a state; and (5) full statehood. None of 
     these proposals offers a sound policy solution, and several 
     appear to be fatally flawed when exposed to constitutional 
     scrutiny.
     A. Voting Member in the House of Representatives
       From time to time it has'' been suggested that the District 
     be granted, by simple legislation, a voting member in the 
     House of Representatives. This proposal, however, runs into 
     significant constitutional difficulties.
       Those sections of the Constitution which define the 
     political structure of the federal government speak uniformly 
     in terms of the states and their citizens. Article I, section 
     2 provides that, ``[t]he House of Representatives shall be 
     composed of Members chosen every second Year by the People of 
     the several States . . . . No person shall be a 
     Representative . . . who shall not, when elected, be an 
     Inhabitant of that State in which he shall be chosen.'' 
     Article I, section 3 provides that, ``[t]he Senate of the 
     United States shall be composed of two Senators from each 
     State . . . . No Person shall be a Senator. . . . who shall 
     not, when elected, be an Inhabitant of that State for which 
     he shall be chosen.'' With respect to the election of the 
     President, Article II, section 1 provides that, ``[e]ach 
     State shall appoint, in such Manner as the Legislature 
     thereof may direct, a Number of Electors, equal to the whole 
     Number of Senators and Representatives to which the State may 
     be entitled in the Congress.'' The Seventeenth Amendment 
     directs that ``[t]he Senate of the United States shall be 
     composed of two Senators from each State, elected by the 
     people thereof.'' In short, ``[d]irect representation in the 
     Congress by a voting member has never been a right of United 
     States citizenship. Instead, the right to be so represented 
     has been a right of the citizens of the States.''
       The word ``state'' as used in Article I may not be 
     interpreted to include the District of Columbia, even though 
     as a ``distinct political society'' it might qualify under a 
     more general definition of that term. Consistent with the 
     intent of the Framers, such arguments were properly dismissed 
     long ago by Chief Justice Marshall in Hepburn v. Ellzey. In 
     that case, plaintiffs, residents of the District, claimed 
     that they were citizens of a state for purposes of diversity 
     jurisdiction in the federal courts. The Court rejected this 
     position. Marshall reasoned that Congress had adopted the 
     definition of ``state'' as found in the Constitution in the 
     act providing for diversity jurisdiction, and that the 
     capital could not be considered such a ``state''. Citing 
     Article I, sections 2 and 3, and Article II, section 1, he 
     concluded that ``the members of the American confederacy only 
     are the states contemplated.'' ``These clauses show that the 
     word state is used in the constitution as designating a 
     member of the union, and excludes from the term the 
     significance attached to it by writers on the law of 
     nations.'' Congress, to be sure, has often treated the 
     District of Columbia as a state for purposes of statutory 
     benefit programs. It is customarily included in the major 
     federal grant programs by the well-worn phrase ``for purposes 
     of this legislation, the term `State' shall include the 
     District of Columbia.'' The courts, also, have occasionally 
     interpreted the word ``state'' to include the District of 
     Columbia. However, the District has never been automatically 
     included under the term ``state'' even in federal statutes. 
     In District of Columbia v. Carter, the Supreme Court held 
     that it was not a ``State or Territory'' under 42 U.S.C. 
     Sec. 1983, which creates a federal cause of action for civil 
     rights violations under color of state law. Under the test 
     articulated by Justice Brennan in that case, ``[w]hether the 
     District of Columbia constitutes a ``State or Territory'' 
     within the meaning of any particular statutory or 
     constitutional provision depends upon the character and aim 
     of the specific provision involved.'' In any event, allowing 
     the District to participate on an equal footing with the 
     states in federal statutory programs is different in kind 
     from reading the language of the Constitution itself in such 
     a way as to allow alteration of the very composition of the 
     Congress by legislative fiat.

[[Page 5944]]

       The Constitutional mandate is clear. Only United States 
     citizens who are also citizens of a state are entitled to 
     elect members of Congress. This is hardly a novel 
     proposition. There are many different levels of rights 
     recognized in our system. Aliens, for instance, enjoy certain 
     basic rights, including the benefit of the Equal Protection 
     Clause but are not citizens of the United States and have no 
     vote. The residents of United States possessions overseas 
     also enjoy the protection of the Constitution, but may not 
     vote in federal elections. Many of them are United States 
     citizens--the residents of Puerto Rico and Guam, for 
     instance, fit this category. Like the residents of the 
     District of Columbia, American citizens who are not also 
     citizens of a state do not participate in congressional 
     elections, and they never have enjoyed such participation. 
     The residents of the District of Columbia may not participate 
     directly in congressional elections without becoming citizens 
     of a state, or without an amendment to the Constitution.

  Mr. McCONNELL. Mr. President, a few weeks ago, I had the honor of 
raising my right hand and reciting a solemn oath required by the 
Constitution itself. According to that oath, the first and last duty of 
a U.S. Senator is to support and defend the U.S. Constitution. By 
opposing the legislation before us, I believe I am doing both.
  The Constitution is short because its authors wanted to be clear, and 
on the issue of congressional representation they could not have been 
more so. According to Article I, Section II, only States elect Members 
of Congress. And, according to the same article, the seat of the 
Federal Government is not to be considered a State. So the question 
before us is not whether the Framers meant for the seat of Government 
to have representation in Congress. They clearly did not. Rather, the 
question before us is why they didn't want the seat of Government to 
have representation. And, as a follow-up: What recourse did they leave 
those who might want to revise what they had written.
  In answer to the first question, the Framers opposed statehood for a 
number of good reasons. First, they didn't want the Federal Government 
to be beholden to a single State, a situation that would of course 
unfairly benefit the residents of that State, either materially or 
through added prestige, at the expense of all the other States. Second, 
they wanted the Federal Government to have the freedom to relocate if 
the need arose.
  This was not an easy issue for the Framers. But the plain text of the 
Constitution leaves no doubt as to how they came down on the question: 
In the end, they decided the interests of the whole were best served by 
carving out a Federal district that stood apart from the States. This 
way Federal officials would be able to protect the interests of the 
whole and give the Federal Government the freedom it would need to 
operate with complete independence and freedom of movement.
  Clearly, not everyone is satisfied with the result. But there should 
be no doubt about what the words of the Constitution says--not just on 
the day it was ratified, but throughout our history.
  The 23rd amendment, for instance, gave Washington, DC the same number 
of electoral votes that it would receive as ``if it were a state.'' 
What this means, of course, is that at the time this amendment was 
ratified in 1961, no one was under the illusion that DC was a State--or 
that it should be treated as one, short of a constitutional amendment.
  Clearly, the Framers recognized the deficiencies of the final 
product. In creating a Federal district, they knew permanent residents 
of that district would lack representation in Congress. And this is why 
they left us a remedy within the Constitution itself. If and when the 
``People of the United States'' wished to revise the U.S. Constitution, 
they could do so by amending it, just as they did in 1961.
  The process of amendment is clearly outlined in article V, and it has 
served the American people well for more than two centuries. Over the 
years, we have amended our founding document 27 times. From eradicating 
slavery, to securing the right to vote for women, to putting a limit on 
the years a President can serve in office, the people of the United 
States have used the amendment process as the way to secure or expand 
rights.
  So the surest way to honor the aspirations of DC residents is to 
pursue a remedy which respects the Constitution. One way is through a 
constitutional amendment that uses the same language as the bill before 
us. Another would be to allow the residents of the District to vote as 
if they were residents of a bordering State, or even to declare them 
residents of a bordering State.
  As the Senate's greatest student and fiercest living guardian of the 
Constitution, the senior Senator from West Virginia, said just last 
year on the Senate floor:

       If we wish to grant representatives of the citizens of the 
     District of Columbia full voting rights, ``let us do so, once 
     again, the proper way, by passing a resolution to amend the 
     Constitution consistent with its own terms.''

  The bottom line is this: Any proposal to secure the right to vote 
must honor the Constitution, which Lincoln called the ``only safeguard 
of our liberties.'' Anything less would violate the oath we have sworn 
to uphold, and would guarantee a challenge in the courts that would 
only further prolong this debate.
  The better way is the surer way--and that's the constitutional way.
  I will oppose this proposal. I urge my colleagues to do the same.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, in a few moments the Senator from 
California, Senator Feinstein, is scheduled to be here to speak on the 
Ensign amendment and I will yield to her to vote at 3:45. But I say we 
are coming to a pivotal moment in a march that has gone on for years 
and years now. In some sense it goes back more than two centuries 
when--for reasons that are hard for historians let alone Senators to 
fathom, the District was established as a National Capital, separated 
from the State to which it had been attached before--an omission was 
made that was grave and inconsistent with the founding principles of 
this country. The residents of this National Capital of the greatest 
democracy of the world were left without a Representative here in 
Congress who could vote. In a government premised on the consent of the 
governed, the 600,000 residents of the District today do not have a 
voting Representative here in Congress.
  If you step back, it is actually unbelievable. No one has argued that 
this is somehow a just result. The fact is that it is patently unjust 
and un-American, in the sense of a violation of the best principles of 
this country, of freedom, of democracy, of the Republic based on the 
votes of the people. So the argument against the proposal that has come 
out of the committee that I am privileged to chair, that enjoys 
bipartisan support, is nonetheless that this is not quite the right way 
to do it.
  I understand those who have argued against our proposal have said 
that the Constitution does not allow us to do it quite this way; that 
it requires a constitutional amendment. The effect of this I think is 
to say to the residents of the District: Wait a little while longer. It 
has only been a couple of hundred years that you have been denied a 
voting Representative.
  That is not fair. In fact, the preponderance of constitutional 
opinion is that the so-called District clause occupies the field and 
gives us the opportunity to right this historic wrong. Over and over 
again, notwithstanding the clause my colleagues rely on which says that 
the House shall be composed of Members chosen by the people of the 
several States--they emphasize States--yet in decision after decision 
the Supreme Court of the United States has said that the District 
should be considered as a State or else its citizens will be denied 
equal protection; due process as a State for purposes of the interstate 
commerce clause; as I stated, for the purposes of diversity of 
jurisdiction, the opportunity for people to gain access to Federal 
courts for the right of trial by jury. So the Supreme Court of the 
United States has made very clear that the District, even when the 
Constitution refers to States, should be considered as a State. There 
may be a constitutional argument on the other side; I do not think it 
is a compelling argument. But if you accept the injustice of the status 
quo for

[[Page 5945]]

the residents of the District, an unacceptable injustice that is an 
embarrassment to this great democracy of ours, then even if you think 
what S. 160 does is not constitutional, vote to end the injustice 
because the proposal, S. 160 itself, provides for expedited appeal to 
the court to determine the constitutionality.
  After all, there is always debate. No one knowingly votes for 
something they think is unconstitutional. Yet there are so many times 
when we have to acknowledge, as powerful as this great deliberative 
body is, we are not the ultimate arbiter of constitutionality. That 
privilege, that power, was given by the Constitution to the judicial 
branch of our Government.
  So I hope, my friends, as we draw close to the hour of decision, that 
my colleagues, whatever their conclusion about the constitutionality 
is, will vote to end the injustice imposed on residents of the 
District. I have always believed America is many things, but in this 
sense, is a journey. It is a journey historically to realize the 
extraordinary revolutionary principles adopted in our Declaration of 
Independence and Constitution that have been followed by so many other 
countries since the great statement in the Declaration of Independence, 
those self-evident truths, that all of us are created equal; we are 
endowed by our creator with these inalienable rights to life and 
liberty and the pursuit of happiness.
  The Constitution enshrines a system of representative government, a 
great republic, government by the consent of the governed. But we must 
acknowledge that at the outset of our history, as lofty as the 
principles were embraced and expressed in the Deceleration and the 
Constitution, they were not fully realized at the outset of our 
history. People of color, African Americans, were not only denied the 
rights of citizenship but were only counted three-fifths the equal of 
Whites. Women did not have the right to vote. Many men did not have the 
right to vote because the vote in most States was limited to those who 
owned land.
  So over our history, we have been on this extraordinary journey to 
realize, generation after generation, the ideals stated by our 
Founders. Of course, in many cases it took too long, but here we are in 
a country where voting, at least, has been extended fully to most 
people in our country--the right to vote, the right to have voting 
representation in Congress. Yet there is this growth remaining; 600,000 
of our fellow Americans get taxed, get called to war, get regulated and 
supervised and everything else, and yet have no say here with a vote by 
a Representative in the House of Representatives. That is what this 
bill would do.
  It is not a small step, it is a significant, historic step forward on 
the journey to realize the best principles of this great Republic. When 
the time comes, I hope and believe our colleagues in both parties will 
finally right this wrong and extend voting representation in the House 
to residents of the District.
  I am pleased to see the Senator from California on the Senate floor, 
and I would yield to her at this time.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, I thank the manager of the bill. I 
rise today to speak in strong opposition to amendment No. 575 offered 
by Senator Ensign.
  I believe the amendment is reckless. I believe it is irresponsible. I 
believe it will lead to more weapons and more violence on the streets 
of our Nation's Capital. It will endanger the citizens of the District, 
the Government employees who work here, our elected officials, and 
those who visit this great American Capitol. And, of course, if 
successful, it will be the first new step in a march to remove all 
commonsense gun regulations all over this land.
  The Ensign amendment repeals gun laws promoting public safety, 
including DC laws that the U.S. Supreme Court indicated were 
permissible under the second amendment in the Heller decision. I 
strongly disagree with the Supreme Court decision in Heller that the 
second amendment gives individuals a right to possess weapons for 
private purposes not related to State militias, and that the 
Constitution does not permit a general ban on handguns in the home. But 
that is the law. It has been adjudicated. It has gone up to the highest 
Court, and I am one who believes if we do not like the law, we should 
try to make changes through the proper legal channels.
  However, it is important to note that Heller also stands for the 
proposition that reasonable, commonsense gun regulations are entirely 
permissible. As the author of the original assault weapons ban that was 
enacted in 1994, I know commonsense gun regulations do make our 
communities safer, while at the same time respecting the rights of 
sportsmen and others to keep and bear arms.
  Justice Scalia wrote in the majority opinion on the Heller case that 
a wide variety of gun laws are ``presumptively lawful,'' including the 
laws ``forbidding the carrying of firearms in sensitive places'' and 
regulations governing ``the conditions and qualifications of the 
commercial sale of arms.''
  I cannot think of any place more sensitive than the District of 
Columbia. Even bans on ``dangerous and unusual weapons'' are completely 
appropriate under the Heller decision. So it is interesting to me that 
you have this decision, and then you have the Senate moving even to 
obliterate what is allowable under the decision.
  Senator Ensign's amendment completely ignores Heller's language and 
takes the approach that all guns for all people at all times is called 
for by Heller. It is not.
  We have all seen the tragic consequences of gun violence: the 
massacre of students at Virginia Tech University in 2007, the murders 
at Columbine High School in Colorado, the North Hollywood shootout 
where bank robbers carrying automatic weapons and shooting armor-
piercing bullets shot 10 Los Angeles Police Department SWAT officers 
and seven civilians before being stopped.
  We have seen criminal street gangs able to buy weapons at gun shows 
and out of the back seats or the trunks of automobiles. We have seen 
their bullets kill hundreds, if not thousands of people across this 
great land, men, women, and children.
  As Senator Schumer said, if this amendment becomes law, even if you 
cannot see, even if you cannot pass a sight test, you can have access 
to firearms. That is not what this Nation should encourage. Those 
incidents and the gun violence that occurs every day across this 
country show us that we should be doing more, not less, to keep guns 
out of the hands of criminals and the mentally ill and not give them 
unfettered access to firearms.
  It is worth noting just how far this amendment goes in repealing DC 
law and just how unsafe it will make the streets of this capital. Here 
is what it would do: It would repeal DC's ban on semiautomatic weapons, 
including assault weapons.
  If this amendment becomes law, military-style assault weapons with 
high-capacity magazines will be allowed to be stockpiled in homes and 
businesses in the District, even near Federal buildings such as the 
White House and the Capitol. Even the .50 caliber sniper rifle, with a 
range of over 1 mile, will be allowed in DC under this amendment. This 
is a weapon capable of firing rounds that can penetrate concrete and 
armor plating. And at least one model of the .50 caliber sniper rifle 
is easily concealed and transported. One gun manufacturer describes 
this model as a ``lightweight and tactical'' weapon and capable of 
being collapsed and carried in ``a very small inconspicuous package.''
  Is this what we want to do? There is simply no good reason anyone 
needs semiautomatic, military-style assault weapons in an urban 
community. It is unfathomable to me that the same high-powered sniper 
rifle used by our Armed Forces will be permitted in the Nation's 
Capitol. Yet this is exactly what the amendment would allow if passed 
by the Senate.
  Next, the amendment would repeal existing Federal antigun trafficking 
laws. For years, Federal law has banned gun dealers from selling 
handguns directly to out-of-State buyers who are not licensed firearms 
dealers.

[[Page 5946]]

This has helped substantially in the fight against illegal interstate 
gun trafficking, and it has prevented criminals from traveling to other 
States to buy guns.
  Senator Ensign's amendment repeals this longstanding Federal law and 
allows DC residents to cross State lines to buy handguns in neighboring 
States. Illegal gun traffickers will be able to easily obtain large 
quantities of firearms outside of DC and then distribute those guns to 
criminals in DC and in surrounding States.
  And no one should be so naive as to say that this amendment will not 
do this. It will. The amendment repeals DC law restricting the ability 
of dangerous and unqualified people to obtain guns. The amendment also 
repeals many of the gun regulations that the Supreme Court said were 
completely appropriate after Heller.
  So all of those who will vote for this amendment should not do so 
thinking they are just complying with the Heller decision. This is part 
of a march forward by gun lobby interests in this country to begin to 
remove all commonsense regulations, and no one should think it is 
anything else.
  This would repeal the DC prohibition on persons under the age of 21 
from possessing firearms, and it repeals all age limits for the 
possession of long guns, including assault weapons.
  Do we really want that? I think of the story of an 11-year-old who 
had a reduced barreled shotgun and just recently killed somebody with 
it. Is this what we want to see all over this country, the ability of 
virtually anyone to obtain a firearm regardless of their age? I don't 
think so.
  The amendment even repeals the DC law prohibiting gun possession by 
people who have poor vision. I heard Senator Schumer speak about this 
yesterday afternoon. Unbelievably, under this amendment, the District 
would be barred from having any vision requirement for gun use, even if 
someone is blind. Is this the kind of public policy we want to make for 
our Nation? Is this how co-opted this body is to the National Rifle 
Association and others? I hope not.
  The amendment before the Senate repeals all firearm registration 
requirements in the District, making it even more difficult for law 
enforcement to trace guns used in crimes and track down the registered 
owner. The amendment repeals all existing safe-storage laws and 
prohibits the District from enacting any additional safe-storage laws.
  After the Heller decision, the District passed emergency legislation 
to allow guns to be unlocked for self-defense, but requiring that they 
otherwise be kept locked to keep guns out of the hands of children and 
criminals. We all ought to want that.
  The Ensign amendment repeals even this modest limitation and prevents 
the District of Columbia City Council from enacting any law that 
discourages, whatever that means, gun ownership or requiring the safe 
storage of firearms. How can we, in the Capitol of the United States 
where we have had so many tragic events, possibly do this? This is 
simply ridiculous and goes well beyond the Supreme Court's ruling in 
Heller.
  Think about what this means. Consider that every major gun 
manufacturer recommends that guns be kept unloaded, locked, and kept in 
a safe place. Under this amendment, the District could not enact any 
legislation requiring that guns be stored in a safe place, even in 
homes with children. How can anyone believe this broad- brush amendment 
is the right thing to do? How can any of us believe it provides 
protection for the people we represent?
  Let me make one other point. The American people clearly do not agree 
with this amendment. Last fall, when a virtually identical bill was 
being considered in the House of Representatives, a national poll found 
that 69 percent of Americans opposed Congress passing a law to 
eliminate the District's gun laws, 69 percent. That is about as good as 
we get on any controversial issue. Additionally, 60 percent of 
Americans believe Washington will become less safe if Congress takes 
this step.
  Is this what we want? Do we want the Capitol of the United States to 
become less safe? I don't think so. Today, if this amendment passes in 
the Senate, it will be directly against the wishes of the American 
people. It will not pass because it is good public policy, it will only 
be passed to placate the National Rifle Association. I say for shame.
  As a former mayor who saw firsthand what happens when guns fall into 
the hands of criminals, juveniles, and the mentally ill, I believe this 
amendment places the families of the District of Columbia in great 
jeopardy. The amendment puts innocent lives at stake. It is an affront 
to the public safety of the District. It is an affront to local home 
rule. This isn't just a bad amendment; it is a very dangerous one. I 
very strongly urge Senators to join me in opposing it.
  Mr. President, when this bill was tried in the House a year ago, a 
poll was done nationally in which 69 percent of the people were against 
it. I have to believe a dominant majority would still be against it. I 
urge a no vote on the amendment.
  The PRESIDING OFFICER. The Senator from Nevada is recognized for 2 
minutes.
  Mr. ENSIGN. Mr. President, I wish to clear up a couple of 
misstatements made by the other side. First, they said that somebody 
who is mentally ill could get a gun under this provision. That is not 
the case. We basically take the Federal definition which does not allow 
people who are mentally ill to get guns because reasonable background 
checks can be required and should be required so that somebody who is 
mentally ill won't get a gun. We don't want to see a Virginia Tech type 
of a situation happen again. This amendment does not allow it.
  The bottom line is, the District of Columbia has the highest murder 
rate. It has had the highest murder rate, and that rate has gone up as 
the District has enacted stricter and stricter gun control laws. As the 
Senator from California said, we want to protect citizens. Shouldn't we 
do what other places have done and allow law-abiding citizens to 
actually own guns? That is what the amendment provides. It says: Let's 
protect the second amendment rights for law-abiding District of 
Columbia residents so they can protect themselves against intruders 
coming into their homes.
  Criminals are going to get their guns. We know that. Criminals get 
their guns in DC and around the country. They do it through the black 
market. In DC, they can go right across the border and get a gun pretty 
easily. We want to make sure that law-abiding citizens are able to get 
guns and to protect themselves. That is the basis for this amendment, 
to say: Let's uphold the Supreme Court. Let's make sure we protect the 
second amendment rights of citizens in the District of Columbia. We are 
exercising our constitutional duty both with oversight over the 
District of Columbia and by protecting the second amendment rights of 
our citizens.
  I urge a yea vote on the amendment.
  The PRESIDING OFFICER. All time has expired.
  The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, Senator Reid wishes to speak for 2 
minutes before the vote. Therefore, 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. ENSIGN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ENSIGN. I ask for the yeas and nays on amendment No. 575.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. 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.

[[Page 5947]]


  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I ask unanimous consent that the vote 
commence upon completion of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, we have had a good debate on this bill. It 
has gone on all week. I thank my colleagues on both sides of the aisle 
for a very productive, intelligent conversation. The Senate today is 
moving to right a century's-old wrong. It is inexcusable and 
indefensible that nearly 600,000 people who live in the District of 
Columbia don't enjoy a voice in Congress as do other American citizens. 
We are the only democracy in the world that denies citizens of its 
capital--our capital, Washington, DC--the right to vote in a national 
legislature in any way. Residents of Washington, DC pay taxes. They sit 
on juries. They serve bravely in the armed services. Yet they are 
provided only a delegate in Congress who is not permitted to vote. This 
injustice has stood for far too long. Shadow representation is shadow 
citizenship and is offensive to our democracy.
  I hope the bill will pass today. It is a bill that is fair, 
bipartisan, and long overdue. If we can send American soldiers to fight 
for democracy around the world and ensure citizens of other nations 
that they have a right to vote, the least we can do is give the same 
opportunity to fellow Americans in the shadow of this great Capitol. We 
will shortly vote on a bill that honors the residents of the District 
who responsibly meet every single expectation of American citizenship 
but are denied one of the most basic civil rights in return.
  I commend Chairman Lieberman, who has taken leadership on this issue 
for no reason or agenda other than he believes it is right to do this.
  I urge all Senators to vote for this measure.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
575, offered by the Senator from Nevada, Mr. Ensign. The yeas and nays 
have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). Are there any other 
Senators in the Chamber desiring to vote?
  The result was announced--yeas 62, nays 36, as follows:

                      [Rollcall Vote No. 72 Leg.]

                                YEAS--62

     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Byrd
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dorgan
     Ensign
     Enzi
     Feingold
     Graham
     Grassley
     Gregg
     Hagan
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson
     Kyl
     Landrieu
     Lincoln
     Martinez
     McCain
     McCaskill
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Reid
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Specter
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Wicker

                                NAYS--36

     Akaka
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Dodd
     Durbin
     Feinstein
     Gillibrand
     Harkin
     Inouye
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Stabenow
     Whitehouse
     Wyden

                             NOT VOTING--1

       
     Kennedy
       
  The amendment (No. 575) was agreed to.
  Mr. REID. Mr. President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. Mr. President, this will be the last vote this week. We 
hope to be able to get to the omnibus on Monday. We are going to be on 
the omnibus one way or the other on Monday. I will file cloture on the 
matter if I have to, but I think we are going to move to that Monday. 
We have a lot of work to do. The CR expires on Friday. I have had 
conversations today with the Republican leader. We both understand the 
urgency of trying to get this done. We are going to try to have as many 
amendments as time will allow. People should be here ready to move on 
this bill as soon as we are able to get to it. I have already heard 
from a couple of Senators who have amendments ready to go. What we will 
try to do is alternate sides on amendments and hopefully finish it on 
Thursday. Next Friday is supposed to be a nonvoting day. We hope we can 
keep it that way, but this is an important piece of legislation we must 
complete.
  This is the last vote for the day.
  The PRESIDING OFFICER. The substitute amendment, as amended, is 
agreed to.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. LEVIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill pass?
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER (Ms. Klobuchar). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 61, nays 37, as follows:

                      [Rollcall Vote No. 73 Leg.]

                                YEAS--61

     Akaka
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gillibrand
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     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--37

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

                             NOT VOTING--1

       
     Kennedy
       
  The bill (S. 160), as amended, was passed, as follows:

                                 S. 160

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

     TITLE I--DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2009

     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.--

[[Page 5948]]

       (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'';

       (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

[[Page 5949]]

       (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.

       (a) Special Rules for Actions Brought on Constitutional 
     Grounds.--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 United States District 
     Court 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 United States District 
     Court 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.
       (b) Intervention by Members of Congress.--
       (1) In general.--In any action in which the 
     constitutionality of any provision of this Act or any 
     amendment made by this Act is challenged (including an action 
     described in subsection (a)), any member of the House of 
     Representatives (including a Delegate or Resident 
     Commissioner to the Congress) or the Senate shall have the 
     right to intervene or file legal pleadings or briefs either 
     in support of or opposition to the position of a party to the 
     case regarding the constitutionality of the provision or 
     amendment.
       (2) Court efficiency.--To avoid duplication of efforts and 
     reduce the burdens placed on the parties to the action, the 
     court in any action described in paragraph (1) may make such 
     orders as it considers necessary, including orders to require 
     intervenors taking similar positions to file joint papers or 
     to be represented by a single attorney at oral argument.
       (c) Challenge by Members of Congress.--Any Member of 
     Congress may bring an action, subject to the special rules 
     described in subsection (a), to challenge the 
     constitutionality of any provision of this Act or any 
     amendment made by this Act.

     SEC. 9. FCC AUTHORITIES.

       (a) Clarification of General Powers.--Title III of the 
     Communications Act of 1934 is amended by inserting after 
     section 303 (47 U.S.C. 303) the following new section:

     ``SEC. 303B. CLARIFICATION OF GENERAL POWERS.

       ``(a) Certain Affirmative Actions Required.--The Commission 
     shall take actions to encourage and promote diversity in 
     communication media ownership and to ensure that broadcast 
     station licenses are used in the public interest.
       ``(b) Construction.--Nothing in section 303A shall be 
     construed to limit the authority of the Commission regarding 
     matters unrelated to a requirement that broadcasters present 
     or ascertain opposing viewpoints on issues of public 
     importance.''.
       (b) Severability.--Notwithstanding section 7(a), 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 
     amendment made by subsection (a) and the application of such 
     amendment to any other person or circumstance shall not be 
     affected by such holding.

     SEC. 10. FAIRNESS DOCTRINE PROHIBITED.

       (a) Limitation on General Powers: Fairness Doctrine.--Title 
     III of the Communications Act of 1934 is amended by inserting 
     after section 303 (47 U.S.C. 303) the following new section:

     ``SEC. 303A. LIMITATION ON GENERAL POWERS: FAIRNESS DOCTRINE.

       ``Notwithstanding section 303 or any other provision of 
     this Act or any other Act authorizing the Commission to 
     prescribe rules, regulations, policies, doctrines, standards, 
     guidelines, or other requirements, the Commission shall not 
     have the authority to prescribe any rule, regulation, policy, 
     doctrine, standard, guideline, or other requirement that has 
     the purpose or effect of reinstating or repromulgating (in 
     whole or in part)--
       ``(1) the requirement that broadcasters present or 
     ascertain opposing viewpoints on issues of public importance, 
     commonly referred to as the `Fairness Doctrine', as repealed 
     in In re Complaint of Syracuse Peace Council against 
     Television Station WTVH, Syracuse New York, 2 FCC Rcd. 5043 
     (1987); or
       ``(2) any similar requirement that broadcasters meet 
     programming quotas or guidelines for issues of public 
     importance.''.
       (b) Severability.--Notwithstanding section 7(a), 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 
     amendment made by subsection (a) and the application of such 
     amendment to any other person or circumstance shall not be 
     affected by such holding.

               TITLE II--SECOND AMENDMENT ENFORCEMENT ACT

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Second Amendment 
     Enforcement Act''.

     SEC. 202. CONGRESSIONAL FINDINGS.

       Congress finds the following:
       (1) The Second Amendment to the United States Constitution 
     provides that the right of the people to keep and bear arms 
     shall not be infringed.
       (2) As the Congress and the Supreme Court of the United 
     States have recognized, the Second Amendment to the United 
     States Constitution protects the rights of individuals, 
     including those who are not members of a militia or engaged 
     in military service or training, to keep and bear arms.
       (3) The law-abiding citizens of the District of Columbia 
     are deprived by local laws of handguns, rifles, and shotguns 
     that are commonly kept by law-abiding persons throughout the 
     United States for sporting use and for lawful defense of 
     their persons, homes, businesses, and families.
       (4) The District of Columbia has the highest per capita 
     murder rate in the Nation, which may be attributed in part to 
     local laws prohibiting possession of firearms by law-abiding 
     persons who would otherwise be able to defend themselves and 
     their loved ones in their own homes and businesses.
       (5) The Federal Gun Control Act of 1968, as amended by the 
     Firearms Owners' Protection Act of 1986, and the Brady 
     Handgun Violence Prevention Act of 1993, provide 
     comprehensive Federal regulations applicable in the District 
     of Columbia as elsewhere. In addition, existing District of 
     Columbia criminal laws punish possession and illegal use of 
     firearms by violent criminals and felons. Consequently, there 
     is no need for local laws which only affect and disarm law-
     abiding citizens.
       (6) Officials of the District of Columbia have indicated 
     their intention to continue to unduly restrict lawful firearm 
     possession and use by citizens of the District.
       (7) Legislation is required to correct the District of 
     Columbia's law in order to restore the fundamental rights of 
     its citizens under the Second Amendment to the United States 
     Constitution and thereby enhance public safety.

[[Page 5950]]



     SEC. 203. REFORM D.C. COUNCIL'S AUTHORITY TO RESTRICT 
                   FIREARMS.

       Section 4 of the Act entitled ``An Act to prohibit the 
     killing of wild birds and wild animals in the District of 
     Columbia'', approved June 30, 1906 (34 Stat. 809; sec. 1-
     303.43, D.C. Official Code) is amended by adding at the end 
     the following: ``Nothing in this section or any other 
     provision of law shall authorize, or shall be construed to 
     permit, the Council, the Mayor, or any governmental or 
     regulatory authority of the District of Columbia to prohibit, 
     constructively prohibit, or unduly burden the ability of 
     persons not prohibited from possessing firearms under Federal 
     law from acquiring, possessing in their homes or businesses, 
     or using for sporting, self-protection or other lawful 
     purposes, any firearm neither prohibited by Federal law nor 
     subject to the National Firearms Act. The District of 
     Columbia shall not have authority to enact laws or 
     regulations that discourage or eliminate the private 
     ownership or use of firearms. Nothing in the previous two 
     sentences shall be construed to prohibit the District of 
     Columbia from regulating or prohibiting the carrying of 
     firearms by a person, either concealed or openly, other than 
     at the person's dwelling place, place of business, or on 
     other land possessed by the person.''.

     SEC. 204. REPEAL D.C. SEMIAUTOMATIC BAN.

       (a) In General.--Section 101(10) of the Firearms Control 
     Regulations Act of 1975 (sec. 7-2501.01(10), D.C. Official 
     Code) is amended to read as follows:
       ``(10) `Machine gun' means any firearm which shoots, is 
     designed to shoot, or may be readily restored to shoot 
     automatically, more than 1 shot without manual reloading by a 
     single function of the trigger, and includes the frame or 
     receiver of any such weapon, any part designed and intended 
     solely and exclusively, or combination of parts designed and 
     intended, for use in converting a weapon into a machine gun, 
     and any combination of parts from which a machine gun can be 
     assembled if such parts are in the possession or under the 
     control of a person.''.
       (b) Conforming Amendment to Provisions Setting Forth 
     Criminal Penalties.--Section 1(c) of the Act of July 8, 1932 
     (47 Stat. 651; sec. 22-4501(c), D.C. Official Code) is 
     amended to read as follows:
       ``(c) `Machine gun', as used in this Act, has the meaning 
     given such term in section 101(10) of the Firearms Control 
     Regulations Act of 1975.''.

     SEC. 205. REPEAL REGISTRATION REQUIREMENT.

       (a) Repeal of Requirement.--
       (1) In general.--Section 201(a) of the Firearms Control 
     Regulations Act of 1975 (sec. 7-2502.01(a), D.C. Official 
     Code) is amended by striking ``any firearm, unless'' and all 
     that follows through paragraph (3) and inserting the 
     following: ``any firearm described in subsection (c).''.
       (2) Description of firearms remaining illegal.--Section 201 
     of such Act (sec. 7-2502.01, D.C. Official Code) is amended 
     by adding at the end the following new subsection:
       ``(c) A firearm described in this subsection is any of the 
     following:
       ``(1) A sawed-off shotgun.
       ``(2) A machine gun.
       ``(3) A short-barreled rifle.''.
       (3) Conforming amendment.--The heading of section 201 of 
     such Act (sec. 7-2502.01, D.C. Official Code) is amended by 
     striking ``Registration requirements'' and inserting 
     ``Firearm Possession''.
       (b) Conforming Amendments to Firearms Control Regulations 
     Act.--The Firearms Control Regulations Act of 1975 is amended 
     as follows:
       (1) Sections 202 through 211 (secs. 7-2502.02 through 7-
     2502.11, D.C. Official Code) are repealed.
       (2) Section 101 (sec. 7-2501.01, D.C. Official Code) is 
     amended by striking paragraph (13).
       (3) Section 401 (sec. 7-2504.01, D.C. Official Code) is 
     amended--
       (A) in subsection (a), by striking ``the District;'' and 
     all that follows and inserting the following: ``the District, 
     except that a person may engage in hand loading, reloading, 
     or custom loading of ammunition for firearms lawfully 
     possessed under this Act.''; and
       (B) in subsection (b), by striking ``which are 
     unregisterable under section 202'' and inserting ``which are 
     prohibited under section 201''.
       (4) Section 402 (sec. 7-2504.02, D.C. Official Code) is 
     amended--
       (A) in subsection (a), by striking ``Any person eligible to 
     register a firearm'' and all that follows through ``such 
     business,'' and inserting the following: ``Any person not 
     otherwise prohibited from possessing or receiving a firearm 
     under Federal or District law, or from being licensed under 
     section 923 of title 18, United States Code,''; and
       (B) in subsection (b), by amending paragraph (1) to read as 
     follows:
       ``(1) The applicant's name;''.
       (5) Section 403(b) (sec. 7-2504.03(b), D.C. Official Code) 
     is amended by striking ``registration certificate'' and 
     inserting ``dealer's license''.
       (6) Section 404(a)(3) (sec. 7-2504.04(a)(3)), D.C. Official 
     Code) is amended--
       (A) in subparagraph (B)(i), by striking ``registration 
     certificate number (if any) of the firearm,'';
       (B) in subparagraph (B)(iv), by striking ``holding the 
     registration certificate'' and inserting ``from whom it was 
     received for repair'';
       (C) in subparagraph (C)(i), by striking ``and registration 
     certificate number (if any) of the firearm'';
       (D) in subparagraph (C)(ii), by striking ``registration 
     certificate number or''; and
       (E) by striking subparagraphs (D) and (E).
       (7) Section 406(c) (sec. 7-2504.06(c), D.C. Official Code) 
     is amended to read as follows:
       ``(c) Within 45 days of a decision becoming effective which 
     is unfavorable to a licensee or to an applicant for a 
     dealer's license, the licensee or application shall--
       ``(1) lawfully remove from the District all destructive 
     devices in his inventory, or peaceably surrender to the Chief 
     all destructive devices in his inventory in the manner 
     provided in section 705; and
       ``(2) lawfully dispose, to himself or to another, any 
     firearms and ammunition in his inventory.''.
       (8) Section 407(b) (sec. 7-2504.07(b), D.C. Official Code) 
     is amended by striking ``would not be eligible'' and all that 
     follows and inserting ``is prohibited from possessing or 
     receiving a firearm under Federal or District law.''.
       (9) Section 502 (sec. 7-2505.02, D.C. Official Code) is 
     amended--
       (A) by amending subsection (a) to read as follows:
       ``(a) Any person or organization not prohibited from 
     possessing or receiving a firearm under Federal or District 
     law may sell or otherwise transfer ammunition or any firearm, 
     except those which are prohibited under section 201, to a 
     licensed dealer.'';
       (B) by amending subsection (c) to read as follows:
       ``(c) Any licensed dealer may sell or otherwise transfer a 
     firearm to any person or organization not otherwise 
     prohibited from possessing or receiving such firearm under 
     Federal or District law.'';
       (C) in subsection (d), by striking paragraphs (2) and (3); 
     and
       (D) by striking subsection (e).
       (10) Section 704 (sec. 7-2507.04, D.C. Official Code) is 
     amended--
       (A) in subsection (a), by striking ``any registration 
     certificate or'' and inserting ``a''; and
       (B) in subsection (b), by striking ``registration 
     certificate,''.
       (c) Other Conforming Amendments.--Section 2(4) of the 
     Illegal Firearm Sale and Distribution Strict Liability Act of 
     1992 (sec. 7-2531.01(4), D.C. Official Code) is amended--
       (1) in subparagraph (A), by striking ``or ignoring proof of 
     the purchaser's residence in the District of Columbia''; and
       (2) in subparagraph (B), by striking ``registration and''.

     SEC. 206. REPEAL HANDGUN AMMUNITION BAN.

       Section 601(3) of the Firearms Control Regulations Act of 
     1975 (sec. 7-2506.01(3), D.C. Official Code) is amended by 
     striking ``is the holder of the valid registration 
     certificate for'' and inserting ``owns''.

     SEC. 207. RESTORE RIGHT OF SELF DEFENSE IN THE HOME.

       Section 702 of the Firearms Control Regulations Act of 1975 
     (sec. 7-2507.02, D.C. Official Code) is repealed.

     SEC. 208. REMOVE CRIMINAL PENALTIES FOR POSSESSION OF 
                   UNREGISTERED FIREARMS.

       (a) In General.--Section 706 of the Firearms Control 
     Regulations Act of 1975 (sec. 7-2507.06, D.C. Official Code) 
     is amended--
       (1) by striking ``that:'' and all that follows through 
     ``(1) A'' and inserting ``that a''; and
       (2) by striking paragraph (2).
       (b) Effective Date.--The amendments made by subsection (a) 
     shall apply with respect to violations occurring after the 
     60-day period which begins on the date of the enactment of 
     this Act.

     SEC. 209. REMOVE CRIMINAL PENALTIES FOR CARRYING A FIREARM IN 
                   ONE'S DWELLING OR OTHER PREMISES.

       (a) In General.--Section 4(a) of the Act of July 8, 1932 
     (47 Stat. 651; sec. 22-4504(a), D.C. Official Code) is 
     amended--
       (1) in the matter before paragraph (1), by striking ``a 
     pistol,'' and inserting the following: ``except in his 
     dwelling house or place of business or on other land 
     possessed by that person, whether loaded or unloaded, a 
     firearm,''; and
       (2) by striking ``except that:'' and all that follows 
     through ``(2) If the violation'' and inserting ``except that 
     if the violation''.
       (b) Conforming Amendment.--Section 5 of such Act (47 Stat. 
     651; sec. 22-4505, D.C. Official Code) is amended--
       (1) by striking ``pistol'' each place it appears and 
     inserting ``firearm''; and
       (2) by striking ``pistols'' each place it appears and 
     inserting ``firearms''.

     SEC. 210. AUTHORIZING PURCHASES OF FIREARMS BY DISTRICT 
                   RESIDENTS.

       Section 922 of title 18, United States Code, is amended in 
     paragraph (b)(3) by inserting after ``other than a State in 
     which the licensee's place of business is located'' the 
     following: ``, or to the sale or delivery of a handgun to a 
     resident of the District of Columbia by a licensee whose 
     place of business is located in Maryland or Virginia,''.

     SEC. 211. REPEALS OF DISTRICT OF COLUMBIA ACTS.

       The Firearms Registration Amendment Act of 2008 and the 
     Firearms Registration Emergency Amendment Act of 2008, as

[[Page 5951]]

     passed by the District of Columbia, are repealed.

     SEC. 212. SEVERABILITY.

       Notwithstanding any other provision of this Act, if any 
     provision of this Act, or any amendment made by this Act, or 
     the application of such provision or amendment to any person 
     or circumstance is held to be unconstitutional, this title 
     and amendments made by this title, and the application of 
     such provision or amendment to other persons or circumstances 
     shall not be affected thereby.

  Mr. LIEBERMAN. Madam President, I move to reconsider the vote, and I 
move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LIEBERMAN. Madam President, I rise today to thank my colleagues 
for voting to pass the historic District of Columbia House Voting 
Rights Act of 2009 and giving the citizens who live in the capital of 
the free world the right to exercise that most basic of freedoms--the 
right to choose who governs them.
  Passage of this act is another step on our long march to make our 
democracy ever more inclusive.
  Thomas Jefferson once wrote:

       It is by their votes the people exercise their sovereignty.

  But when Jefferson wrote those words only a small pool of white 
landowners got to choose who governed them.
  Since then, through acts of state legislatures, the Congress and the 
courts the right to vote has been extended to men over 21--regardless 
of property ownership--to newly freed black men who, along with their 
families, had previously counted as just three fifths of a person, and 
then to women and to 18 year olds.
  And after extending those rights we further decided that each of 
these votes should count equally--``one man, one vote,'' and that no 
one legally entitled to vote could be denied the franchise by a poll 
tax or voting test.
  The men and women of the District--a city of nearly 600,000--fight in 
our wars and pay Federal taxes; yet, they have no say on issues of war 
and peace or how their money is spent.
  Perhaps the ultimate slight of denying the right to vote to District 
residents was that if an American were to move abroad, their right to 
vote in their home State was guaranteed, regardless of how long they 
remained out of the country. The only way they could lose that right 
was if they were to either renounce their citizenship or return to the 
United States and live in Washington, DC.
  Today we fixed this situation and we can all be proud of our work.
  I want to thank Senator Reid for bringing this to the floor and thank 
his outstanding floor staff--as well as other Democratic and Republican 
Senate staffers--for their hard work.
  And finally, I would like to take a moment to thank Michael 
Alexander, Kevin Landy, Holly Idelson Deborah Parkinson, Leslie 
Phillips, Scott Campbell, David Rosenbaum and the rest of the staff of 
the Homeland Security and Governmental Affairs Committee staff for 
their hard work in bringing this bill successfully to the floor of the 
Senate.
  I am proud to share this historic moment with them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California is recognized.

                          ____________________