[Senate Report 107-343]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-343
_______________________________________________________________________

                                                       Calendar No. 701

                   NO TAXATION WITHOUT REPRESENTATION

                              ACT OF 2002

                               __________



                              R E P O R T

                                 of the

                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                             together with

                             MINORITY VIEWS

                              to accompany

                                S. 3054

TO PROVIDE FOR FULL VOTING REPRESENTATION IN CONGRESS FOR THE CITIZENS 
          OF THE DISTRICT OF COLUMBIA, AND FOR OTHER PURPOSES




               November 15, 2002.--Ordered to be printed


                   COMMITTEE ON GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois          SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey     GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia                 THAD COCHRAN, Mississippi
THOMAS R. CARPER, Delaware           ROBERT F. BENNETT, Utah
JEAN CARNAHAN, Missouri              JIM BUNNING, Kentucky
MARK DAYTON, Minnesota               PETER G. FITZGERALD, Illinois
           Joyce A. Rechtschaffen, Staff Director and Counsel
                     Cynthia Gooen Lesser, Counsel
            Michael L. Alexander, Professional Staff Member
              Richard A. Hertling, Minority Staff Director
               Johanna L. Hardy, Minority Senior Counsel
                     Darla D. Cassell, Chief Clerk


                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background.......................................................1
III. Legislative History..............................................9
 IV. Section-by-Section Analysis.....................................10
  V. Evaluation of Regulatory Impact.................................11
 VI. Congressional Budget Office Cost Estimate.......................11
VII. Changes in Existing Law.........................................12
VIII.Minority Views..................................................13

                                                       Calendar No. 701
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-343

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



 
             NO TAXATION WITHOUT REPRESENTATION ACT OF 2002

                                _______
                                

               November 15, 2002.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Government Affairs, submitted the 
                               following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 3054]

    The Committee on Governmental Affairs, to which was 
referred the bill (S. 3054) to provide for full voting 
representation in Congress for the citizens of the District of 
Columbia, and for other purposes, reports favorably thereon and 
recommends that the bill do pass.

                         I. PURPOSE AND SUMMARY

    The purpose of S. 3054, the No Taxation Without 
Representation Act of 2002, is to provide full voting 
representation in Congress for the residents of the District of 
Columbia (``D.C.'' or the ``District'') by providing that D.C. 
residents would be entitled to elect and be represented by two 
Senators in the United States Senate, and as many 
representatives in the House of Representatives as a similarly 
populous State would be entitled to under the law.

                             II. BACKGROUND

    The residents of the District of Columbia have no 
representation in the United States Senate, and they are 
represented in the House of Representatives only by a Delegate, 
who cannot vote either on the floor or in the Committee of the 
Whole. Despite their lack of Congressional representation, D.C. 
residents pay federal income tax, paying the second-highest per 
capita amount in the nation.\1\ In a country founded upon a cry 
of ``No Taxation Without Representation,'' D.C.'s lack of 
Congressional representation is an intolerable state of affairs 
that is incompatible with core American values. S. 3054 seeks 
to right this wrong by the most direct route available: 
legislation to afford the District two Senators and a Member of 
the House of Representatives with full voting rights.
---------------------------------------------------------------------------
    \1\ Voting Representation in Congress for Citizens of the District 
of Columbia, Hearing Before the Senate Governmental Affairs Committee, 
107th Cong., S. Hrg. 107-555 (May 23, 2002) at 55 (Testimony of the 
Honorable Linda Cropp, Chairwoman, District of Columbia City Council).
---------------------------------------------------------------------------

The History of District of Columbia and Its Lack of Congressional 
        Representation

    The Constitution provides for a seat of government for the 
United States outside of any one state and under the exclusive 
control of Congress. The ``District Clause'' in Article I, 
Section 8, Clause 17 of the Constitution, provides Congress the 
authority to ``exercise exclusive Legislation, in all Cases 
whatsoever, over such District (not exceeding ten Miles square) 
as may, by Cession of particular States, and the Acceptance of 
Congress, become the Seat of the Government of the United 
States. . . .''
    The purpose of establishing a capital outside the 
jurisdiction of any one state was to ensure that authority over 
the seat of the federal government would be exercised 
exclusively by the federal government. In 1783, when the 
Continental Congress met in Philadelphia, a group of 
disgruntled Revolutionary War soldiers who had not yet been 
paid went to the Executive Council of Pennsylvania, which was 
meeting in the same building as the Congress, to obtain relief. 
When the Members of the Continental Congress requested that the 
Executive Council have the Pennsylvania militia put down the 
brewing uprising, the Pennsylvania authorities refused for fear 
of provoking a violent confrontation. Madison later called this 
incident disgraceful, and used it during constitutional debates 
to argue successfully for the need for exclusive federal 
jurisdiction over the seat of the federal government.\2\
---------------------------------------------------------------------------
    \2\ Id. at 81 (Testimony of Jamin Raskin, Professor of Law, 
Washington College of Law).
---------------------------------------------------------------------------
    The location of the District of Columbia was established in 
1791, on land on the banks of the Potomac River that had been 
ceded to the federal government by Maryland and Virginia. The 
laws of those states continued in force in the respective areas 
they had ceded.\3\ For a time, the residents of the area that 
would become the District of Columbia continued to vote in 
Maryland and Virginia for federal office holders, including 
Congressional representatives. Once federal legislation 
formally establishing the District as the seat of the national 
government took effect in 1801, however, its residents ceased 
to be citizens of Maryland and Virginia and were no longer 
permitted to vote in those jurisdictions.\4\
---------------------------------------------------------------------------
    \3\ Michael K. Fauntroy, ``The Evolution of District of Columbia 
Governance,'' CRS Report for Congress (November 13, 2001), at 2.
    \4\ Voting Representation in Congress for the District of Columbia, 
Hearing Before the Senate Governmental Affairs Committee, 103rd Cong., 
S. Hrg. 103-1053 (August 4, 1994) at 95 (Statement of Adam H. Kurland, 
Professor of Law, Howard University School of Law).
---------------------------------------------------------------------------
    In 1846, the land which had been ceded to the District by 
Virginia was returned to Virginia by Congress, reducing the 
size of the District of Columbia from 100 square miles to 68 
square miles.\5\ Therefore, the District of Columbia that 
exists today is comprised of the land ceded by Maryland.
---------------------------------------------------------------------------
    \5\ Fauntroy, November 13, 2001, at 3, cited at note 2 above.
---------------------------------------------------------------------------

Efforts to Obtain Voting Rights For the District of Columbia

    Over the years, numerous and persistent efforts have been 
made to provide residents of the District the same right that 
residents of the States enjoy to vote for and be represented by 
elected federal officials. In 1961, the 23rd Amendment granted 
District residents the right to appoint three electors for the 
purpose of electing the President and Vice-President. Then, in 
1970, the District of Columbia Delegate Act allowed District 
residents a non-voting Delegate in the House of 
Representatives.\6\ Like other Delegates and the Resident 
Commissioner from Puerto Rico, the Delegate to Congress from 
the District of Columbia is allowed to vote in committee, but 
not in the House sitting as the Committee of the Whole, or in 
the House sitting as the House.\7\ At the beginning of the 
103rd Congress, the House of Representatives agreed to a rule 
change that permitted Delegates to vote in the Committee of the 
Whole,\8\ but the House revoked this change at the start of the 
104th Congress.\9\
---------------------------------------------------------------------------
    \6\ Pub. L. No. 91-405.
    \7\ Michael K. Fauntroy, ``District of Columbia Voting 
Representation in Congress: Background, Issues and Options for the 
107th Congress,'' CRS Report for Congress (October 31, 2001), at 1.
    \8\ If Delegates' votes were the decisive margin on any measure, 
however, the rules provided for another ballot, from which the 
Delegates would be excluded. See H. Res. 5, which passed the House of 
Representatives on January 5, 1993.
    \9\ See H. Res. 6, which passed the House of Representatives on 
January 5, 1995.
---------------------------------------------------------------------------
    Past attempts to allow D.C. residents to elect full-voting 
representatives in the House and Senate have come primarily in 
five forms: (1) bills, similar to S. 3054, providing full 
voting representation in Congress for D.C. residents (two D.C. 
senators and one representative); (2) proposed constitutional 
amendments granting full Congressional representation to D.C. 
residents; (3) bills to grant statehood to the District; (4) 
bills to retrocede the District to the State of Maryland; and 
(5) bills calling for District residents to vote in Maryland 
for their representatives to the House and Senate.
    Earlier in this Congress, Chairman Lieberman, together with 
Senator Russ Feingold, introduced the No Taxation Without 
Representation Act of 2001 (S. 603), which provided that: 
``[n]otwithstanding any other provision of law, the community 
of American citizens who are residents of the District 
constituting the seat of government of the United States shall 
have full voting representation in the Congress.'' \10\ The 
bill was cosponsored by Senators Clinton, Corzine, Daschle, 
Dayton, Dodd, Durbin, Feinstein, Harkin, Jeffords, Kennedy, 
Leahy and Schumer. Delegate Eleanor Holmes Norton introduced an 
identical bill in the House of Representatives, which has 119 
cosponsors.\11\ These bills also provide that to the extent 
such representation is denied, residents of the District would 
be exempt from taxation. S. 3054 does not include this tax 
provision, and more expressly would grant Congressional 
representation by providing for two Senators and a House Member 
representing the District of Columbia.
---------------------------------------------------------------------------
    \10\ S. 603 was introduced on March 23, 2001.
    \11\ H.R. 1193 was introduced on March 22, 2001. In the 105th 
Congress, Delegate Norton introduced a bill on July 14, 1998 containing 
similar language to the provision quoted above.
---------------------------------------------------------------------------
    In 1967, Congress considered a possible constitutional 
amendment granting full Congressional representation to the 
District.\12\ Congress approved a similar measure in 1978, when 
a resolution for a constitutional amendment in this regard 
passed both the House and Senate.\13\ The proposed amendment 
lapsed, however, when only 16 States (rather than the 38 
required) ratified it by the 1985 deadline.\14\
---------------------------------------------------------------------------
    \12\ Fauntroy, October 31, 2001, at 3-4.
    \13\ H.J. Res. 554, which was introduced by Representative Don 
Edwards on July 25, 1977, passed the House on March 2, 1978 and the 
Senate on August 22, 1978.
    \14\ H.J. Res. 554 required that the state legislatures act on 
ratification within a seven year period.
---------------------------------------------------------------------------
    Another route to representation in Congress, which would 
also provide for increased local autonomy over District 
affairs, is statehood. In the last two decades, thirteen 
statehood bills have been introduced in the House and the 
Senate.\15\ Congress last considered this option in 1993 when 
Delegate Norton's statehood bill was defeated on the floor of 
the House.\16\ Concerns were expressed about statehood 
proposals that extended beyond issues relating to voting 
representation.\17\
---------------------------------------------------------------------------
    \15\ In the 98th Congress, D.C. Delegate Walter Fauntroy introduced 
H.R. 3861 on September 12, 1983, and Senator Edward Kennedy introduced 
S. 2672 on May 15, 1984. In the 99th Congress, Delegate Fauntroy 
introduced H.R. 325 on January 3, 1985, and Senator Kennedy introduced 
S. 293 on January 24, 1985. In the 100th Congress, Delegate Fauntroy 
introduced H.R. 51 on January 6, 1987, and Senator Kennedy introduced 
S. 863 on March 26, 1987. In the 101st Congress, Delegate Fauntroy 
introduced H.R. 51 on January 3, 1989, and Senator Kennedy introduced 
S. 2647 on May 17, 1990. In the 102nd Congress, Delegate Eleanor Holmes 
Norton introduced H.R. 2482 on May 29, 1991, and Senator Kennedy 
introduced S. 2023 on November 22, 1991. In the 103rd Congress, 
Delegate Norton introduced H.R. 51 on January 5, 1993, and Senator 
Kennedy introduced S. 898 on May 5, 1993. In the 104th Congress, 
Delegate Norton introduced H.R. 51 on January 4, 1995.
    \16\ H.R. 51 failed on November 21, 1993, by a vote of 277-153. The 
Senate never voted on any of the statehood bills introduced by Senator 
Kennedy.
    \17\ According to the Congressional Research Service, there are 
concerns about the consequences of further loosening federal control 
over the city that houses the seat of the federal government, although 
statehood proposals have generally carved out a smaller area within the 
city over which the federal government would maintain control. There 
are additional concerns about the economic viability of D.C. as a state 
given that it does not have a mix of rural, suburban and urban areas 
found in other states, even though economic indicators show that D.C. 
compares favorably in this regard with other states. Fauntroy, October 
31, 2001, at 7-9.
---------------------------------------------------------------------------
    Retrocession to Maryland of the non-federal land currently 
in the District has been proposed as an avenue to Congressional 
representation for D.C. residents. Seven bills to achieve this 
have been introduced since the 101st Congress.\18\ This would 
make District residents citizens of Maryland, eligible to vote 
for federal officers representing that state. Critics of this 
approach question whether Marylanders want the non-federal 
portion of the District back as a portion of their state, and, 
just as important, whether D.C. residents wish to be 
Marylanders. The retrocession to Virginia in 1846 of the area 
that had been contributed by Virginia occurred at the urging 
both of Virginia and those living in the area retroceded. It is 
unclear whether Congress can, or indeed whether it would be 
appropriate for Congress to, compel Maryland to take back the 
portion of the District it gave up more than 200 years ago.\19\
---------------------------------------------------------------------------
    \18\ In the 101st Congress, Representative Ralph Regula introduced 
H.R. 4195 on March 6, 1990. In the 102nd Congress, Representative 
Regula introduced H.R. 1204 on February 28, 1991. In the 103rd 
Congress, Representative Regula introduced H.R. 1205 on March 3, 1993. 
In the 104th Congress, Representative Regula introduced H.R. 1028 on 
February 23, 1995. In the 105th Congress, Representative Regula 
introduced H.R. 831 on February 25, 1997. In the 106th Congress, 
Representative Regula introduced H.R. 558 on February 3, 1999. In the 
107th Congress, Representative Regula introduced H.R. 810 on March 9, 
2001.
    \19\ See Voting Representation in Congress for the District of 
Columbia, Hearing Before the Senate Governmental Affairs Committee, 
103rd Cong., S. Hrg. 103-1053 (August 4, 1994) at 90 (Statement of 
Jamin Raskin, Professor of Law, Washington College of Law) (suggesting 
that Maryland's consent would be required for retrocession pursuant to 
Article IV of the Constitution).
---------------------------------------------------------------------------
    The suggestion that D.C. remain its own separate entity, 
but have its residents vote for Maryland Senators, is similarly 
problematic. It is not clear what kind of support for this 
solution exists among D.C. residents, and it is unknown how 
Marylanders would feel about having their votes for Senate 
diluted by the nearly 600,000 residents of D.C.\20\ Congress' 
power to impose this solution is also in question.\21\
---------------------------------------------------------------------------
    \20\ Fauntroy, October 31, 2001, at 9, 11.
    \21\ See Voting Representation in Congress for the District of 
Columbia, Hearing Before the Senate Governmental Affairs Committee, 
103rd Cong., S. Hrg. 103-1053 (August 4, 1994) at 92 (Statement of 
Jamin Raskin, Professor of Law, Washington College of Law) (suggesting 
that such an arrangement might, among other things, violate the 
constitutional requirement that members of Congress be elected ``by the 
people'' of the state).
---------------------------------------------------------------------------
    In addition to the possible legislative solutions, D.C. 
residents have attempted to obtain Congressional representation 
through the courts. The most recent effort in this regard was 
Alexander v. Daley.\22\ In that case, a 2-1 majority of a 
three-judge court ruled that under the Constitution, District 
residents were not entitled to representation in Congress, 
which the court held was reserved to the states. Because the 
constitution does not contemplate voting rights for District 
residents, the court further ruled that the lack of 
representation does not violate equal protection, due process, 
or any other constitutional principles. Therefore, despite its 
recognition of the ``inequity of the situation plaintiffs seek 
to change,'' the court ruled that it could not grant the relief 
that the D.C. residents sought, indicating that they ``must 
plead their cause in other venues.'' \23\
---------------------------------------------------------------------------
    \22\ 90 F. Supp.2d 35 (D.D.C. 2000), aff'd, 531 U.S. 940 (2000). 
This case was actually two cases consolidated: Adams v. Clinton, Civ. 
No. 98-1665 (LFO, MBG, CKK) (D.D.C), filed June 30, 1998, and Alexander 
v. Daley, Civ. No. 98-2187 (LFO, MBG, CKK) (D.D.C.) filed September 14, 
1998. Because they involved similar claims, the cases were consolidated 
on November 3, 1998.
    \23\ Id. at 72.
---------------------------------------------------------------------------
    The legislative branch is the best venue for correcting 
this historic inequity. S. 3054 will achieve this important 
goal by granting District residents full Congressional 
representation in both chambers of the national legislature.

Constitutional Issues

    There is some debate about the means by which voting rights 
may constitutionally be granted to D.C. residents. Congress 
clearly has the power, pursuant to Article IV of the 
Constitution, to grant statehood through legislation alone.\24\ 
The Committee believes that affording D.C. full Congressional 
representation--two Senators and a House Member--may also be 
achieved through legislation alone, and that a constitutional 
amendment, though a reasonable means to this goal, is not a 
necessary step.
---------------------------------------------------------------------------
    \24\ Some commentators, however, suggest that granting statehood to 
D.C. would be constitutionally problematic. See, e.g., Voting 
Representation in Congress for Citizens of the District of Columbia, 
Hearing Before the Senate Governmental Affairs Committee, 107th Cong., 
S. Hrg. 107-555 (May 23, 2002) at 75-76 (Statement of Adam H. Kurland, 
Professor of Law, Howard University School of Law) (suggesting the 23rd 
Amendment, which granted to D.C. electoral votes in Presidential 
elections, would have to be repealed).
---------------------------------------------------------------------------
    Article I of the Constitution specifically provides that 
the Senate itself shall be composed of two Senators from each 
``state,'' and that the House be composed of members chosen by 
the people of the several ``states.'' Under the plain meaning 
of these clauses, the citizens of the District are not entitled 
to representation in the House or the Senate because the 
District of Columbia is not a state. Indeed, this 
interpretation of Article I, supported by contemporary 
historical evidence, has been adopted by courts.\25\
---------------------------------------------------------------------------
    \25\ See, e.g., Alexander v. Daley, 90 F. Supp.2d at 65.
---------------------------------------------------------------------------
    Some argue that a constitutional amendment is necessary to 
alter this arrangement because it is integral to the 
constitutional structure of the United States, and represents a 
delicate compromise among the states that made ratification of 
the Constitution possible.\26\ Thus, the argument goes, the 
present lack of D.C. representation in the federal legislature 
is a feature of American federalism and because Congress does 
not have the power, by itself, to alter the structure of the 
Constitution, a constitutional amendment would be required to 
change this inequity.\27\
---------------------------------------------------------------------------
    \26\ Voting Representation in Congress for Citizens of the District 
of Columbia, Hearing Before the Senate Governmental Affairs Committee, 
107th Cong., S. Hrg. 107-555 (May 23, 2002) at 69 (Testimony of Adam H. 
Kurland, Professor of Law, Howard University School of Law).
    \27\ Id.
---------------------------------------------------------------------------
    The Committee believes that a constitutional amendment to 
afford D.C. full Congressional representation would be an 
effective and appropriate means to this end. The Committee does 
not, however, believe that a constitutional amendment is 
necessary; Congress has the power to treat D.C. as if it were a 
state for the purposes of Congressional representation, which 
is what S. 3054 does.
    Congress already treats the District as though it were a 
state for over 500 statutory purposes--from federal taxation to 
military conscription to highway funds, education funds, and 
national motor voter requirements. The Supreme Court has also 
deemed D.C. the equivalent of a state for certain 
constitutional purposes, including the Fourteenth Amendment's 
Privileges and Immunities Clause and the Full Faith and Credit 
Clause under Article IV of the Constitution.\28\ Even where the 
Supreme Court has held that D.C. residents do not have the same 
rights granted to inhabitants of a state by the Constitution, 
it has ruled in at least one case that Congress could extend 
those rights to D.C. residents.
---------------------------------------------------------------------------
    \28\ Id. at 83 (Testimony of Jamin Raskin, Professor of Law, 
Washington College of Law).
---------------------------------------------------------------------------
    That 1949 case, National Mutual Insurance Co. v. Tidewater 
Transfer Co., considered the constitutional provision regarding 
diversity jurisdiction, which allows cases arising under state 
law to be brought in federal courts where the controversy 
exists between ``citizens of different states.'' \29\ An 1805 
Supreme Court case had held that D.C. did not constitute a 
state for the purposes of that clause, and therefore that D.C. 
residents could not sue or be sued in diversity in federal 
court. Justice Marshall indicated, however, that the matter was 
one for ``legislative, not judicial consideration.'' \30\ It 
took over a hundred years, but Congress eventually took the 
cue: in 1940, Congress passed a law that extended diversity 
jurisdiction to cases involving D.C. residents, thereby 
essentially treating the District as if it were a state for the 
purposes of that provision of the Constitution.\31\ The Senate 
Judiciary Committee, in reporting out the bill, cited Congress' 
plenary power over the District under Article I, section 8 of 
the Constitution.\32\
---------------------------------------------------------------------------
    \29\ National Mutual Ins. Co. v. Tidewater Transfer Co., Inc., 337 
U.S. 582 (1949).
    \30\ Hepburn & Dundas v. Ellzey, 2 Cranch. 445, 463 (1805).
    \31\ Codified at 28 U.S.C. Sec. 1332.
    \32\ Tidewater, 337 U.S. at 588-89.
---------------------------------------------------------------------------
    The Tidewater Court, in a plurality opinion, upheld the 
statute. The plurality determined that Congress' conclusion 
that it had the requisite power under Article I was ``well 
founded.'' \33\ The plurality described that power as a ``full 
and unlimited jurisdiction to provide for the general welfare'' 
of the District ``by any and every act of legislation which 
[Congress] may deem conducive to that end.'' \34\ Based on this 
extensive power, as well Congress' power to ordain and 
establish the lower federal courts, the plurality held that 
Congress could extend diversity jurisdiction to include cases 
involving D.C. residents. Thus, Congress, pursuant to its 
plenary power over the District, was able to give D.C. 
residents rights--in this case access to the courts--that the 
Constitution appears on its face to deny them, and to grant 
only to citizens of states.\35\
---------------------------------------------------------------------------
    \33\ Id. at 589.
    \34\ Id. at 602, quoting Neild v. District of Columbia, 110 F.2d 
246, 250 (D.C. Cir. 1940).
    \35\ In answers he submitted to questions for the record in the May 
23, 2002 Governmental Affairs Committee hearing, Voting Representation 
in Congress for Citizens of the District of Columbia, Professor Adam 
Kurland of Howard University argued that Tidewater held that ``citizens 
of DC are not citizens of a State for the purposes of diversity 
jurisdiction, and that Congress lacked the legislative authority to 
alter that constitutional result.'' Voting Representation in Congress 
for Citizens of the District of Columbia, Hearing Before the Senate 
Governmental Affairs Committee, 107th Cong., S. Hrg. 107-555 (May 23, 
2002) at 199-200. While it is certainly true that a majority of the 
Court affirmed the 1805 ruling that D.C. does not constitute a state 
for the purposes of the Constitutional clause regarding diversity, the 
Tidewater court based its very holding on Congressional authority to 
alter that result. Obviously Congress by itself does not have the power 
to change the Constitution, but it can and did in that case treat D.C. 
as if it were a state, granting District residents the same rights as 
state residents have under that Constitutional provision. It is on that 
Congressional power that the Committee relies here to advance 
legislation that treats D.C. as if it were a state for the purposes of 
Congressional representation.
---------------------------------------------------------------------------
    As Walter Smith of the D.C. Appleseed Center, and L. Elise 
Dieterich of Swidler Berlin Shereff Friedman LLP, argue in 
their May 22, 2002 memorandum, ``Congress' Authority to Pass 
Legislation Giving District of Columbia Citizens Voting 
Representation in Congress,'' the very situation that led the 
Supreme Court to conclude that Congress had authority to treat 
D.C. as if it were a state is paralleled here.\36\ The holding 
in Alexander v. Daley--that Article I affords Congressional 
representation only to states, and that term cannot be 
interpreted to include D.C. for the purposes of those 
provisions--is similar to the holding in Hepburn, in which the 
Supreme Court held that Article III extends diversity 
jurisdiction only to states, which does not include D.C. It 
follows, therefore, that Congress may act here for the benefit 
of District residents pursuant to its plenary power over D.C. 
as it acted in 1940: by passing legislation to treat D.C. as if 
it were a state for the purposes of Congressional 
representation under Article I. As Smith and Dieterich put it, 
``Given the breadth of Congress' power under the District 
Clause, it would appear that Congress has the authority to 
provide for the `general welfare' of D.C. citizens by providing 
them the most important right they as citizens should possess--
the right to vote.'' \37\
---------------------------------------------------------------------------
    \36\ Voting Representation in Congress for Citizens of the District 
of Columbia, Hearing Before the Senate Governmental Affairs Committee, 
107th Cong., S. Hrg. 107-555 (May 23, 2002) at 89-99 (Walter Smith, 
Esq. and L. Elise Dieterich, Esq., ``Congress' Authority to Pass 
Legislation Giving District of Columbia Citizens Voting Representation 
in Congress,'' May 22, 2002, submitted for the record by Professor 
Jamin Raskin). This memorandum is also included in the record of the 
Senate Governmental Affairs Committee business meeting dated October 9, 
2002, at which the Committee voted to report S. 3054 favorably.
    \37\ Id at 90.
---------------------------------------------------------------------------
    Thus, by adopting S. 3054, even though a court has held 
that D.C. is not a ``state'' as that term is used under Article 
I for the purposes of Congressional representation, Congress 
may similarly choose to extend to the residents of the District 
representation in both chambers of Congress. Nothing in the 
Constitution prohibits this expressly--it is simply something 
that the Constitution grants specifically to the states, 
without mentioning the District of Columbia either way. To be 
sure, D.C. is not a state, nor would S. 3054 make it a state. 
Nevertheless, Congress may as it did with access to the courts, 
grant D.C. the same voice in the national legislature that 
states expressly receive under the Constitution.
    The Tidewater Court made clear that the one limiting 
principle on Congress' plenary power over the District is that 
``it may not draw into Congressional control subjects over 
which there has been no delegation of power to the Federal 
Government.'' \38\ In that case, the court held that Congress' 
general authority to ordain and establish the lower federal 
courts meant that Congress already had the power to expand 
jurisdictional limits beyond those expressly provided in the 
Constitution, as it had in the context of bankruptcy.\39\ Thus, 
Congress was not venturing into an area outside its normal 
scope of authority. Similarly, granting representation in the 
national legislature is something Congress already has the 
authority to do, pursuant to its power to grant Statehood under 
Article IV, Section 3. Therefore, Congress has the power to act 
on behalf of the residents of the District, and treat them as 
if they were residents of a state, in order to rectify an 
inequity that has persisted now for over 200 years.
---------------------------------------------------------------------------
    \38\ Tidewater, 337 U.S. at 602.
    \39\ Id. at 594-95.
---------------------------------------------------------------------------

Increased Membership of the House of Representatives

    Membership in the House has stayed the same since 1911, 
when it was set at 435 members. Until then, throughout the 19th 
century, Congress increased the size of the House with each 
census both to account for the growth in population and to 
provide for additional Members from newly admitted states.\40\ 
As a result of a dispute about the validity of the 1920 census, 
Congress failed to approve a bill that would have increased the 
size of the House to 438 (the number required so that no state 
would lose a Member), and indeed failed to reapportion the 
House until after the next census.\41\ In 1929, just before the 
1930 census, Congress passed the statute in effect today, which 
provides for reapportionment based on the ``then-existing 
number of Representatives.'' \42\ The number in effect then, 
435, has not changed. When Alaska and Hawaii were admitted, a 
House bill was introduced to increase the membership in the 
House, but it never reached the floor.\43\
---------------------------------------------------------------------------
    \40\ David C. Huckabee, ``House of Representatives: Setting the 
Size at 435,'' CRS Report for Congress (July 11, 1995) at 1.
    \41\ Id. at 1-2.
    \42\ 2 U.S.C. Sec. 2(a).
    \43\ H.R. 10264 was reported by the House Judiciary Committee on 
February 20, 1962, but failed when it was recommitted on March 8, 1962 
by a voice vote. See Huckabee at 6.
---------------------------------------------------------------------------
    There is no magic to the number ``435,'' and there appears 
to be no reason beyond tradition simply to stay with it. The 
Committee deems it appropriate to increase the House membership 
in this case as a recognition that D.C.'s Delegate in the House 
really is and should always have been regarded as a full Member 
of that body.

                        III. LEGISLATIVE HISTORY

    S. 3054, the ``No Taxation Without Representation Act of 
2002,'' was introduced by Chairman Lieberman on October 3, 2002 
and referred to the Governmental Affairs Committee. Senators 
Feingold, Kennedy, Durbin, Jeffords, Schumer, Daschle, 
Mikulski, Sarbanes, and Landrieu joined as co-sponsors of this 
legislation.
    Senator Lieberman had introduced an earlier bill, S. 603, 
the ``No Taxation Without Representation Act of 2001,'' which 
also addressed the inequity of D.C. residents' lack of 
Congressional voting representation. On February 14, 2002, 
during the debate on S. 565, the Equal Protection of Voting 
Rights Act of 2001, Chairman Lieberman and Senator Feingold 
offered, and then withdrew, S. 603 as an amendment to that 
legislation. This debate marked the first time since 1978 that 
the issue of voting representation for residents of the 
District of Columbia had been considered on the floor of the 
United States Senate. As Chairman Lieberman stated:

          The vote is a civic entitlement of every American 
        citizen. We believe the vote to be democracy's most 
        essential tool. Not only is the vote the indispensable 
        sparkplug of our democracy, the vote is the sine qua 
        non of democracy and equality because each person's 
        vote is of equal weight, no matter what their wealth is 
        or their station in life--or is it? That is the 
        question this amendment poses. As we engage in this 
        debate to remedy the voting problems that arose in the 
        election of 2000, we have to acknowledge the most long 
        standing denial of voting representation in our 
        country, and that is the denial of voting rights to the 
        citizens who live right here in our Nation's 
        Capital.\44\
---------------------------------------------------------------------------
    \44\ 148 Cong. Rec. S822 (February 14, 2002).

    On May 23, 2002, the Committee held a hearing entitled 
``Voting Representation in Congress for Citizens of the 
District of Columbia.'' Nine witnesses appeared: Senator 
Russell Feingold, an original cosponsor of both S. 603 and S. 
3054; Congresswoman Eddie Bernice Johnson (D-TX) Chair, 
Congressional Black Caucus; Congresswoman Eleanor Holmes Norton 
(Delegate-D.C.); the Honorable Anthony A. Williams, Mayor of 
the District of Columbia; the Honorable Linda W. Cropp, 
Chairwoman, D.C. City Council; the Honorable Florence H. 
Pendleton, District of Columbia Statehood Senator; Wade 
Henderson, Executive Director, Leadership Conference on Civil 
Rights; Adam H. Kurland, Professor of Law, Howard University 
School of Law; and Jamin Raskin, Professor, Washington College 
of Law, American University.
    Resolutions in support of voting representation for 
residents of the District were submitted by the State of 
Illinois, as well as the cities of Philadelphia, Chicago, 
Baltimore, New Orleans, Cleveland, Los Angeles, and San 
Francisco. Written statements for the record were also 
submitted by Betty Ann Kane, on behalf of the Board of 
Directors, Committee for the Capital City; the Honorable Ralph 
Regula, (R-Ohio); the Honorable Paul Strauss, Shadow United 
States Senator, District of Columbia; John Forster, Activities 
Coordinator, Committee for the Capital City; and Antonia 
Hernandez, President and General Counsel, Mexican American 
Legal Defense and Educational Fund.
    All of the witnesses testified in support of full voting 
representation in Congress for citizens of the District of 
Columbia. Congresswoman Eleanor Holmes Norton testified that 
the District is ``seriously harmed'' by having no 
representation in the Senate. She noted that after struggling 
to get the budget of the District of Columbia to the floor of 
the House,

          I must then stand aside, unable to cast a vote on our 
        own budget, while members of the House from 49 States 
        where residents pay less in Federal income taxes per 
        capita than my constituents vote yea or nay on the D.C. 
        budget. Indeed, my colleagues from seven states that 
        have populations about our size each have one vote in 
        the House and two in the Senate on the D.C. budget and 
        everything else. This pathetic paradox has been acted 
        out on the House floor countless times in the 32 years 
        D.C. has had a delegate.\45\
---------------------------------------------------------------------------
    \45\ Voting Representation in Congress for Citizens of the District 
of Columbia, Hearing Before the Senate Governmental Affairs Committee, 
107th Cong., S. Hrg. 107-555 (May 23, 2002) at 7 (Testimony of the 
Honorable Eleanor Holmes Norton).

    The Committee met on October 9, 2002 to consider S. 3054. 
The Committee ordered the bill reported out of the Committee by 
a vote of 9-0. Senators Levin, Akaka, Durbin, Cleland, 
Torricelli, Carper, Carnahan, Dayton, and Lieberman voted in 
favor of the legislation.

                    IV. SECTION-BY-SECTION ANALYSIS

    Section 1 sets forth the short title of the Act, the ``No 
Taxation Without Representation Act of 2002.''
    Section 2 details the findings of the Act. Congress finds 
that (1) the residents of the District of Columbia are the only 
Americans who pay Federal income taxes but are denied voting 
representation in the House of Representatives and the Senate, 
(2) the residents of the District suffer the very injustice 
against which our Founding Fathers fought, because they do not 
have voting representation as other taxpaying Americans do and 
are nevertheless required to pay Federal income taxes, unlike 
Americans who live in the territories, (3) the principle of 
one-person, one vote requires that residents of the District 
are afforded full voting representation in the House and 
Senate, (4) despite the denial of voting representation, 
Americans in the Nation's Capital are second among residents of 
all States in the per capita income taxes paid to the Federal 
Government, and (5) unequal voting representation in our 
representative democracy is inconsistent with the founding 
principles of the Nation and the strongly held principles of 
the American people today.
    Section 3 specifically entitles D.C. residents to the 
Congressional representation they would have if they were 
residents of a State. The section permits them to elect two 
Senators and as many Members of the House of Representatives as 
Washington, D.C. would be apportioned based on its population 
if it were a State. (Under current apportionment standards, 
D.C. would receive one Representative.)
    Section 4 provides for elections of D.C.'s two Senators and 
its Representative in the House of Representatives, requiring 
that 30 days following enactment, the Mayor of Washington, D.C. 
issue a proclamation for the election of two Senators and a 
Representative to take place, including a primary and a general 
election according to local law. Once elections are held, the 
bill provides that certification of the results by the Mayor 
shall entitle the winners to take seats in the appropriate 
Chambers of Congress.
    Section 5 provides that the permanent membership of the 
House of Representatives will be increased by one to 436. This 
section also provides that until the next reapportionment--when 
D.C. will receive as many Members in the House as its 
population allows--D.C. will be entitled to elect one Member of 
the House of Representatives. In addition, this section 
expressly provides that D.C.'s current Delegate to the House of 
Representatives will continue in her current position until the 
elections contemplated by the bill take place.

                   V. EVALUATION OF REGULATORY IMPACT

    Paragraph 11(b)(1) of rule XXVI of the Standing Rules of 
the Senate requires that each report accompanying a bill 
evaluate the ``regulatory impact which would be incurred in 
carrying out this bill.'' According to the Congressional Budget 
Office (CBO), S. 3054 contains no private sector mandates, but 
does contain an intergovernmental mandate as defined in the 
Unfunded Mandates Reform Act (UMRA). The bill would require the 
District to hold both a primary and a general election to fill 
the two Senate seats and one seat in the House of 
Representatives. CBO estimates that the costs to comply with 
those requirements would not exceed the threshold established 
in UMRA. S. 3054 has no additional regulatory impact.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 16, 2002.
Hon. Joseph I. Lieberman,
Chairman, Committee on Governmental Affairs, U.S. Senate, Washington, 
        DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3054, the No 
Taxation Without Representation Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 3054--No Taxation Without Representation Act of 2002

    S. 3054 would deem the District of Columbia to have the 
status of a state for the purposes of Congressional 
representation. The bill would authorize the District of 
Columbia to elect two Senators in the United States Senate and 
as many Representatives in the House of Representatives to 
which a similarly populous state would be entitled.
    Based on the current administrative and expense allowances 
available for Senators and other typical office costs, CBO 
estimates that the addition of two new Senators would cost 
approximately $5 million annually beginning in fiscal year 
2003, subject to the appropriation of necessary funds. 
Establishing voting representation in the House of 
Representatives would not add significant costs because the 
District of Columbia currently has a nonvoting delegate to that 
chamber.
    Enacting S. 3054 would increase direct spending for the 
payment for the salaries of the two new Senators. CBO estimates 
that the increase in direct spending would be approximately 
$400,000 per year.
    The bill contains no private-sector mandates as defined in 
the Unfunded Mandates Reform Act (UMRA). S. 3054 contains an 
intergovernmental mandate as defined in UMRA because it would 
require the District of Columbia to hold both a primary and 
general election to fill two Senate seats and one seat in the 
House of Representatives. Based on information from the Board 
of Elections and Ethics of the District of Columbia, CBO 
estimates that the one-time cost to hold a special primary and 
general election would be less than $1 million, well below the 
threshold established in UMRA ($58 million in 2002, adjusted 
annually for inflation). No additional costs would be incurred 
in subsequent years as the elections would be part of the 
District's normal election cycle.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs), who can be reached at 226-2860, 
and Susan Sieg Tompkins (for the state and local impact), who 
can be reached at 225-3220. This estimate was approved by 
Robert A. Sunshine, Assistant Director for Budget Analysis.

                      VII. CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, must be shown, S. 3054 would effect no 
changes in existing law.

                          VIII. MINORITY VIEWS

    Voting representation in Congress for the residents of the 
District of Columbia is a serious and important issue that has 
been the subject of debate since the inception of this Nation. 
Historical records dating back to the founding of this country 
indicate that this issue is not a new one and is a complicated 
one raising important constitutional issues.\1\ I am troubled, 
therefore, that the Committee has favorably reported a bill to 
the full Senate of this magnitude that was introduced less than 
one week prior to the Committee business meeting. This 
Committee did hold a hearing on the issue of voting 
representation for the District of Columbia in May; however, 
this Committee was not provided enough information or time to 
adequately make a decision on this new piece of legislation. As 
of this business meeting, the May hearing record is 
incomplete--post-hearing questions Senator Fred Thompson 
submitted to legal experts who testified at the hearing have 
not all been returned. The questions Senator Thompson submitted 
for the record go right to the heart of the matter: does 
Congress have the power through simple legislation to provide 
District residents voting representation in Congress or does it 
require a Constitutional amendment?
---------------------------------------------------------------------------
    \1\ The issue of voting representation for D.C. residents has been 
debated and considered for over 200 years, beginning with the 
Continental Congress. A permanent seat for the government was desired 
to end the movement of Congress from city to city. The importance of 
creating the District under the exclusive legislative authority of 
Congress was highlighted following an incident in 1783 when the 
Congress was meeting in Philadelphia. Continental soldiers left their 
barracks and marched to Congress to collect their unpaid wages. The 
Congress, after seeking help from the local officials for protection, 
were denied assistance. Under increasing threats, the Congress 
adjourned and reconvened in Princeton, NJ. This revolt highlighted the 
need for Congress to have control of its surroundings, for its 
protection. In 1787, the Constitutional Convention agreed to provide 
exclusive control to the federal government over the national capital.
    The constitutional provisions adopted did not set a specific 
location and much debate occurred thereafter as to where to locate the 
seat of the government. Philadelphia and New York were among the cities 
lobbying for that privilege; however, a final agreement was made to 
locate the capital on the Potomac River. In 1790, Congress authorized 
the President to appoint a panel of three commissioners to fix an exact 
location along the Potomac River. Following that time, Maryland and 
Virginia ceded land accordingly to the federal government. From 1790 
until 1801, those inhabitants of the District remained under the laws 
of the respective states and were allowed to continue voting in those 
states as residents. This ended in 1801 when Congress passed the 
Organic Act of 1801 followed by the Organic Act of 1802, which combined 
established a local government. At that time, residents of the new city 
were no longer permitted to vote in Maryland and Virginia.
---------------------------------------------------------------------------
    Representation in the House of Representatives and the U.S. 
Senate is governed by the United States Constitution. Governing 
the election of U.S. Senators, Article I, Sec. 3 of the 
Constitution states, ``[t]he Senate of the United States shall 
be composed of two Senators from each State.'' With regard to 
electing Members of the House, Article I, Sec. 2 provides that 
the House of Representatives shall be composed of members 
chosen by the people of the several states and that each member 
of Congress shall be an inhabitant of the state from which he 
shall be chosen. Implicit in each section is the requirement 
that the individuals elected come from a ``State'' of the 
United States. Because the District of Columbia is not a state, 
nor, in fact, does the majority claim it to be, this 
legislation is inadequate to circumvent these constitutional 
provisions. Instead, the provisions must be repealed or, as the 
minority contemplates, rectified by subsequent amendment.\2\
---------------------------------------------------------------------------
    \2\ In fact, a subsequent amendment was precisely the approach 
taken by this body in 1978. At that time, Assistant Attorney General 
John M. Harmon stated that ``it was the intent on behalf 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.''
    See Department of Justice ``Report to the Attorney General on The 
Question of Statehood for the District of Columbia,'' April 3, 1987, at 
p.2.
---------------------------------------------------------------------------
    Furthermore, treating the District of Columbia as a state 
without amending the Constitution is an attempt to circumvent 
the longstanding principles of federalism first enunciated by 
the Framers. The Framers created a dual system of governance 
for America, dividing power between the States and the federal 
government. In order for each to serve its proper function in 
our federal system, States must maintain independence of the 
federal government, and consequently, the federal government 
must remain independent of the States.
    Further, in discussing the authorities of Congress, the 
Constitution specifically refers to States in delineating the 
makeup of the federal legislature, whereas other provisions 
direct Congress' authority over varying entities within the 
United States, including the District as the ``seat of 
Government,'' \3\ the many Indian Tribes,\4\ and 
territories.\5\ The District of Columbia is a federal enclave, 
designed to be both politically and economically dependent on 
the federal government. Legislating this enclave to the status 
of a State, without amending the Constitution or making it a 
State, would violate the federalist principle of one State 
among many. Because it is the national capital, The District 
would be primus inter pares, first among equals.\6\ It would 
become, as James Madison argued, the entity ``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.' 
'' \7\
---------------------------------------------------------------------------
    \3\ Article I, Sec. 8, Clause 17.
    \4\ Article I, Sec. 8, Clause 3.
    \5\ Article IV, Sec. 3, Clause 2.
    \6\ Department of Justice, April 2, 1987, at p. 1.
    \7\ Id.
---------------------------------------------------------------------------
    Alternatively, the majority's conclusion that mere 
legislation will grant the District the status of a State makes 
light of the serious process this Nation undertook to ratify 
the 23rd Amendment. The 23rd Amendment provides the ``District 
constituting the seat of Government of the United States'' with 
three electoral votes in presidential elections. Congress 
recognized that the Constitution prevented residents of the 
District from participating in presidential elections; the 
District is not a state and, therefore, did not have the 
Congressional representation necessary to participate in the 
Electoral College. Congress does not have the authority through 
simple legislation to alter the presidential election process. 
Similarly, Congress does not have the authority through simple 
legislation to alter the makeup of the federal legislature as 
provided for in Article I, Sec. Sec. 2-3 of the Constitution.
    The majority consistently points to other instances where 
Congress treats the District as a state, as authority for 
allowing the District to be treated as such in the particular 
instance of awarding voting rights. This argument, however, is 
wholly unpersuasive in supplanting the need for a 
constitutional amendment to give District residents full 
representation in Congress.
    Legislation that treats the District ``as if it were a 
state'' is a permissible use of Congressional authority, when 
done pursuant to Congress' powers, as enumerated in Article I, 
Sec. 8 of the Constitution. However, this authority does not 
extend to altering the make-up of the federal legislature, as 
provided for in Article I, Sec. Sec. 2-3 of the Constitution. 
Congress has absolutely no authority to pass legislation 
treating the District as a state for purposes of providing and 
allocating representatives in the national legislature.
    The majority cites the Tidewater \8\ case as controlling in 
this instance. In this case, five justices of the U.S. Supreme 
Court concurred in a decision that upheld a statute allowing 
District residents to sue residents of other states in federal 
courts under diversity jurisdiction.\9\ The majority infers 
from this holding, as well as comments made by Justice Marshall 
in the Ellzey \10\ case, that Congress has the power to give 
District residents voting rights.\11\ This conclusion, however, 
is wholly unsupported.
---------------------------------------------------------------------------
    \8\ National Mutual Insurance v. Tidewater Transfer Co., 337 U.S. 
582 (1949).
    \9\ The Tidewater case was decided by a plurality decision--a 
majority of the Supreme Court Justices concurred in the decision to the 
case but disagreed in the rationale. As a result, there is no opinion 
from Tidewater which is controlling or binding on the courts.
    \10\ Hepburn & Dundas v. Ellzey, 6 U.S. 445 (1805).
    \11\ Chief Justice John Marshall concluded in the Ellzey case that 
residents in the District of Columbia are not residents of a State as 
provided in the Constitution for purposes of diversity jurisdiction. 
Chief Justice Marshall concedes the discrepancy since District 
residents are United States citizens and that a solution exists through 
the legislation. He did not discuss in detail whether simple 
legislation or a Constitutional amendment was required. Congress 
eventually legislated a solution, using its authority to amend the 
jurisdiction of the courts.
---------------------------------------------------------------------------
    In Tidewater, six justices reaffirmed the opinion of 
Justice Marshall in Ellzey, holding that District residents are 
not citizens of a State for the purposes of diversity 
jurisdiction, and that Congress lacks the authority to modify 
that result.\12\ Tidewater and Ellzey do not, as the majority 
argues, provide Congress with the authority to grant voting 
rights to District residents, rather, these cases merely stand 
for the presumption that Congress has the ability to modify the 
jurisdiction of the federal courts.\13\
---------------------------------------------------------------------------
    \12\ See Tidewater at 588: ``We therefore decline to overrule the 
opinion of Chief Justice Marshall, and we hold that the District of 
Columbia is not a state within Article III of the Constitution. In 
other words, cases between citizens of the District and those of the 
states were not included in the catalogue of controversies over which 
the Congress could give jurisdiction to the federal courts by virtue of 
Art. III.''
    \13\ Thus when Justice Marshall states that the matter was one for 
``legislative, not judicial consideration,'' he is not talking about 
giving the District all rights guaranteed to states, but merely 
adjusting the jurisdiction of the federal courts. Ellzey, 6 U.S. at 
463.
---------------------------------------------------------------------------
    In addition to the evidence of the Framers' intent, there 
have been consistent interpretations of Congress' authority to 
legislate on this issue in the legal community. The Justice 
Department, during both Republican and Democrat 
Administrations, has consistently maintained that providing 
D.C. residents with voting representation in Congress would 
require a Constitutional amendment.\14\ A constitutional 
amendment was required to provide for direct election of 
Senators,\15\ women's suffrage,\16\ and the District's 
participation in the election of the President and Vice 
President.\17\ For example, during the Carter Administration 
the Justice Department maintained in their testimony before the 
Senate Judiciary Committee that ``because article I was in part 
intended precisely to distinguish the Federal District from the 
States, we do not believe that the word `State' as used in 
article I can fairly be construed to include the District under 
any theory of `nominal statehood.' '' \18\ During the 1960 
consideration of the constitutional amendment to allow D.C. 
residents to vote in presidential elections, the House 
Judiciary Committee concluded that just as the Constitution at 
that time only provided selection of the President and Vice 
President through the States, the Constitution provides voting 
representation in Congress through the States.\19\ Moreover, in 
2000 the U.S. District Court for the District of Columbia 
concluded, ``denial of representation does not deny them equal 
protection, abridge their privileges or immunities, deprive 
them of liberty without due process, or violate the guarantee 
of a republican form of government.'' \20\ Any contradiction in 
the lack of Congressional voting representation for residents 
of the District of Columbia derives from the Constitution.
---------------------------------------------------------------------------
    \14\ See generally Report to the Attorney General on the Question 
of Statehood for the District of Columbia (April 3, 1987).
    \15\ U.S. Const. Amend. XVII.
    \16\ U.S. Const. Amend. XIX.
    \17\ U.S. Const. Amend. XXIII. In 1961, President Kennedy signed 
the 23rd Amendment which was ratified by the States in 1963. This 
amendment allows District residents to vote for President and Vice 
President as if D.C. were a state.
    \18\ District of Columbia Representation in Congress, Hearings 
Before the Subcommittee on the Constitution, Committee on the 
Judiciary, U.S. Senate, 95th Congress, 2d Session on S.J. Res. 65. 
(April 17, 27 and 28, 1978), p. 19.
    \19\ Granting Representation in the Electoral College to the 
District of Columbia, Committee on the Judiciary, U.S. House of 
Representatives, 86th Congress, 2d Session (May 3, 1960), p. 2.
    \20\ Adams v. Clinton, 90 F.Supp. 2d at 72 (2000). The opinion in 
this case highlights records from the Constitutional Convention that 
the framers of the Constitution intended not to grant residents of the 
District voting representation in Congress. They intended for Congress 
to be the governing body over the federal city.
---------------------------------------------------------------------------
    Thus, to achieve the goal of granting Congressional 
representation to the residents of the District of Columbia, 
neither the Constitution, nor statute, nor case law provides 
Congress with the power to bypass the constitutional amendment 
process.

                                   George Voinovich.
                                   Jim Bunning.

                                
