[House Report 110-597]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-597

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



 
                   PUERTO RICO DEMOCRACY ACT OF 2007

                                _______
                                

 April 22, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 900]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 900) to provide for a federally sanctioned self-
determination process for the people of Puerto Rico, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Puerto Rico Democracy Act of 2007''.

SEC. 2. PUERTO RICAN DECISION ON PRESENT STATUS.

  (a) Plebiscite.--The Puerto Rico State Elections Commission shall 
conduct a plebiscite in Puerto Rico not later than December 31, 2009. 
The two options set forth on the ballot shall be preceded by the 
following statement: Instructions: Mark one of the following two 
options:
          (1) Puerto Rico should continue to have its present form of 
        territorial status and relationship with the United States. If 
        you agree, mark here __________.

          (2) Puerto Rico should pursue a constitutionally-viable 
        permanent non-territorial status. If you agree, mark here 
        __________.

  (b) Recommendatons.--If a majority of the validly-cast ballots in the 
plebiscite favors Option 2, Congress recognizes the inherent authority 
of the People of Puerto Rico to--
          (1) call a Constitutional Convention, constituted by a number 
        of delegates to be determined in accordance to legislation 
        approved by the Commonwealth of Puerto Rico, for the purpose of 
        proposing to the People of Puerto Rico a self-determination 
        option which, if approved by the People of Puerto Rico in a 
        referendum, would be presented to Congress by the 
        Constitutional Convention; or
          (2) conduct a plebiscite administered by the Puerto Rico 
        State Elections Commission to consider a self-determination 
        option with the results presented to Congress.

SEC. 3. APPLICABLE LAWS AND OTHER REQUIREMENTS.

  (a) Applicable Laws.--All Federal laws applicable to the election of 
the Resident Commissioner shall, as appropriate and consistent with 
this Act, also apply to the plebiscite held pursuant to this Act. Any 
reference in such Federal laws to elections shall be considered, as 
appropriate, to be a reference to the plebiscite, unless it would 
frustrate the purposes of this Act.
  (b) Federal Court Jurisdiction.--The Federal courts of the United 
States shall have exclusive jurisdiction over any legal claims or 
controversies arising from the implementation of this Act.
  (c) Eligibility; Ballot.--Persons eligible to vote under this 
subsection shall, upon timely request submitted to the Puerto Rico 
State Elections Commission in compliance with any terms imposed by the 
Electoral Law of Puerto Rico, be entitled to receive an absentee ballot 
for the plebiscite. Each of the following shall be eligible to vote in 
the plebiscite held under this Act:
          (1) All eligible voters under the electoral laws in effect in 
        Puerto Rico at the time the plebiscite is held.
          (2) All United States citizens born in Puerto Rico who 
        comply, to the satisfaction of the Puerto Rico State Elections 
        Commission, with all Puerto Rico State Elections Commission 
        requirements (other than the residency requirement) applicable 
        to eligibility to vote in a general election.
  (d) Certification of Plebiscite Results.--The Puerto Rico State 
Elections Commission shall certify the results of the plebiscite held 
under this Act to the President of the United States and to the Members 
of the Senate and House of Representatives of the United States.

SEC. 4. FUNDS.

  During the period beginning October 1, 2007, and ending on the date 
the President determines that the plebiscite required by this Act has 
been held, the Secretary of the Treasury may allocate, from the funds 
provided to the Government of Puerto Rico under section 7652(e) of the 
Internal Revenue Code, not more than $5,000,000 for this plebiscite to 
the State Elections Commission of Puerto Rico to be used for expenses 
of carrying out said plebiscite under this Act, including for voter 
education materials as certified by the President's Task Force on 
Puerto Rico's Status as not being incompatible with the Constitution 
and basic laws and policies of the United States. Such amounts shall be 
as identified by the President's Task Force on Puerto Rico's Status as 
necessary for such purposes.

                          PURPOSE OF THE BILL

    The Purpose of H.R. 900 is to provide for a federally 
sanctioned self- determination process for the people of Puerto 
Rico.

                  BACKGROUND AND NEED FOR LEGISLATION

    There are four forms of political status defined in the 
U.S. Constitution: states, a District that is the seat of the 
federal government, Indian Tribes, and territories. The 
Constitution does not grant territorial residents the right to 
be represented in Congress or to vote for the President and 
Vice President. Through its Territorial Clause, Article 4, 
Section 3, Clause 2, the Constitution confers on Congress the 
power to govern territories in local as well as national 
matters. At the time the Constitution was drafted, the lack of 
democracy inherent in this model of territorial administration 
was viewed as acceptable because the territories then claimed 
under U.S. sovereignty were sparsely populated and considered 
permanent parts of the country that would ultimately be 
admitted into the federal Union as states, at which point full 
rights would be extended to the U.S. citizens residing therein.
    This approach--premised on the idea that territorial status 
was temporary and would ultimately lead to incorporation as a 
state--continued as the nation expanded westward. In 1898, 
however, this model was called into question when the United 
States acquired the Philippines, along with Puerto Rico and 
Guam, as a result of the Spanish-American War. There was a 
concern that treating these newly-acquired territories as 
previously-acquired territories had been treated would lead to 
statehood for the Philippines, a troubling prospect for many 
Americans at the time. At the same time, however, governing 
territories with established populations without granting them 
U.S. citizenship and the promise of eventual statehood--or, in 
the alternative, nationhood--contradicted the democratic 
principles of government embodied in the U.S. Constitution.
    A major national debate on the subject was prematurely 
quieted by the Supreme Court's decision in Downes v. Bidwell, 
182 U.S. 244 (1901), which held that the United States could 
exercise sovereignty over and govern territories that had not 
yet been incorporated as states, and upon whose residents U.S. 
citizenship had not yet been conferred. The Court further held 
that the panoply of rights set forth in the Constitution did 
not automatically apply to such unincorporated territories. The 
Court's ruling recognized that Congress had not yet established 
a policy as to whether Puerto Rico would eventually become a 
state or an independent nation.
    Although the initial aspiration of most Puerto Rican 
leaders was statehood, a competing nationalist sentiment 
developed among a segment of the Island's residents as time 
went on, provoked by (among other things), the Island's now 
decades-long status as an unincorporated territory, the 
perception that Puerto Rico enjoyed less self-government and 
representation in the federal government than it had enjoyed 
under Spain's rule; and the fact that Congress had granted the 
Island's residents U.S. citizenship in 1917 without an 
accompanying promise of statehood. U.S. citizenship was granted 
to residents of Puerto Rico soon after it was decided that the 
Philippines would be given its independence, and shortly before 
Puerto Ricans were made eligible to be drafted into the U.S. 
military.
    Later, owing to their recognition that many Puerto Ricans 
valued their U.S. citizenship and the attendant benefits 
(including eligibility for some federal programs and 
assistance), as well as their recognition that many government 
officials in both the U.S. and Puerto Rico did not favor the 
prospect of Puerto Rican independence, some nationalists in 
Puerto Rico developed ideas for a new type of status and 
relationship between the United States and Puerto Rico. 
Pursuant to this status proposal, Puerto Rico would be granted 
some national government powers and a bilateral relationship 
with the United States that the latter could not unilaterally 
change. In addition, Puerto Rico would be able to continue U.S. 
territory benefits. The most important of the leaders who 
espoused these ideas was Luis Munoz Marin, who became the 
territory's highest elected official as president of the Senate 
after a 1940 election; who served as its first elected governor 
from 1948 to 1964, and who dominated the Popular Democratic 
Party (the PDP, not affiliated with the Democratic Party) for 
years afterwards, especially with respect to the status issue.
    Munoz's decision to shift the PDP from a pro-independence 
party to a party that favored his enhanced autonomy proposal 
led to the founding of the Puerto Rican Independence Party 
(PIP) in 1946. The substantial support that the PIP initially 
enjoyed in Puerto Rico was diminished both by increasing Puerto 
Rican reliance on and allegiance to the United States, and by 
law enforcement efforts against the independence movement on 
the part of the Federal Bureau of Investigation and the Munoz 
Administration, due to the terrorist activities of extremist 
nationalist groups.
    In general, politics in Puerto Rico has largely been a 
debate among advocates who support either the enhanced autonomy 
status proposed by Munoz and others, statehood, or 
independence. The current territorial status has never 
satisfied Puerto Rican leaders.
    In 1950, after it declined the request of Puerto Rican 
leaders and President Truman to adopt a bill that would 
authorize Puerto Ricans to choose the territory's status from 
among a slate of options, Congress enacted legislation (P.L. 
81-600) that authorized Puerto Rico to draft a local 
constitution that would be submitted for Congressional 
approval. The local constitution was to replace provisions in 
an earlier federal law that organized the government of Puerto 
Rico. Other provisions of law regarding federal-territorial 
relations were to continue as the Puerto Rican Federal 
Relations Act. The constitution would be made contingent upon 
approval by a referendum of the Puerto Rican people and enacted 
``in the nature of a compact.''
    In considering P.L. 81-600, the predecessor to this 
Committee, the predecessor to this Committee's counterpart in 
the Senate, and the Executive Branch agreed that the process it 
provided for would not change Puerto Rico's fundamental 
relationship vis-a-vis the United States. Governor Munoz and 
Resident Commissioner Fernos Isern, both of the PDP, agreed 
that the law would not end the plenary authority of Congress 
over Puerto Rico.
    A Puerto Rican referendum approved the procedure for 
adoption of a local constitution set out in P.L. 81-600, and a 
constitution was subsequently drafted. The constitution was 
approved by a 1952 federal statute, P.L. 82-447, contingent 
upon the constitutional convention making certain changes. This 
process for adoption of a local constitution was referred to as 
``a compact.'' Legislative history reiterated that Puerto 
Rico's relationship to the United States was not being changed 
by virtue of this process and that congressional authority over 
Puerto Rico would continue. The constitution took effect after 
being approved by an insular referendum held in 1952. The 
referendum was not a political status vote: neither statehood 
nor independence was on the ballot, and approval of the local 
constitution did not define a new political status for the 
territory.
    A series of federal laws, all enacted prior to 1950, had 
provided for an elected legislature and governor, as well as a 
non-voting Resident Commissioner to serve in the U.S. House of 
Representatives. The only real authority that Puerto Rico 
gained through the 1950-52 process was the authority to amend 
the charter of the local government consistent with federal law 
and to appoint the insular auditor and local Supreme Court 
justices. (Other limitations on Puerto Rico's exercise of self-
government authority on local matters, including a limit on 
borrowing authority, were lifted by subsequent statutes.) But 
the 1950-52 process was noteworthy because it marked the first 
time that a territory was authorized to draft a constitution 
without being readied for statehood or nationhood.
    The constitution named the local government the ``Estado 
Libre Asociado'' in Spanish, which translates literally as 
``Associated Free State'' in English. Under international law, 
a freely associated state is a sovereign nation in a joint 
governing arrangement with another nation that either nation 
can unilaterally end. The United States is in free association 
with three Pacific island nations that it formerly administered 
as parts of a trust territory for the United Nations 
(Micronesia, the Marshall Islands, and Palau). The 1950 and 
1952 federal laws clearly did not make Puerto Rico an 
independent nation in free association with the United States. 
Because Puerto Rico, by virtue of its status as a territory, 
was not able to choose, on its own, to become an independent 
nation, a sovereign nation-state in free association with the 
United States, or a state, its constitutional convention 
resolved that the local government would be called ``the 
Commonwealth'' in English.
    The term ``commonwealth'' does not denote a particular 
political status. The term is used in the formal names of four 
U.S. States (Massachusetts, Pennsylvania, Virginia, and 
Kentucky) and another jurisdiction subject to congressional 
authority regarding territories (the Northern Mariana Islands). 
Although ``commonwealth'' does not signify status in the way 
that the terms ``State,'' ``nation,'' and ``territory'' do, 
Puerto Rico is often referred to as a ``commonwealth'' and said 
to have ``commonwealth status.'' Further, ``commonwealth'' is 
also sometimes used as shorthand to refer to the governing 
arrangement between the United States and Puerto Rico. Finally, 
as if these different usages of the word were not confusing 
enough, ``commonwealth'' is used to refer to the PDP's enhanced 
autonomy proposals.
    The confusion over the meaning and significance of the term 
``commonwealth'' has been a major factor contributing to Puerto 
Ricans not determining their preference regarding the Island's 
future political status. (The confusion has also hampered 
congressional action on this issue.) An aspect of the question 
in Puerto Rico (although not in the federal government) is 
whether Puerto Rico is still a territory. Puerto Rican leaders 
do not want Puerto Rico to be a territory. Use of the word 
``commonwealth'' obscures the issue for many Puerto Ricans, who 
ask: Is ``Commonwealth'' a territory status or something 
different? Does it refer to the status quo or to the PDP's 
enhanced autonomy proposal?
    In large measure, the confusion is one of semantics. 
Whether Puerto Rico is called a ``commonwealth'' or a 
``territory,'' the important issue is the extent of U.S. and 
Puerto Rican authority. Like other territories, Puerto Rico 
exercises authority over local government matters that is 
similar to the authority that states possess, but unlike 
states, territories do not have a zone of reserved sovereignty 
that is beyond the reach of Congress in the latter's exercise 
of its territorial powers. Thus, the Constitution's Territorial 
Clause continues to apply with respect to Puerto Rico, as has 
been determined by the Supreme Court. See, e.g., Harris v. 
Rosario, 446 U.S. 651 (1980). The same conclusion has also been 
reached by the Departments of Justice and State, the Government 
Accountability Office, the Congressional Research Service, and 
both this Committee and its Senate counterpart. The Supreme 
Court has also ruled that Puerto Rico is autonomous, like a 
State, over matters not governed by the Constitution, but this 
holding is not inconsistent with the Court's holding that the 
Territorial Clause applies--because the Territorial Clause is 
part of the Constitution and all federal laws applicable to 
Puerto Rico implement the Constitution and are the supreme law 
in the territory. See Rodriguez v. Popular Democratic Party, 
457 U.S. 1 (1982). A PDP contention that the Court's holding in 
Harris is limited to federal programs has no basis in the 
ruling, which did not so qualify its holding.
    The issue of whether Puerto Rico is more properly called a 
``commonwealth'' or a ``territory,'' like the issue of 
Congressional authority to alter the current allocation of 
power between the federal and local governments, both obscures 
and distracts from the real issue: namely, that Puerto Ricans 
lack nearly all aspects of voting representation in the federal 
government that enacts and enforces their national laws. The 
Resident Commissioner has been granted the authority to vote in 
committees of the House. The Resident Commissioner has also 
been granted the authority to vote in the Committee of the 
Whole--but only if his vote would not determine the outcome of 
the question at issue. Beyond this, Puerto Ricans are 
unrepresented in the federal government. By contrast, a state 
with an equivalent population would have six representatives, 
two senators, and would participate fully in the election of 
the President and Vice President (with an eight-member 
Electoral College delegation). As former PDP Governor Rafael 
Hernandez Colon has written, despite the divergent views that 
Puerto Ricans have with respect to their preferred political 
status, ``[a]ll factions do agree on the need to end the 
present undemocratic arrangement whereby Puerto Rico is subject 
to the laws of Congress but cannot vote in it.''
    After the insular constitution took effect in 1952, leaders 
of the PDP began to claim that Puerto Rico was no longer a 
territory, congressional authority regarding the Island had 
been permanently limited, and Congress could not change the 
federal-territorial governing arrangement or policies 
encompassed by it. These claims were made despite the fact that 
leaders of the PDP had agreed with federal officials that the 
opposite was true when the arrangement was being established, 
and notwithstanding the fact that the ``compact'' provided only 
for the adoption of a local constitution and the continuation 
of provisions of federal law regarding the Island without 
placing any limits on federal authority. In essence, the 
argument of the PDP has been that the governing arrangement 
cannot be unilaterally changed because it was mutually 
established and this permanently limits federal territory 
governing authority. A simplified version of the argument is 
that the arrangement cannot be changed by Congress because it 
was called ``a compact.''
    These ``compact'' arguments are not supported by the 
history of the authorization and approval of the federal-
territorial arrangement. These arguments are likewise 
undermined by the federal modifications that have been made to 
the arrangement since its establishment. For example, The 
Puerto Rican Federal Relations Act provided that all federal 
taxes collected on Puerto Rican products would be granted to 
Puerto Rico. Subsequent statutes have limited the covered 
products to just one--rum--and authorized the federal 
government to retain portions of the taxes in the U.S. Treasury 
for other federal purposes. To cite another example: although 
the local constitution prohibits capital punishment, 
subsequently-enacted federal laws have applied capital 
punishment in Puerto Rico, thereby overriding the prohibition 
in the local constitution and belying the claim that mutual 
consent is required for changes to be made to the federal-
territorial governing arrangement.
    In support of their claim, PDP officials have cited 
statements made by two U.S. representatives to the United 
Nations during a 1953 debate. The debate concerned Resolution 
748, which then-Governor Munoz prevailed upon the U.N. General 
Assembly to pass. The U.N. Charter requires a member nation 
that exercises sovereignty over a ``non-self-governing 
territory'' to submit an annual report regarding that 
territory. Resolution 748 called for Puerto Rico to be removed 
from the list of non-self-governing territories. The United 
States was happy to be relieved of its reporting responsibility 
(and thus supported the Resolution), but it declined to accede 
to Munoz's request that the United States declare that Puerto 
Rico was no longer a U.S. territory. When confronted with the 
claims of other member nations that Puerto Rico was not in fact 
self-governing at the national government level, however, the 
two U.S. representatives verbally endorsed the PDP's claims 
that the ``compact'' could not be unilaterally amended. 
Statements by diplomats do not override the Constitution and 
federal laws, and, in any event, the U.S.'s written submission 
to the U.N. justifying Resolution 748 was more carefully 
worded. The written submission emphasized Puerto Rico's local 
self-government but did not state that Puerto Rico was no 
longer a territory exempt from federal authority, nor state 
that the compact could not be unilaterally changed by the 
United States. The written submission also explained that 
Puerto Rico's local self-government was subject to the U.S. 
Constitution and federal laws.
    As previously noted, notwithstanding the oral statements 
made during debate over Resolution 748, the Supreme Court has 
held that the Territorial Clause continues to apply to Puerto 
Rico. Some concede this point, but assert that federal 
territory governing authority only applies to the application 
of federal programs in Puerto Rico--on the rationale that the 
Supreme Court's ruling in Harris v. Rosario, 446 U.S. 651 
(1980), concerned a federal program. However, the decision in 
Harris does not provide any basis for this interpretation. To 
the contrary, the straightforward holding is that ``Congress . 
. . is empowered under the Territory Clause . . . to `make all 
needful Rules and Regulations respecting the Territory . . . 
belonging to the United States.''' It is clear that Harris was 
not qualified or limited in the manner posited by some 
commonwealthers.
    Under United States pressure, General Assembly Resolution 
748 passed--though only narrowly and with many countries 
abstaining. The debate over Resolution 748 prompted the United 
Nations to agree on governing arrangements that would provide 
full self-government to non-self-governing territories: in 
United States terms, these arrangements were statehood, 
independence, and free association. In addition, Paragraph 9 of 
the Resolution recognized that the federal-territorial 
relationship was not permanent and could be altered by the 
parties exercising their powers under applicable constitutional 
arrangements. Paragraph 9 also expressed the expectation that a 
permanent status would be chosen in a process that had due 
regard for the freely-expressed wishes of the inhabitants of 
the territory.
    In 1959, PDP representatives began to seek national 
government powers, with the United States continuing to grant 
domestic programs and citizenship. This effort has continued to 
the present day and is the other major reason why Puerto Ricans 
have yet to determine their preference with respect to the 
Island's ultimate political status. The hope that such a 
``best-of-both-worlds'' status can be created has resulted in 
many Puerto Ricans not expressing a preference between the only 
constitutionally-valid permanent non-territorial status 
options: statehood, independence, and free association. A bill 
that Puerto Rico's representatives proposed in 1959 which 
incorporated the ``commonwealth'' theme was rejected in 
committee. But, notwithstanding the failure of that bill and 
other ``commonwealth'' proposals, the PDP still contends that 
the full Congress has not provided a definitive response to 
their ideas.
    In 1962, talks with a task force of the Kennedy White House 
led to an agreement that the ``Commonwealth concept'' could be 
developed into ``a permanent institution,'' despite the fact 
that it cannot provide a democratic form of government at the 
national government level. The task force also, however, 
determined that there should be a referendum with the options 
of independence and statehood included as well. A 1963 bill 
introduced in response to a request of PDP representatives 
would have provided for the referendum with a ``compact of 
permanent union'' option drafted by a United States-Puerto Rico 
commission. The compact was to limit U.S. powers in Puerto 
Rico, provide for Puerto Rican participation in federal 
activities, and include Puerto Rican financial contributions to 
the United States. But this compact proposal was rejected in 
committee.
    In 1964, a law was enacted establishing a United States-
Puerto Rico commission to study the issue of Puerto Rico's 
status. In 1966, the commission called for a referendum with 
the options of statehood, independence, and a developed 
``commonwealth'' in an association that could be binding upon 
the U.S. The commission also recommended further joint advisory 
groups on status proposals.
    A PDP proposal for some greater powers for Puerto Rico won 
60% of the vote in a 1967 referendum. Although the Statehood 
Republican Party boycotted the referendum--as did the PIP--some 
pro-statehooders participated and won 39% of the vote. They 
then founded a new statehood party, the New Progressive Party 
(NPP). The NPP won most local elected offices in 1968.
    By 1965, Cuba had begun asking the United Nations to re-
examine Puerto Rico's status. Starting in 1971, Cuba introduced 
annual resolutions on the issue in the Decolonization 
Committee. The United States has blocked General Assembly 
action and stopped cooperating with the Decolonization 
Committee. The U.S. position has not been, as some assert, that 
Puerto Rico is not a territory. Rather, the U.S. position of 
record, based on General Assembly Resolution 748, is that the 
Decolonization Committee lacks jurisdiction, that the matter is 
one for the United States and Puerto Rico to resolve, and that 
Puerto Rico has not sought a new status.
    Puerto Rico's economy experienced steady and impressive 
growth beginning with the Roosevelt Administration policies in 
the 1940s and continuing through the mid-1970s, which resulted 
in the Island closing the income gap with the United States. 
Since the mid-1970's, however, the Puerto Rican economy has 
stagnated and fallen well behind that of the nation as a whole. 
In 1984, Hernandez Colon was re-elected as Governor on the 
pledge to focus his attention on the economy rather than 
status. The Committee was asked to conduct hearings on the 
state of the Puerto Rican economy. These hearings made plain 
that economic solutions on the Island are largely tied to 
political solutions. Policies that are appropriate for a 
prospective State may not be appropriate for a prospective 
independent nation, and vice-versa. Accordingly, Puerto Rico's 
lack of direction towards a permanent political status made it 
difficult to devise federal policies towards the Island that 
were sensible and informed.
    Re-elected again in 1988, Governor Hernandez Colon proposed 
that Congress sponsor a referendum among ``Commonwealth,'' 
statehood, and independence options, with a pledge from 
Congress that it would implement the results of the referendum. 
Governor Hernandez Colon was joined in his request by the 
presidents of the NPP and the PIP, as well as by President 
George H.W. Bush, who used the opportunity of his first address 
to Congress to urge that body to enact this legislation.
    Later, in 1989, the Senate Energy and Natural Resources 
Committee reported legislation for a referendum on committee-
modified versions of statehood, independence and 
``commonwealth'' bills proposed by Puerto Rico's political 
parties, with the majority choice to be automatically 
implemented. In the following year, the House passed a 
different bill, H.R. 4765, which would have provided for a 
referendum among Puerto Rican ``commonwealth,'' statehood, and 
independence proposals (without defining those proposals); 
Congressional consideration of the proposal that won, and a 
Puerto Rican referendum on the proposal as passed by Congress.
    In 1993, the pro-statehood government of Puerto Rico led by 
Governor Pedro Rossello conducted a referendum among status 
options proposed by Puerto Rico's political parties. The PDP 
submitted a debatable proposal that obtained a slight plurality 
over statehood, but not a majority. In 1994, the Clinton 
Administration reacted by proposing that there be yet another 
referendum with status options that were Puerto Rican proposals 
as agreed to by the federal government and implementation of 
the majority choice.
    In 1996, the Committee on Resources and the Committee on 
Rules reported legislation that provided for a two-question 
referendum. The first question was between continuing 
unincorporated territory status labeled ``Commonwealth'' and 
seeking nationhood or statehood and the second question was 
between nationhood and statehood. If continuing territory 
status was chosen, the bill would have provided for periodic 
referenda on the question. The legislation was not considered 
by the House.
    In 1997, Committee on Resources Chairman Don Young (R-AK) 
introduced a similar measure, H.R. 856, which called for a 
referendum where voters could choose between commonwealth, 
separate sovereignty, or statehood. The legislation passed the 
House in 1998 and the Senate Energy and Natural Resources 
Committee held hearings but no further action was taken.
    In December 1998, Puerto Rico held a referendum under the 
authority of local law. The status options offered to voters 
followed closely with the status options in legislation being 
considered by Congress. However, a choice of ``None of the 
Above'' was also included on the referendum ballot. In this 
latest referendum, ``None of the Above'' received 50.2% of the 
vote, ``Statehood'' 46.5%, ``Independence'' 2.5%, ``Free 
Association'' .02%, and ``Commonwealth'' .01%.
    A report, entitled The Results of the 1998 Puerto Rico 
Plebiscite (106th Congress, Serial No. 106-A), issued by 
Chairman Young and Ranking Member Miller in November 1999, 
noted that advocates for an alternative commonwealth 
definition, which did not appear on the 1998 ballot, 
``contained principles rejected on a bipartisan basis by the 
Committee on Resources during consideration of H.R. 856.'' The 
report further stated that Congress has the responsibility to 
provide a process for a Puerto Rican status choice among real 
options.
    In 2000, President Clinton took several steps to resolve 
the status issue. The first was to host a summit with Puerto 
Rican leaders and Congressional committee representatives. At 
the summit, PIP President Berrios proposed that a Presidential 
task force be formed to continue efforts on the issue into the 
succeeding administration and that the Presidential candidates 
be asked to continue the effort. The presidential candidates 
pledged to do so. The President subsequently established the 
Task Force with the dual mission of (1) answering Puerto 
Ricans' questions about the options and the process for 
determining Puerto Rico's status until an ultimate status was 
implemented, one that provides for a representative form of 
government at the national government level, and (2) 
encouraging action on the issue, in consultation with Puerto 
Rican and Congressional leaders.
    The Clinton Administration also responded to a request from 
this Committee and the Senate Energy and Natural Resources 
Committee that it provide a report on the status proposals of 
all three of Puerto Rico's political parties with an 
accompanying constitutional analysis. The Clinton 
Administration found that the proposals of the NPP and PIP were 
generally acceptable, but that the PDP ``Development of the 
Commonwealth' proposal violated the Constitution in several 
respects.
    These concerns by the Clinton Administration were expressed 
to this Committee during a legislative hearing held in 2000 on 
H.R. 4751, which would have implemented the ``Development of 
the Commonwealth'' proposal. Testimony presented by the 
Department of Justice stated that the ``mutual consent 
provisions [of the Developed Commonwealth proposal] are 
constitutionally unenforceable'' because ``one Congress cannot 
bind a subsequent Congress.'' In addition, with respect to 
making a ``Developed Commonwealth'' legally and 
constitutionally its own nation, the State Department testified 
that ``the exercise of a parallel and co-existing foreign 
affairs authority by a subfederal unit of the United States 
would not only be unconstitutional, but retrogressive and 
impractical as well.''
    In December 2005, the Task Force appointed by President 
Bush, after considering extensive input from political parties 
in Puerto Rico, as well as the Island's elected leaders, 
finally reported its findings to Congress. It reiterated the 
U.S. government's position that Puerto Rico remains an 
unincorporated territory and rejected the ``Developed 
Commonwealth'' proposal, agreeing with previous positions 
expressed by earlier Administrations.
    The Task Force's Report addressed other issues as well. For 
example, it noted that the United States citizenship of Puerto 
Ricans would have to be addressed in the event that Puerto Rico 
was to become a nation. Although the general practice in 
history has been that citizenship follows nationality, a 
Department of Justice opinion attached to the report concluded 
that the citizenship of individual Puerto Ricans probably could 
not be taken away even in the event of independence.
    The President's Task Force recommended that Congress 
provide for the people of Puerto Rico to choose whether to 
continue the status quo or seek a permanent non-territorial 
status. If a majority of Puerto Ricans vote to continue 
territory status, the Task Force recommended that additional 
plebiscites be conducted on a periodic basis, so as to ensure 
that Puerto Ricans continue to have a process to seek a 
democratic status and have intervals between status votes. If 
the Puerto Rican people, at some point, choose to seek an 
alternative permanent status, the Task Force recommended that 
Congress should then provide for a plebiscite with statehood, 
independence, and, possibly, free association options. After a 
status is chosen, Congress should begin the transition process.
    One hundred and ten years after Puerto Rico was acquired 
from Spain, its 3.9 million U.S. citizens still have an 
unsettled political status. All peoples are entitled to a form 
of government that provides for equal voting representation in 
the making and implementation of their laws. Puerto Rico's 
current status, as a form of government subject to 
congressional authority under the Territory Clause, cannot be 
considered permanent, even if called ``commonwealth.'' Although 
Congress has the authority to manage the self-determination 
process for Puerto Rico based on constitutionally-viable 
options, a Congressionally-sponsored vote in Puerto Rico has 
never taken place in more than a century under U.S. 
sovereignty.

Recent legislative proposals introduced in the U.S. House of 
        Representatives

            109th Congress
    H.R. 4867 (Fortuno, R-PR)--Puerto Rico Democracy Act; would 
have enacted the recommendations made in the Report by the 
President's Task Force on Puerto Rico's Status. Would have 
authorized a plebiscite to be held during the 110th Congress, 
giving voters the option to vote for continued U.S. territorial 
status (status quo) or for a path toward a constitutionally 
viable permanent non-territorial status (statehood or 
independence). Provided for subsequent action based on results.
    H.R. 4963 (Duncan, R-TN)--Puerto Rico Self Determination 
Act of 2006; authorized the calling of a constitutional 
contention through the election of delegates for the purpose of 
establishing a mechanism for self-determination. Political 
status choices could have included new commonwealth, statehood, 
and independence.
            106th Congress
    H.R. 4751 (Doolittle, R-CA) , Puerto Rico-United States 
Bilateral Pact of Non-territorial Permanent Union and 
Guaranteed Citizenship Act; would have recognized Puerto Rico 
into a permanent union with the United States as a non-
territorial autonomous political body, which would retain all 
powers not delegated to the U.S. with guaranteed irrevocable 
U.S. citizenship. The text of this legislation is similar to 
the proposal that the PDP approved as its definition for 
commonwealth.
            105th Congress
    H.R. 856 (Young, R-AK)--United States-Puerto Rico Political 
Status Act; authorized a process to determine the ultimate 
status of Puerto Rico and defined options. While the NPP and 
PIP supported the bill's statehood and independence options 
respectively, the PDP opposed the language defining 
commonwealth. The bill passed the House with no further action 
by the Senate.

                            COMMITTEE ACTION

    H.R. 900 was introduced on February 7, 2007, by 
Representative Jose E. Serrano (D-NY). The bill was referred to 
the Committee on Natural Resources, and within the Committee to 
the Subcommittee on Insular Affairs. On March 22 and April 25, 
2007, the Subcommittee convened legislative hearings on H.R. 
900 and an alternative measure (H.R. 1230) sponsored by 
Representative Nydia Velazquez (D-NY).
    Over the course of the two legislative hearings, the 
Subcommittee heard from 25 witnesses, including the Governor of 
Puerto Rico, the presiding officers and principal minority 
leaders of the Legislative Assembly of Puerto Rico, the 
presidents of Puerto Rico's two other major political status-
based political parties, a representative of the President of 
the United States, other officials of Puerto Rico, 
representatives of other Puerto Rican political and non-
partisan organizations, constitutional experts, and the 
Congressional Research Service.
    On October 23, 2007, the Subcommittee was discharged from 
further consideration of H.R. 900 by unanimous consent and the 
full Natural Resources Committee met to consider the bill.
    Chairman Nick J. Rahall, II (D-WV) offered an amendment in 
the nature of a substitute (ANS). The Rahall ANS would provide 
for a single plebiscite to be held no later than December 31, 
2009, giving voters the option to vote to continue the current 
U.S. territorial status (status quo) or for a constitutionally 
viable permanent non-territorial status. The ANS did not 
include any further plebiscites. Instead, if the non-
territorial status option were to receive a majority of votes 
cast, then the results of the plebiscite would be submitted to 
the President's Task Force on Puerto Rico's Status to develop 
recommendations to the Congress.
    Delegate Donna Christensen (D-VI) offered an amendment to 
the Rahall ANS which would strike Section 2(b) of the Rahall 
amendment, which called on the President's Task Force on Puerto 
Rico, in consultation with leaders of Puerto Rico, to make 
recommendations to Congress within six months of the plebiscite 
required by Section 2(a) if a majority of validly cast ballots 
favored a non-territorial status. Instead the Christensen 
amendment provides for Congress to recognize the authority of 
Puerto Rico to either convene a constitutional convention or 
hold a subsequent plebiscite to determine the people's choice 
for Puerto Rico's future political status and relationship with 
the United States. The Christensen amendment was agreed to by 
voice vote.
    Delegate Eni Faleomavaega (D-AS) offered an amendment 
(Faleomavaega .031) to the Rahall ANS which would have the 
people of Puerto Rico choosing between three status options: 
continuing the existing Commonwealth, admission as a State, or 
a sovereign nation. If no status received a majority of votes 
cast, then the two status options receiving the most votes 
would be placed on the ballot in the next election. The 
amendment was withdrawn, without objection.
    Delegate Faleomavaega offered a second amendment 
(Faleomavaega .032) to the Rahall ANS. Similar to the previous 
amendment, Faleomavaega .032 would propose the same status 
options; however, in the event that no status option received a 
majority of the votes cast, separate referenda would be 
required--no later than two years of each other--on the two 
status options receiving the most votes. The amendment was not 
agreed to by voice vote.
    Delegate Faleomavaega offered a third amendment 
(Faleomavaega .030) to the Rahall ANS. This amendment would 
propose three separate referenda, one for each status option. 
The result of each respective referendum would precipitate 
further action by the U.S. Congress. The amendment was 
withdrawn, without objection.
    The Rahall amendment in the nature of a substitute, as 
amended by the Christensen amendment, was adopted by voice 
vote, and the bill was favorably reported, as amended, to the 
House of Representatives by voice vote.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 provides that this Act may be referred to as the 
``Puerto Rico Democracy Act of 2007.''

Section 2. Puerto Rican decision on present status

    Section 2(a) would require the Puerto Rico State Elections 
Commission to conduct a plebiscite not later than December 31, 
2009 in which eligible voters (as defined in Section 3(c)) 
would select their preference, from among two options, as to 
whether Puerto Rico should (1) continue its present form of 
territorial status and relationship with the United States, or 
(2) pursue a constitutionally viable permanent non-territorial 
status.
    Section 2(b) would recognize that, should a majority of 
voters in the plebiscite express the preference for Option (2), 
Puerto Rico has the authority to (1) call a constitutional 
convention, in accordance with Puerto Rico's constitution and 
local laws, that could propose a non-territorial status option 
which, if approved by the Puerto Rican people in a referendum, 
would be presented to the Congress, or (2) conduct a 
plebiscite, administered by the Puerto Rico State Elections 
Commission, to consider a non-territorial status option, with 
the results of that plebiscite presented to the Congress. The 
Committee believes that Section 2(b) recognizes mechanisms 
which Puerto Rico already has the authority to undertake 
pursuant to its local constitution. Furthermore, the Committee 
emphasizes that Section 2(b) should not be read to limit or 
preclude the Government of Puerto Rico from employing any 
procedural mechanism for choosing a non-territorial status 
option so long as that mechanism comports with Puerto Rico's 
constitution and local laws.
    It is the intent and expectation of the Committee that any 
convention or plebiscite would be conducted only after the 
plebiscite required by Section 2(a), and only if a majority of 
voters in that plebiscite cast their ballots in favor of 
pursuing a constitutionally viable permanent non-territorial 
status (i.e., Option 2).
    The Committee recognizes that if Option 2 were implemented, 
such implementation would require legislative action to 
relinquish Congress's authority over Puerto Rico under the 
Territorial Clause of the U.S. Constitution.
    A convention or a plebiscite on such a constitutionally 
viable permanent non-territorial status option would choose one 
of three status options: (1) independence, (2) nationhood in a 
free (i.e., unilaterally terminable) association with the 
United States, or (3) U.S. statehood. These choices represent 
all of the possible non-territorial status options that are 
currently viable under the U.S. Constitution and international 
law. The Committee emphasizes its expectation, which is 
consistent with the colloquy held between Chairman Rahall and 
Resident Commissioner Fortuno during the Full Committee's 
markup of H.R. 900, that a convention, plebiscite, or other 
procedural mechanism should only consider non-territorial 
status options that are compatible with the Constitution and 
basic laws and policies of the United States. To best ensure 
this criterion is met, the delegates to the convention or the 
drafters of the options to be included in the plebiscite should 
consult with federal authorities on issues of U.S. law and 
policy.
    The Committee agrees with the statement of then-Chairman 
Don Young and Ranking Member George Miller in a report to the 
Committee, dated November 19, 1999, that a new or modified 
Commonwealth status proposal rests on ``principles rejected on 
a bipartisan basis by the Committee.'' Such a proposal is not a 
viable status option and cannot be accepted under any 
circumstance because it is incompatible with the Constitution 
and basic laws and policies of the United States. This 
conclusion has been supported by:
       the Clinton Administration, through statements 
by the President's Interagency Group on Puerto Rico and the 
Departments of Justice, State, and Labor during a hearing of 
the Committee in 2000 and during a Justice Department report to 
the Committee in 2001;
       the Bush Administration, through the President's 
Task Force on Puerto Rico's Status in its December 2005 and 
2007 Reports, and in statements during the Committee's 2006 
hearing on the report and in Administration statements during 
the Committee's April 25, 2007 hearing on this legislation;
       the Congressional Research Service at the March 
22, 2007 hearing on this legislation; and
       Committee Members from both political parties 
during each of the above referenced hearings.

Section 3. Applicable laws and other requirements

    Section 3(a) would make all federal laws that are 
applicable to the election of the Resident Commissioner of 
Puerto Rico in the United States Congress applicable to the 
plebiscite mandated by Section 2(a) on the question of whether 
voters want to continue Puerto Rico's current status or to seek 
a constitutionally viable permanent status not subject to 
Territorial Clause authority, unless application of those 
federal laws would frustrate the purposes of this legislation.
    Section 3(b) would vest in the federal courts exclusive 
jurisdiction over any legal claims or controversies arising out 
of the implementation of the plebiscite required by Section 
2(a).
    Section 3(c) would prescribe the eligibility requirements 
for voting in the plebiscite required by Section 2(a).
    Section 3(d) would require the Puerto Rico State Elections 
Commission to certify the results of the plebiscite required by 
Section 2(a) to the President of the United States and to the 
Senate and House of Representatives of the United States.

Section 4. Funds

    Section 4 would provide that the Secretary of the Treasury 
may allocate to the Puerto Rico State Elections Commission for 
the purposes of conducting the plebiscite required by Section 
2(a) up to $5 million from the funds already required to be 
provided to the Government of Puerto Rico for unspecified 
purposes.
    The Puerto Rico State Elections Commission may use such 
funds for voter education materials--which the Committee 
believes will be necessary given the confusion in Puerto Rico 
with respect to the Island's current status and its non-
territorial status options--if the materials are certified by 
the President's Task Force as not containing assertions that 
are incompatible with the Constitution and basic laws and 
policies of the United States. This provision was included 
because misleading and factually incorrect contentions have 
been made and non-viable proposals have been offered with 
respect to Puerto Rico's current status and its alternative 
status options in past status referenda in the Island.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 and Article IV, section 3 of the 
Constitution of the United States grants Congress the authority 
to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that Rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to provide for a federally sanctioned 
self-determination process for the people of Puerto Rico.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 900--Puerto Rico Democracy Act of 2007

    H.R. 900 would require Puerto Rico to conduct a plebiscite 
(a direct vote where an electorate is asked to either accept or 
reject a particular proposal) by the end of 2009 on whether the 
island should retain its current relationship with the United 
States or pursue a permanent nonterritorial status. If the vote 
favors the ending of territorial status, the legislation would 
recommend that Puerto Rico convene a constitutional convention 
or conduct a second plebiscite with other self-determination 
options (i.e., independence). In addition, H.R. 900 would allow 
the Department of the Treasury to fund the first plebiscite 
with up to $5 million from the excise tax on rum imported into 
the United States that is currently paid to Puerto Rico (that 
amount is known as the tax cover over).
    CBO estimates that enacting this legislation would have no 
significant impact on the federal budget because all excise 
taxes collected on imported rum would be spent under current 
law. Under the bill, up to $5 million of the excise tax 
collections would be used to fund the plebiscite; thus, a 
portion of that money would be spent differently than under 
current law.
    H.R. 900 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA) because it would 
require the Puerto Rico State Elections Commission to hold a 
vote to determine whether Puerto Rico will remain a U.S. 
territory or move toward permanent nonterritorial status. The 
commission also would have to certify the result of that 
election to the President and the Congress. Information 
provided by the Puerto Rico State Elections Commission 
indicates that the vote would be held during the regularly 
scheduled election in 2008; therefore, CBO estimates that the 
mandates would impose costs that would be well below the 
threshold established in UMRA ($66 million in 2007, adjusted 
annually for inflation). The bill would authorize the Secretary 
of the Treasury to allocate up to $5 million of the excise tax 
cover over that Puerto Rico receives under current law to 
comply with the bill. CBO expects that amount would be 
sufficient to cover the costs of holding the vote. H.R. 900 
contains no private-sector mandates as defined in UMRA.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs) and Elizabeth Cove (for the state 
and local impact). This estimate was approved by Peter H. 
Fontaine, Assistant Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill would require the Puerto Rico State Elections 
Commission to hold a vote to determine whether Puerto Rico will 
remain a U.S. Territory or move toward permanent non-
territorial status, which would be an intergovernmental 
mandate, however the Congressional Budget Office estimates that 
the costs of this mandate would be small and would not approach 
the threshold established in the Unfunded Mandates Reform Act.

                           EARMARK STATEMENT

    H.R. 900 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                            ADDITIONAL VIEWS

    While the amended version of H.R. 900 was passed by the 
Committee on voice vote, I had at that time, and still have, 
serious reservations about the bill in its current form. Should 
the bill move forward for additional consideration, we will 
need further opportunity to address concerns expressed during 
both the Subcommittee hearings and the Committee mark up. While 
I believe the amendment to the bill adopted by the Committee 
improved the bill, I still feel that the bill, as reported, is 
unfair and falls short of what this Congress is capable of 
producing to help Puerto Ricans chart a better future for their 
political status with the United States.
    The amendment did however accomplish two important 
objectives. First, the Task Force on Puerto Rico's Status will 
not have any role in the process after the first vote in Puerto 
Rico. The work of the Task Force was the subject of much 
criticism in Puerto Rico and in the Congress and its continued 
involvement in this process, as originally contemplated by H.R. 
900, would not have been positive. Second, the amendment 
recognizes the inherent authority of the people of Puerto Rico 
to call a Constitutional Convention, or to conduct a 
plebiscite, that will present self-determination options to the 
voters in Puerto Rico and, if approved, to the Congress. As the 
plain language of the amendment states, the Constitutional 
Convention will be free to consider any self-determination 
option. The language is clear, and should not be subject to any 
other interpretation.
    I believe it is necessary to reaffirm the intent of the 
amendment that a Constitutional Convention may consider any 
self determination option, both because it is the fair and 
right thing to do, but also because the bill may be prone to 
confusion and manipulation as a result of the way the first 
vote is currently structured. That vote essentially asks 
whether the people of Puerto Rico want to ``continue to have 
its present form of territorial status and relationship with 
the United States'' or ``pursue a constitutionally-viable 
permanent non-territorial status.'' These are all terms that 
are not easily defined, and the bill, as reported, does not 
even attempt to define them.
    It is clear that many of the terms in the bill, H.R. 900, 
are offensive to Commonwealth supporters among others. The 
language authorizing the initial vote presented to the people 
of Puerto Rico under H.R. 900, as approved by the Committee on 
Natural Resources, is confusing and susceptible to 
manipulation. More seriously, however, it would seem to pit all 
options against Commonwealth--the one option that has received 
at least a plurality in all previous votes. In large part 
because of the inherent confusion and unfairness of the vote 
offered in H.R. 900, I believe it would be preferable to simply 
let the people of Puerto Rico to begin the process of resolving 
their political status by calling a Constitutional Convention 
to draft a proposal for both the people of Puerto Rico and the 
Congress to consider. The Constitutional Convention, however, 
should not operate in a vacuum, and I would expect the 
Convention to consult with the Committees of jurisdiction, as 
well as with the Administration, in terms of whether any 
particular proposal is feasible before submitting it to the 
people of Puerto Rico and the Congress for further action.
    I continue to believe we should have a free and fair 
process, allowing the people of Puerto Rico to chose between 
Commonwealth status, statehood, or independence, as in the 
past. And the election should not be unfairly tilted toward any 
one of these three choices.

                                                John J. Duncan, Jr.

                                  
