[House Report 111-22]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-22
======================================================================
DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT
OF 2009
_______
March 2, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 157]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 157) to provide for the treatment of the District of
Columbia as a Congressional district for purposes of
representation in the House of Representatives, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Hearings......................................................... 9
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 16
New Budget Authority and Tax Expenditures........................ 16
Congressional Budget Office Cost Estimate........................ 16
Performance Goals and Objectives................................. 19
Constitutional Authority Statement............................... 19
Advisory on Earmarks............................................. 19
Section-by-Section Analysis...................................... 19
Changes in Existing Law Made by the Bill, as Reported............ 20
Dissenting Views................................................. 20
The Amendment
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 ``District of Columbia House Voting
Rights Act of 2009''.
SEC. 2. TREATMENT OF DISTRICT OF COLUMBIA AS CONGRESSIONAL DISTRICT.
(a) In General.--Notwithstanding any other provision of law, the
District of Columbia shall be considered a Congressional district for
purposes of representation in the House of Representatives in the One
Hundred Twelfth Congress and each succeeding Congress.
(b) Conforming Amendments Relating to Apportionment of Members of
House of Representatives.--
(1) Inclusion of single district of columbia member in
reapportionment of members among states.--Section 22 of the Act
entitled ``An Act to provide for the fifteenth and subsequent
decennial censuses and to provide for apportionment of
Representatives in Congress'', approved June 18, 1929 (2 U.S.C.
2a), is amended by adding at the end the following new
subsection:
``(d) This section shall apply with respect to the District of
Columbia in the same manner as this section applies to a State.''.
(2) Clarification of determination of number of
presidential electors on basis of 23rd amendment.--Section 3 of
title 3, United States Code, is amended by striking ``come into
office;'' and inserting the following: ``come into office
(subject to the twenty-third article of amendment to the
Constitution of the United States in the case of the District
of Columbia);''.
SEC. 3. INCREASE IN MEMBERSHIP OF HOUSE OF REPRESENTATIVES.
(a) Permanent Increase in Number of Members.--Effective with
respect to the One Hundred Twelfth Congress and each succeeding
Congress, the House of Representatives shall be composed of 437
Members, including any Members representing the District of Columbia
pursuant to section 2(a).
(b) Reapportionment of Members Resulting From Increase.--
(1) In general.--Section 22(a) of the Act entitled ``An Act
to provide for the fifteenth and subsequent decennial censuses
and to provide for apportionment of Representatives in
Congress'', approved June 18, 1929 (2 U.S.C. 2a(a)), is amended
by striking ``the then existing number of Representatives'' and
inserting ``the number of Representatives established with
respect to the One Hundred Twelfth Congress''.
(2) Effective date.--The amendment made by paragraph (1)
shall apply with respect to the regular decennial census
conducted for 2010 and each subsequent regular decennial
census.
(c) Special Rules for Period Prior to 2012 Reapportionment.--
(1) Transmittal of revised statement of apportionment by
president.--Not later than 30 days after the date of the
enactment of this Act, the President shall transmit to Congress
the most recent statement of apportionment submitted under
section 22(a) of the Act entitled ``An Act to provide for the
fifteenth and subsequent decennial censuses and to provide for
apportionment of Representatives in Congress'', approved June
18, 1929 (2 U.S.C. 2a(a)), revised to take into account this
Act and the amendments made by this Act.
(2) Report by clerk.--Not later than 15 calendar days after
receiving the revised version of the statement of apportionment
under paragraph (1), the Clerk of the House of Representatives,
in accordance with section 22(b) of such Act (2 U.S.C. 2a(b)),
shall send to the executive of each State a certificate of the
number of Representatives to which such State is entitled under
section 22 of such Act, and shall submit a report to the
Speaker of the House of Representatives identifying the State
(other than the District of Columbia) which is entitled to one
additional Representative pursuant to this section.
(3) Requirements for election of additional member.--During
the One Hundred Twelfth Congress--
(A) notwithstanding the final undesignated
paragraph of the Act entitled ``An Act for the relief
of Doctor Ricardo Vallejo Samala and to provide for
congressional redistricting'', approved December 14,
1967 (2 U.S.C. 2c), the additional Representative to
which the State identified by the Clerk of the House of
Representatives in the report submitted under paragraph
(2) is entitled shall be elected from the State at
large; and
(B) the other Representatives to which such State
is entitled shall be elected on the basis of the
Congressional districts in effect in the State for the
One Hundred Eleventh Congress.
SEC. 4. NONSEVERABILITY OF PROVISIONS.
If any provision of this Act, or any amendment made by this Act, is
declared or held invalid or unenforceable, the remaining provisions of
this Act and any amendment made by this Act shall be treated and deemed
invalid and shall have no force or effect of law.
SEC. 5. EXPEDITED JUDICIAL REVIEW.
If any action is brought to challenge the constitutionality of any
provision of this Act or any amendment made by this Act, the following
rules shall apply:
(1) The action shall be filed in the United States District
Court for the District of Columbia and shall be heard by a 3-
judge court convened pursuant to section 2284 of title 28,
United States Code.
(2) A copy of the complaint shall be delivered promptly to
the Clerk of the House of Representatives and the Secretary of
the Senate.
(3) A final decision in the action shall be reviewable only
by appeal directly to the Supreme Court of the United States.
Such appeal shall be taken by the filing of a notice of appeal
within 10 days, and the filing of a jurisdictional statement
within 30 days, of the entry of the final decision.
(4) It shall be the duty of the United States District
Court for the District of Columbia and the Supreme Court of the
United States to advance on the docket and to expedite to the
greatest possible extent the disposition of the action and
appeal.
Purpose and Summary
H.R. 157, the ``District of Columbia House Voting Rights
Act of 2009,'' will provide the District of Columbia with a
Representative in the U.S. House of Representatives. The bill
permanently increases the U.S. House of Representatives from
435 to 437 seats, providing one of those seats to the District
of Columbia, and the other to Utah, as the State that would
have been next entitled to an additional Congressional
representative based on the 2000 Census. The seats for the
District of Columbia and Utah will be implemented in the One
Hundred Twelfth Congress, and Utah's seat will be at large
during that Congress. In the One Hundred Thirteenth Congress,
the at-large seat will be become a single-Member district, like
the other 436, based on the reapportionment and redistricting
that will follow the 2010 Census.
Background and Need for the Legislation
Over half a million people living in the District of
Columbia lack direct voting representation in the U.S. House of
Representatives and U.S. Senate.\1\ For over 200 years, the
District has been denied this voting representation in
Congress--the very entity that has ultimate authority over all
aspects of the city's legislative, executive, and judicial
functions. The United States is the only democracy in the world
that deprives the residents of its capital city voting
representation in the national legislature.\2\ Essentially,
citizens of every State have a vote regarding the laws that
govern the District, while those living in the District itself
do not.\3\
---------------------------------------------------------------------------
\1\ Dick Meyer, Mr. Obama, Give D.C. the Vote, Now, NPR.org, Jan.
8, 2009, available at http://www.npr.org/templates/story/
story.php?storyId=99096356.
\2\ Rick Bress, Memorandum submitted to the U.S. House of
Representatives, Committee on the Judiciary, Constitutionality of the
D.C. Voting Rights Bill (March 2006).
\3\ Id.
---------------------------------------------------------------------------
Residents of the District of Columbia pay billions of
dollars in Federal taxes each year.\4\ They must also register
for selective service, serve on Federal juries, and assume
other responsibilities of U.S. citizenship.\5\ Ironically, many
District residents work for the Federal Government and are
members of the armed services. District residents have defended
the United States in war since the District was created. More
than 192,000 District residents have participated in World War
I and subsequent wars. Over 1,600 District residents have made
the ultimate sacrifice for their country.\6\
---------------------------------------------------------------------------
\4\ Mark David Richards, PhD, 10 Myths About Washington, DC, Nov.
2002, available at http://www.dcvote.org/pdfs/10MythsAboutDC.pdf.
\5\ Letter from Wade Henderson, Leadership Conference on Civil
Rights President & CEO and Nancy Zirkin, Leadership Conference on Civil
Rights Vice President & Director of Public Policy, to Members of
Congress (April 18, 2007).
\6\ DC Vote, DC Veterans Fact Sheet, available at http://
www.dcvote.org/pdfs/vets.pdf.
---------------------------------------------------------------------------
Yet despite such contributions, the United States denies
democracy in its capital, even while it promotes democracy
abroad. At a January 27, 2009, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties hearing, U.S.
Army National Guard Captain Yolanda Lee testified, ``[a]lthough
I was proud to see the Iraqis exercise their right to vote for
voting representatives in their new democracy, I could not vote
for such a representative to the U.S. House of Representatives
in our country.'' \7\
---------------------------------------------------------------------------
\7\ Testimony on H.R. 157, the ``District of Columbia House Voting
Rights Act of 2009'': Hearing before the H. Subcomm. on the
Constitution, Civil Rights & Civil Liberties, 111th Cong., 1st Sess.
(2009) (statement of Yolanda Lee, U.S. Army Guard Captain of the
District of Columbia National Guard).
---------------------------------------------------------------------------
Many Americans realize the great injustice of denying U.S.
citizens living in the Nation's Capital representation in
Congress. A recent poll indicates six in ten Americans support
a voting Representative for the residents of the District of
Columbia.\8\ Support for the District of Columbia House Voting
Rights Act of 2009, H.R 157, in particular is significant and
diverse. The Leadership Conference on Civil Rights (LCCR), with
55 of its coalition members, wrote to urge prompt Congressional
consideration of H.R. 157.\9\ In a letter to Congress, 25
prominent legal scholars stated their concensus belief that
``Congress has the power through `simple' legislation to
provide voting representation in Congress for DC residents.''
\10\
---------------------------------------------------------------------------
\8\ Shannon N. Geis and Gary Langer, Six in 10 Americans Say Aye To
a D.C. Vote in Congress, ABC News, Feb. 24, 2009.
\9\ Letter from the Leadership Conference on Civil Rights to the
Honorable Nancy Pelosi, Speaker of the U.S. House of Representatives
(Jan. 14, 2009).
\10\ Letter from Sheryll D. Cashin, Georgetown University Law
Center Professor, et al. to Members of Congress (Mar. 12, 2007).
---------------------------------------------------------------------------
The lack of representation for District residents also
resonates with the international community. As Leadership
Conference on Civil Rights President and CEO Wade Henderson
testified, the ``situation will also undermine our Nation's
moral high ground in promoting democracy and respect for human
rights in other parts of the world.'' \11\ Before the United
Nations Committee on Human Rights, Timothy Cooper of
Worldrights spoke to the ``oldest continuing human rights
violations taking place in the United States today,'' \12\
citing findings by the Organization for Security and Co-
operation in Europe (OSCE) and the Inter-American Commission on
Human Rights (IACHR) that the District's status is a violation
of international law.\13\
---------------------------------------------------------------------------
\11\ Testimony on H.R. 157, the ``District of Columbia House Voting
Rights Act of 2009'': Hearing before the H. Subcomm. on the
Constitution, Civil Rights & Civil Liberties, 111th Cong., 1st Sess.
(2009) (statement of Wade Henderson, President & CEO of the Leadership
Conference on Civil Rights).
\12\ Timothy Cooper, Intervention Before the U.N. Committee on
Human Rights on Equal
D.C. Voting Rights, July 10, 2006, available at http://www.world-
rights.org/pdf/un_
committee_statement_2006.pdf.
\13\ Id.
---------------------------------------------------------------------------
There is no sound explanation as to why District residents
have been disenfranchised since the District was formally
established on December 1, 1800 under the Act of 1790.\14\ The
Constitution and the Organic Act of 1801 \15\ are completely
silent on the question of Congressional representation for
District residents; they neither provide nor deny
representation for them. While there is no evidence that the
Framers intended to deny voting representation for District
residents, the Framers did provide the Congress with absolute
authority over the District, broad enough to rectify such a
problem. Professor Viet D. Dinh explains, ``[t]here are no
indications, textual or otherwise, to suggest that the Framers
intended that congressional authority under the District
Clause, extraordinary and plenary in all respects, would not
extend also to grant District residents representation in
Congress.'' \16\
---------------------------------------------------------------------------
\14\ Act of July 16, 1790, ch. 28, 1 Stat. 130.
\15\ Organic Act of 1801, ch. 15, 2 Stat. 103.
\16\ Testimony on H.R. 157, the ``District of Columbia House Voting
Rights Act of 2009'': Hearing before the H. Subcomm. on the
Constitution, Civil Rights & Civil Liberties, 111th Cong., 1st Sess.
(2009) (statement of Professor Viet D. Dinh, Georgetown University Law
Center Professor).
---------------------------------------------------------------------------
Professor Dinh also points out that during 1790-1800, 1790
being the year in which Maryland and Virginia ceded land to the
Federal Government for the creation of the capital city, and
1800 being the year in which the Federal Government assumed
control over the District, District residents were able to vote
in Congressional elections in Maryland and Virginia. He says,
``The actions of this first Congress, authorizing District
residents to vote in congressional elections of the ceding
States, thus demonstrate the Framers' belief that Congress may
authorize by statute representation for the district.'' \17\ It
was in 1788 that James Madison wrote in the Federalist Papers
that ``the rights and the consent of the citizens inhabiting
[the District]'' would ``no doubt'' be protected and that
District residents would have ``their voice in the election of
the government which is to exercise authority over them.'' \18\
As Senator Orrin Hatch has noted, ``America's founders prized
the franchise as central to the political system they were
establishing,'' \19\ so it seems unlikely that the Founders
would have intentionally denied any Americans the right to
participate in this new democracy.
---------------------------------------------------------------------------
\17\ Id.
\18\ James Madison, The Federalist No. 43, N.Y. Independent Journal
(Jan. 23, 1788).
\19\ Senator Orrin G. Hatch, ``No Right is More Precious in a Free
Country'': Allowing Americans in the District of Columbia to
Participate in National Self-Government, 45 Harvard J. on Legislation
287, 290 (2008).
---------------------------------------------------------------------------
CONGRESS'S CONSTITUTIONAL AUTHORITY TO PROVIDE
CONGRESSIONAL REPRESENTATION TO THE DISTRICT
Article I, section 8, clause 17--the ``District Clause''--
provides Congress with the authority to provide the District
with full representation in the U.S. House of Representatives.
The District Clause provides:
``The Congress shall have Power . . . 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. . . .'' \20\
---------------------------------------------------------------------------
\20\ U.S. Const., Art. I, Sec. 8, cl. 17.
Testifying before the House Government Reform Committee on
June 23, 2004, Mr. Kenneth Starr, former U.S. Solicitor General
and Judge for the U.S. Court of Appeals for the D.C. Circuit
---------------------------------------------------------------------------
and current Dean of Pepperdine University School of Law, said:
``Congress's powers over the District are not limited
to simply those powers that a State legislature might
have over a State. As emphasized by the Federal courts
on numerous occasions, the Seat of Government Clause is
majestic in scope. In the words of the Supreme Court,
``[t]he object of the grant of exclusive legislation
over the [D]istrict was, therefore, national in the
highest sense. . . . In the same article which granted
the powers of exclusive legislation . . . are conferred
all the other great powers which make the nation.''
(quoting O'Donoghue v. United States, 289 US 516, 539-
540 (1933)). And my predecessors on the D.C. Circuit
Court of Appeals once held that Congress can ``provide
for the general welfare of citizens within the District
of Columbia by any and every act of legislation which
it may deem conducive to that end.'' \21\
---------------------------------------------------------------------------
\21\ Testimony on Common Sense Justice for the Nation's Capital: An
Examination of Proposals to Give D.C. Residents Direct Representation:
Hearing on H.R. 5388 before the H. Comm. on Government Reform, 108th
Cong. (2004). (statement of the Hon. Kenneth W. Starr, former U.S.
Solicitor General and Judge for the U.S. Court of Appeals for the D.C.
Circuit).
Ample case law substantiates Dean Starr's claim that ``the
Seat of Government Clause is majestic in scope.'' \22\ Neild v.
District of Columbia holds that the District Clause is
``sweeping and inclusive in character.'' \23\ United States v.
Cohen finds that Congress has ``extraordinary and plenary
power'' over the District.\24\ Even in Adams v. Clinton, in
which the U.S. District Court for the District of Columbia held
that District residents do not have a judicially cognizable
right to Congressional representation, as the District is not a
State under article I, section 2,\25\ the court found that ``if
[the plaintiffs] are to obtain [relief], they must plead their
cause in other venues.'' \26\ The court stated that counsel for
defendant House officials acknowledged that ``only
congressional legislation or constitutional amendment can
remedy plaintiffs' exclusion from the franchise.'' \27\ This
holding implies that Congress is enabled, through the District
Clause, to provide the District with Congressional
representation through simple legislation.
---------------------------------------------------------------------------
\22\ Id.
\23\ 110 F.2d 246, 249 (D.C. App. 1940).
\24\ 733 F.2d 128, 140 (D.C. Cir. 1984).
\25\ 90 F. Supp. 2d 35, 55-56 (D.D.C. 2000).
\26\ Id. at 72.
\27\ Id. at 40.
---------------------------------------------------------------------------
A statement from the American Bar Association, the largest
voluntary professional membership organization in the world,
quoting then Representative Tom Davis, states that use of the
District Clause has never been struck down when affording
District residents the same rights and privileges that other
U.S. citizens enjoy, and that ``there is no reason to think
that [the courts] would act differently in this case.'' \28\
Furthermore, there are distinctions to be made between Adams v.
Clinton and Michel v. Anderson,\29\ the current precedent on
District of Columbia voting rights. The Congressional Research
Service (CRS) reports that, ``The argument has been made,
however, that the Adams case . . . can be distinguished from
the instant question--whether Congress has power to grant the
District a voting representative in Congress.'' \30\ CRS also
reasons, ``[a]rguably, the court [in Michel] did not consider
the issue of whether the Congress as a whole would have had the
authority to provide for representation for the District of
Columbia under the District Clause. Under this line of
reasoning, the power of the Congress over the District may
represent a broader power than the power of the House to set
its own rules.'' \31\
---------------------------------------------------------------------------
\28\ Testimony on H.R. 5388, the ``District of Columbia Fair and
Equal House Voting Rights Act'': Hearing before the H. Subcomm. on the
Constitution, 109th Cong., 2nd Sess. (2006) (statement of the American
Bar Association).
\29\ 817 F. Supp. 126 (D.D.C. 1993). In Michel v. Anderson, the
U.S. District Court for the District of Columbia determined that
providing nonvoting Delegates with the ability to vote in the Committee
of the Whole of the House of Representatives through House Rules did
not violate the U.S. Constitution.
\30\ Kenneth R. Thomas, Congressional Research Service (CRS)
Report, The Constitutionality of Awarding the Delegate for the District
of Columbia a Vote in the House of Representatives or the Committee of
the Whole'' (January 24, 2007) at 7.
\31\ Id. at 8.
---------------------------------------------------------------------------
The Supreme Court first recognized Congress's plenary
authority over the District in 1805. In Hepburn v. Ellzey,\32\
the Supreme Court held that diversity jurisdiction did not
exist between the District and Virginia, as article III,
section 2 of the U.S. Constitution provides that diversity
jurisdiction only exists ``between citizens of different
States.'' \33\ The Court explained, however, that ``this is a
subject for legislative, not for judicial consideration,'' \34\
clarifying Congress's authority to enact legislation extending
diversity jurisdiction to the District.\35\ Congress went on to
enact such a statute, which, when later challenged in National
Mutual Insurance Co. of the District of Columbia v. Tidewater
Co., was upheld based on Congress's article I power to
legislate for the District.\36\
---------------------------------------------------------------------------
\32\ 6 U.S. 445 (1805).
\33\ U.S. Const., Art. III, Sec. 2 (emphasis added).
\34\ This opinion in Hepburn provides the foundation for the
opinion in Adams. Both courts recognized the ability of the Congress to
act through legislation where the Judiciary was unable to act through
an order.
\35\ 6 U.S. 445, 453 (1805).
\36\ National Mutual Ins. Co. of the District of Columbia v.
Tidewater Co., 337 U.S. 582, 589 (1949).
---------------------------------------------------------------------------
Tidewater thus substantiates that the District Clause can
be used to grant District residents Constitutional rights and
status provided in the text of the Constitution to citizens of
the States. As such, while article I, section 2 provides for
the election of Members of the House of Representatives by the
``people of the several States,'' \37\ Congress is not
precluded from providing the District with the opportunity to
elect a U.S. House Representative. Significantly, five of the
justices in Tidewater ascribed to the view either that the
District was a State under the terms of the Constitution, or
that the Congress, through use of the District Clause, could
treat the District like a State.\38\
---------------------------------------------------------------------------
\37\ U.S. Const., Art. I, Sec. 2.
\38\ 337 U.S. 582, 589 (1949).
---------------------------------------------------------------------------
Aside from diversity jurisdiction, use of the District
Clause has always been upheld, even when conferring on the
District other Constitutional rights and obligations that are
provided in the text of the Constitution to the States.
Congress treating the District as a State for purposes of
alcohol regulation under the Alcoholic Beverage Control Act,
for example, was upheld as in accordance with the 21st
amendment in Milton S. Kronheim & Co. Inc. v. District of
Columbia.\39\ The District is also treated like a State for
purposes of Federal income taxation under the 16th
amendment,\40\ for purposes of affording 11th amendment
immunity to the Washington Metropolitan Area Transit
Authority,\41\ for purposes of Federal regulation of commerce
in the District consistent with the article I, section 8,
clause 3 Commerce Clause,\42\ and for purposes of providing
District residents with the right to a jury trial under the
sixth amendment.\43\
---------------------------------------------------------------------------
\39\ 91 F.3d 193 (D.C. Cir. 1996).
\40\ U.S. Const., Amend. XVI.
\41\ Clarke v. Wash. Metro. Area Transit Auth., 654 F. Supp. 712
(D.D.C. 1985), aff'd, 808 F.2d 137 (D.C. Cir. 1987).
\42\ Stoutenburgh v. Hennick, 129 U.S. 141 (1889)).
\43\ Callan v. Wilson, 127 U.S. 540 (1888).
---------------------------------------------------------------------------
There are a number of other instances of the Congress using
the District Clause to treat the District like a State. In
Palmore v. United States,\44\ for example, the Supreme Court
upheld Congress's designation of the District of Columbia Court
of Appeals as the ``highest court of a State'' for purposes of
Supreme Court review of final State court judgments. District
residents are also treated like State residents for purposes of
civil actions for deprivation of rights,\45\ and crime victim
assistance programs,\46\ among other examples.
---------------------------------------------------------------------------
\44\ 411 U.S. 389 (1973).
\45\ 42 U.S.C. Sec. 1983.
\46\ 42 U.S.C. Sec. 10603(d)(1).
---------------------------------------------------------------------------
CONGRESS'S CONSTITUTIONAL AUTHORITY TO MANDATE
A TEMPORARY AT-LARGE SEAT
The permanent increase in the U.S. House of Representatives
from 435 to 437 seats in H.R. 157 means that, in addition to
the District, the State next in line to increase its
Congressional delegation, which is Utah, is entitled to a seat,
as provided for in section 3 of H.R. 157.\47\ According to 2000
Census data, Utah is the State next in line to increase its
delegation,\48\ having missed the seat following the 2000
Census by just 856 people.\49\ Utah Governor Jon Huntsman
strongly supports ``granting one seat to the District of
Columbia and the other to Utah, the state that should have
received an additional seat in the wake of the 2000 Census.''
\50\ Governor Huntsman also ``welcome[s] the fact that, if the
legislation passes, Utah's new seat would be elected on an at-
large basis (rather than from a specific district) until
2012,'' as redistricting is ``always a difficult, time-
consuming, and politically costly process.'' \51\ Importantly,
Congress has the Constitutional authority to require that
Utah's seat be at-large temporarily.
---------------------------------------------------------------------------
\47\ H.R. 157, 111th Cong. (2009).
\48\ See U.S. Dept. of Commerce, U.S. Census Bureau, Census 2000
Apportionment Data (Dec. 28, 2000), available at http://www.census.gov/
population/www/cen2000/maps/files/tab01.pdf.
\49\ Election Data Services, Inc., Next Six Seats Not Awarded with
Number of People Missed By, Provided by the U.S. Census Bureau (on file
with the H. Comm. on the Judiciary).
\50\ Letter from the Honorable John M. Huntsman, Jr., Governor of
Utah, to the Honorable John Conyers, Jr., Committee on the Judiciary
Chairman (Jan. 26, 2009).
\51\ Testimony on H.R. 5388, the ``District of Columbia Fair and
Equal House Voting Rights Act of 2006'': Hearing before the H. Subcomm.
on the Constitution, Civil Rights & Civil Liberties, 109th Cong., 2nd
Sess. (2006) (statement of the Honorable John M. Huntsman, Jr, Governor
of Utah).
---------------------------------------------------------------------------
Article I, section 4 of the Constitution provides:
The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in
each State by the Legislature thereof; but the Congress
may at any time by Law make or alter such Regulations,
except as to the Places of [choosing] Senators.
In interpreting article I, the Supreme Court has determined
that the Constitution gives Congress broad authority to
regulate national elections. In Oregon v. Mitchell,\52\ Justice
Black wrote, ``[i]n the very beginning the responsibility of
the States for setting the qualifications of voters in
congressional elections was made subject to the power of
Congress to make or alter such regulations, if it deemed
advisable to do so.'' \53\ In 2004, in Vieth v. Jubelirer,
Justice Scalia noted that ``article I, section 4, while leaving
in State legislatures the initial power to draw districts for
Federal elections, permitted Congress to `make or alter' those
districts if it wished.'' \54\
---------------------------------------------------------------------------
\52\ 400 U.S. 112 (1970).
\53\ Id. at 119.
\54\ 541 U.S. 267, 275 (2004).
---------------------------------------------------------------------------
Given this broad authority to regulate Federal elections,
Congress has the ability to mandate that Utah's fourth seat be
an at-large seat through the year 2012. CRS concludes that
``Congress has ultimate authority over most aspects of the
congressional election process'' and that ``congressional power
is at its most broad in the case of House elections.'' \55\ As
such, Congress has the constitutional authority to temporarily
mandate an at-large seat for Utah, notwithstanding the general
statutory requirement in 2 U.S.C. 2(c) that Members run from
single-member districts rather than at-large districts.\56\
---------------------------------------------------------------------------
\55\ L. Paige Whitaker and Kenneth R. Thomas, Congressional
Research Service (CRS) Memorandum, Constitutionality of Congress
Creating an At-Large Seat for a Member of Congress'' (June 5, 2006) at
1-2.
\56\ 2 U.S.C. 2(c).
---------------------------------------------------------------------------
Additionally, a temporary at-large seat in Utah is
consistent with the ``one person, one vote'' principle. The
U.S. Supreme Court has held that the U.S. Constitution requires
that each Congressional district in a State contain equal
population.\57\ The Court has held that article I, section 2 of
the Constitution requires that ``as nearly as is practicable,
one man's vote in a congressional election is to be worth as
much as another's.'' \58\ In Utah, all voters will have the
opportunity to vote both for a candidate to represent his or
her congressional district and a candidate to represent the
State at-large, ``thereby comporting with the one person, one
vote principle.'' \59\
---------------------------------------------------------------------------
\57\ See Wesberry v. Sanders, 376 U.S. 1 (1864).
\58\ Id. at 18.
\59\ L. Paige Whitaker and Kenneth R. Thomas, Congressional
Research Service Memorandum, Constitutionality of Congress Creating an
At-Large Seat for a Member of Congress'' (June 5, 2006) at 4.
---------------------------------------------------------------------------
Hearings
The Subcommittee on the Constitution, Civil Rights, and
Civil Liberties held one day of hearings on H.R. 157 on January
27, 2009. On the first panel, testimony was received from House
Majority Leader Steny Hoyer (D-MD), former Representative Tom
Davis (R-VA), Representative Jason Chaffetz (R-UT), and (4)
Representative Louie Gohmert (R-TX).
On the second panel, testimony was received from Mr. Wade
Henderson, President and CEO of the Leadership Conference on
Civil Rights (LCCR); Ms. Yolanda Lee, U.S. Army Guard Captain
of the District of Columbia National Guard; Mr. Viet Dinh,
Professor of Law at the Georgetown University Law Center, and
former U.S. Assistant Attorney General for Legal Policy from
2001 to 2003; and Mr. Jonathan Turley, J.B. and Maurice Shapiro
Professor of Public Interest Law at the George Washington
University Law School.
Committee Consideration
On February 25, 2009, the Committee met in open session and
ordered the bill H.R. 157 favorably reported, by a vote of 20
to 12, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 157.
1. An amendment offered by Mr. Smith, to the amendment in
the nature of a substitute offered by Mr. Nadler and Mr.
Conyers, providing for intervention and standing by Members of
Congress in any action challenging the constitutionality of
H.R. 157. The amendment failed by a vote of 15 to 15.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen.......................................................
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz...........................................
Mr. Maffei...................................................... X
[Vacant]........................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 15 15
----------------------------------------------------------------------------------------------------------------
2. An amendment offered by Mr. Sensenbrenner to the
amendment in the nature of a substitute, requiring Utah to
redistrict into four single-member districts. The amendment
failed by a vote of 9 to 19.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen.......................................................
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Gutierrez................................................... X
Mr. Sherman..................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
[Vacant]........................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes......................................................
Mr. King........................................................
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 9 19
----------------------------------------------------------------------------------------------------------------
3. A motion to table the appeal of the ruling of the chair
that an amendment offered by Mr. Chaffetz to amend the
amendment in the nature of a substitute, repealing the Office
of the District of Columbia Delegate, is non-germane. The
motion to table was agreed to by a vote of 17 to 11.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Gutierrez...................................................
Mr. Sherman..................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
[Vacant]........................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney......................................................
Mr. Harper......................................................
-----------------------------------------------
Total....................................................... 17 11
----------------------------------------------------------------------------------------------------------------
4. An amendment offered by Mr. Issa to the amendment in the
nature of a substitute, increasing the U.S. House of
Representatives to 436, providing a seat only for the District
of Columbia, and eliminating the additional seat for Utah. The
amendment failed by a vote of 12 to 20.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Gutierrez................................................... X
Mr. Sherman..................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
[Vacant]........................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 12 20
----------------------------------------------------------------------------------------------------------------
5. An amendment offered by Mr. Chaffetz to the amendment in
the nature of a substitute, providing that H.R. 157 cannot be
construed to suggest that the District of Columbia should have
Senate representation. The amendment failed by a vote of 12 to
18.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Gutierrez................................................... X
Mr. Sherman..................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei......................................................
[Vacant]........................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 12 18
----------------------------------------------------------------------------------------------------------------
6. An amendment in the nature of a substitute to H.R. 157
offered by Mr. Nadler and Mr. Conyers. The amendment was agreed
to by a vote of 24 to 5.
ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Gutierrez................................................... X
Mr. Sherman.....................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei......................................................
[Vacant]........................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 24 5
----------------------------------------------------------------------------------------------------------------
7. H.R. 157 was ordered favorably reported by a vote of 20
to 12.
ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Gutierrez................................................... X
Mr. Sherman..................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
[Vacant]........................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 20 12
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 157, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 27, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 157, the
``District of Columbia House Voting Rights Act of 2009.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 157--District of Columbia House Voting Rights Act of 2009.
SUMMARY
H.R. 157 would expand the number of Members in the House of
Representatives from 435 to 437 beginning with the 112th
Congress. The legislation would provide the District of
Columbia with one Representative and add one new at-large
Member. Under H.R. 157, the new at-large seat would likely be
assigned to a State based on information from the 2000 census
and then be reallocated based on the next Congressional
apportionment following the 2010 census (which would occur
prior to the start of the 113th Congress).
The legislation's effects on direct spending over the 2009-
2013 and 2009-2018 periods are relevant for enforcing pay-as-
you-go rules under the current budget resolution. CBO estimates
that enacting this legislation would increase direct spending
by about $1 million over the five-year period from 2009 through
2013 and by about $4 million over the 2009-2018 period.
Implementing the bill would increase discretionary costs by
about $2 million in 2011 and about $12 million over the 2011-
2014 period, assuming the availability of appropriated funds.
H.R. 157 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA), but CBO estimates
that the costs would not be significant and would not exceed
the threshold established in UMRA ($69 million in 2009,
adjusted annually for inflation). The bill contains no private-
sector mandates as defined in UMRA.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 157 is shown in the
following table. The costs of this legislation fall within
budget function 800 (general government).
By Fiscal Year, in Millions of Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
2010- 2010-
2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2014 2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Salaries and Benefits
Estimated Budget
Authority 0 0 * * * * * * 1 1 1 2 5
Estimated
Outlays 0 0 * * * * * * 1 1 1 2 5
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Office and Administrative
Expenses
Estimated Authorization
Level 0 0 2 3 3 4 4 4 4 4 4 12 32
Estimated
Outlays 0 0 2 3 3 4 4 4 4 4 4 12 32
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.
BASIS OF ESTIMATE
For this estimate, CBO assumes that the bill will be
enacted during 2009 and that spending will follow historical
patterns of spending by Congressional offices.
The legislation would permanently expand the number of
Members in the House of Representatives by two to 437. One new
Member would represent the District of Columbia and the other
would likely be a Representative at-large for the State of Utah
until the next apportionment based on the 2010 census. The
District currently has a nonvoting delegate to the House of
Representatives (which would be retained under this
legislation). Consequently, enacting H.R. 157 would increase
costs for two new Members.
Direct Spending
CBO estimates that the salaries and benefits of the two new
representatives would increase direct spending by about $5
million over the 2011-2019 period. We assume that the current
Congressional salary of $174,000 would be adjusted in future
years for anticipated inflation.
Spending Subject to Appropriation
Based on the current allowances for administration and
expenses available for Members and other typical costs for a
Congressional office, CBO estimates that adding two new members
would increase costs by about $3 million annually ($1.5 million
per office, adjusted annually for inflation) and about $12
million over the 2011-2014 period, subject to the availability
of appropriated funds.
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
H.R. 157 contains an intergovernmental mandate as defined
in UMRA. Assuming that the additional Representative provided
for in the bill is assigned to Utah, the bill would temporarily
preempt laws in that State governing the election of Members of
the House of Representatives. The bill would require Utah to
elect an additional Member of the House using a statewide
election. CBO estimates that the State would incur marginal
costs to elect the additional Member in the 2010 election
cycle, but those costs would not be significant and would not
exceed the threshold established in UMRA ($69 million in 2009,
adjusted annually for inflation.)
ESTIMATED IMPACT ON THE PRIVATE-SECTOR
The legislation contains no private-sector mandates as
defined in UMRA.
PREVIOUS CBO ESTIMATE
On February 17, 2009, CBO transmitted a cost estimate for
S. 160, the District of Columbia House Voting Rights Act of
2009, as ordered reported by the Senate Committee on Homeland
Security and Governmental Affairs on February 11, 2009. The two
bills are similar in that they would permanently increase the
number of Members of the House of Representatives, with those
new Members coming from the District of Columbia and Utah.
However, the House bill would not repeal the provisions of
current law related to the delegate for the District of
Columbia. The estimated costs of each bill reflect that
difference.
ESTIMATE PREPARED BY:
Federal Costs: Matthew Pickford
Impact on State, Local, and Tribal Governments: Elizabeth Cove
Delisle
Impact on the Private Sector: Paige Piper/Bach
ESTIMATE APPROVED BY:
Theresa Gullo
Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
157 will provide the District of Columbia with full
representation in the U.S. House of Representatives.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 17 of the
Constitution and article I, section 4, clause 1.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 157 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.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title. This section designates the short
title of H.R. 157 as the ``District of Columbia House Voting
Rights Act of 2009.''
Section 2. Treatment of District of Columbia as
Congressional District. This section provides that the District
of Columbia shall be considered a Congressional District for
purposes of representation in the House of Representatives,
beginning in the 112th Congress.
Section 3. Increase in the Membership of House of
Representatives. This section permanently increases the number
of Members in the U.S. House of Representatives from 435 to
437. The District of Columbia would receive one of those seats,
the same as if it were a State, and Utah would receive the
other seat, as the State next in line for a seat based on the
2000 Census apportionment formula. In future reapportionments,
the allocation of Congressional seats will be based on 437 as
opposed to 435, with the apportionment among the States and the
District of Columbia based on population, with each State, and
the District, entitled to at least one seat. This section also
provides that for the 112th Congress only, the seat Utah will
receive is to be an at-large seat.
Section 4. Nonseverability of Provisions. This section
provides that if any provision of this Act is held invalid or
unenforceable, the entire Act will be deemed invalid or
unenforceable. As such, no provision of this Act will be
effective unless the entire bill is. And no provision of the
bill will be enjoined without the entire bill being likewise
enjoined.
Section 5. Expedited Judicial Review. This section provides
for expedited judicial review in the United States District
Court for the District of Columbia for any challenge to the
constitutionality of this Act. The District Court's decision
will be reviewable only by appeal directly to the United States
Supreme Court.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ACT OF JUNE 18, 1929
(Public Law 71-28)
AN ACT To provide for the fifteenth and subsequent decennial censuses
and to provide for apportionment of Representatives in Congress.
* * * * * * *
Sec. 22. (a) On the first day, or within one week
thereafter, of the first regular session of the Eighty-second
Congress and of each fifth Congress thereafter, the President
shall transmit to the Congress a statement showing the whole
number of persons in each State, excluding Indians not taxed,
as ascertained under the seventeenth and each subsequent
decennial census of the population, and the number of
Representatives to which each State would be entitled under an
apportionment of [the then existing number of Representatives]
the number of Representatives established with respect to the
One Hundred Twelfth Congress by the method known as the method
of equal proportions, no State to receive less than one Member.
* * * * * * *
(d) This section shall apply with respect to the District
of Columbia in the same manner as this section applies to a
State.
----------
SECTION 3 OF TITLE 3, UNITED STATES CODE
Sec. 3. Number of electors
The number of electors shall be equal to the number of
Senators and Representatives to which the several States are by
law entitled at the time when the President and Vice President
to be chosen [come into office;] come into office (subject to
the twenty-third article of amendment to the Constitution of
the United States in the case of the District of Columbia);
except, that where no apportionment of Representatives has been
made after any enumeration, at the time of choosing electors,
the number of electors shall be according to the then existing
apportionment of Senators and Representatives.
Dissenting Views
We all agree that residents of the District of Columbia are
entitled to representation in Congress, and we are committed to
that goal. We also all agree that such representation must
occur by constitutional means. For that reason, we regretfully
oppose H.R. 157.
H.R. 157 would, by statute, attempt to create a full-
fledged Member of Congress to represent the District of
Columbia. The bill would also grant one additional Member to
the state next in line to receive a new Member based on its
population growth. According to the U.S. Census Bureau's
figures, that state would be Utah. The bill would also
permanently increase the size of the House to include 437
Members. The bill also contains a ``non-severability'' clause,
such that if any of the provisions of the bill are struck down,
the entire bill will be rendered invalid.
The bill, however, would not abolish the position of
Delegate for the District of Columbia (Delegate Eleanor Holmes
Norton's current position). As a result, if the bill as
introduced were enacted D.C. residents would be represented by
both a voting Member of Congress who could vote in committee
and on the House floor, and also a D.C. Delegate who could vote
in committee. Consequently, D.C. residents would get more
representation in Congress than any other American citizens
because both the D.C. Member and the D.C. Delegate would be
able to vote in committee, giving D.C. residents more power in
committee than the residents of any other state.
We oppose this legislation because it contains profound
constitutional and policy flaws, which are described in detail
below.
H.R. 157 HAS PROFOUND CONSTITUTIONAL FLAWS
Professor Jonathan Turley of the George Washington
University Law School, who supports voting rights for D.C.
residents, called the same legislation last Congress ``the most
premeditated unconstitutional act by Congress in decades.'' \1\
---------------------------------------------------------------------------
\1\ Jonathan Turley, Statement for the Record, Legislative Hearing
on H.R. 1433, the ``District of Columbia House Voting Rights Act of
2007'' (March 14, 2007) before the House Constitution Subcommittee.
---------------------------------------------------------------------------
The actual creation of the District of Columbia occurred
during the First Congress, when that body accepted \2\ the
cessions of Maryland and Virginia. From 1780 until the capital
officially moved to the District of Columbia in December 1800,
the residents of the District were able to vote for the
representatives of the states from which they had been ceded.
Once the District was formally adopted as the seat of
government, the residents of the District ceased to have voting
representation in Congress.
---------------------------------------------------------------------------
\2\ Act of July 16, 1790, Ch. 28, 1 Stat. 130.
---------------------------------------------------------------------------
Supporters of the bill claim Congress has the authority to
enact H.R. 157 under Article I, Section 8, clause 17 of the
Constitution (``the District Clause''), which states ``The
Congress shall have power . . . 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 . . .'' \3\ However, that very
clause also makes clear that D.C. is not a State (it is a
specially-created ``District''), and Article I, Section 2 of
the Constitution's first sentence makes clear that ``The House
of Representatives shall be composed of Members chosen every
second year by the people of the Several States . . .'' Since
D.C. is not a State, it cannot have a voting Member in the
House.
---------------------------------------------------------------------------
\3\ Proponents of this legislation, including Ken Starr, Viet Dinh,
and Adam Charnes maintain that the District Clause gives Congress
plenary authority to grant additional Members to the District of
Columbia. See Testimony of the Hon. Kenneth W. Starr Before the House
Government Reform Committee, at 1 (June 23, 2004), reprinted in H.R.
Rep. No. 109-593, at 34 (2006); Viet D. Dinh & Adam H. Charnes, The
Authority of Congress to Enact Legislation to Provide the District of
Columbia with Voting Representation in the House of Representatives, at
9 (2004), reprinted in H.R. Rep. No. 109-593, at 50 (2006).
---------------------------------------------------------------------------
The District was denied representation in the Constitution
because it was feared that if the District received
Congressional representation, the Members and Senators who
represented the state that contained the Seat of Government
would become disproportionately influential, to the detriment
of the other States. It was also feared that, if the District
were within the jurisdiction of a state, that state might
refuse to protect the Seat of Government were a dispute to
arise between federal and state interests.
The rationale for this provision was set forth by James
Madison in Federalist Paper No. 43, in which he stated:
The indispensable necessity of complete authority at
the seat of government carries its own evidence with
it. It is a power exercised by every legislature of the
Union, I might say of the world, by virtue of its
general supremacy. Without it not only the public
authority might be insulted and its proceedings
interrupted with impunity, but a dependence of the
members of the general government on the State
comprehending the seat of the government for protection
in the exercise of their duty might bring on the
national councils an imputation of awe or influence
equally dishonorable to the government and
dissatisfactory to the other members of the
Confederacy.\4\
---------------------------------------------------------------------------
\4\ The Federalist No. 43, at 240 (James Madison) (Clinton Rossiter
ed., 1961).
Indeed, in 1783, when the delegates to Congress met in
Philadelphia, a group of veterans demanding back pay overran
them. The Congressional delegates asked for the state militia
to help protect them, but the state refused.\5\ Memories of
that episode led the Founders to later put forth a Constitution
that made the Seat of Government an exclusively federal
enclave.
---------------------------------------------------------------------------
\5\ Jonathan Turley, ``Too Clever by Half: The Unconstitutionality
of Partial Representation of the District of Columbia in Congress,'' 76
Geo. Wash. L. Rev. 305, 310 (2008).
---------------------------------------------------------------------------
There is little question that the original rationale for
denying D.C. residents Congressional representation has become
outdated. America is much more populated today, and the power
of the federal government over all the States has grown
enormously, for better or worse, such that there is little
cause for concern today that allowing Congressional
representation to those who live in the residential parts of
D.C. would significantly alter any balance of power. But the
Constitution cannot be amended by statute. It must be amended
through the formal Article V process of constitutional
amendment or, in the alternative, the land that constitutes the
residential sections of the District of Columbia could be
returned to Maryland, by statute, through a process called
retrocession, in which case the current residents of D.C. would
become residents of Maryland and enjoy representation as
citizens of that state.
The fact is, statements to the contrary notwithstanding,
that the Founders clearly understood the ratified Constitution
to deny Congressional representation to D.C. Indeed, at the New
York Constitutional Convention, Alexander Hamilton himself
offered an amendment to the proposed Constitution that would
have allowed District residents to secure representation in
Congress once they grew to a reasonable size.\6\ On July 22,
1788, Hamilton asked that the District Clause be amended to
mandate that ``When the Number of Persons in the District of
Territory to be laid out for the Seat of the Government of the
United States, shall according to the Rule for the
Apportionment of Representatives and direct Taxes Amount to
[blank, a figure Hamilton sought to insert later] such District
shall cease to be parcel of the State granting the Same, and
Provision shall be made by Congress for their having a District
Representation in that Body.'' \7\ But that amendment to the
Constitution was rejected. Consequently, it is clear that the
Framers considered and rejected granting Congressional
representation to the District in the Constitution.
---------------------------------------------------------------------------
\6\ 5 The Papers of Alexander Hamilton 189 (Harold C. Syrett &
Jacob E. Cooke eds., 1962).
\7\ Id. at 189.
---------------------------------------------------------------------------
Subsequent generations reaffirmed that understanding in the
Constitution yet again when the Twenty-Third Amendment was
ratified on March 29, 1961. That Amendment grants District
residents the right to vote for Presidential electors by
granting the District ``A number of electors of President and
Vice President equal to the whole number of Senators and
Representatives in Congress to which the District would be
entitled if it were a State . . .'' Clearly, the Constitution
must be amended again if the District is to be treated as ``if
it were a State'' for purposes of Congressional representation.
The independent Congressional Research Service's own
analysis concludes that H.R. 157 is facially unconstitutional,
stating that the ``case law that does exist would seem to
indicate that not only is the District of Columbia not a
`state' for purposes of representation, but that congressional
power over the District of Columbia does not represent a
sufficient power to grant congressional representation.'' \8\
---------------------------------------------------------------------------
\8\ Kenneth R. Thomas, Congressional Research Service, The
Constitutionality of Awarding the Delegate for the District of Columbia
a Vote in the House of Representatives or the Committee of the Whole,
CRS-20 (2007), available at http://assets.opencrs.com/rpts/
RL33824_20070124.pdf (concluding).
---------------------------------------------------------------------------
As Jonathan Turley has also written, ``It would be
ridiculous to suggest that the delegates to the Constitutional
Convention or ratification conventions would have worked out
such specific and exacting rules for the composition of
Congress, only to give the majority of Congress the right to
create a new form of voting members from federal enclaves like
the District. It would have constituted the realization of the
worst fears for many delegates, particularly Anti-Federalists,
to have an open-ended ability of the majority to manipulate the
rolls of Congress and to use areas under the exclusive control
of the federal government as the source for new voting
members.'' \9\
---------------------------------------------------------------------------
\9\ Jonathan Turley, ``Too Clever By Half: The Unconstitutionality
of Partial Representation of the District of Columbia,'' 76 Geo. Wash.
L. Rev. 305, 328 (2008).
---------------------------------------------------------------------------
Insofar as the federal courts have already reviewed the
issue presented by H.R. 157, the answer is clear. In 2000, a
federal three-judge panel in D.C. itself stated ``We conclude
from our analysis of the text that the Constitution does not
contemplate that the District may serve as a state for purposes
of the apportionment of congressional representatives.'' \10\
The Supreme Court affirmed that decision.\11\
---------------------------------------------------------------------------
\10\ Adams v. Clinton, 90 F.Supp.2d 35, 50 (D.D.C. 2000).
\11\ 531 U.S. 941 (2000).
---------------------------------------------------------------------------
Supporters of H.R. 157 point for precedent to a case,
called Tidewater, decided by the Supreme Court in 1949 \12\
that upheld a federal law extending the diversity jurisdiction
of the federal courts to hear cases in which D.C. residents
were parties. But as the Congressional Research Service stated
in a recent report, ``The plurality opinion [in that case] took
pains to note the limited impact of their holding . . . [T]he
plurality specifically limited the scope of its decision to
cases which did not involve an extension of any fundamental
right,'' \13\ such as the right to vote for a Member of
Congress.
---------------------------------------------------------------------------
\12\ National Mutual Insurance Co. v. Tidewater, 337 U.S. 582
(1949).
\13\ Kenneth R. Thomas, CRS Report to Congress, RL33824, ``The
Constitutionality of Awarding the Delegate for the District of Columbia
a Vote in the House of Representatives or the Committee of the Whole''
(January 24, 2007) at 16.
---------------------------------------------------------------------------
Further, if the 1949 Tidewater Supreme Court case does what
proponents of the bill says it does, Congress would not have
had to go through the trouble of passing a constitutional
amendment to the States, which it did in 1978, that would have
provided D.C. two Senators and a Representative. (That
amendment failed to get the approval of three-quarters of the
States over seven years.) \14\ The need for a constitutional
amendment to accomplish what supporters of H.R. 157 seek to
accomplish today was clear to Democrats the last time a serious
push was made for D.C. representation. When the House Judiciary
Committee, under the leadership of Democratic Chairman Peter
Rodino in the 95th Congress, reported out a constitutional
amendment to do what this bill purports to be able to do, the
report accompanying that constitutional amendment stated the
following: ``If the citizens of the District are to have voting
representation in the Congress, a constitutional amendment is
essential; statutory action alone will not suffice.'' \15\
---------------------------------------------------------------------------
\14\ In 1978, Congress passed a constitutional amendment providing
the District with full representation in both the House and Senate. The
amendment then needed 38 of the 50 state legislatures to ratify it
within seven years time. Ultimately, only 16 did so, and the amendment
was rendered void. The following is a list of the 16 states that
approved the amendment: New Jersey; Michigan; and Ohio in 1978;
Minnesota; Massachusetts; Connecticut; and Wisconsin in 1979; Maryland
and Hawaii in 1980; Oregon in 1981; Maine; West Virginia; and Rhode
Island in 1983; Iowa; Louisiana; and Delaware in 1984.
\15\ H. Rep. No. 95-886 (95th Cong., 2d Sess.) at 4.
---------------------------------------------------------------------------
H.R. 157 IS BAD POLICY
Even conceding for purposes of argument the proponents of
this bill's understanding of the vast breadth of the District
Clause, the bill would actually set a terrible precedent for
the manipulation of House and Senate membership, and be unfair
to others.
H.R. 157 requires us to ask what will happen in the future
under the precedent it sets? Will future Congresses use this
same authority to grant D.C. two, five, or ten or more Members,
or Senators, when politically expedient? Will they then abolish
those seats if the Members holding them vote ``the wrong way''?
This bill invites political gamesmanship and manipulation of
the District's representation.
In fact, although this bill seeks only one House Member to
represent the District, we have reason to believe its
supporters have broader plans in mind. According to The
Washington Post, the Mayor of D.C. claims to have had a private
conversation with President Obama in which the President said
he would support not only one House Member to represent D.C.,
but two Senators for D.C. as well. According to The Washington
Post, ``[D.C. Mayor] Fenty (D), who endorsed Obama at the
community center event in the summer of 2007, said Obama
pledged in a private conversation to support `full voting
rights.' That, the mayor added, has traditionally meant two
senators and a representative.'' \16\ The Washington Post has
similarly editorialized that ``[C]ity leaders could carefully
explore other ways to provide greater democracy for the
residents of the nation's capital, including ways to secure a
voice in the Senate.'' \17\
---------------------------------------------------------------------------
\16\ See David Nakamura, ``Backers Of Voting Rights Face Split:
Some in District Don't Want to Settle For Just House Seat,'' The
Washington Post (November 10, 2008) at B1.
\17\ ``A New Chance for D.C.?'' The Washington Post (editorial)
(November 6, 2008).
---------------------------------------------------------------------------
But again, the false logic of the supporters of H.R. 157--
who say the District Clause allows Congress to pass legislation
that trumps all other parts of the Constitution--does not stop
at two Senators and one House Member for the District of
Columbia. That false logic is infinitely expansive, as it also
allows Congress to, by statute, grant D.C. dozens, even
hundreds, of extra Senators if it wants to. If we follow that
false logic even one step, it will invite future manipulations
of voting rules and give the green light to future Congresses
to add and subtract Member or Senators at its whim.
The false logic of the supporters of H.R. 157, if
legitimized by passage of this legislation, would also invite
Congress to deny existing constitutional rights to D.C.
residents in the future. Surely, under the false logic of the
bill, if Congress can give voting rights to D.C. under the
constitution by statute--and ignore other provisions of the
Constitution in the process--then Congress can take rights away
as well. Under the constitutional theory of proponents of this
bill, Congress could, by statute, deny D.C. voters the
protection from racial discrimination in voting afforded them
under the Fifteenth Amendment, deny them the protections from
discrimination in voting based on sex afforded them under the
Nineteenth Amendment, and take away the right to vote to those
over 18 as granted by the Twenty-Sixth Amendment. Again, this
bill sets a very bad precedent by opening up the possibility of
vast abuse.
Under the false logic that underlies this bill, H.R. 157
also arguably allows additional Congressional representation
for men and women training for the military. The exact same
Article I, Section 8, clause 17 of the Constitution, which
supporters of this bill say gives Congress the authority to
grant D.C. a Member of Congress by statute, grants the exact
same authority to Congress to do the same thing for our men and
women training for the military at Forts around the country.
That very same clause of the Constitution states: ``The
Congress shall have power . . . to exercise like Authority over
all Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, Dockyards, and other needful Buildings; .
. .'' So if the District Clause grants Congress the authority
to grant D.C. a voting Member by statute, then it must also
grant Congress the authority to give added representation in
Congress to members of the military serving in federal enclaves
used for military purposes. The false logic underlying H.R. 157
invites a future Congress to do just that.
AT-LARGE REPRESENTATION CONFLICTS WITH THE PRINCIPLE OF
``ONE PERSON, ONE VOTE''
Another part of H.R. 157 that raises constitutional
questions pertains to the allocation of an at-large seat to the
State of Utah. Under the bill, each citizen of Utah will have a
vote for their geographically designated representative as well
as an additional vote for the at-large representative allocated
by the bill.
At-large districting had effectively ended by 1966, a mere
two years after the Supreme Court announced its decision in
Wesberry v. Sanders, in which it held that ``the command of Art
I, Sec. 2, [of the Constitution] that Representatives be chosen
`by the People of the Several States' means that as nearly as
is practicable one man's vote in a congressional election is to
be worth as much as another's.'' \18\ Over time, the Court
interpreted this ``one person, one vote'' doctrine to mean that
congressional districts within a state must be mathematically
equal.\19\ While the at-large district in Utah will be three
times as large as the state's three geographic districts, each
voter within Utah will have the same voting power because they
will have an equal vote for their geographic representative and
an equal (albeit significantly diluted) vote for the at-large
representative. Therefore, the allocation of an at large seat
to Utah does not appear to present a ``one person, one vote''
problem in the traditional intrastate context.
---------------------------------------------------------------------------
\18\ Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964).
\19\ Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969).
---------------------------------------------------------------------------
However, there is a question of whether H.R. 157's ``one
person, two votes'' apportionment for Utah violates the ``one
person, one vote'' constitutional imperative in the interstate
context. The Supreme Court has held that Congress'
apportionment power \20\ gives it the authority to allocate
representatives to states in a manner that creates districts
that are more than 40% larger than the national average for a
congressional district.\21\ In according Congress ``far more
deference [in apportionment] than a state districting
decision,'' the Court acknowledged that Congressional
alterations of the apportionment formula ``remain[] open to
challenge . . . at any time.'' \22\
---------------------------------------------------------------------------
\20\ U.S. Const. art. I, Sec. 2, cl. 3 (``The actual Enumeration
shall be made within three Years after the first Meeting of the
Congress of the United States, and within every subsequent Term of ten
Years, in such Manner as [the House of Representatives] shall by Law
direct. The Number of Representatives shall not exceed one for every
thirty Thousand, but each State shall have at Least one
Representative.'').
\21\ U.S. Dept. of Commerce v. Montana, 503 U.S. 442, 463 (1992)
(``Accordingly, although `common sense' supports a test requiring `a
good-faith effort to achieve precise mathematical equality' within each
State, the constraints imposed by Article I, Sec. 2, itself make that
goal illusory for the Nation as a whole.'')(citation omitted)(emphasis
in original).
\22\ Id. at 465, 466.
---------------------------------------------------------------------------
Accordingly, H.R. 157's ``one person, two vote'' allocation
to Utah potentially exceeds Congress' authority under the
apportionment clause.\23\
---------------------------------------------------------------------------
\23\ See Legislative Hearing on H.R. 5388, the ``District of
Columbia Fair and Equal House Voting Rights Act of 2006'' Before the
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th
Cong. 23(2006) (statement of Professor Jonathan Turley, Professor,
George Washington University School of Law) at 20 (``This at-large
district would be roughly 250% larger than the ideal district in the
last 2000 census (2,236,714 v. 645,632). In addition, citizens would
have two members serving their interests in Utah--creating the
appearance of a `preferred class of voters.' '').
---------------------------------------------------------------------------
At the very least, the novel nature of the at-large seat
will certainly invite protracted litigation. Congress has two
options with regard to the Utah seat that do not present the
same constitutional questions. The first is to remove the
language relating to the at-large district which would have the
effect of forcing Utah to redistrict should this bill become
law. To ameliorate concerns that this redistricting would
result in partisan advantage, Governor Jon Huntsman of Utah
testified at the Subcommittee on the Constitution's hearing on
a similar bill in the 109th Congress that he would personally
work to insure that any redistricting would be done in a ``fair
and objective'' manner. The second option is for Congress to
set forth the boundaries of the four districts in the statute.
Congress has used this power in the past,\24\ and it is
expressly contemplated by the Constitution.\25\
---------------------------------------------------------------------------
\24\ See, e.g., Oklahoma Enabling Act, Pub. L. No. 59-234, Sec. 6,
34 Stat. 267, 271-72 (1906).
\25\ See, U.S. Const. art. 1, Sec. 4; see also Vieth v. Jubelirer,
541 U.S. 267, 275 (2004) (``It is significant that the Framers provided
a remedy for [gerrymandering] in the Constitution. Article 1, Sec. 4,
while leaving in state legislatures the initial power to draw districts
for federal elections, permitted Congress to `make or alter' those
districts if it wished.'').
---------------------------------------------------------------------------
AMENDMENTS OFFERED AT COMMITTEE
As introduced, H.R. 157 lacked, and sorely needed, a
provision requiring expedited judicial review of the
constitutionality of its provisions to make sure that, if the
bill unconstitutionally grants D.C. a voting Member, that
unconstitutional action does not go on any longer than it has
to. If this bill becomes law, any legislation whose history was
tainted by the involvement a Member whose seat was later
declared unconstitutional would be placed into legal doubt.
Ranking Member Smith offered an amendment requiring
expedited judicial review to similar legislation on the House
floor last Congress, but it was rejected by the majority. This
year, it was incorporated into the substitute amendment brought
up by Chairman Conyers and reported out of committee. Those
provisions constitute the very same expedited judicial review
provision Congress agreed was appropriate, on a bipartisan
basis, in the McCain-Feingold campaign finance law.\26\ That
provision was successfully employed to facilitate the Supreme
Court's expeditious review of that legislation.\27\
---------------------------------------------------------------------------
\26\ See Pub.L. 107-155, Title IV, Sec. 403, Mar. 27, 2002, 116
Stat. 113.
\27\ See McConnell v. Federal Election Com'n, 540 U.S. 93 (2003).
---------------------------------------------------------------------------
This year, the Majority Leader himself, Mr. Hoyer from
Maryland, testified in support of this amendment at the House
Constitution Subcommittee hearing on this bill, and he pledged
to support it, saying ``I will be for the . . . amendment which
says that we will have accelerated consideration of this in the
courts. I think that makes sense.'' This amendment is also
supported this year by the Leadership Conference on Civil
Rights. Wade Henderson, the President of the Leadership
Conference, testified that ``Indeed, I believe that it would be
appropriate for judicial review to occur on an expedited basis,
to remove all doubt about the bill's constitutionality as
quickly as possible.'' This provision is also part of the bill
the Senate considered. As is becoming increasingly clear, there
is no reason to stall a judicial resolution of these important
issues, especially when doing so risks legislative chaos
regarding the validity of future legislation passed by the
House.
However, we were disappointed that the bill as reported out
of committee does not contain other provisions contained in the
McCain-Feingold law that statutorily codify the principle that
Members should have the right to bring a claim that the
legislation is unconstitutional in court and intervene in such
cases brought by others. Ranking Member Smith offered an
amendment that would have done just that, and such an amendment
was supported this year by the Leadership Conference on Civil
Rights. Wade Henderson, the President of the Leadership
Conference, testified at the Constitution Subcommittee's
hearing on H.R. 157 that Congress should ``appropriately
indicate in the bill that it wished Members to have standing to
mount a challenge to it.'' Even so, Ranking Member Smith's
amendment was rejected on party lines.
Of course, the precedents in the D.C. Circuit Court of
Appeals, where a challenge to this legislation would be heard,
grant standing to Members of Congress on the grounds that their
voting power has been diluted. In the 1994 case of Michel v.
Anderson,\28\ the D.C. Circuit Court of Appeals unanimously
confirmed the right of Members of Congress to challenge the
validity of a House rule change that allowed delegates from the
territories to vote in the Committee of the Whole. In that
case, the court stated that the parties ``do not question the
congressmen's standing to assert that their voting power has
been diluted,'' and that existing case law ``establishes that
congressmen asserting such a claim have suffered an Article III
injury.'' \29\
---------------------------------------------------------------------------
\28\ 14 F.3d 623 (D.C.Cir. 1994).
\29\ Id. at 625.
---------------------------------------------------------------------------
However, this legislation poses a question of such
fundamental importance--namely Congress' power to alter the
constitutional makeup of Congress--that we have a
responsibility to do everything we can to ensure that the
courts will hear argument on the constitutionality of this bill
as soon as possible by statutorily codifying the right of
Members to bring a direct challenge to this legislation. Since
Congress did no less in its bipartisan campaign finance
legislation, it should do the same here. If, however, this
amendment is rejected in this context when it was accepted on
campaign finance legislation, it would seem that supporters of
the legislation before us today have less confidence in the
constitutionality of this bill than supporters of campaign
finance legislation had in that bill.
Other improving amendment were offered by Republicans, but
defeated on party line votes. One such amendment, offered by
Rep. F. James Sensenbrenner, Jr., would have struck the
provision in the bill requiring that the additional seat for
Utah be an at-large seat and provided that the Utah legislature
would be able to adopt a four-Member district plan as it saw
fit, which could include the plan adopted by the Utah
legislature to do just that in 2006. Another such amendment,
offered by Rep. Jason Chaffetz, would have made clear that
Congress did not intend the legislation to set a precedent for
treating the District as a State for purposes of Senate
representation.
Other improving amendments offered by Republicans were
rejected on the grounds they were not germane. These included
amendments offered by Rep. Louis Gohmert that embodied the
substance of his legislation to exempt D.C. residents from
federal taxation until they received constitutional
representation in Congress,\30\ and his legislation to
retrocede the residential and non-Federal portions of D.C. back
to Maryland.\31\ These also included an amendment offered by
Rep. Steve King to repeal the District's oppressive gun laws,
and an amendment offered by Rep. Jason Chaffetz to repeal the
provisions providing for a concurrent D.C. Delegate that would
unfairly grant District residents more representation in
Congress than residents of any other State.
---------------------------------------------------------------------------
\30\ See H.R. 1014, the No Taxation Without Representation Act
(111th Congress).
\31\ See H.R. 1015, the District of Columbia-Maryland Reunion Act
(111th Congress).
---------------------------------------------------------------------------
CONCLUSION
In the end, the approach taken by supporters of H.R. 157
does a grave disservice to the residents of the District of
Columbia, as it gives them a false hope, and it will squander
precious time that would be better spent seeking a
constitutional remedy to the injustice they seek to address. We
have every reason to believe every level of the federal courts
is likely to strike down this legislation. But that process may
take years, and at the end of the day District residents will
be exactly where they are now in their quest for Congressional
representation.
Lamar Smith.
F. James Sensenbrenner, Jr.
Howard Coble.
Elton Gallegly.
Bob Goodlatte.
Daniel E. Lungren.
Darrell E. Issa.
J. Randy Forbes.
Steve King.
Trent Franks.
Louie Gohmert.
Jim Jordan.
Ted Poe.
Jason Chaffetz.
Tom Rooney.
Gregg Harper.