THE CURRENT, Wednesday, December 3, 2008, p. 11

VIEWPOINT

Vince Treacy

The Current’s Nov. 19 editorial "It’s time for a vote" expresses support for the bill for a voting representative for the District of Columbia because it does not overreach and has a sense of bipartisanship.

But the supporters themselves may be overreaching. Under the authority of the U.S. Constitution’s District of Columbia clause, the bill would give D.C. a single voting representative. The District clause is a suprememunicipal power over capitol affairs, but it may not be a national power to alter the Congress.

The bill falls far short of full representation, with no voice on treaties, cabinet officers and federal officials, Supreme Court justices, or the federal and D.C. judges who rule on every aspect of District life. Simple legislation in any future Congress could eliminate the representative. Given the drawbacks, it may be better to work patiently for statehood in the future.

The scheme started out as a GOP idea to pre-empt any future demand for senators, while silencing the protests against taxation without representation. Rep. Tom Davis, R-Va., originated it, bolstered by an opinion from Viet Dinh, a former Bush Justice Department official. The Washington Post reported in November 2004 that a House Committee paid Dinh $25,000 for his opinion. Former Judge Ken Starr joined in.

Rep. Davis was confident that Dinh had settled all constitutional questions, but Dinh met withering opposition from legal scholars, led by George Washington law professor Jonathan Turley. [http://docs.law.gwu.edu/stdg/gwlr/issues/pdf/76_2_Turley.pdf] The nonpartisan Congressional Research Service also questioned the constitutionality of the bill. [http://www.dcvote.org/pdfs/congress/JC052307Thomas.pdf]

The researchers suggested a constitutional amendment to provide D.C. with a vote, with a matching vote for Utah, contingent on ratification. Senator John Warner, R-Va., offered a similar approach. But DC Vote rejected it, confident that the solicitor general would defend them in court. That hope was dashed for 2008, at least, when the Justice Department opposed the bill in the House and Senate judiciary committees. Experts who supported the bill would only say it was strong enough to go to the courts.

Del. Representative Eleanor Holmes Norton, D-D.C., gave her support to the bill, but in the Senate, Republican support, except from Utah, evaporated, and cloture failed. With Rep. Davis and Sen. Warner now gone, only Utah and the D.C. Republican Party remain in support, leaving little bipartisanship.

The bill is likely to pass in 2009, but the new members might not be seated. Under the Constitution, the House is the final judge of the qualifications of its members. But a court may grant a preliminary injunction if it finds: 1) opponents are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) the injunction is in the public interest. The opponents seem likely to succeed on the merits. Irreparable harm would ensue if the new representatives were found unconstitutional, since it would question the validity of the laws they voted for. Supporters would suffer little harm by waiting until appeals were resolved. The public interest in maintaining the integrity of Congress could far outweigh a short delay.

And, in the end, the bill may be held unconstitutional.

That would leave the three valid means for full representation for D.C.: (1) a constitutional amendment; (2) retrocession with the express consent of Maryland; or (3) statehood. The amendment process was tried in 1978, and failed. Retrocession has never won the support of the people of Maryland, and the necessary approval of the Maryland legislature is very unlikely ever to occur. Even though Professor Turley believes that Maryland could be forced to accept D.C., he cites no authority for it and does not advocate it.

While statehood may be deferred at present, the bill should immediately establish a National Capitol Service Area, limited to parks, federal buildings, and installations under sole federal control. This is to make it clear that the D.C. Delegate or member represents people, not buildings.

Finally, a blue ribbon commission should be set up to examine the problem of voting representation for the District and all the territories in the light of the founding principle of our nation, that governments derive "their just powers from the consent of the governed."