Thursday, March 22, 2007


"Taxation Without Representation"

Car license plates in the District of Columbia carry the motto "Taxation Without Representation".

The nearly 600,000 citizens of Washington, D.C. have no representation in Congress, either in the House or in the Senate. Until 1961, they weren't even able to vote for President; in that year, the 23rd Amendment was ratified, giving the district three electoral votes.

In my opinion, it's past time to correct this injustice and give the citizens of Washington, D.C. the same representation in Congress guaranteed to citizens of the 50 states.

The House of Representatives today has been debating a bill that would make D.C.'s current non-voting House delegate a full voting Representative. I support the general idea, but I'm afraid this bill is the wrong way to go about it.

Much of the debate centers around whether the proposed bill is constitutional. Supporters point to a number of Supreme Court decisions that treat D.C. as a state for certain purposes. For example, the Constitution gives the federal courts jurisdiction over lawsuits between citizens of different states; the Supreme Court has ruled that this applies to lawsuits involving citizens of the District. For that purpose, and for some other purposes, the District is treated as a state.

But the current bill, in my opinion, is the wrong way to go about this. (I find myself agreeing with the Republicans and disagreeing with the Democrats on this point. Oh, well.)

In addition to adding a Representative for D.C., this bill adds an at-large Representative for Utah, which already has three Representatives (it narrowly missed gaining a fourth in the 2000 census). Presumably this was a compromise intended to avoid affecting the political balance of the House of Representatives; D.C. is heavily Democratic, and Utah is heavily Republican. It's reminiscent of the Maine Missouri Compromise of 1820, except that that compromise was implemented by the well established mechanism of admitting new states. If this bill is implemented, Utah voters will vote for two Representatives, the one representing their district and the added at-large Representative. This is unprecedented and troubling. (I'm not sure what happens after the 2010 census and reapportionment.)

The argument in favor of the bill is that there is ample precedent for treating D.C. as a state. There's some validity to that, but then how do you justify giving D.C. representation in the House of Representatives but not in the Senate? Citizens of the District would still have no say in the ratification of treaties or in the approval of judges, ambassadors, and other appointed officials. Congress would still have direct authority over the District's local affairs. Citizens of the 50 states would still be "more equal" than citizens of the District.

When the founders set aside a district to be the seat of the federal government, they didn't anticipate that it would grow into a city with hundreds of thousands of ordinary citizens who don't work for the federal government, and who don't have roots in one of the states. The lack of representation for the District is a fundamental problem. It needs a fundamental solution, not a partial solution that will discourage future attempts to solve the whole problem.

So, does this require a Constitutional amendment? Congress wasn't able to grant the District its Presidential vote by legislation; it was done by amending the Constitution. But there are several possibilities.

One is to pass a Constitutional amendment (it would be the 28th) granting representation to citizens of the District. But should they just have a Representative, or should they have two Senators as well? It would be unfair not to grant them representation in the Senate -- but adding two new Senators, who would inevitably be Democrats because of the demographics of the region, would affect the balance of power in the Senate, and might make it impossible to get the required 38 states to ratify such an amendment. And D.C. still wouldn't be a state; it would have no Governor and no state legislature, and again, Congress would still have direct authority over its local affairs (unless the amendment said otherwise).

Or the bulk of the District could be ceded back to Maryland, shrinking the District's boundaries to include just federal buildings (the White House, the Capitol, the Supreme Court building, probably most of the monuments). Figuring out exactly where to draw the new boundaries is left as an exercise; the goal is for all the residential areas to be given back to Maryland. There is precedent for this; the portion of the District south of the Potomac was "retroceded" to Virginia in 1847.

Or Congress could choose to admit D.C. (or part of it) as a new state. This would automatically give it all the rights of any other state, and no constitutional amendment would be required.

I favor either of the last two solutions: either cede the bulk of D.C. back to Maryland, or admit it as a new state. Which one? I don't know; ask the citizens of the District, in a formal but non-binding vote, which one they prefer. I don't believe either solution raises any serious Constitutional questions, unlike the current bill, and neither would require a Constitutional Amendment, just the exercise of powers that Congress clearly has under the Constitution.

But there's still a major loose end: the 23rd Amendment. Here it is:
1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: 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, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

2. The Congress shall have power to enforce this article by appropriate legislation.
If the District shrinks to just a few buildings, it clearly shouldn't have three electoral votes -- but the Constitution clearly says that it does.

So here's my proposal.

1. Shrink the District of Columbia to just the core Federal buildings, excluding all residential areas of the city of Washington. Either cede those areas back to Maryland, or admit them as a new state, depending on the wishes of the citizens of Washington (and probably also on what is politically feasible).

2. The 23rd Amendment would no longer be necessary or relevant. Repeal it. Introduce an Amendment to repeal the 23rd immediately after step 1 has been completed.

3. Repealing the 23rd could take some time, and it's not impossible that there will be a Presidential election in the meantime. The 23rd Amendment says that D.C.'s electors are appointed "in such manner as the Congress may direct". Let Congress directly appoint three electors who commit to vote with the majority of the electors from the other states, or perhaps even to abstain. This is purely a temporary situation; we don't want to tempt Congress by giving it three electors to control. (I'd like to reform or abolish the Electoral College, but that's a separate issue, and it should be handled separately.)

I yield back the remainder of my time. (Sorry, I've been watching a lot of CSPAN lately.)

UPDATE: I've posted some more thoughts in comments (Wed 2007-05-09).

Yep, if we were both in Congress, I'd sign on as a cosponsor to your bill.
"joyful alternative": Thanks, but I'm not planning to run for Congress any time soon.
I wrote:
When the founders set aside a district to be the seat of the federal government, they didn't anticipate that it would grow into a city with hundreds of thousands of ordinary citizens who don't work for the federal government, and who don't have roots in one of the states.

I must admit that this was sheer speculation on my part. I don't know what the founders actually had in mind for the population of the district.
Some further thoughts:

My proposal was to keep a small part of DC as a federal district, not part of any state. This would include the White House, the Capitol, the Supreme Court building, the major monuments, and probably a few other things (I'm not familiar with DC geography).

On further thought, I'm not convinced that this is necessary. We could just dispense with the District altogether. After all, a number of major Federal buildings, including CIA headquarters and the Pentagon, are in the state of Virginia; as far as I know, this hasn't caused any problems.

There are some
issues, but I don't think they're insurmountable.

Article I, Section 8 empowers Congress "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". I don't think this requires there to be such a district.

The 23rd Amendment is a little trickier. Its wording seems to assume that there is such a district. But if DC is abolished, the 23rd Amendment would become moot; I think a statement to that effect in the legislation would suffice.

It might also be a good idea to add some wording protecting the major Federal buildings. We don't want a state trying to exercise eminent domain over the US Capitol building.
If DC became a state, it would be the 50th most populous of the 51 states (Wyoming would be 51st). It would be by far the smallest state in area, only a fraction of the size of Rhode Island.

Like any other state, it would have a number of representatives (1) determined by its population, 2 Senators, and a Governor. Since the state and the city would cover exactly the same area, it's not clear whether the Governor would also act as Mayor of Washington; that could be decided when the state's new constitution is written. It would have 3 electoral votes, just as it does now.

The obvious name for the new state would be Columbia. (It could keep its current postal code, DC, so the city could still be referred to as Washington, DC.)

If it instead became part of Maryland, it would share Maryland's 2 Senators rather than having its own. Based on its population, Maryland's current 8 seats in the House of Representatives would presumably increase to 9, and Maryland's electoral votes would increase from 10 to 11 (I think that's right). In effect, the residents of DC would lose some of their current advantage in the Electoral College (until and unless the election system is reformed).

I'm sure there are other considerations that I'm missing. If this is going to happen, a lot of choices have to be made. The decisions are going to be based on some combination of the wishes of the residents of the District, and the political compromises necessary to get something through Congress. (Note that Congress has the power to admit new states; I don't think the President can either sign or veto such a resolution.)
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