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# Legislative Bulletin..............................................March 22, 2007

**Contents:**

**H.R. 1433**---District of Columbia House Voting Rights Act

H.R. 1433---District of Columbia House Voting Rights Act

(*Delegate Norton, D-DC*)

**[Order of Business]{.underline}**: As of press time, it was not clear
when this bill would come to the House floor. It may be considered as
early as Thursday morning, March 22^nd^, subject to a rule. A summary of
the amendments made in order under the rule, if any, will be summarized
in a separate RSC document. The Rules Committee has instructed Members
to draft any amendments to the *introduced* version of the bill, thus
the summary below is of the introduced version.

**[Summary (as introduced)]{.underline}**: H.R. 1433 would statutorily
deem (without amending the U.S. Constitution) the District of Columbia
("DC") as a congressional district for purposes of representation in the
U.S. House of Representatives. The permanent number of members in the
House of Representatives would be increased to 437, including any DC
representative(s), effective for the 110^th^ Congress and each
subsequent Congress.

Within 30 days of this bill's enactment, the President would have to
transmit to Congress a revised version of the most recent statement of
apportionment (of House seats based on population) to take into account
this legislation. Within 15 calendar days of receiving the revised
version of the statement of apportionment, the Clerk of the House of
Representatives would have to send to the executive of each state a
certificate of the number of representatives to which such state is now
entitled, and submit a report to the Speaker of the House of
Representatives identifying the state (other than the District of
Columbia) that is entitled to one additional representative (Utah is
currently next in line for a new seat under the latest apportionment
report, so presumably this new representative would go to Utah, at least
at first. After the next reapportionment in 2012, the seat could go to
another state.). For the 110-112^th^ Congresses, this additional
representative would have to represent a state [at-large]{.underline}
(after a special election). The other representatives to which such
state is entitled would be elected on the basis of the congressional
districts in effect in the state for the 109^th^ Congress. This new
at-large representative and the new representative from DC would have to
be sworn in as House Members on the same day.

Immediately upon the swearing in of the DC representative, the office of
the DC Delegate would be repealed, as would DC's Office of Statehood
Representative. (The office seeking senators for DC would remain.) DC
residents would thereafter vote only for a full member of the House
instead of a shadow representative, but would still vote for shadow
senators.

Additionally, this bill would:

-   Provide that reapportionment of congressional districts could never
    yield DC more than one additional seat;

-   Preserve DC's three electoral votes in presidential elections;

-   Make a variety of conforming amendments regarding the military
    service academies, the DC Statehood Commission, and the switch from
    the DC delegate to the DC representative.

The bill contains a nonseverability clause, which provides that: "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." However, the legislation contains
no provision for expedited judicial review.

The bill also includes four congressional findings:

-   "Over half a million people living in the District of Columbia, the
    capital of our democratic Nation, lack direct voting representation
    in the United States Senate and House of Representatives;

-   "District of Columbia residents have fought and died to defend our
    democracy in every war since the War of Independence;

-   "District of Columbia residents pay billions of dollars in Federal
    taxes each year; and

-   "Our Nation is founded on the principles of '[one person, one
    vote]{.underline}' and 'government by the consent of the governed'."
    *(emphasis added)*

**[Additional Background]{.underline}**: The American Founding Fathers
put in the United States Constitution, in one clause, the power for
Congress to create the District of Columbia and to control it
legislatively. Specifically, Article I, Section 8, Clause 17 gives
Congress the 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, and 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, dock-Yards, and other needful Buildings."

Note: This clause does not give Congress the ability to do whatever it
wants within the boundaries of the District. For example, Congress
cannot violate the Constitution in its exercise of "exclusive
Legislation" over the district. Congress can merely exercise its
enumerated powers (primarily listed in Article I, Section 8) in the
District. Congress, for example, cannot establish a religion in the
District, since the Constitution says that "Congress shall make no law
respecting an establishment of religion." (First Amendment).

As is evident in Article I, Section 8, Clause 17 (often known as "The
District Clause"), the District of Columbia was created specifically so
that it would NOT be a state or have the legislative function of a
state. On the contrary, the Founders gave the District the same
legislative stature as forts and dock-yards. The District was never
intended to have independent legislative or representational authority;
that is why a separate capital district was carved out of two states
(Maryland and Virginia) in the first place. Otherwise, the capital city
could have just been a city in an existing state, with its residents
being represented in Congress like any other citizens.

The Founders deliberately crafted DC as a representationally neutral
zone, in order to help quell the North-South regional conflict that had
already emerged---decades before the Civil War. (Northern states were
afraid of a permanent American capital in a southern state, and southern
states were afraid of a permanent American capital in a northern state.
Thus, the capital was created as a neutral non-state. It was created in
the south---even Maryland was considered a southern state at the
time---as an offset to Alexander Hamilton's financial plan, which
included state debt relief that would have far greater benefits for the
northern states than for the southern ones. And the main
"road"---essentially a swampy path at the time---connecting the Capitol
Building and the White House was named Pennsylvania Avenue to smooth
over the hurt feelings from moving the capital from Philadelphia to
Washington, DC.)

Various interests in the 18^th^ Century feared that a federal
legislature located in a state would be inherently biased toward that
state and thus unable to equally represent all the states. As James
Madison wrote in Federalist 43, if the seat of the federal government
were within a single state, it would "abridge its necessary
independence." Madison continues: "The extent of this federal district
is sufficiently circumscribed to satisfy every jealousy of an opposite
nature." In other words, the district was created to balance the
competing pressures, loyalties, and interests of various factions and
states in the country.

When writing about whether the citizens of Virginia and Maryland would
agree to cede land for the creation of a federal district for the
nation's capital, Madison argued, "the inhabitants will find sufficient
inducements of interest to become willing parties of the cession; as
they will have had their voice in the election of the Government which
is to exercise authority over them." Thus, the authors of the
Constitution never intended for residents of the federal district to
have independent representation to Congress, for which the district was
created.

Also in Federalist 43, Madison describes the congressional authority
over forts established by the federal government as "like authority" to
that over the federal district and argues that forts too "should be
exempt from the authority of the particular State."

In addition to the district clause of the Constitution, Article I,
Section 2, Clause 1 of the Constitution deems that the House of
Representatives "shall be composed of Members chosen every second Year
by the People of the several States...." In other words, the Founders
intended for the House to be comprised of representatives of people
living in states---not territories or other non-state
entities---otherwise they would not have qualified "People" with "of the
several States." This clause could have read, "by the American People"
or "by the People of the several States, territories, districts,
forts..." But the clause limits the representatives to those of the
people who live in states.

The District of Columbia is not a state. And as the Administration
points out in its Statement of Administration Policy (SAP) on this bill,
the Constitution contains 11 other provisions expressly linking
congressional representation to statehood.

In 2000, a three-judge panel concluded in *Adams v. Clinton* "that the
Constitution does not contemplate that the District may serve as a state
for purposes of the apportionment of congressional representatives." The
Supreme Court affirmed that decision.

If the District of Columbia were to become a state, then its citizens
would certainly be entitled to full representation in the U.S. House of
Representatives and the U.S. Senate. Article IV, Section 3, Clause 1
states that "New States may be admitted by the Congress into this
Union." Some people have argued that this clause allows Congress to
treat DC as a state (or to admit it as a state formally). This argument
is questionable for two reasons:

1.  Given the statements of James Madison quoted above and the
    intentions of the Founders in carving a representationally neutral
    district out of the lands of two states because of the prevailing
    suspicions of locating the nation's capital and its Congress in a
    state that then sends a representative thereto, it is difficult to
    imagine that this clause of Article IV was intended to be used to
    reverse the status of the seat of the federal government.

2.  In the past, when changes were made to the electoral and
    representational status of the District of Columbia as if it were a
    state, they were made by constitutional amendment.

The 23^rd^ Amendment to the Constitution, ratified in 1961, gave DC the
right to appoint "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]{.underline},
but in no event more than the least populous State." (emphasis added)
That is, for DC to be treated like a state for the purposes of choosing
presidential electors, the Constitution was amended. The amendment
continues: "they shall be in addition to those appointed by the States,
but they shall be [considered]{.underline}, for the purposes of the
election of President and Vice President, to be electors [appointed by a
State]{.underline}; and they shall meet in the District and perform,
such duties as provided by the twelfth article of amendment." Again, for
DC to be treated like a state for the purposes of choosing presidential
electors, the Constitution was amended.

There is no reason to believe that treating DC as a state for the
purpose of choosing House Members (a function listed in [Article
I]{.underline} of the Constitution) can be done statutorily, when
treating DC as a state for the purpose of choosing presidential electors
(a function listed in [Article II]{.underline} of the Constitution) was
done by constitutional amendment.

As the Senate Republican Policy Committee noted recently, "in 1978, a
constitutional amendment granting voting representation to D.C. was
approved by both the House and the Senate, but failed to win the
ratification of the requisite number of states. When the House Judiciary
Committee, under the leadership of Democratic Chairman Peter Rodino,
reported out H.J.Res. 554, the accompanying report 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*.'"

For additional background on the history of the District of Columbia,
visit these webpages:

<http://www.citymuseumdc.org/gettoknow/faq.asp>

<http://www.dcpages.com/History/>.

**[RSC Bonus Fact]{.underline}**: The City of Alexandria and Alexandria
County (now Arlington County) used to be part of the District of
Columbia. However, in 1846, after petition from (mainly) merchants in
the area the lands of DC south and west of the Potomac River were
retroceded to the State of Virginia. As a result of this process, DC
lost one third of its total area, and Virginia gained two members of the
U.S. House of Representatives.
<http://www.citymuseumdc.org/gettoknow/faq.asp>

**[Committee Action]{.underline}**: On March 9, 2007, the bill was
referred to the Judiciary Committee and the Oversight and Government
Reform Committee. On March 13^th^, the Oversight and Government Reform
Committee marked up and ordered the bill reported to the full House by a
vote of 24-5. On March 15^th^, the Judiciary Committee marked up the
bill and ordered it reported to the full House by a vote of 21-13. As of
press time, the version of the bill scheduled to come to the House floor
is the introduced version of the bill, which would not take into account
any of the amendments made at the committee level.

**[Possible Conservative Concerns]{.underline}**: Some conservatives may
be concerned that this bill is unconstitutional in its
[statutory]{.underline} attempt to treat the District of Columbia as a
state for the purpose of representation in the U.S. House of
Representatives (see full discussion in the "Additional Background"
section above). Some conservatives may also be concerned that one state,
presumably Utah at first, would have residents who are represented by
[two]{.underline} Members of the U.S. House, itself a constitutionally
dubious proposition.

Some conservatives may also be concerned that, because this legislation
[does not contain]{.underline} expedited judicial review provisions, the
likely court challenges to this legislation could last for many years.
Meantime, the House would presumably continue to consider and pass
legislation with 437 Members, including a DC representative. If H.R.
1433 were eventually found to be unconstitutional (which is likely,
given the recent Supreme Court affirmation discussed above), it is
possible that the court could also rule that all legislation passed with
a DC representative is invalid, undoing years of legislative work and
negating the representative voices of American citizens nationwide. Or
the court could rule that any legislation passed in the House by a
margin of one or two votes (in which the DC representative and the
437^th^ representative made the difference) is invalid.

Lastly, some conservatives, who may be less likely to oppose this
legislation because of the creation of a congressional seat from
traditionally Republican Utah as a counterbalance to the creation of a
reliably Democrat seat for DC, may be concerned that the bill [does not
guarantee]{.underline} the additional seat for Utah, nor does it
guarantee that the seat be Republican. The extra seat could easily be
given to a Democrat-leaning state in a future reapportionment, or Utah,
even if it retains the seat, could elect a Democrat for it (just as the
"red state" of South Dakota has elected and re-elected its Democrat
House Member, and just as the Democrat representative from eastern and
central Utah has been re-elected for a fourth term).

**[Administration Position]{.underline}**: The Administration "strongly
opposes" H.R. 1433 on constitutional grounds. To read the full Statement
of Administration Policy (SAP), go to this webpage:
<http://www.whitehouse.gov/omb/legislative/sap/110-1/hr1433sap-r.pdf>.

**[Cost to Taxpayers]{.underline}**: CBO estimates that H.R. 1433 would
increase mandatory spending by about \$200,000 in FY2008 and by about
\$2.5 million over the FY2008-FY2017 period (for the salary and
associated benefits for the new at-large representative). **As such,
this legislation would violate House Rule XXI, Section 10, and be
subject to a PAYGO point of order on the House floor.**

In addition, the bill would authorize about \$1 million in FY2008 and
about \$9 million over the

FY2008-FY2012 period (for administrative and expense allowances
available for Members).

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: Yes, in two significant ways. The bill would
statutorily treat the District of Columbia as a state for the purpose of
representation in the U.S. House and would increase the whole number of
the House by two seats to 437.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: Yes, the bill contains an
intergovernmental mandate in its preemption of laws in the state of Utah
that govern the election of Members of the House of Representatives. The
bill would require the state to elect an additional Member of the House
using a statewide (at-large) election.

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: The Oversight and
Government Reform Committee, in House Report 110-52, Part I, writes
that, "H.R. 1433 does not include any congressional earmarks, limited
tax benefits, or limited tariff benefits."

**[Constitutional Authority]{.underline}**: The Oversight and Government
Reform Committee, in House Report 110-52, Part I, cites constitutional
authority in Article I, Section 8, Clauses 17 and 18 (the power of
Congress to exercise exclusive legislation over DC in all cases and the
necessary and proper clause); Article I, Section 4, Clause 1 (the
congressional power to alter the regulations for congressional
elections); and Article I, Section 2, Clause 1 (House Members chosen by
the people of the several states). The Judiciary Committee, in House
Report 110-52, Part II, cites constitutional authority in Article I,
Section 8, Clause 17 (the power of Congress to exercise exclusive
legislation over DC in all cases); Article I, Section 4, Clause 1 (the
congressional power to alter the regulations for congressional
elections); and Article I, Section 2, Clause 3 (regarding congressional
district apportionment).

[Note]{.underline}: Article VI, Clause 3 of the U.S. Constitution states
that, "The Senators and Representatives...and all executive and judicial
Officers...shall be bound by Oath or Affirmation, to support this
Constitution." See the "Additional Background" discussion above.

**[RSC Staff Contact]{.underline}**: Paul S. Teller,
<paul.teller@mail.house.gov>, (202) 226-9718