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80–602 PDF 2002

S. Hrg. 107–555

VOTING REPRESENTATION IN CONGRESS FOR

CITIZENS OF THE DISTRICT OF COLUMBIA

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MAY 23, 2002

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS

JOSEPH I. LIEBERMAN, Connecticut, Chairman

CARL LEVIN, Michigan

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

FRED THOMPSON, Tennessee

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

THAD COCHRAN, Mississippi

ROBERT F. BENNETT, Utah

JIM BUNNING, Kentucky

PETER G. FITZGERALD, Illinois

JOYCE A. RECHTSCHAFFEN, Staff Director and Counsel

CYNTHIA GOOEN LESSER, Counsel

MICHAEL L. ALEXANDER, Professional Staff Member

RICHARD A. HERTLING, Minority Staff Director

JOHANNA L. HARDY, Minority Counsel

DARLA D. CASSELL, Chief Clerk

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C O N T E N T S

Opening statements: Page

Senator Lieberman ........................................................................................... 1

Senator Durbin ................................................................................................. 3

Senator Levin .................................................................................................... 4

Prepared statement:

Senator Bunning ............................................................................................... 37

WITNESSES

THURSDAY, MAY 23, 2002

Hon. Eleanor Holmes Norton, a Representative in Congress from the District

of Columbia ........................................................................................................... 5

Hon. Eddie Bernice Johnson, a Representative in Congress from the State

of Texas ................................................................................................................. 9

Hon. Russell D. Feingold, a U.S. Senator from the State of Wisconsin .............. 10

Hon. Anthony A. Williams, Mayor, District of Columbia ..................................... 13

Hon. Linda W. Cropp. Chairman, Council of the District of Columbia .............. 16

Hon. Florence H. Pendleton, District of Columbia Statehood Senator ............... 18

Wade Henderson, Executive Director, Leadership Conference on Civil Rights . 22

Adam H. Kurland, Professor of Law, Howard University School of Law ........... 24

Jamin B. Raskin, Professor, Washington College of Law, The American University ................................................................................................................... 29

ALPHABETICAL LIST OF WITNESSES

Cropp, Hon. Linda W.:

Testimony .......................................................................................................... 16

Prepared statement with attachments ........................................................... 53

Feingold, Hon. Russell D.:

Testimony .......................................................................................................... 10

Prepared statement .......................................................................................... 41

Henderson, Wade:

Testimony .......................................................................................................... 22

Prepared statement .......................................................................................... 62

Johnson, Hon. Eddie Bernice:

Testimony .......................................................................................................... 9

Kurland, Adam H.:

Testimony .......................................................................................................... 24

Prepared statement .......................................................................................... 68

Norton, Hon. Eleanor Holmes:

Testimony .......................................................................................................... 5

Prepared statement .......................................................................................... 38

Pendleton, Hon. Florence H.:

Testimony .......................................................................................................... 18

Raskin, Jamin B.:

Testimony .......................................................................................................... 29

Prepared statement .......................................................................................... 79

Williams, Hon. Anthony A.:

Testimony .......................................................................................................... 13

Prepared statement with an attachment ....................................................... 44

Page

IV

APPENDIX

Memorandum dated May 22, 2002, sent to Hon. Eleanor Holmes Norton,

Hon. Anthony Williams, Hon. Linda Cropp and Hon. Robert Rigsby from

Walter Smith, Executive Director, DC Appleseed Center, regarding Congress’ Authority to Pass Legislation Giving D.C. Citizens Voting Representation in Congress (submitted by Mayor Williams) .......................................... 89

Resolutions (submitted by Mayor Williams) from:

State of Illinois ................................................................................................. 100

City of Chicago .................................................................................................. 101

City of Philadelphia .......................................................................................... 102

City of Baltimore .............................................................................................. 103

City of New Orleans ......................................................................................... 106

City of Cleveland .............................................................................................. 107

City of Los Angeles ........................................................................................... 108

City of San Francisco Board of Supervisors ................................................... 109

Article by Jamin B. Raskin entitled ‘‘Is This America? The District of Columbia and the Right to Vote,’’ Harvard Civil Rights—Civil Liberties Law,

Vol. 34, No. 1, Winter 1999 ................................................................................. 111

Betty Ann Kane, on behalf of the Board of Directors, Committee for the

Capital City, prepared statement ....................................................................... 171

Article entitled ‘‘Implicit Statehood: Give the District a new constitutional

status,’’ by Timothy D. Cooper, Charles Wesley Harris, and Mark David

Richards ................................................................................................................ 174

Hon. Ralph Regula, a Representative in Congress from the State of Ohio,

prepared statement .............................................................................................. 175

Senator Paul Strauss, Shadow United States Senator Elected by Voters of

the District of Columbia, prepared statement with attachments .................... 177

Letter dated April 2, 2002 to President Bush from James N. Rimensnyder,

Cadet PFC USCC ................................................................................................. 189

Letter dated March 26, 2002, from Joseph N. Grano, President, Rhodes Tavern—D.C. Heritage Society, with attachments .................................................. 190

John Forster, Activities Coordinator, Committee for the Capital City, prepared statement ................................................................................................... 194

Antonia Hernandez, President and General Counsel, Mexican American Legal

Defense and Educational Fund (MALDEF), prepared statement .................... 195

Questions for the record from Senator Thompson and responses from:

Mr. Kurland with attachments ....................................................................... 198

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VOTING REPRESENTATION IN CONGRESS FOR

CITIZENS OF THE DISTRICT OF COLUMBIA

THURSDAY, MAY 23, 2002

U.S. SENATE, COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, DC.

The Committee met, pursuant to notice, at 2:36 p.m., in room

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding.

Present: Senators Lieberman, Durbin, and Levin.

OPENING STATEMENT OF CHAIRMAN LIEBERMAN

Chairman LIEBERMAN. Good afternoon. This hearing will come to

order. I thank the Hon. Eleanor Holmes Norton for being here. We

have two other members of the opening panel. The second Congresswoman is Eddie Bernice Johnson. Senator Feingold is on the

way.

This hearing has been called to discuss a question that is for

600,000 Americans an ongoing injustice and is for the Nation as a

whole, I think, a stain on the fabric of our democracy. The question

is, when will we finally extend full voting rights and voting representation in Congress to citizens of the District of Columbia?

This denial is more than an historical anomaly. It is an ongoing

and outrageous contradiction of the fundamental principles and

rights of citizens of our great country.

The Governmental Affairs Committee, which I am privileged to

Chair, has oversight over the municipal affairs of the District of

Columbia and in that sense has jurisdiction over the matter that

we are discussing today.

To me, it is incomprehensible that in the year 2002, ours is the

only democracy in the world in which citizens of the capital city are

not represented in the national legislature. Think of what visitors

from around the world think when they come to see all of the beautiful landmarks and monuments of this great capital city, which

are the symbols worldwide of democracy, if they would know that

the people who live in this city alongside those symbols of democracy every day do not have one of the fundamental rights of that

democracy, which is voting representation in the Congress.

You know, I was thinking the other day what the reaction would

be in Congress if for some reason the residents of Boston or Nashville or Denver or Seattle or El Paso had no voting representation

here in Congress, and I pick all of those cities because they are

about the same size as Washington, DC. The reality is that the Nation would not let those citizens go voiceless in Congress. So is it

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only because this injustice has gone on for so long that we tolerate

it here in our Nation’s capital?

Obviously, citizens of the District pay Federal taxes. They serve

and die in war. Yet, they are denied this fundamental right. Even

though they pay taxes, they have no say about how those taxes are

levied or on what priority that money from their taxes may be

spent.

The vote is a civic entitlement of every American citizen. It is democracy’s most essential right and our most effective tool. The citizens who live in our Nation’s capital deserve more than a non-voting delegate in the House. Notwithstanding the extraordinarily

strong service of the Hon. Congresswoman Eleanor Holmes Norton,

who is with us today, non-voting representation just is not good

enough. As all who are here, I presume, know, while Ms. Norton

may vote in committees, she cannot vote on the House floor. That

is wrong and must be changed.

That is why I am proud to be the Senate sponsor of the No Taxation Without Representation Act, which Congresswoman Norton

has introduced in the House. I am delighted that Senator Russ

Feingold, who is also an original sponsor of the legislation, is with

us today.

Of course, the name of our legislation is taken from our own revolutionary history because our forbearers went to war rather than

pay taxes without being represented. The citizens of our capital

city express by this movement that they believe in the principles

the Nation’s revolutionary heroes established and they want to

benefit now from them.

The bill’s title, No Taxation Without Representation, is, if I

might say so, pointed and ironic. Obviously, what the people of the

District seek is voting representation, not exemption from taxes. In

fact, the bill states in its first operative paragraph that District of

Columbia residents shall have full voting representation in Congress. The tax provision is in the bill for effect, to remind us of this

fundamental American principle that gave birth to our Nation and

of the fact that no other taxpaying Americans are required today

to pay taxes without representation in Congress.

A recent national poll was of interest to me on this subject and

it showed that a majority of Americans believe that District residents already have Congressional voting rights. You cannot blame

them for that because it is so unbelievable that residents of the

District do not have voting rights. But interestingly, when those

who were polled were informed that District residents do not have

voting rights, more than 80 percent said that they should.

Well, if we can right this wrong, we would, in that sense, therefore, not only be following the will of the American people, we

would be advancing the cause of our Nation’s historic destiny and,

of course, fulfilling our responsibility.

When we placed our capital, which was not established in their

day, under the jurisdiction of Congress, the Framers of our Constitution, in effect, placed with Congress, I think, the solemn responsibility of assuring that the rights of the citizens of the District

would be protected in the future. Congress has failed to meet this

obligation now for much too long.

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In the words of this city’s namesake, our first President, ‘‘Precedents are dangerous things. Let the reigns of government then be

braced and held with a steady hand and every violation of the Constitution be reprehended. If defective, let it be amended, but not

suffer it to be trampled on whilst it has an existence.’’ People of the District of Columbia have suffered this constitutional defect for far too long, so let us reprehend it and amend it

together.

I look forward to hearing from all of the witnesses today and I

am pleased now to be joined by Senator Durbin, who is also a cosponsor of this legislation, and would call on him now for an opening statement.

OPENING STATEMENT OF SENATOR DURBIN

Senator DURBIN. Thank you, Mr. Chairman, for scheduling this

hearing to explore the important question of whether the citizens

of the District of Columbia should be granted full voting representation in Congress, and I salute your leadership on this issue.

I am Chairman of the District of Columbia Authorizing Subcommittee and a member of the D.C. Appropriations Subcommittee.

I have served in that capacity over the last 4 years. I have lived

part-time and occasionally full-time in the District of Columbia for

about 39 years, so it really has been a second home to me, in addition to my State of Illinois, and I have watched a lot of changes

in the District of Columbia. I never dreamed that I would be in this

position in the U.S. Senate to help this great city.

But we have passed some important legislation restoring the

management and personnel authority of the D.C. Mayor, establishing a program to afford D.C. high school graduates the benefits

of in-State tuition at State colleges and universities outside the

District, permitting Federal law enforcement agencies to enter into

cooperative agreements with D.C. Metropolitan Police, establishing

a specialized family court, authorizing the redevelopment through

the GSA of the Southeast Federal Center, and many other things.

What I have found interesting in 20 years of service in Congress,

and I am sure that Congresswoman Norton would agree with me

on this, is how many men and women run for the House of Representatives and for the Senate when their secret desire is to be

a mayor, because time and again, when issues come up involving

the District of Columbia, these men and women who could not wait

to get to Washington want to perform the role of mayor and city

council when it comes to the District of Columbia. [Laughter.]

It is startling. There are times, and Congresswoman Norton can

back me up on this, when these people will condemn in the District

of Columbia the very programs that they have at home. They

would not have the nerve to bring up these issues at home, but because the District of Columbia is almost voiceless on Capitol Hill

but for your heroic efforts, without a vote, they feel that they can

make some sort of a political point. It is nothing short of amazing

to watch this spectacle unfold.

Now, I have also over the years taken exception with decisions

by the D.C. City Council and I have been pretty vocal about them.

But I have always tried to draw the line at taking exceptions. I do

not believe it is my role, responsibility, or right to impose my views

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on the people of the District of Columbia when it comes to their

sovereignty and their judgment of governance. I think that is one

of the fundamental elements of a democracy and it is one that has

been ignored by this Congress time and time again.

It is long overdue for the 572,000 residents of the District of Columbia to have their voice on Capitol Hill, to have a voting Congressman, voting Senators, and to have representation that speaks

for them with a vote in these two chambers. I think we have

reached the point where we cannot make excuses any longer.

Now, we all know why the District of Columbia is not a State,

because, frankly, there are those who have made the political calculation that it may tip the scales one way or the other. But for

goodness sakes, is that not what democracy is all about, to let the

people tip the scales as they see fit with their right to vote?

Thank you very much, Mr. Chairman, for this hearing.

Chairman LIEBERMAN. Thank you, Senator Durbin, for your support of the bill and for your excellent statement.

Senator Levin, thank you for joining us.

OPENING STATEMENT OF SENATOR LEVIN

Senator LEVIN. Thank you very much, Mr. Chairman, and thank

you for calling this hearing on a very fundamental issue, one of the

issues that this country was founded upon.

There are just simply no ‘‘if’’s, ‘‘and’’s, or ‘‘but’’s about it. We

must correct the denial of representation which so unfairly and

undemocratically locks the District of Columbia residents out of

Congress. District residents share the same characteristics of citizenship as the residents of the 50 States. They serve in the military. They have lost their husbands and wives, their sons and their

daughters in foreign wars, defending our government. They study

the Constitution and the obligations of citizenship. They say the

same pledge of allegiance to the flag as every other American does.

They are governed by the laws of the United States. They pay Federal taxes, in fact, more Federal taxes per capita than the residents

of any other State but one.

Yet, because the District is not recognized as a State and because

of our failure to act for so long, D.C. residents do not have the full

voting representation in Congress that they deserve.

I would ask that the balance of my statement be inserted in the

record, Mr. Chairman, because I know you want to proceed with

this hearing, but I want to just commend our first panel for all of

the tremendous work that they have done. I would also like to commend the Delegate who is before us, Eleanor Holmes Norton. You

have performed very nobly under very difficult and limited circumstances which should end.

Chairman LIEBERMAN. Thanks, Senator Levin. Thank you very

much.

[The prepared statement of Senator Levin follows:]

PREPARED STATEMENT OF SENATOR LEVIN

Good afternoon. Thank you, Mr. Chairman, for holding this hearing on one of the

most fundamental issues upon which our country was founded—the right to representation in making the laws that govern you. There are no ‘‘ifs,’’ ‘‘ands’’ or ‘‘buts’’

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1The prepared statement of Ms. Norton appears in the Appendix on page 38.

about it. The time is long past due to remedy the denial of representation which

unfairly and undemocratically locks District of Columbia residents out of Congress.

District residents share the same characteristics of citizenship as the residents of

the 50 states: they serve in the military and have lost their husbands and wives,

sons and daughters, in foreign wars defending our form of government; they study

the Constitution and the obligations of citizenship; they say the pledge of allegiance

to the flag; they are governed by the laws of the United States; and they pay Federal taxes, in fact more Federal taxes per capita than the residents of any other

State except Alaska.

Yet—because the District is not recognized as a State, and because of our failure

to act for decades, D.C. residents do not have full voting representation in Congress.

That means, very simply, that they are taxed without representation.

I have not cosponsored S. 603, the No Taxation Without Representation Act, because while I understand the depth of frustration reflected in the provision in the

bill that would allow citizens of the District to stop paying taxes until they get voting representation, I can’t support that provision. Like residents of the 50 States,

residents of the District of Columbia receive the protection of our military, the benefits of our social programs, our court system, and the freedoms guaranteed by our

Constitution. However, I believe that full congressional representation should be

adopted for the citizens of the District of Columbia, and I support legislation to do

that. That action is long past due. Hopefully, the time will soon come, and this hearing can help make that happen.

I welcome all of our distinguished panelists. Delegate Eleanor Holmes Norton,

clearly we would not be here today without your steadfast leadership and your commitment to bring justice to the people of the District. We’ve had great communication with your office during the years on a number of matters, and I have a deep

appreciation for you and your dedication to this city.

To Representative Eddie Bernice Johnson, Chair of the Congressional Black Caucus, Wade Henderson of the Leadership Conference on Civil Rights, with whom I

have been engaged on many issues, Mayor Anthony Williams, D.C. Council Chair

Linda Cropp, Statehood Senator Pendleton, Professor Adam Kurland, and Professor

Jamin Raskin, we are pleased that you are here.

I know your testimony will further enlighten this Committee and hopefully advance the ball on this important issue.

Chairman LIEBERMAN. Senator Feingold, if you have the time, it

would be my inclination to call on Congresswoman Norton first. It

is a pleasure to be your cosponsor, your coworker, and without revealing exact dates, to have been your friend and classmate at Yale

Law School some considerable period of time ago. [Laughter.]

The Hon. Eleanor Holmes Norton.

TESTIMONY OF HON. ELEANOR HOLMES NORTON,1 A REPRESENTATIVE IN CONGRESS FROM THE DISTRICT OF COLUMBIA

Ms. NORTON. I thank you, Mr. Chairman, and for the record, I

want you to know that I was ahead of you.

Chairman LIEBERMAN. That is very gracious of you. I was not

going to reveal that. [Laughter.]

You are looking very well. [Laughter.]

Senator LEVIN. I just wonder if the rest of us should excuse ourselves while these two just have their conversation. [Laughter.]

Ms. NORTON. I did not say by how much—— Chairman LIEBERMAN. It was close.

Ms. NORTON [continuing]. But I thought I had to lay the record

straight there lest I get an advantage to which I am not entitled.

I begin by thanking you, Mr. Chairman, not only for introducing

the No Taxation Without Representation Act, but for going further

and holding this hearing on the voting rights provision of the bill.

Ever true to high principles, you have always supported equal

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treatment for the residents of the District of Columbia, unfailingly

stepping forward to lead and supporting bills for equal representation for D.C. residents.

You have already brought the No Taxation Without Representation Act to the Senate floor during the debate on election reform

in February. You submitted the bill as an amendment to the election reform bill because you said you believe that the voting rights

issues raised in Florida in the 2000 Presidential election only

served to spotlight the denial of any vote at all in Congress to D.C.

residents. By agreement with us and all concerned, your amendment was withdrawn until the bill is fully ready for vote.

However, in your remarks, you said that you hope the discussion

of the No Taxation Without Representation Act on the Senate floor,

a discussion of D.C. voting rights, the first discussion of D.C. voting

rights on the Senate floor in memory, would help educate the Senate about the denial here in preparation for granting D.C. the Congressional vote.

I come today on the heels of a highly successful D.C. Lobby Day,

last Wednesday, when more than 250 residents, energized by your

bill in the Senate, visited every Senate office to seek cosponsors.

The sponsors of the Lobby Day, the Leadership Conference on Civil

Rights, People for the American Way, D.C. Vote, and Stand Up for

Democracy, are in the throes now of making follow-up calls for

final answers on sponsorship. I want to thank the Senators who

are signing on now with a dozen cosponsors on the bill and followup calls still being made.

The significance of the first citywide Lobby Day in the Senate

was not lost on another strong supporter, Majority Leader Tom

Daschle, who graciously agreed to meet with leaders of the coalition, the city, and the business community, as well as the Chair of

the Democratic National Committee, on the morning of Lobby Day.

I want also to thank Senator Max Baucus, who with you and

Senator Daschle have worked to make clear that the only point of

our bill is and always has been to achieve voting rights and its

proper place in this Committee for that purpose. My special thanks

also to your able and energetic staff for the magnificent work they

have done since you introduced the bill.

We will hear from others today about the damage to democracy

and to the District because D.C. residents are denied the Congressional vote. I believe I can be most useful if I testify briefly from

the unique perspective of the one official District residents are permitted to send to Congress.

Beyond notions of fairness and equality, the role of the one nonvoting delegate whose constituents pay Federal income taxes points

up the absurdity of the present arrangement for us and for the

Congress. At best, antiquated, inefficient, quite unintended by the

Framers, and embarrassing. At worst, discriminatory, undemocratic, and shameful.

The District is seriously harmed by having no representation in

the Senate. I have the same privileges on the Senate floor as any

House member, but even when the D.C. budget is before you, I can

be on the floor, but not speak on the floor on our own budget. To

its credit, the House has extended to delegates every privilege of

the House except, of course, the most important, the vote on the

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House floor. The House has long allowed delegates the valuable

vote in Committee. In response to the memo I submitted in 1993,

the House even changed its rules to allow delegate voting in the

Committee of the Whole, where most of our work is done.

However, Mr. Chairman, measure the Nation’s high-sounding

rhetoric about democracy, preached unceasingly, particularly today,

against the reality that even this delegate vote, which was not the

full right other members enjoy, was rescinded by rule when the Republicans gained control of the House.

The indignities to the residents I represent know no bounds. My

testimony today will consist of a few among many examples that

could be offered to demonstrate this point. It is useless and redundant and insulting enough to our Mayor, Council, and residents,

alone in this country who are treated as children by the requirement to send their balanced budget to the Congress, where it is

often toyed with and decorated with undemocratic attachments,

while I press Congress to allow a local jurisdiction to spend its own

local taxpayer-raised money.

After struggling every year to get the D.C. budget to the floor,

I must then stand aside, unable to cast a vote on our own budget,

while members of the House from 49 States where residents pay

less in Federal income taxes per capita than my constituents vote

yea or nay on the D.C. budget. Indeed, my colleagues from seven

States that have populations about our size each have one vote in

the House and two in the Senate on the D.C. budget and on everything else. This pathetic paradox has been acted out on the House

floor countless times in the 32 years D.C. has had a delegate.

Sometimes life and death issues have been at stake, such as

when, without a vote, I had to fight off two bills that would have

wiped out all of the District’s gun laws in 1999 in the House, or

when the Senate with no representation in this body forced a death

penalty referendum on the District that the city turned back twoto-one in 1992.

Even the voting rights that D.C. has won have not been fully realized. Lacking the vote during the House impeachment proceedings, my only recourse to preserve D.C.’s 1996 Presidential

vote, as guaranteed by the 23rd Amendment, was to bring a privileged resolution to the House floor. I argued that the vote for President that residents had cast required that a D.C. vote also be cast

in the House concerning whether the President should be removed

from office. The Speaker ruled against the District.

Yet never, Mr. Chairman, have I felt more deeply about the denial of the vote to our residents than when our Nation has been

called to war. I spoke but could not vote on the commitment of

troops in the Persian Gulf War and most recently on the resolution

authorizing the war against terrorism.

I know you understand how deeply the denial of the vote in time

of war cuts, Mr. Chairman. You said as much in your remarks on

the Senate floor when you submitted the No Taxation Without Representation Act as an amendment to the election reform bill. You

said that D.C. residents have disproportionately suffered casualties

in America’s wars. You informed the Senate that in World War I,

the District suffered more casualties than three States, in World

8

War II, more casualties than four States, in Korea, more casualties

than eight States, and in Vietnam, more casualties than ten States.

I believe it is fair to say that the examples in this testimony

would shock most Americans, the great majority of whom say in

the polls that we should have the Congressional vote. The examples I have cited and many more like them stand out like a disfiguring scar that, at best, robs our country of international credibility, and at worst, leaves us open to charges of hypocrisy.

The denial of the vote to the 600,000 citizens who reside in the

Nation’s capital stunts the otherwise determined logic and progression about democracy, the 14th Amendment guaranteeing equal

protection of the laws, the 15th Amendment guaranteeing the vote

regardless of race, the 17th Amendment providing for direct popular election of Senators, the 19th Amendment enfranchising

women, the 23rd Amendment affording District residents the right

to vote for President, the Supreme Court’s ‘‘one person, one vote’’

decisions, the 1965 Voting Rights Act barring impediments to voting regardless of race.

Today, we ask the Congress that brought us this far along the

way to democracy and equality not to stop now. Do not hold back

the tide. The Senate saw that tide roll into this chamber on Lobby

Day. D.C. residents came here in large numbers for the first time

to show that they are free Americans, that the Senate is not off

limits to them, and that they are entitled to representation here.

Today, we ask the Senate to respond to these D.C. residents who

represented the entire city when they came to lobby last Wednesday. We ask you to give them what they are due as Americans. We

ask you to give them the Congressional vote that is the democratic

hallmark of our republic. We ask you to pass the No Taxation

Without Representation Act and we thank you, Mr. Chairman.

Chairman LIEBERMAN. I thank you, Delegate Norton, for your

eloquent statement and for your passionate advocacy and I look

forward to continuing to work with you in this cause.

It is very important to state, I think, that neither of us or those

at the table with you who support this cause or Senator Durbin

and I have any illusions about the political difficulties in advancing

it. But our hope in introducing the No Taxation Without Representation proposal was to bring our colleagues, and hopefully others

throughout the country, back to the principle that you have just

spoken to so effectively, which is this outrageous reality that

600,000 Americans are denied full voting rights in the year 2002.

So by one way or the other, I know that you and I and Congresswoman Johnson, Senator Feingold, Senator Durbin, and others are

committed to continuing to push forward until we are able to not

only create or at least encourage, if not coerce, people to express

the consensus that is undeniable, that this is wrong, and then to

figure out how we together can go forward to make it right.

Congresswoman Eddie Bernice Johnson from Texas, Chair of the

Congressional Black Caucus, thank you very much for taking the

time to come and join us today.

9

TESTIMONY OF HON. EDDIE BERNICE JOHNSON, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Ms. JOHNSON. Thank you very much, Mr. Chairman. It is my

privilege to testify before the Senate Governmental Affairs Committee today on behalf of the 38 members of the Congressional

Black Caucus. We salute you, Mr. Chairman, for your stand-up

leadership in moving to eliminate discrimination in representation

endured for too long by the citizens of the capital of the United

States.

Thank you for leading the Senate in sponsoring the No Taxation

Without Representation Act and for holding this important hearing

on the bill. All 38 members of the Congressional Black Caucus are

sponsors of the bill in the House. Congress gave the District of Columbia the right to elect a delegate to the House shortly after the

Caucus was founded in 1969. The D.C. Delegate has always represented people of all races equally. However, from the beginning,

the Congressional Black Caucus took special umbrage that a member of our Caucus whose constituents paid Federal income taxes

could not vote on the House floor.

Today, Mr. Chairman, 32 years after the District got a delegate

in this century, and 33 years after the formation of the Congressional Black Caucus, our umbrage has become anger. The CBC was

formed during a high point of the civil rights movement and our

members have always felt a special obligation to the District because the city is largely an African American city. A member of our

Caucus has been deliberately handicapped in her work by the Congress. Although she is in every way equal to the rest of us, especially in the Federal income tax her constituents pay, she is treated

unequally in the House in which we serve because of the intentional denial of voting representation to her constituents, and even

more unequally in the Senate, where her constituents are without

any representation.

Congresswoman Eleanor Holmes Norton knows how to use her

considerable voice and intelligence to benefit her constituents, but

she has to do it with one hand tied behind her back. However, the

Caucus concern goes well beyond the regard we have for one of our

own or the special effort the CBC makes to help ensure that the

District’s interests are protected in the House, where residents

have no vote.

African Americans in this country identify strongly with the denial of voting representation to the District of Columbia. More than

half of the districts of the Congressional Black Caucus members experienced a similar denial in Congress until the passage of the Voting Rights Act of 1965, including my own State of Texas. We emphasize that we of the Congressional Black Caucus make no difference based on race in our insistence on the sanctity of the vote

and of the right of all people to a full and equal vote. We have

worked hard on an election reform bill that is now before the

House—and before that was precipitated by the 2000 Presidential

election that robbed thousands of citizens of every race and ethnic

background of their vote and determined an outcome at odds with

the popular vote.

However, if you want to get African Americans in this country

angry today, just tell them that there is a majority black city anyVerDate 11-MAY-2000 11:01 Oct 22, 2002 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 80602.TXT SAFFAIRS PsN: SAFFAIRS
10

1The prepared statement of Senator Feingold appears in the Appendix on page 41.

where in America where blacks and other Americans are treated

as second-class citizens. Tell them that city is our Nation’s capital

and you spur them to especially strong action.

We are engaged in such action today. The CBC, like the Leadership Conference on Civil Rights, has made the No Taxation Without Representation Act a priority. Our constituents expect no less

from us because Congressional voting rights for the District of Columbia residents is a civil rights issue of historic importance whose

time is long overdue. Many African Americans question the commitment of Members of the Congress to equal treatment if Members are timid about equal Congressional representation for all taxpaying Americans, including the residents of our capital. The denial of voting rights to taxpaying Americans who have fought in all

of our wars raises profound moral issues.

If we are to fight terrorism and help create democratic institutions abroad, we must first clean our own house. Our Nation is the

leader of democracy and freedom and I find it incredulous that we

deny the vote to 600,000 residents in the high-profile capital of this

country.

Let me assure you, Mr. Chairman, Congressional voting rights

for the citizens of the Nation’s capital has the laser-like attention

of the Congressional Black Caucus. Our members and our constituents are watching. We ask the rest of the Senate to follow your

lead and we ask that the Senate please not let us down. I thank

you very much.

Chairman LIEBERMAN. Thank you, Congresswoman Johnson, for

an excellent and very principled statement. I appreciate it very

much.

Senator Feingold, thanks for being here. There are probably

those in America who think that Senator Feingold’s first name is

McCain. [Laughter.]

But it is Russell, Senator Russell Feingold, and I cannot thank

him enough for joining me in this effort in the Senate because he

really brings to it the same principle, personal principle, and sense

of purpose that he brought to campaign finance reform. It took him

a while, but he got it done. It may take us a while, but we are

going to get it done. Senator Feingold.

TESTIMONY OF HON. RUSSELL D. FEINGOLD,1 A U.S. SENATOR

FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Thank you, Mr. Chairman. My official name

change is going to come through before the next election. It will

look good on the ballot. [Laughter.]

Thank you for inviting me to join you today and for allowing me

to make a brief statement in support of our effort to secure full voting representation in Congress for the residents of the District of

Columbia. I want to commend you, Mr. Chairman, as the others

have, for your leadership and your work on this and your comments about how truly unbelievable it is that this can be the case

in the United States of America in the year 2002. I want my colleagues in the House to know that when my constituents in Wisconsin find out about this, they are surprised, astonished, and they

11

do not think it is right, and I am hoping that this is a message that

can get clear throughout the country.

I am very pleased, in fact, honored to be here today with Delegate Eleanor Holmes Norton. She has been a longtime, tireless

champion of this important issue in Congress. It is an honor to

work with her and with the Chairman and, of course, with Representative Johnson. I recently benefitted from her tremendous

leadership skills in that very ability you were just kidding me

about. Were it not for Representative Johnson and her leadership,

I am not at all sure that we would have succeeded in the House

of Representatives, and that bill had to do with the integrity of the

vote and this one has to do with the right to vote, which is even

more fundamental. So I thank you for your help on that.

Mr. Chairman, our Nation, the greatest democracy on earth, was

born out of a struggle against taxation without representation. Before the Revolutionary War, the British Government levied taxes

on American colonists, but while these colonists were required to

pay taxes to the British Government, they had no say, no voice, no

power over how they would be governed. Just a few years before

the first battle of the Revolutionary War, the British continued the

imposition of Federal taxes with the Stamp Act and the Sugar Act.

As we all know, in 1773, the Boston Tea Party took place. American colonists raided the three British ships in Boston Harbor and

threw the tea overboard to protest the British tea tax. Soon thereafter, the colonists began to mobilize and to fight for independence,

and ‘‘no taxation without representation’’ became a rallying cry. A

few years later, of course, after a long and hard-fought struggle, a

free and independent America was born.

Yet more than 200 years later, Mr. Chairman, Americans in the

District of Columbia, home to over half-a-million residents, remain

disenfranchised. They are in a situation not all that different from

that of the American patriots who fought so hard and sacrificed

their lives to someday live free.

Mr. Chairman, when the District of Columbia was created as our

Nation’s capital 200 years ago, its residents lost their right to full

Congressional representation. These Americans, as we have pointed out, served in our Nation’s Armed Forces, pay Federal taxes,

and keep our Federal Government and capital city running day and

night. They live in the shadows of the monuments of our forefathers and in this country’s most highly praised defenders of democracy.

They fight and die for this country in armed conflict, and yet

they have no voice in the Senate and only a limited voice in the

House. They do not even have the right to vote on basic administrative matters that other States and cities decide for themselves.

Virtually every other Nation grants the residents of its capital city

equal representation in its legislature. It is simply an embarrassment that in these modern times, we, as the world’s most powerful

democracy, deny voting representation to over half-a-million Americans.

Since the ratification of the Constitution in 1788, the United

States has forged its own suffrage history, guaranteeing the right

to vote to all Americans regardless of race, gender, wealth, marital

status, or land ownership. Through our interpretation of the ‘‘one

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person, one vote’’ doctrine, we have made great strides in overcoming inequality and under-representation. There remains, however, this unresolved obstacle to suffrage for all Americans, the disenfranchisement of D.C. residents.

Mr. Chairman, it is past time for Congress to undo this injustice,

and so I was pleased to join you earlier this year as a cosponsor

of the amendment that Representative Eleanor Holmes Norton

mentioned to the election reform bill on the issue of voting representation for D.C. residents. I am told that this was probably the

first time since 1978, when the Senate considered a constitutional

amendment, that the issue of voting representation for D.C. residents was even debated on the floor of the Senate. After debate,

you withdrew the amendment, but it was important to begin debating this issue in the Senate again. It is long overdue.

So I again commend you, Mr. Chairman, for continuing the debate by holding a hearing on this issue today. Particularly at this

time when D.C. residents are members of our Nation’s military, the

National Guard, the Capitol Police, who are serving in so many

other important roles to fight terrorism and to protect our Nation

from future terrorist attacks, it is, in fact, shameful, to pick one of

the words that Representative Norton used, it is shameful that we

deny them the right to full representation in Congress.

It is past time for Congress to act. I urge our colleagues to join

Senator Lieberman and me as cosponsors of the No Taxation Without Representation Act. This is an important bill to send a message

that taxation without representation is unfair and un-American,

and so I urge my colleagues to join us in ensuring full voting representation for Americans who call the District of Columbia their

home. Thank you for the opportunity, Mr. Chairman.

Chairman LIEBERMAN. Thank you, Senator Feingold, for an excellent statement.

I thank the three of you. Obviously, I have a position here, but

I think the three statements have been very eloquent and moving

and speaking from principle. I cannot say clearly enough that your

presence and your words, as well as those of Senator Durbin and

Senator Levin, both of whom had to go, make the point that we are

not engaged here today in an act of symbolism. We have begun

again a very serious effort to obtain what the citizens of the District of Columbia deserve under our Constitution, which is full voting rights and full representation, and we are going to continue in

every way we can on every field we can to fight for this until we

achieve it.

Our numbers are growing. Your words encourage me and I look

forward to working with you until we achieve the victory we all

seek. Thank you very much, the three of you.

We will call now on the second panel, who represent the Government of the District of Columbia and representation from the District of Columbia, Hon. Anthony Williams, Mayor of the District of

Columbia, the Hon. Linda W. Cropp, Chair of the Council of the

District of Columbia, and the Hon. Florence H. Pendleton, District

of Columbia Statehood Senator.

I also want to welcome Senator Pendleton’s two colleagues,

Statehood Senator Paul Strauss and Statehood Representative Ray

Brown, who are also here today. If the two of you are here, why

13

1The prepared statement of Mayor Williams with an attachment appears in the Appendix on

page 44.

do you not stand. I thank you for all you have done. You are already acting like full-fledged Members of Congress by yielding to

Statehood Senator Pendleton on the basis of seniority. [Laughter.]

But we thank you for what you have done on behalf of this cause.

Mayor Williams, thanks for being here. I know if I dwell for too

long on our Yale contacts, I will be considered to be parochial, but

I do want to state for the record that you were there long after I

was. [Laughter.]

I say as a matter of personal privilege, which you know, how

proud I am to have watched your career come from Yale undergraduate to Lieberman ward worker to member of the Board of Aldermen in New Haven, to official of the State of Connecticut Government, to official of the Federal Department of Agriculture, to

the Emergency Financial Board—I am not giving the right title to

it—and then to be a truly superb Mayor of this Nation’s capital

city. I do not get the chance to do that too much on the record, and

with those words, I welcome you and look forward to your testimony now.

TESTIMONY OF HON. ANTHONY A. WILLIAMS,1 MAYOR,

DISTRICT OF COLUMBIA

Mayor WILLIAMS. Mr. Chairman, let me thank you, when you are

Mayor, you will take compliments wherever you can get them, and

I appreciate your remarks. I really do. [Laughter.]

Thank you for your leadership over these years, not only in regards to the District but in general, on a national level and certainly for Connecticut. You have my appreciation and certainly my

recognition as a friend and as your Mayor while you are here in

Washington.

Chairman LIEBERMAN. Thank you.

Mayor WILLIAMS. I want to take the opportunity as Mayor of our

city and on behalf of the citizens of our city to also commend Senator Levin and Senator Durbin for coming in here today and pledging their support for an important effort.

As you mentioned, more than 200 years ago, the founders of this

country fought a revolution to end the tyranny of taxation without

representation and I have no doubt that the authors of the Constitution did not intend to force almost 600,000 Americans to live

under that same tyranny in the 21st Century. In fact, this body

was established to create and amend laws as the needs of the people required. We are here today because a need has arisen, because

you are vested with a power and a responsibility to make sure all

Americans can exercise their rights.

Full voting representation in Congress is a fundamental right

held by every citizen of the District of Columbia. You have acted

on behalf of disenfranchised women. You have acted on behalf of

disenfranchised African Americans, Latinos, Native Americans, and

other groups, and we now ask that you act on behalf of disenfranchised citizens of our Nation’s capital and pass the No Taxation

Without Representation Act.

14

As Mayor of this city, I have had the privilege of representing

our city across this country and abroad, from school children visiting our monuments to athletes participating in the Olympics,

from diplomatic delegations working here in the District to State

and local elected officials meeting in Washington. I have been

amazed at the myths and misconceptions held about the power and

status of the District of Columbia and they mirror your remarks,

Mr. Chairman. I would like to share just a few.

The Federal Government completely funds the District Government. That is a myth. There are no real people living in Washington, perhaps only pundits and Beltway Bandits. Washington

residents already have full voting rights and complete self-government. Another one, Washington residents all have a second address

and, therefore, representation in another State, and so what is the

problem?

To be clear about many of these and other myths, you should

know that the budget for the District of Columbia is funded primarily by the people who live and do business in this city. Yes, the

District receives some Federal funding, virtually the same amount

as other cities our size receive from the Federal Government, but

not nearly at the same level required to ensure the consistent delivery of essential services and certainly not commensurate with

that provided by other nations to their capitals.

Almost three-fourths of our operating budget comes from our

local tax revenue, property tax, income tax, and business taxes. In

fact, our residents are some of the most heavily taxed people in the

country. I am not proud of that and I do not advertise that too

much, but it is a fact.

There are more than 572,000 real people living within ten square

miles known as the District of Columbia. These are people who attend school, who work, who raise families, who pay taxes, both

Federal and local, and it has been mentioned in testimony and in

your comments, Senator, that we are the second highest Federal

tax-paying citizens per capita in the country.

It has been mentioned we serve in the Armed Forces, and in

many parts of the District, we live on fixed incomes. And while a

few of our residents come here and serve in the Federal Government and maintain a permanent address elsewhere, the vast majority do not. These are people who love their country, and in the

wake of September 11 are keenly aware of what can be demanded

of them during a national emergency.

Washington residents were granted the right to vote for President in 1961, but we do not have full representation in the House

and Senate. When legislation that directly affects our lives is drafted, debated, and adopted, we have virtually no voice in the process.

Our residents elect a Mayor and 13 members of the Council, a

Chair of the Council, but every local law and every local budgetary

decision made by this elected body must be approved by Congress,

and this Council passes an endless series of emergency acts and

temporary acts, and I see the enormous amount of paperwork to

keep our government going while waiting for Congress to officially

approve our government’s action.

No other jurisdiction in the country must submit its local budget

to an outside authority elected by people from other States. No

15

other jurisdiction must wait to invest funds in new programs while

Members of Congress decide what is appropriate for the District.

Over the years, the District of Columbia evolved into a living,

breathing city, a city where streets need to be paved, homes built,

children educated, trash and snow removed, trees trimmed, people

protected from crime, and homes protected from fire. It became a

city that needed to provide services to all of its residents and businesses, including those who live at 1600 Pennsylvania Avenue and

those who work and act as legislators on Capitol Hill.

I am proud of the progress the District has demonstrated in the

last several years. Last week, the Labor Department reported that

the District has seen job growth in the last few months while surrounding jurisdictions have experienced a growth in unemployment. Over the past 5 years, we have balanced the budget, maintained the cash surplus, improved our credit rating, and met every

goal set out by Congress to demonstrate the ability to self-govern.

The District is on the verge of achieving its full potential as the

heart of a vibrant region in a global economy, but to do so, we must

be put on a level playing field.

As you know, Senator, and all of us know, Webster defines democracy well as, I quote, ‘‘A government in which the supreme

power is vested in the people and exercise by them directly or indirectly through a system of representation, usually involving periodically held free elections.’’ I say to the Committee, why are the

people of the Nation’s capital excluded from this system of representation?

Well, the lack of voting rights is an economic issue in the District

of Columbia. While the Congress has the power to impose restrictions on our city and limit our ability to tax, we will never have

a level playing field. More than 50 percent of our land cannot be

taxed. Income earned in the city commutes to Maryland and Virginia every day. We export dollars out of our city. State functions

such as road construction, motor vehicle administration, and special education must be funded on the city’s tax base. How can we

continue to grow and be fiscally responsible when the city leaders

have no authority over their own financial resources and no representation to negotiate with Congressional members?

If the District had full voting rights, our representation could

work towards greater parity for District residents and greater parity for the District with other jurisdictions across this region and

the country.

The lack of voting rights is a matter of justice in the District of

Columbia. The inability of District residents to vote for voting Representatives and Senators in Congress violates our rights to equal

protection and to a republican form of government.

In the court case for full voting rights, Alexander v. Daley, the

court did not determine that District citizens should not have voting rights. It determined that the courts lacked the power under

the U.S. Constitution to require Congress to grant such rights.

Congress has the opportunity and the power to correct this injustice by taking action now to guarantee justice by granting the citizens of the District their full voting rights.

Finally, the lack of voting rights is a civil rights violation in the

District of Columbia. African Americans and women and others

16

1Memorandum and Resolutions submitted by Mayor Williams appear in the Appendix on

pages 89 through 109. 2The prepared statement of Ms. Cropp with an attachment appears in the Appendix on page

53.

have fought for and died for the right to vote, yet here in the capital of democracy lives one of the largest blocks of disenfranchised

voters in the world. District residents fight for freedom abroad and

pay more than $2 billion a year in Federal income taxes at home

as the world’s leading democracy. It is unacceptable that the

United States does not grant voting rights to the residents, to the

citizens of this capital city.

The issue of District voting rights has resonated across the country. A number of local and national organizations have taken actions in support of full voting rights for our city, and I want to commend Shadow Representative Ray Brown for his leadership and

support in this effort. Such organizations include the National

League of Cities, the National Conference of Black Mayors, and the

Executive Committee of the U.S. Conference of Mayors, which have

all passed resolutions or adopted policy positions in support of the

District.

In addition, resolutions from cities across the country supporting

voting rights have been adopted by the cities of Chicago, Philadelphia, Cleveland, Baltimore, Los Angeles, New Orleans, and San

Francisco, and as you have mentioned, Mr. Chairman, national

polls indicate that a huge majority of people across the country

support full representation for District residents. I ask that these

resolutions be entered into the record of this Committee hearing.1

Chairman LIEBERMAN. Without objection.

Mayor WILLIAMS. Once again, Mr. Chairman, I commend you for

your leadership in general, your support for this city in voting

rights in particular, and as always, I am ready, willing, and able

to answer any questions you may have. Thank you for the opportunity to testify.

Chairman LIEBERMAN. Thank you, Mayor. We will have some

questions. Thanks for describing not only the cause and the principle here, but the practical realities of the interaction, including

the additional fiscal responsibilities placed on the city as a result

of the presence of the Federal Government here and how that adds

to the injustice of no voting representation.

Chairwoman Cropp, thank you for being here. I look forward to

your testimony now.

TESTIMONY OF HON. LINDA W. CROPP,2 CHAIRMAN, COUNCIL

OF THE DISTRICT OF COLUMBIA

Ms. CROPP. Thank you very much, Chairman Lieberman. Good

afternoon. Let me begin by thanking you, Mr. Chairman, for sponsoring legislation and holding this public hearing on the denial of

voting representation in Congress for the 600,000 American citizens who live in the District of Columbia.

This is the first Senate hearing on District voting rights in an

extremely long time, so we very much appreciate this historic opportunity to urge you and your colleagues to use the power that

you have to bring democracy to the Nation’s capital. I am joined

today with Adrian Fenty, another member of the Council.

17

Attached to my testimony is a resolution and report adopted

unanimously by the D.C. Council earlier this month supporting the

No Taxation Without Representation Act that has been introduced

by you, Senator, and Senator Feingold in the Senate and Congresswoman Norton in the House. The Council’s findings in the resolution essentially mirror the findings contained in the No Taxation

Without Representation Act that I would like to highlight here.

For far too long, District citizens have been invited to dinner, but

we have not been allowed to eat. As you know, U.S. citizens residing in Washington, DC, have no voting representation in the House

and no elected voice in the Senate. This was not always the case.

For approximately 10 years after ratification of the U.S. Constitution and selection of the Federal District, residents of the District

of Columbia were allowed to vote for Members of Congress. In

1800, Congress voted to end this practice and thereby disenfranchised District residents.

Throughout the past two centuries, there have been various efforts to restore the franchise. There are many reasons full voting

rights should be restored, but each evolves from a single principle:

The right to vote is a fundamental principle of our democracy.

Americans throughout the Nation agree, or would agree if they

knew. Many, as you have heard from our Mayor, just do not believe

that we do not have the right to vote. I have encountered them on

numerous occasions.

A survey conducted in October 1999 found that 72 percent of the

respondents supported full voting rights in the House and Senate

for District residents. The same poll showed high levels of support

across party lines. Polling conducted a month later found that 55

percent of college graduates who were registered to vote were unaware that District citizens do not have Congressional voting representation.

You have heard these facts before, but until there is a remedy

to the fundamental injustice of our subordinate status, they must

be reiterated. The residents of the District of Columbia are the only

Americans who pay Federal income taxes but are denied voting

representation in the House and the Senate. The District of Columbia is second per capital in income taxes paid to the Federal Government. The District is the source of over $2 billion in Federal

taxes each year, an amount per capita greater than 49 other

States. Yet, we have no say in Congress in how these dollars are

spent.

More District citizens have died in wars protecting the Nation

than have the citizens of 20 other States. Congress has the exclusive right to declare war, and again, we have no say in this decision. The impeachment proceedings in Congress a few years ago

highlighted the glaring anomaly of our lack of vote on an issue of

removing from office the President of the United States whom we

had a vote to elect.

The United States is the only democracy in the world in which

residents of the capital city are denied representation in the national legislature equal to that enjoyed by their Federal citizens.

The denial of voting representation in Congress locks District residents not only out of our national legislature, but also out of what

is a structural sense of our State legislature, a legislature that has

18

extraordinary approval authority over all of the District’s local legislation and all of the District’s locally raised dollars, as articulated

earlier by the Mayor.

We who are elected representatives of the District’s citizens are

reminded daily, sometimes painfully, of the exclusive jurisdiction

that Congress exercises over the District of Columbia pursuant to

Article I, Section 8 of the United States Constitution. We believe

that this same broad jurisdiction provides Congress with the constitutional authority to enact a bill by simple majority to restore

Congressional voting rights to District citizens. The Congress and

the Constitution treat the District as a State for hundreds of purposes, whether they are Federal benefits, burdens, or rights. Why

not the most precious and fundamental right in a free and democratic society, the right to vote?

The denial of District citizens the right to Congressional voting

representation is the last unbreached frontier of civil and human

rights in America. As the United States rightly tries to be a model

and a defender of democracy around the world, we implore you to

find a remedy to remove this inexcusable hypocrisy of democracy

denied in our Nation’s capital.

We have tried in the past and without success thus far to obtain

Congressional voting rights through a constitutional amendment,

through a Statehood bill, through litigation. The Supreme Court,

while sympathetic, has essentially stated that it is Congress where

the remedy to this problem must be resolved.

As we ask the Senate to take action this year to remedy our lack

of voting representation in Congress, we also request that you take

favorable action as soon as possible on legislative and budget autonomy for the District of Columbia. District residents have been

invited to dinner but we have not been allowed to eat. D.C. residents are hungry for democracy. D.C. residents are starving for

voting representation in Congress. It is past time for Congress not

only to talk about the wrongs around the world regarding voting

rights. It is now time to correct this injustice to the citizens of the

District of Columbia. It is time for the plate of democracy to be

passed to the citizens of the District of Columbia.

Mr. Chairman, thank you again so very much for this opportunity to testify before the Committee today. As always, the Council looks forward to working with you in partnership to right this

injustice.

Chairman LIEBERMAN. Thank you. Thank you for that excellent

statement and I look forward to working with you and the Council,

as well.

The final witness on this panel is Statehood Senator Florence H.

Pendleton. I do want to point out that, as I mentioned earlier, Senator Pendleton is the senior member of the delegation, but it is a

delegation, I should state for the record and for those who do not

know, that has been elected by the citizens. That is, Senator Pendleton, Senator Strauss, and Representative Ray Brown have been

elected by the citizens of the District of Columbia to come before

Congress and advocate the cause of Statehood. We are honored to

have you here and look forward to your testimony now.

19

TESTIMONY OF HON. FLORENCE H. PENDLETON, DISTRICT OF

COLUMBIA STATEHOOD SENATOR

Ms. PENDLETON. Thank you so very much. Good afternoon, Senator Lieberman and Members of your Committee. It is so good that

you are having this meeting today. It is a different kind of notice

from the one I have had before. We have had Statehood meetings

before. However, things have been tossed out and we are not applying for Statehood but we are asking for voting rights.

No Taxation Without Representation is noteworthy because we

are simply asking not to pay taxes unless we vote. The request is

simple, no taxation without representation, and the answer can be

straightforward. I would like to see the Senator or the member of

the House of Representatives advocate that the people he represents are not entitled to representation and then give up his seat.

You must not sit to represent a government and say that one is

equal and one is unequal.

All of the elected officials of the District of Columbia must speak

with one voice on behalf of the residents of the District of Columbia. United we stand. I do not want to leave our children or our

children’s children in bondage. Let us put differences aside and

work for the benefit of the people. Working together, we can unite

the people, ignite their power, and focus their strength on the goal

of freedom now.

District residents have been paying Federal income taxes since

1943 and that was before the end of World War II. Our time has

come. We must come out with a solid, united front for democracy,

and the time is now.

We must not take the crimes of persecution, enslavement, hatred, and greed from the 19th Century into the 21st Century.

These evils have caused us pain and they have almost ruined our

voting rights. We must lift up humanity and seize the day.

Failing to do your duty, will you be able to stand and face the

people, speak to the Congress on behalf of those citizens who have

declared their desire to vote? If not you, who? And if not now,

when?

We must move this ship of freedom together if we are to be successful in combatting the oppression facing us here in the District

of Columbia. The voting rights of the District of Columbia are begging for us to come forward, and forward we have come. It is not

everything, but it is something and voting for this is what we want

and any no vote should give up his seat.

I sincerely thank you for having this session and I certainly do

appreciate being able to speak.

Chairman LIEBERMAN. Thank you, Senator Pendleton. Thanks

very much.

The three of you anticipated most of the questions I wanted to

ask in your opening statements, but let me ask this. As I listened

to the first panel and the three of you speak, it really does seem

to me that it would be hard for somebody to make a case against

the principle here and the reality, the fact that District residents

do not have voting rights, and, therefore, the concerns I presume

that make this a more difficult effort for Congresswoman Norton

and me and others are political, worries about how people would

vote.

20

So I want to give you, those of the three of you who wish to respond, an opportunity to respond to that political concern about the

political result of voting rights here in the District as opposed to

the principle, and then if you have heard other arguments that I

am not considering, as they used to say to us in law school, against

voting rights, whether you would share those with us, and if you

care to provide the argument against.

Mayor, do you want to begin with a response to either of those

questions?

Mayor WILLIAMS. I have often heard as we have traveled around

that full voting rights for the District might result in tilting the

balance politically one way or the other. But I would agree with

other Members of the Committee who have mentioned that the rub

in our Constitution is that we honor fundamental rights regardless

of the consequences. We honor fundamental rights regardless of

how difficult it is to honor those rights.

The Fourth Amendment is often honored in very difficult circumstances, the Sixth Amendment, we know, in very difficult circumstances, a franchise in very difficult circumstances that we

have seen as recently as a couple of years ago.

So I think the fact that the electoral balance might be tipped one

way or the other is at, I think, the point of our whole Declaration

of Independence and Constitution and Pantheon of Rights. It is not

that it is the province of elected officials to decide. It is the province of citizens to decide.

While it is not our job to give all the arguments against voting

rights for the city, you often hear the argument that Congress has

plenary authority over the District and the Constitution is settled,

and I would say two things to that. There are many individuals or

organizations, sectors, if you will, that have power in the Constitution. Within our constitutional framework, the exercise of those

powers always has to be balanced against and in the context of the

overall framework of the Constitution.

For example, the President has executive power under the Constitution, but certainly he has to or she has to exercise that executive power with due cognizance of the rights of others in the Constitution, rights specified in the Constitution, and certainly the fundamental right of the people.

So the fact that Congress has power over the District to me does

not, in my mind, excuse it of the responsibility to exercise that authority in the overall context of our Constitution based on principles of democracy.

The second thing you often hear is, well, it is in the Constitution

and that is that. As soon as our Constitution was written, it was

already being amended with a Bill of Rights. If the Constitution

had not been amended, I would not be sitting here as Mayor. Many

of us would not be sitting here. So we have often, as you mentioned

in President Washington’s quotation, the Constitution was not

written as a shrine before which we all worship but as a living,

breathing document based on the fundamental rights of citizens.

Chairman LIEBERMAN. Well said. The third panel is composed of

some legal experts and I might ask them to speak to the constitutional history here, but I believe I recall that the fact is that the

District Clause was first inserted in the Constitution after the

21

State of Philadelphia failed to protect the Continental Congress

from protesting Revolutionary War veterans. Is that your recollection?

Mayor WILLIAMS. That is my recollection, and as I often tell people, a perverse thing has happened. In order to insulate the Congress from parochial interests, exactly the inverse or converse has

happened. The District is now exposed to the whim and the fancies

and the predilections of 535 people often acting as a city council for

the District.

Chairman LIEBERMAN. I guess I would add, being part of protecting Congress from any number of protesting groups that come

here in a given year, bearing the cost of that protection, as a matter of fact.

Chairwoman Cropp, do you want to add at all to the questions

that I have asked?

Ms. CROPP. Let me just concur with what the Mayor stated. But

I think in addition to that, it is very clear that the intent was not

to deny the District citizens the right to vote. The clear intent was

for District citizens to have the right to vote and that is why we

were franchised initially.

Chairman LIEBERMAN. Right.

Ms. CROPP. As stated by the Mayor, we have erasers on pencils

in order to correct mistakes, and if, in fact, anyone thinks that it

was a mistake, then it is time to use that eraser and correct this

very basic and fundamental principle for the District citizens.

We have an opportunity, even if the Federal Government believes that it ought to protect itself, to still protect the Federal enclave in the format of Federal buildings and keep that sacrosanct,

while at the same time not disenfranchising 600,000 other people

who make the District of Columbia their home and who are citizens.

I believe that the court case that was just before the Supreme

Court really spelled out some very excellent legal principles. I am

not a lawyer so I cannot address them as they did, but it is just

common sense. My grandmother said when I went to college, she

was very thrilled and she hoped that it was just one of many degrees that I may have, but always remember, if you do not have

common sense, none of the degrees will matter to a hill of beans.

Chairman LIEBERMAN. That is right.

Ms. CROPP. And it is just common sense that the District citizens

should not be disenfranchised, and particularly when the intent

initially was for us to have voting representation.

Chairman LIEBERMAN. Senator Pendleton, would you like to add

anything?

Ms. PENDLETON. I would just like to say that I have not heard

any persons say too much against this particular bill. Now, the

Statehood bill, yes. This bill, for just voting rights, no, because, in

fact, there are those who say that this bill will pass. The other bill

you had will not. So they are thinking that this bill, this voting bill,

this bill to just vote, will pass and that those persons who are for

the Constitution and for saying what we are going to do and everything, that one bill is for now and, therefore, we should just push

and push all of our efforts into the voting bill and let it rest.

22

1The prepared statement of Mr. Henderson appears in the Appendix on page 62.

Chairman LIEBERMAN. Thank you. I thank the three of you very

much for joining this cause, for articulating it very effectively, and

also for giving real texture to the relationship between the Federal

Government and the Government of the Capital City and the Capital City, which just to me, in practical terms, strengthens the argument for voting rights. I appreciate your being here.

Mayor WILLIAMS. Thank you, Mr. Chairman.

Ms. CROPP. Thank you.

Ms. PENDLETON. Thank you.

Chairman LIEBERMAN. Thank you very much.

We will now call the third panel, Wade Henderson, Executive Director, Leadership Conference on Civil Rights; Adam Kurland, Professor of Law, Howard University School of Law; and Jamin

Raskin, a Professor at Washington College of Law, American University.

Gentlemen, thanks for being here. I appreciate the opportunity

to hear from your experience and expertise on the subject before

us.

Mr. Henderson, you are a familiar, and in this case that is a

positive statement, face and voice in the halls of Congress and always a very effective one on behalf of the Constitution and the

basic rights that define our Nation, much more than its borders do,

so we look forward to your testimony now.

TESTIMONY OF WADE HENDERSON,1 EXECUTIVE DIRECTOR,

LEADERSHIP CONFERENCE ON CIVIL RIGHTS

Mr. HENDERSON. Thank you, Mr. Chairman, and thank you especially for the opportunity to testify this afternoon on voting representation in Congress for the citizens of the District of Columbia.

My name is Wade Henderson and I am privileged to be the Executive Director of the Leadership Conference on Civil Rights. The

Leadership Conference consists of more than 180 national organizations representing persons of color, women, children, labor

unions, individuals with disabilities, older Americans, major religious groups, gays and lesbians, civil liberties and human rights organizations. Together, over 50 million Americans belong to organizations that comprise the Leadership Conference on Civil Rights.

The Leadership Conference strongly supports efforts to give citizens of the District of Columbia full voting representation in the

U.S. Congress. At the outset of this hearing, I want to commend

you, Mr. Chairman, for your leadership on this important issue and

on the introduction of your bill, S. 603, the No Taxation Without

Representation Act. The Leadership Conference fully supports this

bill, along with its counterpart in the House of Representatives, introduced, as you noted, by Representative Eleanor Holmes Norton.

The right to vote is fundamental in our democracy. The struggle

to obtain voting rights for all Americans has long been at the heart

of the fight for civil rights. The Congress has enacted many important laws over the years protecting and enhancing the right to vote,

such as the 13th, 14th, and 15th Amendments to the Constitution,

the Voting Rights Act of 1965, and the National Voter Registration

Act of 1993.

23

Your bill, Mr. Chairman, continues the distinguished path of providing the full measure of the right to vote for all Americans. It is

a top priority on the legislative agenda of the Leadership Conference.

As you have noted, Mr. Chairman, voting is the language of democracy. Without it, the citizens of the District are the silent voice

in the wilderness, spectators to democracy, right in the literal

shadow of the very governing institutions that serve as a shining

beacon to the rest of the world. This is not right, this is not fair

to have two distinct classes of citizens, those of the 50 States and

those of the District of Columbia.

Now, the Leadership Conference holds as one of its guiding tenets that all citizens of the United States must be treated equally

under the law. We have long supported the civil rights movement

here in our Nation’s capital, championing the voting rights for the

citizens of the District and the popular election of local officials.

The tragedy of this past September 11 terrorist attacks on our

Nation pointed out the importance of the District of Columbia and

the paradox of denying D.C. residents the full measure of participation in our government. On that terrible day, terrorists struck at

our financial center in New York City and our government center

here in Washington. The attack was one on all Americans, without

regard to race, color, religion, sex, national origin, disability or sexual orientation, and Americans from around the Nation opened

their hearts with unparalleled generosity to help the victims of this

tragedy.

The citizens of the District of Columbia were no exception. D.C.

residents were part of the first responders to the Pentagon attack.

Members of the District of Columbia National Guard were among

the first to be called up to serve our Nation during this time of crisis. And, sadly, D.C. had its share of victims in the September 11

attack. Yet D.C. residents have no voting representation in the

very government they seek to preserve and defend.

Now, the Leadership Conference believes it is now time to move

forward on this important legislation under discussion today. Residents of the District dutifully comply with their civic responsibilities and obligations under our democratic form of government.

They pay taxes and they serve in our Armed Forces. And yet residents of the District are blatantly denied and deprived many of the

essential rights and privileges of citizenship enjoyed by all other

Americans. This issue, therefore, is one of simple justice and fairness.

Now, we have noted, of course, that we pay income tax and that

we serve, and you have noted all of this, as well, and as you referred in just your past comments, the fact that the District has

been denied voting representation has not always been the case.

Before the District was established in 1800, residents of the City

of Washington were able to vote for Representatives in Congress as

either citizens of Maryland or Virginia. There is no prohibition on

restoring voting representation in Congress for the citizens of the

District of Columbia.

This issue has long had bipartisan support in Congress and I

would hope that it would do so again today. In 1978, both the Senate and the House passed a constitutional amendment to grant full

24

1The prepared statement of Mr. Kurland appears in the Appendix on page 68.

representation to D.C. residents, and although that amendment

failed to be ratified by the required 38 States, it was supported by

many prominent Republicans and Democrats, and in my written

testimony, Mr. Chairman, I note various individuals, from Senator

Bob Dole to President Richard Nixon to Senator Robert Byrd,

among others, who have noted the importance of voting representation for the District.

Before I conclude, Mr. Chairman, let me address the issue of taxation without representation. Some will argue that if this bill were

enacted, it would turn the District of Columbia into a haven for tax

dodgers, and certainly nothing could be further from the truth.

This bill is aimed at achieving full voting representation in Congress for the citizens of the District, and as we have noted, they

do pay more taxes and do all those things that are required by citizens of the Nation. Its title, that is the No Taxation Without Representation, of course, harkens back to the historic foundations of

American democracy.

This bill is aimed at moving the Congress to take positive action

on this issue but does not, in fact, create voting representation in

Congress for Representatives of the District of Columbia. The bill

merely makes clear that until full voting representation is

achieved, residents of the District should be treated more like their

counterparts in the territories of the United States who do not pay

Federal taxes.

While the Leadership Conference supports providing full voting

representation for the citizens of the District, we also believe that

until this happens, it is important that District residents should be

treated for tax purposes like their similarly situated counterparts

in the territories of the United States.

Since the attacks on the United States in September, we have

been eloquently advocating to the international community for democracy abroad, and rightfully so. But it is now time to preach democracy at home, as well. We urge Congress to pass your bill, Mr.

Chairman, and to bring democracy home to the citizens of the District of Columbia, and we should give those who live within the

shadow of the capitol the basic right to enjoy full voting representation in the Congress of the United States. Thank you for the opportunity to appear before you today.

Chairman LIEBERMAN. Thanks, Mr. Henderson, for a very

thoughtful statement. I look forward to asking some questions

afterward.

Professor Kurland, welcome. I look forward to your statement.

TESTIMONY OF ADAM H. KURLAND,1 PROFESSOR OF LAW,

HOWARD UNIVERSITY SCHOOL OF LAW

Mr. KURLAND. Mr. Chairman, thank you very much for inviting

me to testify before this proceeding today. This hearing is a welcome and constructive step because the issue is, I believe, now

being debated in the appropriate forum. However, Congress cannot

by simple legislation grant D.C. citizens voting rights in Congress.

A constitutional amendment is required.

25

The makeup of the Federal legislature is an essential ingredient

of our federalism. Every school child is, or should be, familiar with

the story of the Constitutional Convention and the so-called Great

Compromise which resulted in each State’s proportional representation in the lower House and equal representation in the Senate,

and most historians agree that without this compromise, the work

of the Constitutional Convention would never have been completed.

In addition, the importance of this compromise can also be gleaned

from the final clause in Article V of the Constitution, which concerns the constitutional amendment process, and it says, ‘‘that no

State without its consent shall be deprived of its equal suffrage in

the Senate.’’ Representation in the Federal legislature is defined by clear, unambiguous constitutional requirements. The Constitution provides

that the Senate of the United States shall be composed of two Senators from each State. It also requires that the House of Representatives be composed of members chosen by the people of the several

States and that each member of Congress be an inhabitant of the

State from which he shall be chosen.

The District of Columbia, or in constitutional parlance, the seat

of the Government of the United States, as it is referred to in Article I, Section 8, Clause 17, I believe, as presently constituted is not

a State. Therefore, as presently constituted, the citizens of the District are not entitled to representation in the House or the Senate.

The only way the District as presently constituted can achieve full

voting representation in the House of Representatives and in the

Senate is by constitutional amendment.

The Statehood alternative, which raises other constitutional

issues, is discussed in my written testimony and obviously is not

part of the proposed bill before the Senate now.

The controlling constitutional principle must be emphasized.

Congress has a critical but non-exclusive role to play in the political process necessary to achieve any change in D.C.’s present status of no representation in the Federal legislature. Congress cannot

by simple legislation provide the present District of Columbia citizens with voting rights. Such legislation would be unconstitutional.

Legal arguments have been made that a variety of constitutional

principles require that District citizens receive Congressional representation. Those arguments have been uniformly rejected by the

courts. Moreover, any attempt to rely on Congress’s enforcement

powers to legislate pursuant to Section 5 of the 14th Amendment

is also, in my view, misplaced. The present lack of D.C. representation in the Federal legislature is a feature of American federalism,

is part of the current constitutional structure, and does not violate

equal protection, due process, or any other constitutional principle.

It is true that Congress in other contexts often treats the District

‘‘as if it were a State’’ for a variety of legislative purposes, principally for funding allocation of various Federal programs pursuant

to Congress’s Article I powers. However, Congress does not possess

the legislative authority to decree the District a State for the purposes of providing or allocating representation in the national legislature.

With respect to the proposed legislation to either grant the District representation or to make it a tax-free haven, exempting D.C.

26

residents from taxes until representation is achieved, that particular proposal is flawed for a couple of reasons. First, the either/

or tradeoff has essentially been acknowledged as, basically, a wellplaced rhetorical device, but the proposal has very little chance of

ever being enacted.

Second, the ‘‘taxation without representation’’ slogan is actually

inapposite and has been conclusively refuted in many other fora

over the last several decades. In short, District residents are simply

not victims of a far-off imperial power imposing taxes selectively as

a means of economic exploitation.

Third, the either/or tradeoff is based on a faulty legal premise because Congress, in any event, does not possess the unilateral authority to enact legislation conferring D.C. voting rights.

And fourth, despite Mr. Henderson’s comments, it would not

make the District a tax evader haven or a tax dodge haven, but if

the District was set up as a tax-free zone, there are many Americans, and I am quoting Professor Raskin, who even kind of halfjokingly but half-seriously has commented that a lot of Americans

do not like taxation with representation, let alone taxation without

representation, that if the District were made a tax-free haven, it

would be very alluring, if that is the proper word, so that people

might want to move in and say they would rather not pay Federal

income taxes than vote. And we can laugh about that and that obviously deprecates the principle, and I do not mean to make light

of it, Mr. Chairman, but given the low voter turnout in many elections, it cannot be just laughed off as a joke.

Upon two-thirds of the vote of both Houses of Congress, Congress

can propose a constitutional amendment to be submitted to the

States for ratification. Ratification of a proposed constitutional

amendment requires approval of three-fourths of the State legislatures or three-fourths of specifically called State constitutional conventions. A proposed constitutional amendment could provide for

the District to elect a member of the House only or could provide

for Senate representation, either with one or two Senators.

A proposed constitutional amendment to provide the District

with representation in the Federal legislature failed in 1978, as has

been mentioned several times. It would seem to me that if equal

voting rights is the goal sought to be achieved, that would seem to

militate in favor of a proposal that the District receive proportional

representation in the House and two U.S. Senators. Political reality

must acknowledge that this formula would appear to guarantee

two additional Democratic Senators for the foreseeable future.

However, the body politic must demonstrate the ability to rise

above partisan politics. President Bush has often said that political

Washington too often focuses on what is good for a particular party

instead of what is good for America. This issue actually provides

all involved an opportunity to demonstrate that America both inside and outside of the beltway will do what is best for America.

Upon two-thirds vote of both Houses of Congress, Congress

should send a proposed constitutional amendment out to the States

for ratification, or Congress could choose to sidestep their respective State legislatures altogether. Article V of the Constitution

gives Congress the option of the means of ratification. Congress can

choose to send the proposed amendment to State legislatures or to

27

State constitutional conventions expressly convened to consider the

sole issue of ratification of the proposed constitutional amendment.

Congress clearly possesses the authority to propose a constitutional amendment to provide the District with voting rights for

Federal elective office. Congress took an analogous path in 1960

when it submitted the 23rd Amendment to the States for ratification and thus provided for the District’s participation in Presidential elections through the Electoral College, and I believe that

constitutional amendment was ratified in less than a year.

Just to conclude, there are three related points that I think warrant brief measure.

Chairman LIEBERMAN. You can take a moment or two to finish

your statement. Go right ahead.

Mr. KURLAND. All right. Thank you. Three related points, then,

warrant mention. One could argue that it is unconstitutional to

provide voting rights in the Senate to a non-State entity such as

the District of Columbia even by purported constitutional amendment. As noted above, the language that I set forth in Article V

provides that no State without its consent shall be deprived of

equal suffrage in the Senate. What exactly does that mean? It obviously has never been litigated.

I do not advocate this position, but some have argued that it perhaps could imply that the constitutional provision concerning the

make-up of the Senate is, in effect, unamendable and that it would

take a unanimous vote of the States to ratify a constitutional

amendment providing for D.C. voting rights as opposed to creating

a new State. How such an amendment would be challenged if it

were ratified by less than all of the States raises an interesting

legal question, to say the least.

Second, in a similar vein, one might argue that the inherent fabric of the Great Compromise includes the core principle that the

citizens were represented in the House and the States as States

are the only body that gets representation in the Senate. It is also

undeniable that the founders rejected pure majoritarian democracy

in the original makeup of the Constitution. Under that scenario,

the District should get a House vote but no Senate vote.

However, if one goes through the process of amending the Constitution today, the 18th Century principles should not be determinative. It is contrary to most of the modern equal voting rights

principles that have evolved over the last half-century, notwithstanding some of the language in the Supreme Court decision of

Bush v. Gore, which I am sure the Chairman is well familiar with.

Chairman LIEBERMAN. It rings familiar to me. It gives me a

headache. [Laughter.]

Mr. KURLAND. Moreover, regardless of whether these above principles accurate reflect the original nature of the Union, the concept

of a State as a distinct political entity apart from its citizens was

substantially eroded, if not effectively eliminated, with the passage

of the 17th Amendment in 1913, which provided for the direct election of Senators.

Third, providing the District with only one Senate vote, which reflects another sort of compromise proposal that has been bantered

about in the last 20 or 30 years, would actually abrogate the constitutional role of the Vice President to break ties. Although the

28

Vice President has been called on to break ties on Senate votes infrequently throughout history, the Vice President’s role as Senate

tie-breaker is constitutionally significant and should not be eliminated as an unintended consequence of an apparently unrelated

constitutional amendment that would provide for an odd number of

Senators. And I also note that just, I believe, yesterday, Vice President Cheney cast a tie-breaking vote, so the situation is not simply

one that academics fiddle with. In conclusion—— Chairman LIEBERMAN. We will have your whole statement printed in the record.

Mr. KURLAND. Thank you, Mr. Chairman. The U.S. Conference

of Mayors recently has come out in support of D.C. voting rights.

This is a positive indication that the political process quest for D.C.

voting rights has moved to the grassroots level State by State,

where I believe it is absolutely constitutionally necessary to achieve

D.C. voting rights in the Federal legislature. If the denial of D.C.

voting rights in the national legislature is so antithetical to the

democratic ideals which Americans cherish, a proposed constitutional amendment for D.C. voting rights should be able to win passage in three-fourths of the States easily, and to the extent that the

statistics have been mentioned here concerning 80 percent in polls,

that is consistent with that proposition.

To the extent Americans wear democratic ideals more openly on

our sleeves in the post-September 11 world, that should work in

favor of passage of a constitutional amendment. We should not be

afraid to ‘‘have to resort to’’ an inconvenient or even difficult constitutional amendment process. As Abraham Lincoln said, ‘‘A majority held in restraint by constitutional checks and limitations is

the only true sovereign of a free people.’’ Americans of all political parties should cherish and embrace the

solemn challenge and opportunity to amend the Constitution. That

is good not only in some grand civics lesson sense, not only good

in some academic sense, but it is good for the citizens of the District of Columbia, the citizens of our Nation, and it is a shining example for the world. All who embrace D.C. voting rights should embrace the opportunity to make the case for constitutional reform to

the people of the States. If 21st Century equal voting rights principles cannot prevail in the political marketplace of ideas over one

small aspect of 18th Century structural principles of federalism,

that would suggest to me that the American people still find contemporary value in those original constitutional federalism principles. If the poll numbers are correct, that should not be the case

and the constitutional amendment process is the appropriate legal

and constitutional way to achieve the result.

Thank you very much for your time, Mr. Chairman.

Chairman LIEBERMAN. Thank you, Professor Kurland. So if I can

paraphrase or summarize, you do support voting rights for District

residents?

Mr. KURLAND. I support voting rights for District residents, yes.

Chairman LIEBERMAN. Right. But your argument is that can only

be achieved by constitutional amendment?

Mr. KURLAND. I am—I should not say absolutely certain—I speak

with a reasonable degree of certainty that any D.C. voting rights

legislation passed by the Congress would be unconstitutional and

29

1The prepared statement of Mr. Raskin appears in the Appendix on page 79.

2 Article entitled ‘‘Is This America? The District of Columbia and the Right to Vote,’’ appears

in the Appendix on page 111.

that the voting rights representation in both Houses of Congress

requires a constitutional amendment.

Chairman LIEBERMAN. Thank you.

Professor Raskin, I do not want to push your testimony in a particular direction, but am I correct that you disagree with that contention?

Mr. RASKIN. Yes.

Chairman LIEBERMAN. And you will speak to it as part of your

testimony?

Mr. RASKIN. Indeed, I will, and I will skip over several pages of

moral outrage and get right to the constitutional analysis. [Laughter.]

TESTIMONY OF JAMIN B. RASKIN,1 PROFESSOR, WASHINGTON

COLLEGE OF LAW, THE AMERICAN UNIVERSITY

Mr. RASKIN. I would like to say—— Chairman LIEBERMAN. You can give us a little moral outrage.

That is fine. [Laughter.]

Mr. RASKIN. Has there not been enough of that already? Actually, hearing your statement, Professor Kurland, gave me a little

more moral outrage. I never yet heard before floated the proposition that a constitutional amendment could itself be unconstitutional. I thought that enemies of voting rights for D.C. were gathering the idea that you needed a constitutional amendment, and

apparently for some of them, even that is not going to be enough.

Presumably, an act of God or an amendment to the Bible would be

required to make it happen.

Mr. KURLAND. I did not make that up.

Mr. RASKIN. I trust you did not.

The founding idea of the country is that governments derive

their just powers from the consent of the governed, as Jefferson put

it in the Declaration of Independence, which was actually signed by

several people who represented the land that the District of Columbia is now on.

Our whole history has been a struggle to become a democracy,

to transform the original republic of Christian, white, male, property owners over the age of 21 into what that great Republican

President Abraham Lincoln called government of the people, by the

people, and for the people.

The purpose of the District Clause, as you noted, Senator

Lieberman, and as I describe in detail in this law review article 2

I will leave with you, was to assure the police security and military

defense of the capital city, not to disenfranchise a large population

of American citizens.

Chairman LIEBERMAN. Talk about that a little bit in the historical context, if you would.

Mr. RASKIN. I would, indeed. It goes back to June 21, 1783, when

the Continental Congress in Philadelphia was meeting in the Pennsylvania State House and there was an unruly band of disgruntled

Revolutionary War soldiers who had not been paid yet and they

had actually come to confront not Congress, but the Executive

30

Council of Pennsylvania, which was meeting on the second floor as

opposed to the first floor. When the Congressmen on the first floor

appealed to the Executive Council upstairs to get the Pennsylvania

militia to put down this brewing uprising outside, they refused to

do it because they did not want a violent confrontation.

Madison later called this incident disgraceful and used it during

the constitutional debates to argue for the need for exclusive Federal jurisdiction over the seat of Federal Government. If you go

look at the constitutional debates, you see references replete

throughout the debates to this incident.

Chairman LIEBERMAN. But again, no comment there or no action

regarding the voting rights of residents of the capital city.

Mr. RASKIN. No, and there were very few people—well, first of

all, we did not even know where the new District was going to be.

It had not been sited yet. And so all of the members of the Constitutional Convention were voting on it in sort of the original position, if you will, not knowing where it would be, and no one was

thinking that voting rights would ever be at stake. After all, they

had just fought a revolution against the principle ‘‘no taxation

without representation’’ and it was assumed that would not happen

in the new United States.

And, indeed, when the Federal District was finally sited on the

banks of the Potomac in 1791 with Congress accepting the lands

from Maryland and Virginia, the residents continued to vote for a

decade in Federal elections in Maryland or in Virginia and that

only ended with the passage of the Organic Act in 1801. No one

thought that it was unconstitutional.

Now, the D.C. Corporation Counsel brought a lawsuit in 1998,

Alexander v. Daley, which pointed out this history and argued that

the modern ‘‘one person, one vote’’ guarantee makes disenfranchisement unconstitutional and asked for restoration of the right to vote

that was lost in 1801. By a two-to-one vote, the panel rejected the

argument and found continuing permission for disenfranchisement

in the structure of State-based representation, which was the argument that Professor Kurland was making.

Nonetheless, the majority observed that there is ‘‘a contradiction

between the democratic ideals upon which this country was founded in the exclusion of District residents from Congressional representation.’’ It remarked that none of the parties, including the

Justice Department, ‘‘contests the justice of the plaintiffs’ cause.’’

Yet the judges in the majority accepted the argument that the

court was powerless to order a change and that any relief ‘‘must

come through the political process.’’

So the ball is in your court, and this could mean three things.

First, Statehood, which is not on the table.

Second, it might mean a statute conferring full voting rights and

Congressional representation, a kind of Voting Rights Act for

Washington, which is how I understand the No Taxation Without

Representation bill submitted by Congresswoman Norton. Would it

be constitutional, back to your question? To my mind, yes. Congress treats the District explicitly as though it were a State for 537

statutory purposes that I laboriously counted in my Harvard Civil

Rights-Civil Liberties law review article, from Federal taxation to

31

military conscription to highway funds, education funds, national

motor-voter, and so on.

Chairman LIEBERMAN. It counts as a State in the sense that it

is treated in all those statutes—my question, I guess, answers

itself—but as if it were a State?

Mr. RASKIN. There is a line in almost every statute which says,

for the purposes of this statute, the District of Columbia shall be

treated as though it were a State.

Chairman LIEBERMAN. So it is quite explicit. OK.

Mr. RASKIN. Moreover, Congress and the Supreme Court have

treated District residents as residents of a State for constitutional

purposes, from the Full Faith and Credit Clause to diversity jurisdiction under Article III, and there is an interesting litigation history to that. Originally, back in the 1800’s, the Supreme Court said

that because Article III of the Constitution referred to diversity jurisdiction as applying to citizens among the States, it did not apply

to D.C., and said the District residents could not get into Federal

Court on diversity grounds. Congress passed a statute saying the

District should be treated as a State for diversity purposes and the

Supreme Court upheld that in the 20th Century. So why can Congress not treat the District as though it were a State for the even

more fundamental purpose of representation?

Now, some, like Professor Kurland, would invite us to believe

that the District Clause gives Congress power to do anything it

wants to people in the District except give them the right to vote,

but this straightjacket approach undermines the idea of the Constitution as the charter of democratic sovereignty for we the people.

This seminal phrase should include all of us, and certainly did include everyone who was on the lands that would become the District when the Constitution was written.

As Justice Kennedy wrote in U.S. v. Thornton in 1995, the Congress is not a confederation of nations in which separate sovereigns

are represented by appointed delegates, but is instead a body composed of the representatives of the people. So I have no problem in

saying that Judge Louis Oberdorfer, who was the senior and dissenting judge on the three-judge panel in Alexander v. Daley, was

right. Not only can Congress use its ample powers over the District

to fully enfranchise the people, it must do so, and I am submitting

with my statement a complete and very thoughtful legal analysis

of this problem by two fine lawyers, Walter Smith and Elise

Dietrich, who were co-counsel with me and the Corporation Counsel in Alexander v. Daley.

Now, there are those like Professor Kurland who attack a D.C.

Voting Rights Act as unconstitutional, and indeed, voting rights advocates should be sober about the fact that conservative views are

more prevalent on the Supreme Court today than the progressive

views of, say, Justices Marshall and Brennan.

Senator Lieberman, you certainly do not need any tutorials about

the distinctive judicial activism that has appeared recently on the

Supreme Court to control elections and voting rights. Even looking

at the broader canvas, a narrow majority in this court in the past

few years has struck down in whole or in part the Gun Free School

Zones Act, the Violence Against Women Act, the Religious Freedom

Restoration Act, the Brady Handgun Violence Prevention Act, the

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Fair Labor Standards Act, the Low-Level Radioactive Waste Policy

Act, and so on.

How much faith should we have that the Court’s majority would

ultimately accept a D.C. Voting Rights Act as constitutional? I do

not know. But all that you need to know as legislators is that you,

like Thomas Jefferson, see the Constitution’s legitimacy as resting

on the consent of the governed and that you are convinced that

Congress’s powers over the District must be sufficient to effectuate

not just the burdens but the rights of democratic citizenship.

There is, finally, the possibility of a constitutional amendment

treating the District as though it were a State for purposes of representation. A D.C. voting rights amendment, at least I thought

until I heard Professor Kurland’s testimony, would definitely be

constitutional. It would require a two-thirds vote in both Houses

and ratification by three-quarters of the States. As an amendment,

it should be safe from judicial attack and would be more durable

than a statute, which could be more easily repealed. Congresswoman Norton referred to her experience in voting in the Committee of the Whole, where she won, through really brilliant parliamentary persuasion, the right to vote, only to see it taken away

a few years later when the House changed hands.

Now, one strong argument for a constitutional amending strategy

is that Washington can actually do America a big favor this way.

I say this because as we saw in the 2000 election, the right to vote

nationally is a vulnerable thing. As the Supreme Court’s majority

found in Bush v. Gore, ‘‘there is no federally protected constitutional right to vote in Presidential elections.’’ In this sense, we can

see Washington’s status as not just exceptionally egregious in its

nearly categorical disenfranchisement, but as exemplary and illustrative of the weakness of the right to vote generally.

Now, Congresswoman Norton herself is a professor of constitutional law who has done everything in her power to advance democracy for Washington within the existing constitutional structure and her perseverance is really astounding. I think she understands that the moment may come—it may not come, but it may

come when current restrictive understandings of the Constitution

become an obstacle to democracy and the amending strategy that

was tried in 1978 may have to be revived. That moment has not

necessarily arrived yet and there may, indeed, be the political will

in Congress to pass the No Taxation Without Representation Act.

The point she brings before America today is that, ultimately,

what counts most is not the means, but the end, full voting rights

and representation for everyone in Washington, which is the birthright of all American citizens, including her constituents.

Chairman LIEBERMAN. Thanks very much, Professor Raskin.

Mr. Henderson, do you want to get into this debate between the

two law professors on the question of the——

Mr. HENDERSON. Well, I—— [Laughter.]

Chairman LIEBERMAN. Of course, the question is on whether, by

statute, we can give voting rights to residents of the District.

Mr. HENDERSON. Thank you, Mr. Chairman. I also teach and am

the Joseph Rowe Professor of Public Interest Law at the University

of the District of Columbia Law School.

33

Chairman LIEBERMAN. Right. I apologize for not remembering——

Mr. HENDERSON. No.

Chairman LIEBERMAN [continuing]. But I see you in your Director position.

Mr. HENDERSON. Well, no, and it is a privilege to be here on behalf of the Leadership Conference, but I do want to pick up on one

point that Professor Kurland noted.

To assume that one is required to resort to a constitutional

amendment, which is a process of last resort when all other permissible means of achieving the end result that we desire, in this

instance, it seems to me is premature. Now, he does make note,

and I found it interesting because it is seemingly contradictory on

its face, on the one hand, he notes his support for the right to vote

on behalf of District residents. He notes, however, the need to pursue a constitutional amendment, but then further in his remarks

suggests that a constitutional amendment itself may prove to be

unconstitutional and for that reason raises questions about the validity of that process as it relates to addressing the problem of

achieving the right to vote on District residents.

I thought the brilliance of the bill that both you and Congresswoman Norton have submitted is that it isolates first the fundamental principle at stake, which is providing the citizens of the

District of Columbia their right to vote not so much as citizens of

the District of Columbia, but rather hearkening back to their status as citizens of the United States and arguing first and foremost

that because they are citizens of the United States, they have to

be treated equally with other citizens of the United States. Now,

it happens that they live in the District of Columbia, and yes, there

is a District Clause in the Constitution that regulates certain functions as citizens of the District of Columbia. But it does not ultimately pertain to their status as citizens of the United States, nor

does it preclude their right to vote in that capacity.

It seems to us that the argument that you have made, which is

first provide voting rights for the District, let us decide that question first, and then the issue of what form the rights will take does

obviously have to be decided subsequently. But let us isolate that

principle first. Let us have Congress vote on the determination of

whether citizens of the District of Columbia in their role as citizens

of the United States should have that right to vote is exactly the

way to go.

Second, what you have said is that until that voting right has

been achieved, citizens of the District should be given status comparable to citizens in the territories, which is to say if you cannot

vote with the full rights and privileges pertaining thereto, as with

other citizens, you should be given an exemption from Federal taxation comparable to those residents who live in the territories, and

it does seem to me that frames the issue in its most simple and

yet its purest term, to allow voting rights to be conferred on behalf

of the citizens.

Now, in the event that Congress, or rather that the courts determine that is an unconstitutional grant of authority on behalf of

District residents, the amendment process is still open and certainly the way has been cleared to determine that anything less

34

than that would be inadequate. But as a first step, it seems to me

that getting Congress to recognize the importance of the right, isolating that issue, asking Members of Congress to vote on the pure

question of whether they believe District residents are entitled to

the right to vote, and if they are not entitled to the right, or are

entitled to the right to vote, should they have it or should they not

in terms of the taxation that they pay it seems to me is the way

to go.

So I would suggest that while Professor Kurland’s arguments

may have some relevance and pertinence down the road, it is only

after we have tried this first step, it seems to me, before we then

get to the question of whether a constitutional amendment is required, and I see that, therefore, as a straw man, an issue that,

in fact, has been raised as a barrier but, in fact, has never been

legitimately tested in terms of its functions.

Chairman LIEBERMAN. I thank you for that statement. I cannot

speak for Congresswoman Norton, but I say for myself, I do not

think I could have said it better myself. The point is that we are

trying to get our colleagues here to focus on the principle and the

rights that go to residents of the District because they are citizens

of the United States, and then to go to what the exact form of remedy is, if you will, or of granting those rights.

But the other point, although we understand that, practically,

residents of—we are not asking for no taxation nor is it a practical

goal. On the other hand, the underlying principle that we are trying to elevate and educate our colleagues with is, in fact, validated

by the reference you make and one other witness made to the territories, because there, the residents of territories do not have voting

rights and they pay no taxes. So this is not just a rhetorical flourish based on the no taxation without representation history, but it,

I think, underlines the principle that we are trying to make here.

I regret that there is a vote on now and so I cannot stay as long

as I would like, but Professor Kurland, do you want to give me a

quick response to the comments of your colleagues on this panel?

Now, I would say that two law professors are on either side.

Mr. KURLAND. It is not uncommon that in any forum on this

issue I am always outnumbered. [Laughter.]

But again, I am here doing, I believe, a civic duty in raising legitimate constitutional legal issues. I have no stake in this one way

or another. It is only when I am with Professor Raskin that I get

castigated as a conservative, which I think I am not. I mean, I am

a registered Democrat. I voted for Presidential electors for Lieberman and Gore in the State of Maryland proudly. [Laughter.]

Mr. KURLAND. Recognizing that I had no direct vote——

Chairman LIEBERMAN. My respect for your judgment is improving, increasing. [Laughter.]

Mr. KURLAND. But what is important is that while it might be

easy to kind of try to marginalize the constitutional issues I raised,

it is done in manners that, I respectfully submit, is really not intellectually accurate, and let me just make a couple of brief points because I know we are short on time.

The abomination of slavery was not taken out of the Constitution

by Civil War. It required a constitutional amendment. The women’s

right to vote required a constitutional amendment. D.C.’s ability to

35

1The prepared statement of Ms. Kane with attachments appears in the Appendix on page 171.

2 Article entitled ‘‘Implicit Statehood’’ by Timothy Cooper, Charles Wesley Harris, and Mark

David Richards appears in the Appendix on page 174.

cast electoral votes for President, constitutional amendment. The

District to be treated even temporarily as a territory, well, the District gets to vote for President, your three electoral votes. But if the

No Taxation Without Representation, if the argument is to be just

like the territories, that would unravel a variety of other legal

issues where the District is treated differently than the territories.

I am not sure that makes a lot of sense.

Chairman LIEBERMAN. Forgive me, because I am going to miss

the vote. It also gives me the chance to have the last word, and in

this case to say that, on the other hand, Statehood is conferred by

statute. Now, I understand it implicates different provisions of the

Constitution, but the grant of Statehood, notwithstanding all the

instances you have given of what had to occur through constitutional amendments—— Mr. KURLAND. That is correct. Statehood is granted by statute,

but that would put the—there are a variety of other constitutional

issues which Statehood raises that we have not discussed here, but

Statehood is passed by a simple majority of both Houses, signed by

the President, and that would make New Columbia or whatever

the 51st State would be called on equal footing and would be a

State, entitled to representation in the Federal legislature in both

Houses of Congress.

Chairman LIEBERMAN. Thank you. This has been a very stimulating panel and maybe we will do it again sometime soon when

we come back.

I thank you all. It has been for me a very important day. All the

documents that have been referred to will be entered into the formal record of the hearing. We will leave the record of the hearing

open for 2 weeks, if others wish to submit testimony or additional

submissions for the record.

I would like to insert in the record a statement from Betty Ann

Kane 1 on behalf of the Board of Directors of the Committee for the

Capital City and an article entitled ‘‘Implicit Statehood’’ by Timothy Cooper, Charles Wesley Harris, and Mark David Richards.2

I just want to state again, and I hope this message is clear after

the hearing, Congresswoman Norton and I and our cosponsors are

quite serious about this and we are going to pursue it to the best

of our ability in the months and years ahead. I thank all of you

for contributing to a very important hearing.

We are adjourned.

[Whereupon, at 4:30 p.m., the Committee was adjourned.]

(37)

A P P E N D I X

PREPARED STATEMENT OF SENATOR BUNNING

Thank you, Mr. Chairman.

Today this Committee is discussing voting rights for the residents of the District

of Columbia. I realize this is an important issue to many of the people who live in

the city. Over the past several years, there have been several proposals to deal with

this issue, including granting statehood to the District which would add two Senators and at least one Representative to Congress. Others have suggested giving the

District’s non-Federal area back to Maryland or allowing D.C. residents to vote in

Maryland.

One of the most important things we should remember is that the nation’s capital

was created on land originally part Virginia and Maryland. The founders didn’t consider the city a state and didn’t provide for representation in Congress.

Even the city’s name reflects the fact that it is not a State. It’s a ‘‘district.’’

As for allowing Maryland to take control of the District’s non-Federal land, this

at least makes sense. In fact, the areas of Arlington and Alexandria in Virginia

which were originally part of the District were given back to Virginia in the 1840’s,

so there is at least some precedence for this.

I have a feeling that this issue won’t be resolved anytime soon. However, I appreciate the time our witnesses have taken to be here today, and I am looking forward

to hearing from them.

Thank you.

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