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[House Report 111-22]
[From the U.S. Government Publishing Office]

111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     111-22

======================================================================

 
             DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT 
                                OF 2009

                                _______
                                

 March 2, 2009.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 157]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 157) to provide for the treatment of the District of 
Columbia as a Congressional district for purposes of 
representation in the House of Representatives, and for other 
purposes, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................     9
Committee Consideration..........................................    10
Committee Votes..................................................    10
Committee Oversight Findings.....................................    16
New Budget Authority and Tax Expenditures........................    16
Congressional Budget Office Cost Estimate........................    16
Performance Goals and Objectives.................................    19
Constitutional Authority Statement...............................    19
Advisory on Earmarks.............................................    19
Section-by-Section Analysis......................................    19
Changes in Existing Law Made by the Bill, as Reported............    20
Dissenting Views.................................................    20

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``District of Columbia House Voting 
Rights Act of 2009''.

SEC. 2. TREATMENT OF DISTRICT OF COLUMBIA AS CONGRESSIONAL DISTRICT.

    (a) In General.--Notwithstanding any other provision of law, the 
District of Columbia shall be considered a Congressional district for 
purposes of representation in the House of Representatives in the One 
Hundred Twelfth Congress and each succeeding Congress.
    (b) Conforming Amendments Relating to Apportionment of Members of 
House of Representatives.--
            (1) Inclusion of single district of columbia member in 
        reapportionment of members among states.--Section 22 of the Act 
        entitled ``An Act to provide for the fifteenth and subsequent 
        decennial censuses and to provide for apportionment of 
        Representatives in Congress'', approved June 18, 1929 (2 U.S.C. 
        2a), is amended by adding at the end the following new 
        subsection:
    ``(d) This section shall apply with respect to the District of 
Columbia in the same manner as this section applies to a State.''.
            (2) Clarification of determination of number of 
        presidential electors on basis of 23rd amendment.--Section 3 of 
        title 3, United States Code, is amended by striking ``come into 
        office;'' and inserting the following: ``come into office 
        (subject to the twenty-third article of amendment to the 
        Constitution of the United States in the case of the District 
        of Columbia);''.

SEC. 3. INCREASE IN MEMBERSHIP OF HOUSE OF REPRESENTATIVES.

    (a) Permanent Increase in Number of Members.--Effective with 
respect to the One Hundred Twelfth Congress and each succeeding 
Congress, the House of Representatives shall be composed of 437 
Members, including any Members representing the District of Columbia 
pursuant to section 2(a).
    (b) Reapportionment of Members Resulting From Increase.--
            (1) In general.--Section 22(a) of the Act entitled ``An Act 
        to provide for the fifteenth and subsequent decennial censuses 
        and to provide for apportionment of Representatives in 
        Congress'', approved June 18, 1929 (2 U.S.C. 2a(a)), is amended 
        by striking ``the then existing number of Representatives'' and 
        inserting ``the number of Representatives established with 
        respect to the One Hundred Twelfth Congress''.
            (2) Effective date.--The amendment made by paragraph (1) 
        shall apply with respect to the regular decennial census 
        conducted for 2010 and each subsequent regular decennial 
        census.
    (c) Special Rules for Period Prior to 2012 Reapportionment.--
            (1) Transmittal of revised statement of apportionment by 
        president.--Not later than 30 days after the date of the 
        enactment of this Act, the President shall transmit to Congress 
        the most recent statement of apportionment submitted under 
        section 22(a) of the Act entitled ``An Act to provide for the 
        fifteenth and subsequent decennial censuses and to provide for 
        apportionment of Representatives in Congress'', approved June 
        18, 1929 (2 U.S.C. 2a(a)), revised to take into account this 
        Act and the amendments made by this Act.
            (2) Report by clerk.--Not later than 15 calendar days after 
        receiving the revised version of the statement of apportionment 
        under paragraph (1), the Clerk of the House of Representatives, 
        in accordance with section 22(b) of such Act (2 U.S.C. 2a(b)), 
        shall send to the executive of each State a certificate of the 
        number of Representatives to which such State is entitled under 
        section 22 of such Act, and shall submit a report to the 
        Speaker of the House of Representatives identifying the State 
        (other than the District of Columbia) which is entitled to one 
        additional Representative pursuant to this section.
            (3) Requirements for election of additional member.--During 
        the One Hundred Twelfth Congress--
                    (A) notwithstanding the final undesignated 
                paragraph of the Act entitled ``An Act for the relief 
                of Doctor Ricardo Vallejo Samala and to provide for 
                congressional redistricting'', approved December 14, 
                1967 (2 U.S.C. 2c), the additional Representative to 
                which the State identified by the Clerk of the House of 
                Representatives in the report submitted under paragraph 
                (2) is entitled shall be elected from the State at 
                large; and
                    (B) the other Representatives to which such State 
                is entitled shall be elected on the basis of the 
                Congressional districts in effect in the State for the 
                One Hundred Eleventh Congress.

SEC. 4. NONSEVERABILITY OF PROVISIONS.

    If any provision of this Act, or any amendment made by this Act, is 
declared or held invalid or unenforceable, the remaining provisions of 
this Act and any amendment made by this Act shall be treated and deemed 
invalid and shall have no force or effect of law.

SEC. 5. EXPEDITED JUDICIAL REVIEW.

    If any action is brought to challenge the constitutionality of any 
provision of this Act or any amendment made by this Act, the following 
rules shall apply:
            (1) The action shall be filed in the United States District 
        Court for the District of Columbia and shall be heard by a 3-
        judge court convened pursuant to section 2284 of title 28, 
        United States Code.
            (2) A copy of the complaint shall be delivered promptly to 
        the Clerk of the House of Representatives and the Secretary of 
        the Senate.
            (3) A final decision in the action shall be reviewable only 
        by appeal directly to the Supreme Court of the United States. 
        Such appeal shall be taken by the filing of a notice of appeal 
        within 10 days, and the filing of a jurisdictional statement 
        within 30 days, of the entry of the final decision.
            (4) It shall be the duty of the United States District 
        Court for the District of Columbia and the Supreme Court of the 
        United States to advance on the docket and to expedite to the 
        greatest possible extent the disposition of the action and 
        appeal.

                          Purpose and Summary

    H.R. 157, the ``District of Columbia House Voting Rights 
Act of 2009,'' will provide the District of Columbia with a 
Representative in the U.S. House of Representatives. The bill 
permanently increases the U.S. House of Representatives from 
435 to 437 seats, providing one of those seats to the District 
of Columbia, and the other to Utah, as the State that would 
have been next entitled to an additional Congressional 
representative based on the 2000 Census. The seats for the 
District of Columbia and Utah will be implemented in the One 
Hundred Twelfth Congress, and Utah's seat will be at large 
during that Congress. In the One Hundred Thirteenth Congress, 
the at-large seat will be become a single-Member district, like 
the other 436, based on the reapportionment and redistricting 
that will follow the 2010 Census.

                Background and Need for the Legislation

    Over half a million people living in the District of 
Columbia lack direct voting representation in the U.S. House of 
Representatives and U.S. Senate.\1\ For over 200 years, the 
District has been denied this voting representation in 
Congress--the very entity that has ultimate authority over all 
aspects of the city's legislative, executive, and judicial 
functions. The United States is the only democracy in the world 
that deprives the residents of its capital city voting 
representation in the national legislature.\2\ Essentially, 
citizens of every State have a vote regarding the laws that 
govern the District, while those living in the District itself 
do not.\3\
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    \1\ Dick Meyer, Mr. Obama, Give D.C. the Vote, Now, NPR.org, Jan. 
8, 2009, available at http://www.npr.org/templates/story/
story.php?storyId=99096356.
    \2\ Rick Bress, Memorandum submitted to the U.S. House of 
Representatives, Committee on the Judiciary, Constitutionality of the 
D.C. Voting Rights Bill (March 2006).
    \3\ Id.
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    Residents of the District of Columbia pay billions of 
dollars in Federal taxes each year.\4\ They must also register 
for selective service, serve on Federal juries, and assume 
other responsibilities of U.S. citizenship.\5\ Ironically, many 
District residents work for the Federal Government and are 
members of the armed services. District residents have defended 
the United States in war since the District was created. More 
than 192,000 District residents have participated in World War 
I and subsequent wars. Over 1,600 District residents have made 
the ultimate sacrifice for their country.\6\
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    \4\ Mark David Richards, PhD, 10 Myths About Washington, DC, Nov. 
2002, available at http://www.dcvote.org/pdfs/10MythsAboutDC.pdf.
    \5\ Letter from Wade Henderson, Leadership Conference on Civil 
Rights President & CEO and Nancy Zirkin, Leadership Conference on Civil 
Rights Vice President & Director of Public Policy, to Members of 
Congress (April 18, 2007).
    \6\ DC Vote, DC Veterans Fact Sheet, available at http://
www.dcvote.org/pdfs/vets.pdf.
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    Yet despite such contributions, the United States denies 
democracy in its capital, even while it promotes democracy 
abroad. At a January 27, 2009, Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties hearing, U.S. 
Army National Guard Captain Yolanda Lee testified, ``[a]lthough 
I was proud to see the Iraqis exercise their right to vote for 
voting representatives in their new democracy, I could not vote 
for such a representative to the U.S. House of Representatives 
in our country.'' \7\
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    \7\ Testimony on H.R. 157, the ``District of Columbia House Voting 
Rights Act of 2009'': Hearing before the H. Subcomm. on the 
Constitution, Civil Rights & Civil Liberties, 111th Cong., 1st Sess. 
(2009) (statement of Yolanda Lee, U.S. Army Guard Captain of the 
District of Columbia National Guard).
---------------------------------------------------------------------------
    Many Americans realize the great injustice of denying U.S. 
citizens living in the Nation's Capital representation in 
Congress. A recent poll indicates six in ten Americans support 
a voting Representative for the residents of the District of 
Columbia.\8\ Support for the District of Columbia House Voting 
Rights Act of 2009, H.R 157, in particular is significant and 
diverse. The Leadership Conference on Civil Rights (LCCR), with 
55 of its coalition members, wrote to urge prompt Congressional 
consideration of H.R. 157.\9\ In a letter to Congress, 25 
prominent legal scholars stated their concensus belief that 
``Congress has the power through `simple' legislation to 
provide voting representation in Congress for DC residents.'' 
\10\
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    \8\ Shannon N. Geis and Gary Langer, Six in 10 Americans Say Aye To 
a D.C. Vote in Congress, ABC News, Feb. 24, 2009.
    \9\ Letter from the Leadership Conference on Civil Rights to the 
Honorable Nancy Pelosi, Speaker of the U.S. House of Representatives 
(Jan. 14, 2009).
    \10\ Letter from Sheryll D. Cashin, Georgetown University Law 
Center Professor, et al. to Members of Congress (Mar. 12, 2007).
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    The lack of representation for District residents also 
resonates with the international community. As Leadership 
Conference on Civil Rights President and CEO Wade Henderson 
testified, the ``situation will also undermine our Nation's 
moral high ground in promoting democracy and respect for human 
rights in other parts of the world.'' \11\ Before the United 
Nations Committee on Human Rights, Timothy Cooper of 
Worldrights spoke to the ``oldest continuing human rights 
violations taking place in the United States today,'' \12\ 
citing findings by the Organization for Security and Co-
operation in Europe (OSCE) and the Inter-American Commission on 
Human Rights (IACHR) that the District's status is a violation 
of international law.\13\
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    \11\ Testimony on H.R. 157, the ``District of Columbia House Voting 
Rights Act of 2009'': Hearing before the H. Subcomm. on the 
Constitution, Civil Rights & Civil Liberties, 111th Cong., 1st Sess. 
(2009) (statement of Wade Henderson, President & CEO of the Leadership 
Conference on Civil Rights).
    \12\ Timothy Cooper, Intervention Before the U.N. Committee on 
Human Rights on Equal 
D.C. Voting Rights, July 10, 2006, available at http://www.world-
rights.org/pdf/un_
committee_statement_2006.pdf.
    \13\ Id.
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    There is no sound explanation as to why District residents 
have been disenfranchised since the District was formally 
established on December 1, 1800 under the Act of 1790.\14\ The 
Constitution and the Organic Act of 1801 \15\ are completely 
silent on the question of Congressional representation for 
District residents; they neither provide nor deny 
representation for them. While there is no evidence that the 
Framers intended to deny voting representation for District 
residents, the Framers did provide the Congress with absolute 
authority over the District, broad enough to rectify such a 
problem. Professor Viet D. Dinh explains, ``[t]here are no 
indications, textual or otherwise, to suggest that the Framers 
intended that congressional authority under the District 
Clause, extraordinary and plenary in all respects, would not 
extend also to grant District residents representation in 
Congress.'' \16\
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    \14\ Act of July 16, 1790, ch. 28, 1 Stat. 130.
    \15\ Organic Act of 1801, ch. 15, 2 Stat. 103.
    \16\ Testimony on H.R. 157, the ``District of Columbia House Voting 
Rights Act of 2009'': Hearing before the H. Subcomm. on the 
Constitution, Civil Rights & Civil Liberties, 111th Cong., 1st Sess. 
(2009) (statement of Professor Viet D. Dinh, Georgetown University Law 
Center Professor).
---------------------------------------------------------------------------
    Professor Dinh also points out that during 1790-1800, 1790 
being the year in which Maryland and Virginia ceded land to the 
Federal Government for the creation of the capital city, and 
1800 being the year in which the Federal Government assumed 
control over the District, District residents were able to vote 
in Congressional elections in Maryland and Virginia. He says, 
``The actions of this first Congress, authorizing District 
residents to vote in congressional elections of the ceding 
States, thus demonstrate the Framers' belief that Congress may 
authorize by statute representation for the district.'' \17\ It 
was in 1788 that James Madison wrote in the Federalist Papers 
that ``the rights and the consent of the citizens inhabiting 
[the District]'' would ``no doubt'' be protected and that 
District residents would have ``their voice in the election of 
the government which is to exercise authority over them.'' \18\ 
As Senator Orrin Hatch has noted, ``America's founders prized 
the franchise as central to the political system they were 
establishing,'' \19\ so it seems unlikely that the Founders 
would have intentionally denied any Americans the right to 
participate in this new democracy.
---------------------------------------------------------------------------
    \17\ Id.
    \18\ James Madison, The Federalist No. 43, N.Y. Independent Journal 
(Jan. 23, 1788).
    \19\ Senator Orrin G. Hatch, ``No Right is More Precious in a Free 
Country'': Allowing Americans in the District of Columbia to 
Participate in National Self-Government, 45 Harvard J. on Legislation 
287, 290 (2008).
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            CONGRESS'S CONSTITUTIONAL AUTHORITY TO PROVIDE 
              CONGRESSIONAL REPRESENTATION TO THE DISTRICT

    Article I, section 8, clause 17--the ``District Clause''--
provides Congress with the authority to provide the District 
with full representation in the U.S. House of Representatives. 
The District Clause provides:

        ``The Congress shall have Power . . . To exercise 
        exclusive Legislation in all cases whatsoever, over 
        such District (not exceeding ten Miles square) as may, 
        by Cession of particular States, and the Acceptance of 
        Congress, become the Seat of the Government of the 
        United States. . . .'' \20\
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    \20\ U.S. Const., Art. I, Sec. 8, cl. 17.

    Testifying before the House Government Reform Committee on 
June 23, 2004, Mr. Kenneth Starr, former U.S. Solicitor General 
and Judge for the U.S. Court of Appeals for the D.C. Circuit 
---------------------------------------------------------------------------
and current Dean of Pepperdine University School of Law, said:

        ``Congress's powers over the District are not limited 
        to simply those powers that a State legislature might 
        have over a State. As emphasized by the Federal courts 
        on numerous occasions, the Seat of Government Clause is 
        majestic in scope. In the words of the Supreme Court, 
        ``[t]he object of the grant of exclusive legislation 
        over the [D]istrict was, therefore, national in the 
        highest sense. . . . In the same article which granted 
        the powers of exclusive legislation . . . are conferred 
        all the other great powers which make the nation.'' 
        (quoting O'Donoghue v. United States, 289 US 516, 539-
        540 (1933)). And my predecessors on the D.C. Circuit 
        Court of Appeals once held that Congress can ``provide 
        for the general welfare of citizens within the District 
        of Columbia by any and every act of legislation which 
        it may deem conducive to that end.'' \21\
---------------------------------------------------------------------------
    \21\ Testimony on Common Sense Justice for the Nation's Capital: An 
Examination of Proposals to Give D.C. Residents Direct Representation: 
Hearing on H.R. 5388 before the H. Comm. on Government Reform, 108th 
Cong. (2004). (statement of the Hon. Kenneth W. Starr, former U.S. 
Solicitor General and Judge for the U.S. Court of Appeals for the D.C. 
Circuit).

    Ample case law substantiates Dean Starr's claim that ``the 
Seat of Government Clause is majestic in scope.'' \22\ Neild v. 
District of Columbia holds that the District Clause is 
``sweeping and inclusive in character.'' \23\ United States v. 
Cohen finds that Congress has ``extraordinary and plenary 
power'' over the District.\24\ Even in Adams v. Clinton, in 
which the U.S. District Court for the District of Columbia held 
that District residents do not have a judicially cognizable 
right to Congressional representation, as the District is not a 
State under article I, section 2,\25\ the court found that ``if 
[the plaintiffs] are to obtain [relief], they must plead their 
cause in other venues.'' \26\ The court stated that counsel for 
defendant House officials acknowledged that ``only 
congressional legislation or constitutional amendment can 
remedy plaintiffs' exclusion from the franchise.'' \27\ This 
holding implies that Congress is enabled, through the District 
Clause, to provide the District with Congressional 
representation through simple legislation.
---------------------------------------------------------------------------
    \22\ Id.
    \23\ 110 F.2d 246, 249 (D.C. App. 1940).
    \24\ 733 F.2d 128, 140 (D.C. Cir. 1984).
    \25\ 90 F. Supp. 2d 35, 55-56 (D.D.C. 2000).
    \26\ Id. at 72.
    \27\ Id. at 40.
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    A statement from the American Bar Association, the largest 
voluntary professional membership organization in the world, 
quoting then Representative Tom Davis, states that use of the 
District Clause has never been struck down when affording 
District residents the same rights and privileges that other 
U.S. citizens enjoy, and that ``there is no reason to think 
that [the courts] would act differently in this case.'' \28\ 
Furthermore, there are distinctions to be made between Adams v. 
Clinton and Michel v. Anderson,\29\ the current precedent on 
District of Columbia voting rights. The Congressional Research 
Service (CRS) reports that, ``The argument has been made, 
however, that the Adams case . . . can be distinguished from 
the instant question--whether Congress has power to grant the 
District a voting representative in Congress.'' \30\ CRS also 
reasons, ``[a]rguably, the court [in Michel] did not consider 
the issue of whether the Congress as a whole would have had the 
authority to provide for representation for the District of 
Columbia under the District Clause. Under this line of 
reasoning, the power of the Congress over the District may 
represent a broader power than the power of the House to set 
its own rules.'' \31\
---------------------------------------------------------------------------
    \28\ Testimony on H.R. 5388, the ``District of Columbia Fair and 
Equal House Voting Rights Act'': Hearing before the H. Subcomm. on the 
Constitution, 109th Cong., 2nd Sess. (2006) (statement of the American 
Bar Association).
    \29\ 817 F. Supp. 126 (D.D.C. 1993). In Michel v. Anderson, the 
U.S. District Court for the District of Columbia determined that 
providing nonvoting Delegates with the ability to vote in the Committee 
of the Whole of the House of Representatives through House Rules did 
not violate the U.S. Constitution.
    \30\ Kenneth R. Thomas, Congressional Research Service (CRS) 
Report, The Constitutionality of Awarding the Delegate for the District 
of Columbia a Vote in the House of Representatives or the Committee of 
the Whole'' (January 24, 2007) at 7.
    \31\ Id. at 8.
---------------------------------------------------------------------------
    The Supreme Court first recognized Congress's plenary 
authority over the District in 1805. In Hepburn v. Ellzey,\32\ 
the Supreme Court held that diversity jurisdiction did not 
exist between the District and Virginia, as article III, 
section 2 of the U.S. Constitution provides that diversity 
jurisdiction only exists ``between citizens of different 
States.'' \33\ The Court explained, however, that ``this is a 
subject for legislative, not for judicial consideration,'' \34\ 
clarifying Congress's authority to enact legislation extending 
diversity jurisdiction to the District.\35\ Congress went on to 
enact such a statute, which, when later challenged in National 
Mutual Insurance Co. of the District of Columbia v. Tidewater 
Co., was upheld based on Congress's article I power to 
legislate for the District.\36\
---------------------------------------------------------------------------
    \32\ 6 U.S. 445 (1805).
    \33\ U.S. Const., Art. III, Sec. 2 (emphasis added).
    \34\ This opinion in Hepburn provides the foundation for the 
opinion in Adams. Both courts recognized the ability of the Congress to 
act through legislation where the Judiciary was unable to act through 
an order.
    \35\ 6 U.S. 445, 453 (1805).
    \36\ National Mutual Ins. Co. of the District of Columbia v. 
Tidewater Co., 337 U.S. 582, 589 (1949).
---------------------------------------------------------------------------
    Tidewater thus substantiates that the District Clause can 
be used to grant District residents Constitutional rights and 
status provided in the text of the Constitution to citizens of 
the States. As such, while article I, section 2 provides for 
the election of Members of the House of Representatives by the 
``people of the several States,'' \37\ Congress is not 
precluded from providing the District with the opportunity to 
elect a U.S. House Representative. Significantly, five of the 
justices in Tidewater ascribed to the view either that the 
District was a State under the terms of the Constitution, or 
that the Congress, through use of the District Clause, could 
treat the District like a State.\38\
---------------------------------------------------------------------------
    \37\ U.S. Const., Art. I, Sec. 2.
    \38\ 337 U.S. 582, 589 (1949).
---------------------------------------------------------------------------
    Aside from diversity jurisdiction, use of the District 
Clause has always been upheld, even when conferring on the 
District other Constitutional rights and obligations that are 
provided in the text of the Constitution to the States. 
Congress treating the District as a State for purposes of 
alcohol regulation under the Alcoholic Beverage Control Act, 
for example, was upheld as in accordance with the 21st 
amendment in Milton S. Kronheim & Co. Inc. v. District of 
Columbia.\39\ The District is also treated like a State for 
purposes of Federal income taxation under the 16th 
amendment,\40\ for purposes of affording 11th amendment 
immunity to the Washington Metropolitan Area Transit 
Authority,\41\ for purposes of Federal regulation of commerce 
in the District consistent with the article I, section 8, 
clause 3 Commerce Clause,\42\ and for purposes of providing 
District residents with the right to a jury trial under the 
sixth amendment.\43\
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    \39\ 91 F.3d 193 (D.C. Cir. 1996).
    \40\ U.S. Const., Amend. XVI.
    \41\ Clarke v. Wash. Metro. Area Transit Auth., 654 F. Supp. 712 
(D.D.C. 1985), aff'd, 808 F.2d 137 (D.C. Cir. 1987).
    \42\ Stoutenburgh v. Hennick, 129 U.S. 141 (1889)).
    \43\ Callan v. Wilson, 127 U.S. 540 (1888).
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    There are a number of other instances of the Congress using 
the District Clause to treat the District like a State. In 
Palmore v. United States,\44\ for example, the Supreme Court 
upheld Congress's designation of the District of Columbia Court 
of Appeals as the ``highest court of a State'' for purposes of 
Supreme Court review of final State court judgments. District 
residents are also treated like State residents for purposes of 
civil actions for deprivation of rights,\45\ and crime victim 
assistance programs,\46\ among other examples.
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    \44\ 411 U.S. 389 (1973).
    \45\ 42 U.S.C. Sec. 1983.
    \46\ 42 U.S.C. Sec. 10603(d)(1).
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            CONGRESS'S CONSTITUTIONAL AUTHORITY TO MANDATE 
                       A TEMPORARY AT-LARGE SEAT

    The permanent increase in the U.S. House of Representatives 
from 435 to 437 seats in H.R. 157 means that, in addition to 
the District, the State next in line to increase its 
Congressional delegation, which is Utah, is entitled to a seat, 
as provided for in section 3 of H.R. 157.\47\ According to 2000 
Census data, Utah is the State next in line to increase its 
delegation,\48\ having missed the seat following the 2000 
Census by just 856 people.\49\ Utah Governor Jon Huntsman 
strongly supports ``granting one seat to the District of 
Columbia and the other to Utah, the state that should have 
received an additional seat in the wake of the 2000 Census.'' 
\50\ Governor Huntsman also ``welcome[s] the fact that, if the 
legislation passes, Utah's new seat would be elected on an at-
large basis (rather than from a specific district) until 
2012,'' as redistricting is ``always a difficult, time-
consuming, and politically costly process.'' \51\ Importantly, 
Congress has the Constitutional authority to require that 
Utah's seat be at-large temporarily.
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    \47\ H.R. 157, 111th Cong. (2009).
    \48\ See U.S. Dept. of Commerce, U.S. Census Bureau, Census 2000 
Apportionment Data (Dec. 28, 2000), available at http://www.census.gov/
population/www/cen2000/maps/files/tab01.pdf.
    \49\ Election Data Services, Inc., Next Six Seats Not Awarded with 
Number of People Missed By, Provided by the U.S. Census Bureau (on file 
with the H. Comm. on the Judiciary).
    \50\ Letter from the Honorable John M. Huntsman, Jr., Governor of 
Utah, to the Honorable John Conyers, Jr., Committee on the Judiciary 
Chairman (Jan. 26, 2009).
    \51\ Testimony on H.R. 5388, the ``District of Columbia Fair and 
Equal House Voting Rights Act of 2006'': Hearing before the H. Subcomm. 
on the Constitution, Civil Rights & Civil Liberties, 109th Cong., 2nd 
Sess. (2006) (statement of the Honorable John M. Huntsman, Jr, Governor 
of Utah).
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    Article I, section 4 of the Constitution provides:

        The Times, Places and Manner of holding Elections for 
        Senators and Representatives, shall be prescribed in 
        each State by the Legislature thereof; but the Congress 
        may at any time by Law make or alter such Regulations, 
        except as to the Places of [choosing] Senators.

    In interpreting article I, the Supreme Court has determined 
that the Constitution gives Congress broad authority to 
regulate national elections. In Oregon v. Mitchell,\52\ Justice 
Black wrote, ``[i]n the very beginning the responsibility of 
the States for setting the qualifications of voters in 
congressional elections was made subject to the power of 
Congress to make or alter such regulations, if it deemed 
advisable to do so.'' \53\ In 2004, in Vieth v. Jubelirer, 
Justice Scalia noted that ``article I, section 4, while leaving 
in State legislatures the initial power to draw districts for 
Federal elections, permitted Congress to `make or alter' those 
districts if it wished.'' \54\
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    \52\ 400 U.S. 112 (1970).
    \53\ Id. at 119.
    \54\ 541 U.S. 267, 275 (2004).
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    Given this broad authority to regulate Federal elections, 
Congress has the ability to mandate that Utah's fourth seat be 
an at-large seat through the year 2012. CRS concludes that 
``Congress has ultimate authority over most aspects of the 
congressional election process'' and that ``congressional power 
is at its most broad in the case of House elections.'' \55\ As 
such, Congress has the constitutional authority to temporarily 
mandate an at-large seat for Utah, notwithstanding the general 
statutory requirement in 2 U.S.C. 2(c) that Members run from 
single-member districts rather than at-large districts.\56\
---------------------------------------------------------------------------
    \55\ L. Paige Whitaker and Kenneth R. Thomas, Congressional 
Research Service (CRS) Memorandum, Constitutionality of Congress 
Creating an At-Large Seat for a Member of Congress'' (June 5, 2006) at 
1-2.
    \56\ 2 U.S.C. 2(c).
---------------------------------------------------------------------------
    Additionally, a temporary at-large seat in Utah is 
consistent with the ``one person, one vote'' principle. The 
U.S. Supreme Court has held that the U.S. Constitution requires 
that each Congressional district in a State contain equal 
population.\57\ The Court has held that article I, section 2 of 
the Constitution requires that ``as nearly as is practicable, 
one man's vote in a congressional election is to be worth as 
much as another's.'' \58\ In Utah, all voters will have the 
opportunity to vote both for a candidate to represent his or 
her congressional district and a candidate to represent the 
State at-large, ``thereby comporting with the one person, one 
vote principle.'' \59\
---------------------------------------------------------------------------
    \57\ See Wesberry v. Sanders, 376 U.S. 1 (1864).
    \58\ Id. at 18.
    \59\ L. Paige Whitaker and Kenneth R. Thomas, Congressional 
Research Service Memorandum, Constitutionality of Congress Creating an 
At-Large Seat for a Member of Congress'' (June 5, 2006) at 4.
---------------------------------------------------------------------------

                                Hearings

    The Subcommittee on the Constitution, Civil Rights, and 
Civil Liberties held one day of hearings on H.R. 157 on January 
27, 2009. On the first panel, testimony was received from House 
Majority Leader Steny Hoyer (D-MD), former Representative Tom 
Davis (R-VA), Representative Jason Chaffetz (R-UT), and (4) 
Representative Louie Gohmert (R-TX).
    On the second panel, testimony was received from Mr. Wade 
Henderson, President and CEO of the Leadership Conference on 
Civil Rights (LCCR); Ms. Yolanda Lee, U.S. Army Guard Captain 
of the District of Columbia National Guard; Mr. Viet Dinh, 
Professor of Law at the Georgetown University Law Center, and 
former U.S. Assistant Attorney General for Legal Policy from 
2001 to 2003; and Mr. Jonathan Turley, J.B. and Maurice Shapiro 
Professor of Public Interest Law at the George Washington 
University Law School.

                        Committee Consideration

    On February 25, 2009, the Committee met in open session and 
ordered the bill H.R. 157 favorably reported, by a vote of 20 
to 12, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 157.
    1. An amendment offered by Mr. Smith, to the amendment in 
the nature of a substitute offered by Mr. Nadler and Mr. 
Conyers, providing for intervention and standing by Members of 
Congress in any action challenging the constitutionality of 
H.R. 157. The amendment failed by a vote of 15 to 15.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen.......................................................
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Ms. Wasserman Schultz...........................................
Mr. Maffei......................................................                              X
[Vacant]........................................................
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................              X
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             15              15
----------------------------------------------------------------------------------------------------------------

    2. An amendment offered by Mr. Sensenbrenner to the 
amendment in the nature of a substitute, requiring Utah to 
redistrict into four single-member districts. The amendment 
failed by a vote of 9 to 19.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Mr. Cohen.......................................................
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Gutierrez...................................................                              X
Mr. Sherman.....................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
[Vacant]........................................................
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................
Mr. King........................................................
Mr. Franks......................................................
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................              9              19
----------------------------------------------------------------------------------------------------------------

    3. A motion to table the appeal of the ruling of the chair 
that an amendment offered by Mr. Chaffetz to amend the 
amendment in the nature of a substitute, repealing the Office 
of the District of Columbia Delegate, is non-germane. The 
motion to table was agreed to by a vote of 17 to 11.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................              X
Ms. Baldwin.....................................................              X
Mr. Gonzalez....................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Maffei......................................................              X
[Vacant]........................................................
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Issa........................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Rooney......................................................
Mr. Harper......................................................
                                                                 -----------------------------------------------
    Total.......................................................             17              11
----------------------------------------------------------------------------------------------------------------

    4. An amendment offered by Mr. Issa to the amendment in the 
nature of a substitute, increasing the U.S. House of 
Representatives to 436, providing a seat only for the District 
of Columbia, and eliminating the additional seat for Utah. The 
amendment failed by a vote of 12 to 20.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Gutierrez...................................................                              X
Mr. Sherman.....................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
[Vacant]........................................................
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................              X
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             12              20
----------------------------------------------------------------------------------------------------------------

    5. An amendment offered by Mr. Chaffetz to the amendment in 
the nature of a substitute, providing that H.R. 157 cannot be 
construed to suggest that the District of Columbia should have 
Senate representation. The amendment failed by a vote of 12 to 
18.

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................                              X
Mr. Gutierrez...................................................                              X
Mr. Sherman.....................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................
[Vacant]........................................................
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             12              18
----------------------------------------------------------------------------------------------------------------

    6. An amendment in the nature of a substitute to H.R. 157 
offered by Mr. Nadler and Mr. Conyers. The amendment was agreed 
to by a vote of 24 to 5.

                                                   ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Gutierrez...................................................              X
Mr. Sherman.....................................................
Ms. Baldwin.....................................................              X
Mr. Gonzalez....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Maffei......................................................
[Vacant]........................................................
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Rooney......................................................
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             24               5
----------------------------------------------------------------------------------------------------------------

    7. H.R. 157 was ordered favorably reported by a vote of 20 
to 12.

                                                   ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Gutierrez...................................................              X
Mr. Sherman.....................................................              X
Ms. Baldwin.....................................................              X
Mr. Gonzalez....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Maffei......................................................              X
[Vacant]........................................................
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Issa........................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Rooney......................................................
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             20              12
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 157, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 27, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 157, the 
``District of Columbia House Voting Rights Act of 2009.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable Lamar S. Smith.
        Ranking Member
H.R. 157--District of Columbia House Voting Rights Act of 2009.

                                SUMMARY

    H.R. 157 would expand the number of Members in the House of 
Representatives from 435 to 437 beginning with the 112th 
Congress. The legislation would provide the District of 
Columbia with one Representative and add one new at-large 
Member. Under H.R. 157, the new at-large seat would likely be 
assigned to a State based on information from the 2000 census 
and then be reallocated based on the next Congressional 
apportionment following the 2010 census (which would occur 
prior to the start of the 113th Congress).
    The legislation's effects on direct spending over the 2009-
2013 and 2009-2018 periods are relevant for enforcing pay-as-
you-go rules under the current budget resolution. CBO estimates 
that enacting this legislation would increase direct spending 
by about $1 million over the five-year period from 2009 through 
2013 and by about $4 million over the 2009-2018 period. 
Implementing the bill would increase discretionary costs by 
about $2 million in 2011 and about $12 million over the 2011-
2014 period, assuming the availability of appropriated funds.
    H.R. 157 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA), but CBO estimates 
that the costs would not be significant and would not exceed 
the threshold established in UMRA ($69 million in 2009, 
adjusted annually for inflation). The bill contains no private-
sector mandates as defined in UMRA.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 157 is shown in the 
following table. The costs of this legislation fall within 
budget function 800 (general government).

                                                         By Fiscal Year, in Millions of Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           2010-   2010-
                                                              2009   2010   2011   2012   2013   2014   2015   2016   2017   2018   2019   2014    2019
--------------------------------------------------------------------------------------------------------------------------------------------------------

CHANGES IN DIRECT SPENDING
Salaries and Benefits
  Estimated Budget
    Authority                                                    0      0      *      *      *      *      *      *      1      1      1       2       5
  Estimated
    Outlays                                                      0      0      *      *      *      *      *      *      1      1      1       2       5

CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Office and Administrative
Expenses
  Estimated Authorization
    Level                                                        0      0      2      3      3      4      4      4      4      4      4      12      32
  Estimated
    Outlays                                                      0      0      2      3      3      4      4      4      4      4      4      12      32
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.

                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that the bill will be 
enacted during 2009 and that spending will follow historical 
patterns of spending by Congressional offices.
    The legislation would permanently expand the number of 
Members in the House of Representatives by two to 437. One new 
Member would represent the District of Columbia and the other 
would likely be a Representative at-large for the State of Utah 
until the next apportionment based on the 2010 census. The 
District currently has a nonvoting delegate to the House of 
Representatives (which would be retained under this 
legislation). Consequently, enacting H.R. 157 would increase 
costs for two new Members.
Direct Spending
    CBO estimates that the salaries and benefits of the two new 
representatives would increase direct spending by about $5 
million over the 2011-2019 period. We assume that the current 
Congressional salary of $174,000 would be adjusted in future 
years for anticipated inflation.
Spending Subject to Appropriation
    Based on the current allowances for administration and 
expenses available for Members and other typical costs for a 
Congressional office, CBO estimates that adding two new members 
would increase costs by about $3 million annually ($1.5 million 
per office, adjusted annually for inflation) and about $12 
million over the 2011-2014 period, subject to the availability 
of appropriated funds.

        ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

    H.R. 157 contains an intergovernmental mandate as defined 
in UMRA. Assuming that the additional Representative provided 
for in the bill is assigned to Utah, the bill would temporarily 
preempt laws in that State governing the election of Members of 
the House of Representatives. The bill would require Utah to 
elect an additional Member of the House using a statewide 
election. CBO estimates that the State would incur marginal 
costs to elect the additional Member in the 2010 election 
cycle, but those costs would not be significant and would not 
exceed the threshold established in UMRA ($69 million in 2009, 
adjusted annually for inflation.)

                 ESTIMATED IMPACT ON THE PRIVATE-SECTOR

    The legislation contains no private-sector mandates as 
defined in UMRA.

                         PREVIOUS CBO ESTIMATE

    On February 17, 2009, CBO transmitted a cost estimate for 
S. 160, the District of Columbia House Voting Rights Act of 
2009, as ordered reported by the Senate Committee on Homeland 
Security and Governmental Affairs on February 11, 2009. The two 
bills are similar in that they would permanently increase the 
number of Members of the House of Representatives, with those 
new Members coming from the District of Columbia and Utah. 
However, the House bill would not repeal the provisions of 
current law related to the delegate for the District of 
Columbia. The estimated costs of each bill reflect that 
difference.

                         ESTIMATE PREPARED BY:

Federal Costs: Matthew Pickford
Impact on State, Local, and Tribal Governments: Elizabeth Cove 
    Delisle
Impact on the Private Sector: Paige Piper/Bach

                         ESTIMATE APPROVED BY:

Theresa Gullo
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
157 will provide the District of Columbia with full 
representation in the U.S. House of Representatives.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 17 of the 
Constitution and article I, section 4, clause 1.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 157 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Section 1. Short Title. This section designates the short 
title of H.R. 157 as the ``District of Columbia House Voting 
Rights Act of 2009.''
    Section 2. Treatment of District of Columbia as 
Congressional District. This section provides that the District 
of Columbia shall be considered a Congressional District for 
purposes of representation in the House of Representatives, 
beginning in the 112th Congress.
    Section 3. Increase in the Membership of House of 
Representatives. This section permanently increases the number 
of Members in the U.S. House of Representatives from 435 to 
437. The District of Columbia would receive one of those seats, 
the same as if it were a State, and Utah would receive the 
other seat, as the State next in line for a seat based on the 
2000 Census apportionment formula. In future reapportionments, 
the allocation of Congressional seats will be based on 437 as 
opposed to 435, with the apportionment among the States and the 
District of Columbia based on population, with each State, and 
the District, entitled to at least one seat. This section also 
provides that for the 112th Congress only, the seat Utah will 
receive is to be an at-large seat.
    Section 4. Nonseverability of Provisions. This section 
provides that if any provision of this Act is held invalid or 
unenforceable, the entire Act will be deemed invalid or 
unenforceable. As such, no provision of this Act will be 
effective unless the entire bill is. And no provision of the 
bill will be enjoined without the entire bill being likewise 
enjoined.
    Section 5. Expedited Judicial Review. This section provides 
for expedited judicial review in the United States District 
Court for the District of Columbia for any challenge to the 
constitutionality of this Act. The District Court's decision 
will be reviewable only by appeal directly to the United States 
Supreme Court.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                          ACT OF JUNE 18, 1929

                           (Public Law 71-28)

 AN ACT To provide for the fifteenth and subsequent decennial censuses 
    and to provide for apportionment of Representatives in Congress.

           *       *       *       *       *       *       *
    Sec. 22. (a) On the first day, or within one week 
thereafter, of the first regular session of the Eighty-second 
Congress and of each fifth Congress thereafter, the President 
shall transmit to the Congress a statement showing the whole 
number of persons in each State, excluding Indians not taxed, 
as ascertained under the seventeenth and each subsequent 
decennial census of the population, and the number of 
Representatives to which each State would be entitled under an 
apportionment of [the then existing number of Representatives] 
the number of Representatives established with respect to the 
One Hundred Twelfth Congress by the method known as the method 
of equal proportions, no State to receive less than one Member.

           *       *       *       *       *       *       *

    (d) This section shall apply with respect to the District 
of Columbia in the same manner as this section applies to a 
State.
                              ----------                              

                SECTION 3 OF TITLE 3, UNITED STATES CODE

Sec. 3. Number of electors

    The number of electors shall be equal to the number of 
Senators and Representatives to which the several States are by 
law entitled at the time when the President and Vice President 
to be chosen [come into office;] come into office (subject to 
the twenty-third article of amendment to the Constitution of 
the United States in the case of the District of Columbia); 
except, that where no apportionment of Representatives has been 
made after any enumeration, at the time of choosing electors, 
the number of electors shall be according to the then existing 
apportionment of Senators and Representatives.

                            Dissenting Views

    We all agree that residents of the District of Columbia are 
entitled to representation in Congress, and we are committed to 
that goal. We also all agree that such representation must 
occur by constitutional means. For that reason, we regretfully 
oppose H.R. 157.
    H.R. 157 would, by statute, attempt to create a full-
fledged Member of Congress to represent the District of 
Columbia. The bill would also grant one additional Member to 
the state next in line to receive a new Member based on its 
population growth. According to the U.S. Census Bureau's 
figures, that state would be Utah. The bill would also 
permanently increase the size of the House to include 437 
Members. The bill also contains a ``non-severability'' clause, 
such that if any of the provisions of the bill are struck down, 
the entire bill will be rendered invalid.
    The bill, however, would not abolish the position of 
Delegate for the District of Columbia (Delegate Eleanor Holmes 
Norton's current position). As a result, if the bill as 
introduced were enacted D.C. residents would be represented by 
both a voting Member of Congress who could vote in committee 
and on the House floor, and also a D.C. Delegate who could vote 
in committee. Consequently, D.C. residents would get more 
representation in Congress than any other American citizens 
because both the D.C. Member and the D.C. Delegate would be 
able to vote in committee, giving D.C. residents more power in 
committee than the residents of any other state.
    We oppose this legislation because it contains profound 
constitutional and policy flaws, which are described in detail 
below.

               H.R. 157 HAS PROFOUND CONSTITUTIONAL FLAWS

    Professor Jonathan Turley of the George Washington 
University Law School, who supports voting rights for D.C. 
residents, called the same legislation last Congress ``the most 
premeditated unconstitutional act by Congress in decades.'' \1\
---------------------------------------------------------------------------
    \1\ Jonathan Turley, Statement for the Record, Legislative Hearing 
on H.R. 1433, the ``District of Columbia House Voting Rights Act of 
2007'' (March 14, 2007) before the House Constitution Subcommittee.
---------------------------------------------------------------------------
    The actual creation of the District of Columbia occurred 
during the First Congress, when that body accepted \2\ the 
cessions of Maryland and Virginia. From 1780 until the capital 
officially moved to the District of Columbia in December 1800, 
the residents of the District were able to vote for the 
representatives of the states from which they had been ceded. 
Once the District was formally adopted as the seat of 
government, the residents of the District ceased to have voting 
representation in Congress.
---------------------------------------------------------------------------
    \2\ Act of July 16, 1790, Ch. 28, 1 Stat. 130.
---------------------------------------------------------------------------
    Supporters of the bill claim Congress has the authority to 
enact H.R. 157 under Article I, Section 8, clause 17 of the 
Constitution (``the District Clause''), which states ``The 
Congress shall have power . . . To exercise exclusive 
Legislation in all Cases whatsoever, over such District (not 
exceeding ten Miles square) as may, by Cession of particular 
States, and the Acceptance of Congress, become the Seat of the 
Government of the United States . . .'' \3\ However, that very 
clause also makes clear that D.C. is not a State (it is a 
specially-created ``District''), and Article I, Section 2 of 
the Constitution's first sentence makes clear that ``The House 
of Representatives shall be composed of Members chosen every 
second year by the people of the Several States . . .'' Since 
D.C. is not a State, it cannot have a voting Member in the 
House.
---------------------------------------------------------------------------
    \3\ Proponents of this legislation, including Ken Starr, Viet Dinh, 
and Adam Charnes maintain that the District Clause gives Congress 
plenary authority to grant additional Members to the District of 
Columbia. See Testimony of the Hon. Kenneth W. Starr Before the House 
Government Reform Committee, at 1 (June 23, 2004), reprinted in H.R. 
Rep. No. 109-593, at 34 (2006); Viet D. Dinh & Adam H. Charnes, The 
Authority of Congress to Enact Legislation to Provide the District of 
Columbia with Voting Representation in the House of Representatives, at 
9 (2004), reprinted in H.R. Rep. No. 109-593, at 50 (2006).
---------------------------------------------------------------------------
    The District was denied representation in the Constitution 
because it was feared that if the District received 
Congressional representation, the Members and Senators who 
represented the state that contained the Seat of Government 
would become disproportionately influential, to the detriment 
of the other States. It was also feared that, if the District 
were within the jurisdiction of a state, that state might 
refuse to protect the Seat of Government were a dispute to 
arise between federal and state interests.
    The rationale for this provision was set forth by James 
Madison in Federalist Paper No. 43, in which he stated:

        The indispensable necessity of complete authority at 
        the seat of government carries its own evidence with 
        it. It is a power exercised by every legislature of the 
        Union, I might say of the world, by virtue of its 
        general supremacy. Without it not only the public 
        authority might be insulted and its proceedings 
        interrupted with impunity, but a dependence of the 
        members of the general government on the State 
        comprehending the seat of the government for protection 
        in the exercise of their duty might bring on the 
        national councils an imputation of awe or influence 
        equally dishonorable to the government and 
        dissatisfactory to the other members of the 
        Confederacy.\4\
---------------------------------------------------------------------------
    \4\ The Federalist No. 43, at 240 (James Madison) (Clinton Rossiter 
ed., 1961).

    Indeed, in 1783, when the delegates to Congress met in 
Philadelphia, a group of veterans demanding back pay overran 
them. The Congressional delegates asked for the state militia 
to help protect them, but the state refused.\5\ Memories of 
that episode led the Founders to later put forth a Constitution 
that made the Seat of Government an exclusively federal 
enclave.
---------------------------------------------------------------------------
    \5\ Jonathan Turley, ``Too Clever by Half: The Unconstitutionality 
of Partial Representation of the District of Columbia in Congress,'' 76 
Geo. Wash. L. Rev. 305, 310 (2008).
---------------------------------------------------------------------------
    There is little question that the original rationale for 
denying D.C. residents Congressional representation has become 
outdated. America is much more populated today, and the power 
of the federal government over all the States has grown 
enormously, for better or worse, such that there is little 
cause for concern today that allowing Congressional 
representation to those who live in the residential parts of 
D.C. would significantly alter any balance of power. But the 
Constitution cannot be amended by statute. It must be amended 
through the formal Article V process of constitutional 
amendment or, in the alternative, the land that constitutes the 
residential sections of the District of Columbia could be 
returned to Maryland, by statute, through a process called 
retrocession, in which case the current residents of D.C. would 
become residents of Maryland and enjoy representation as 
citizens of that state.
    The fact is, statements to the contrary notwithstanding, 
that the Founders clearly understood the ratified Constitution 
to deny Congressional representation to D.C. Indeed, at the New 
York Constitutional Convention, Alexander Hamilton himself 
offered an amendment to the proposed Constitution that would 
have allowed District residents to secure representation in 
Congress once they grew to a reasonable size.\6\ On July 22, 
1788, Hamilton asked that the District Clause be amended to 
mandate that ``When the Number of Persons in the District of 
Territory to be laid out for the Seat of the Government of the 
United States, shall according to the Rule for the 
Apportionment of Representatives and direct Taxes Amount to 
[blank, a figure Hamilton sought to insert later] such District 
shall cease to be parcel of the State granting the Same, and 
Provision shall be made by Congress for their having a District 
Representation in that Body.'' \7\ But that amendment to the 
Constitution was rejected. Consequently, it is clear that the 
Framers considered and rejected granting Congressional 
representation to the District in the Constitution.
---------------------------------------------------------------------------
    \6\ 5 The Papers of Alexander Hamilton 189 (Harold C. Syrett & 
Jacob E. Cooke eds., 1962).
    \7\ Id. at 189.
---------------------------------------------------------------------------
    Subsequent generations reaffirmed that understanding in the 
Constitution yet again when the Twenty-Third Amendment was 
ratified on March 29, 1961. That Amendment grants District 
residents the right to vote for Presidential electors by 
granting the District ``A number of electors of President and 
Vice President equal to the whole number of Senators and 
Representatives in Congress to which the District would be 
entitled if it were a State . . .'' Clearly, the Constitution 
must be amended again if the District is to be treated as ``if 
it were a State'' for purposes of Congressional representation.
    The independent Congressional Research Service's own 
analysis concludes that H.R. 157 is facially unconstitutional, 
stating that the ``case law that does exist would seem to 
indicate that not only is the District of Columbia not a 
`state' for purposes of representation, but that congressional 
power over the District of Columbia does not represent a 
sufficient power to grant congressional representation.'' \8\
---------------------------------------------------------------------------
    \8\ Kenneth R. Thomas, Congressional Research Service, The 
Constitutionality of Awarding the Delegate for the District of Columbia 
a Vote in the House of Representatives or the Committee of the Whole, 
CRS-20 (2007), available at http://assets.opencrs.com/rpts/
RL33824_20070124.pdf (concluding).
---------------------------------------------------------------------------
    As Jonathan Turley has also written, ``It would be 
ridiculous to suggest that the delegates to the Constitutional 
Convention or ratification conventions would have worked out 
such specific and exacting rules for the composition of 
Congress, only to give the majority of Congress the right to 
create a new form of voting members from federal enclaves like 
the District. It would have constituted the realization of the 
worst fears for many delegates, particularly Anti-Federalists, 
to have an open-ended ability of the majority to manipulate the 
rolls of Congress and to use areas under the exclusive control 
of the federal government as the source for new voting 
members.'' \9\
---------------------------------------------------------------------------
    \9\ Jonathan Turley, ``Too Clever By Half: The Unconstitutionality 
of Partial Representation of the District of Columbia,'' 76 Geo. Wash. 
L. Rev. 305, 328 (2008).
---------------------------------------------------------------------------
    Insofar as the federal courts have already reviewed the 
issue presented by H.R. 157, the answer is clear. In 2000, a 
federal three-judge panel in D.C. itself stated ``We conclude 
from our analysis of the text that the Constitution does not 
contemplate that the District may serve as a state for purposes 
of the apportionment of congressional representatives.'' \10\ 
The Supreme Court affirmed that decision.\11\
---------------------------------------------------------------------------
    \10\ Adams v. Clinton, 90 F.Supp.2d 35, 50 (D.D.C. 2000).
    \11\ 531 U.S. 941 (2000).
---------------------------------------------------------------------------
    Supporters of H.R. 157 point for precedent to a case, 
called Tidewater, decided by the Supreme Court in 1949 \12\ 
that upheld a federal law extending the diversity jurisdiction 
of the federal courts to hear cases in which D.C. residents 
were parties. But as the Congressional Research Service stated 
in a recent report, ``The plurality opinion [in that case] took 
pains to note the limited impact of their holding . . . [T]he 
plurality specifically limited the scope of its decision to 
cases which did not involve an extension of any fundamental 
right,'' \13\ such as the right to vote for a Member of 
Congress.
---------------------------------------------------------------------------
    \12\ National Mutual Insurance Co. v. Tidewater, 337 U.S. 582 
(1949).
    \13\ Kenneth R. Thomas, CRS Report to Congress, RL33824, ``The 
Constitutionality of Awarding the Delegate for the District of Columbia 
a Vote in the House of Representatives or the Committee of the Whole'' 
(January 24, 2007) at 16.
---------------------------------------------------------------------------
    Further, if the 1949 Tidewater Supreme Court case does what 
proponents of the bill says it does, Congress would not have 
had to go through the trouble of passing a constitutional 
amendment to the States, which it did in 1978, that would have 
provided D.C. two Senators and a Representative. (That 
amendment failed to get the approval of three-quarters of the 
States over seven years.) \14\ The need for a constitutional 
amendment to accomplish what supporters of H.R. 157 seek to 
accomplish today was clear to Democrats the last time a serious 
push was made for D.C. representation. When the House Judiciary 
Committee, under the leadership of Democratic Chairman Peter 
Rodino in the 95th Congress, reported out a constitutional 
amendment to do what this bill purports to be able to do, the 
report accompanying that constitutional amendment stated the 
following: ``If the citizens of the District are to have voting 
representation in the Congress, a constitutional amendment is 
essential; statutory action alone will not suffice.'' \15\
---------------------------------------------------------------------------
    \14\ In 1978, Congress passed a constitutional amendment providing 
the District with full representation in both the House and Senate. The 
amendment then needed 38 of the 50 state legislatures to ratify it 
within seven years time. Ultimately, only 16 did so, and the amendment 
was rendered void. The following is a list of the 16 states that 
approved the amendment: New Jersey; Michigan; and Ohio in 1978; 
Minnesota; Massachusetts; Connecticut; and Wisconsin in 1979; Maryland 
and Hawaii in 1980; Oregon in 1981; Maine; West Virginia; and Rhode 
Island in 1983; Iowa; Louisiana; and Delaware in 1984.
    \15\ H. Rep. No. 95-886 (95th Cong., 2d Sess.) at 4.
---------------------------------------------------------------------------

                         H.R. 157 IS BAD POLICY

    Even conceding for purposes of argument the proponents of 
this bill's understanding of the vast breadth of the District 
Clause, the bill would actually set a terrible precedent for 
the manipulation of House and Senate membership, and be unfair 
to others.
    H.R. 157 requires us to ask what will happen in the future 
under the precedent it sets? Will future Congresses use this 
same authority to grant D.C. two, five, or ten or more Members, 
or Senators, when politically expedient? Will they then abolish 
those seats if the Members holding them vote ``the wrong way''? 
This bill invites political gamesmanship and manipulation of 
the District's representation.
    In fact, although this bill seeks only one House Member to 
represent the District, we have reason to believe its 
supporters have broader plans in mind. According to The 
Washington Post, the Mayor of D.C. claims to have had a private 
conversation with President Obama in which the President said 
he would support not only one House Member to represent D.C., 
but two Senators for D.C. as well. According to The Washington 
Post, ``[D.C. Mayor] Fenty (D), who endorsed Obama at the 
community center event in the summer of 2007, said Obama 
pledged in a private conversation to support `full voting 
rights.' That, the mayor added, has traditionally meant two 
senators and a representative.'' \16\ The Washington Post has 
similarly editorialized that ``[C]ity leaders could carefully 
explore other ways to provide greater democracy for the 
residents of the nation's capital, including ways to secure a 
voice in the Senate.'' \17\
---------------------------------------------------------------------------
    \16\ See David Nakamura, ``Backers Of Voting Rights Face Split: 
Some in District Don't Want to Settle For Just House Seat,'' The 
Washington Post (November 10, 2008) at B1.
    \17\ ``A New Chance for D.C.?'' The Washington Post (editorial) 
(November 6, 2008).
---------------------------------------------------------------------------
    But again, the false logic of the supporters of H.R. 157--
who say the District Clause allows Congress to pass legislation 
that trumps all other parts of the Constitution--does not stop 
at two Senators and one House Member for the District of 
Columbia. That false logic is infinitely expansive, as it also 
allows Congress to, by statute, grant D.C. dozens, even 
hundreds, of extra Senators if it wants to. If we follow that 
false logic even one step, it will invite future manipulations 
of voting rules and give the green light to future Congresses 
to add and subtract Member or Senators at its whim.
    The false logic of the supporters of H.R. 157, if 
legitimized by passage of this legislation, would also invite 
Congress to deny existing constitutional rights to D.C. 
residents in the future. Surely, under the false logic of the 
bill, if Congress can give voting rights to D.C. under the 
constitution by statute--and ignore other provisions of the 
Constitution in the process--then Congress can take rights away 
as well. Under the constitutional theory of proponents of this 
bill, Congress could, by statute, deny D.C. voters the 
protection from racial discrimination in voting afforded them 
under the Fifteenth Amendment, deny them the protections from 
discrimination in voting based on sex afforded them under the 
Nineteenth Amendment, and take away the right to vote to those 
over 18 as granted by the Twenty-Sixth Amendment. Again, this 
bill sets a very bad precedent by opening up the possibility of 
vast abuse.
    Under the false logic that underlies this bill, H.R. 157 
also arguably allows additional Congressional representation 
for men and women training for the military. The exact same 
Article I, Section 8, clause 17 of the Constitution, which 
supporters of this bill say gives Congress the authority to 
grant D.C. a Member of Congress by statute, grants the exact 
same authority to Congress to do the same thing for our men and 
women training for the military at Forts around the country. 
That very same clause of the Constitution states: ``The 
Congress shall have power . . . to exercise like Authority over 
all Places purchased by the Consent of the Legislature of the 
State in which the Same shall be, for the Erection of Forts, 
Magazines, Arsenals, Dockyards, and other needful Buildings; . 
. .'' So if the District Clause grants Congress the authority 
to grant D.C. a voting Member by statute, then it must also 
grant Congress the authority to give added representation in 
Congress to members of the military serving in federal enclaves 
used for military purposes. The false logic underlying H.R. 157 
invites a future Congress to do just that.

        AT-LARGE REPRESENTATION CONFLICTS WITH THE PRINCIPLE OF 
                        ``ONE PERSON, ONE VOTE''

    Another part of H.R. 157 that raises constitutional 
questions pertains to the allocation of an at-large seat to the 
State of Utah. Under the bill, each citizen of Utah will have a 
vote for their geographically designated representative as well 
as an additional vote for the at-large representative allocated 
by the bill.
    At-large districting had effectively ended by 1966, a mere 
two years after the Supreme Court announced its decision in 
Wesberry v. Sanders, in which it held that ``the command of Art 
I, Sec. 2, [of the Constitution] that Representatives be chosen 
`by the People of the Several States' means that as nearly as 
is practicable one man's vote in a congressional election is to 
be worth as much as another's.'' \18\ Over time, the Court 
interpreted this ``one person, one vote'' doctrine to mean that 
congressional districts within a state must be mathematically 
equal.\19\ While the at-large district in Utah will be three 
times as large as the state's three geographic districts, each 
voter within Utah will have the same voting power because they 
will have an equal vote for their geographic representative and 
an equal (albeit significantly diluted) vote for the at-large 
representative. Therefore, the allocation of an at large seat 
to Utah does not appear to present a ``one person, one vote'' 
problem in the traditional intrastate context.
---------------------------------------------------------------------------
    \18\ Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964).
    \19\ Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969).
---------------------------------------------------------------------------
    However, there is a question of whether H.R. 157's ``one 
person, two votes'' apportionment for Utah violates the ``one 
person, one vote'' constitutional imperative in the interstate 
context. The Supreme Court has held that Congress' 
apportionment power \20\ gives it the authority to allocate 
representatives to states in a manner that creates districts 
that are more than 40% larger than the national average for a 
congressional district.\21\ In according Congress ``far more 
deference [in apportionment] than a state districting 
decision,'' the Court acknowledged that Congressional 
alterations of the apportionment formula ``remain[] open to 
challenge . . . at any time.'' \22\
---------------------------------------------------------------------------
    \20\ U.S. Const. art. I, Sec. 2, cl. 3 (``The actual Enumeration 
shall be made within three Years after the first Meeting of the 
Congress of the United States, and within every subsequent Term of ten 
Years, in such Manner as [the House of Representatives] shall by Law 
direct. The Number of Representatives shall not exceed one for every 
thirty Thousand, but each State shall have at Least one 
Representative.'').
    \21\ U.S. Dept. of Commerce v. Montana, 503 U.S. 442, 463 (1992) 
(``Accordingly, although `common sense' supports a test requiring `a 
good-faith effort to achieve precise mathematical equality' within each 
State, the constraints imposed by Article I, Sec. 2, itself make that 
goal illusory for the Nation as a whole.'')(citation omitted)(emphasis 
in original).
    \22\ Id. at 465, 466.
---------------------------------------------------------------------------
    Accordingly, H.R. 157's ``one person, two vote'' allocation 
to Utah potentially exceeds Congress' authority under the 
apportionment clause.\23\
---------------------------------------------------------------------------
    \23\ See Legislative Hearing on H.R. 5388, the ``District of 
Columbia Fair and Equal House Voting Rights Act of 2006'' Before the 
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th 
Cong. 23(2006) (statement of Professor Jonathan Turley, Professor, 
George Washington University School of Law) at 20 (``This at-large 
district would be roughly 250% larger than the ideal district in the 
last 2000 census (2,236,714 v. 645,632). In addition, citizens would 
have two members serving their interests in Utah--creating the 
appearance of a `preferred class of voters.' '').
---------------------------------------------------------------------------
    At the very least, the novel nature of the at-large seat 
will certainly invite protracted litigation. Congress has two 
options with regard to the Utah seat that do not present the 
same constitutional questions. The first is to remove the 
language relating to the at-large district which would have the 
effect of forcing Utah to redistrict should this bill become 
law. To ameliorate concerns that this redistricting would 
result in partisan advantage, Governor Jon Huntsman of Utah 
testified at the Subcommittee on the Constitution's hearing on 
a similar bill in the 109th Congress that he would personally 
work to insure that any redistricting would be done in a ``fair 
and objective'' manner. The second option is for Congress to 
set forth the boundaries of the four districts in the statute. 
Congress has used this power in the past,\24\ and it is 
expressly contemplated by the Constitution.\25\
---------------------------------------------------------------------------
    \24\ See, e.g., Oklahoma Enabling Act, Pub. L. No. 59-234, Sec. 6, 
34 Stat. 267, 271-72 (1906).
    \25\ See, U.S. Const. art. 1, Sec. 4; see also Vieth v. Jubelirer, 
541 U.S. 267, 275 (2004) (``It is significant that the Framers provided 
a remedy for [gerrymandering] in the Constitution. Article 1, Sec. 4, 
while leaving in state legislatures the initial power to draw districts 
for federal elections, permitted Congress to `make or alter' those 
districts if it wished.'').
---------------------------------------------------------------------------

                    AMENDMENTS OFFERED AT COMMITTEE

    As introduced, H.R. 157 lacked, and sorely needed, a 
provision requiring expedited judicial review of the 
constitutionality of its provisions to make sure that, if the 
bill unconstitutionally grants D.C. a voting Member, that 
unconstitutional action does not go on any longer than it has 
to. If this bill becomes law, any legislation whose history was 
tainted by the involvement a Member whose seat was later 
declared unconstitutional would be placed into legal doubt.
    Ranking Member Smith offered an amendment requiring 
expedited judicial review to similar legislation on the House 
floor last Congress, but it was rejected by the majority. This 
year, it was incorporated into the substitute amendment brought 
up by Chairman Conyers and reported out of committee. Those 
provisions constitute the very same expedited judicial review 
provision Congress agreed was appropriate, on a bipartisan 
basis, in the McCain-Feingold campaign finance law.\26\ That 
provision was successfully employed to facilitate the Supreme 
Court's expeditious review of that legislation.\27\
---------------------------------------------------------------------------
    \26\ See Pub.L. 107-155, Title IV, Sec. 403, Mar. 27, 2002, 116 
Stat. 113.
    \27\ See McConnell v. Federal Election Com'n, 540 U.S. 93 (2003).
---------------------------------------------------------------------------
    This year, the Majority Leader himself, Mr. Hoyer from 
Maryland, testified in support of this amendment at the House 
Constitution Subcommittee hearing on this bill, and he pledged 
to support it, saying ``I will be for the . . . amendment which 
says that we will have accelerated consideration of this in the 
courts. I think that makes sense.'' This amendment is also 
supported this year by the Leadership Conference on Civil 
Rights. Wade Henderson, the President of the Leadership 
Conference, testified that ``Indeed, I believe that it would be 
appropriate for judicial review to occur on an expedited basis, 
to remove all doubt about the bill's constitutionality as 
quickly as possible.'' This provision is also part of the bill 
the Senate considered. As is becoming increasingly clear, there 
is no reason to stall a judicial resolution of these important 
issues, especially when doing so risks legislative chaos 
regarding the validity of future legislation passed by the 
House.
    However, we were disappointed that the bill as reported out 
of committee does not contain other provisions contained in the 
McCain-Feingold law that statutorily codify the principle that 
Members should have the right to bring a claim that the 
legislation is unconstitutional in court and intervene in such 
cases brought by others. Ranking Member Smith offered an 
amendment that would have done just that, and such an amendment 
was supported this year by the Leadership Conference on Civil 
Rights. Wade Henderson, the President of the Leadership 
Conference, testified at the Constitution Subcommittee's 
hearing on H.R. 157 that Congress should ``appropriately 
indicate in the bill that it wished Members to have standing to 
mount a challenge to it.'' Even so, Ranking Member Smith's 
amendment was rejected on party lines.
    Of course, the precedents in the D.C. Circuit Court of 
Appeals, where a challenge to this legislation would be heard, 
grant standing to Members of Congress on the grounds that their 
voting power has been diluted. In the 1994 case of Michel v. 
Anderson,\28\ the D.C. Circuit Court of Appeals unanimously 
confirmed the right of Members of Congress to challenge the 
validity of a House rule change that allowed delegates from the 
territories to vote in the Committee of the Whole. In that 
case, the court stated that the parties ``do not question the 
congressmen's standing to assert that their voting power has 
been diluted,'' and that existing case law ``establishes that 
congressmen asserting such a claim have suffered an Article III 
injury.'' \29\
---------------------------------------------------------------------------
    \28\ 14 F.3d 623 (D.C.Cir. 1994).
    \29\ Id. at 625.
---------------------------------------------------------------------------
    However, this legislation poses a question of such 
fundamental importance--namely Congress' power to alter the 
constitutional makeup of Congress--that we have a 
responsibility to do everything we can to ensure that the 
courts will hear argument on the constitutionality of this bill 
as soon as possible by statutorily codifying the right of 
Members to bring a direct challenge to this legislation. Since 
Congress did no less in its bipartisan campaign finance 
legislation, it should do the same here. If, however, this 
amendment is rejected in this context when it was accepted on 
campaign finance legislation, it would seem that supporters of 
the legislation before us today have less confidence in the 
constitutionality of this bill than supporters of campaign 
finance legislation had in that bill.
    Other improving amendment were offered by Republicans, but 
defeated on party line votes. One such amendment, offered by 
Rep. F. James Sensenbrenner, Jr., would have struck the 
provision in the bill requiring that the additional seat for 
Utah be an at-large seat and provided that the Utah legislature 
would be able to adopt a four-Member district plan as it saw 
fit, which could include the plan adopted by the Utah 
legislature to do just that in 2006. Another such amendment, 
offered by Rep. Jason Chaffetz, would have made clear that 
Congress did not intend the legislation to set a precedent for 
treating the District as a State for purposes of Senate 
representation.
    Other improving amendments offered by Republicans were 
rejected on the grounds they were not germane. These included 
amendments offered by Rep. Louis Gohmert that embodied the 
substance of his legislation to exempt D.C. residents from 
federal taxation until they received constitutional 
representation in Congress,\30\ and his legislation to 
retrocede the residential and non-Federal portions of D.C. back 
to Maryland.\31\ These also included an amendment offered by 
Rep. Steve King to repeal the District's oppressive gun laws, 
and an amendment offered by Rep. Jason Chaffetz to repeal the 
provisions providing for a concurrent D.C. Delegate that would 
unfairly grant District residents more representation in 
Congress than residents of any other State.
---------------------------------------------------------------------------
    \30\ See H.R. 1014, the No Taxation Without Representation Act 
(111th Congress).
    \31\ See H.R. 1015, the District of Columbia-Maryland Reunion Act 
(111th Congress).
---------------------------------------------------------------------------

                               CONCLUSION

    In the end, the approach taken by supporters of H.R. 157 
does a grave disservice to the residents of the District of 
Columbia, as it gives them a false hope, and it will squander 
precious time that would be better spent seeking a 
constitutional remedy to the injustice they seek to address. We 
have every reason to believe every level of the federal courts 
is likely to strike down this legislation. But that process may 
take years, and at the end of the day District residents will 
be exactly where they are now in their quest for Congressional 
representation.

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Howard Coble.
                                   Elton Gallegly.
                                   Bob Goodlatte.
                                   Daniel E. Lungren.
                                   Darrell E. Issa.
                                   J. Randy Forbes.
                                   Steve King.
                                   Trent Franks.
                                   Louie Gohmert.
                                   Jim Jordan.
                                   Ted Poe.
                                   Jason Chaffetz.
                                   Tom Rooney.
                                   Gregg Harper.

                                  

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