Puerto Rico’s Political Status and the 2012 Plebiscite: Background and Key Questions
Released: 2013-06-25T00:00:00

Introduction

Congress has considered Puerto Rico's "political status"—a term of art referring to the relationship between the federal government and a territorial government—for more than a century. As Figure 1 shows, Puerto Rico lies approximately 1,000 miles southeast of Miami and 1,500 miles from Washington, DC. Despite being far outside the continental United States, the island has played a unique role in American politics and policy since the United States acquired Puerto Rico from Spain in 1898. It is the largest of the five major U.S. territories, hosts the biggest population, features heavy traffic and commerce with the mainland, and has long-standing ties with the U.S. military (both as a strategic location and home to service members).

Beginning in 1900, Congress delegated authority over most local matters to a civilian territorial government. Over the next 50 years, Congress recognized a delegate to the U.S. House (the Resident Commissioner); granted Puerto Ricans U.S. citizenship; and established a federal-style civilian government, including a popularly elected governor and Legislative Assembly. Whether the island should remain a territory, become a state, or become independent remains unsettled. Status is arguably the dominant issue in Puerto Rican politics, along which parties align and politics is organized.

For the first time since 1998, the people of Puerto Rico went to the polls in November 2012 to vote on whether to change their status and, if so, how. Although the 2012 plebiscite was a territorial initiative rather than a federal one, there could be notable implications for Congress. Most importantly, whether initiated by the Puerto Rican people or Congress, any change in the island's political status would require congressional action. Beyond the plebiscite, Congress has broad jurisdiction over territories and routinely monitors status developments. Some Members of Congress—especially those with large Puerto Rican constituencies or personal connections to Puerto Rico—also closely follow the issue.

This report provides a foundation for understanding Puerto Rico's status, why those on the island and in Washington continue to be interested in the issue, and how the 2012 plebiscite and its aftermath provides an opportunity to revisit status. The key issues and questions discussed here may be relevant as the House and Senate consider their response.

Format and Scope of the Report

This report is designed to emphasize brief, accessible answers to selected key questions and issues about Puerto Rico's political status and the plebiscite. The discussion below is organized around selected key policy questions, followed by brief answers and additional analysis. The final section highlights issues that may be relevant as Congress considers the plebiscite and interprets the results.

The report is intended to provide a relatively short overview for congressional readers interested in policy and political matters. It is not intended to substitute for a comprehensive analysis of the complex and culturally sensitive issues surrounding Puerto Rico's more than 100-year affiliation with the United States. Additional policy, political, and historical background appears in other CRS products cited herein. The report also is not intended to be an analysis of the various legal, economic, or other issues that might arise in considering Puerto Rico's political status or a change in its relationship with the United States.

Background on Political Parties and Status

From the outset, it is important to note that the dominant Democratic and Republican party labels found on the mainland do not necessarily translate to Puerto Rican politics. As discussed below, three major Puerto Rican parties dominate instead. At the federal level, positions on status do not necessarily follow clear partisan patterns. Co-sponsorship of status legislation, for example, may unite liberal Democrats with conservative Republicans on one bill, while creating different alliances on another. For those Members who have firm positions on status, personal preference or constituent issues appear to be key motivations. Particularly in recent years, members of both parties in Congress have generally argued that if the island is to choose a different status, clear consensus is necessary among the Puerto Rican people, regardless of the chosen option.

In Puerto Rico, politics tends to revolve around three status perspectives represented by the three most established political parties:

The status quo or "pro-commonwealth" position is generally associated with the Popular Democratic Party (PDP/PPD). The pro-statehood position is generally associated with the New Progressive Party (NPP/PNP). The independence position is generally associated with the Independence Party (PIP or Independistas ).Other options that call for modified versions of the current commonwealth status or independence may appeal to members of one or more parties.

Typically, the two major perspectives other than the status quo, statehood, or independence are (1) "enhanced commonwealth" and (2) "free association." As discussed below, the former arguably signals a semi-autonomous status whereas the latter suggests independence with closer ties to the United States than a more traditional independence option. As noted elsewhere in this report, the viability of the "enhanced commonwealth" position is not universally accepted.

Views within the three major parties, as well as among other parties and interest groups, are not necessarily uniform. These differences regularly produce active factional groups or officially recognized minor parties. The PDP, NPP, and PIP nonetheless remain the most consistent partisan forces in Puerto Rican politics.

Puerto Rico's Political Status and the 2012 Plebiscite

What Is Puerto Rico's Current Political Status?

Brief Answer

Puerto Rico is a U.S. territory subject to congressional authority derived from the Territory Clause of the U.S. Constitution. Congress recognized island authority over matters of internal governance in 1950 through the Federal Relations Act (FRA) and when it approved the island's Constitution in 1952. Some contend that these laws and other federal action afford Puerto Rico a unique status embodied in the "commonwealth" concept. This perspective remains a topic of debate. Nonetheless, federal law would have to be changed to alter Puerto Rico's status, which would require congressional and presidential approval through the normal legislative process.

Discussion

Puerto Rico's political relationship with the United States is shaped by constitutional and statutory authority. The Territory Clause of the U.S. Constitution grants Congress "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Congress has enacted various statutes to address specific matters concerning the island's political status. Puerto Rico's current political status, as determined by federal statute (or otherwise, as noted), is summarized briefly below.

Spain ceded Puerto Rico (along with Guam and the Philippines) to the United States in 1898 following the Spanish-American War. The U.S. military initially administered the island thereafter. Congress established a civilian government in 1900. Among other points, the Foraker Act established an "executive council" consisting of a presidentially appointed civilian governor and various department heads. The new government also included a popularly elected House of Delegates (which shared decision-making power with the executive council) and a U.S.-style judiciary system. The Foraker Act also established the Resident Commissioner position to represent island interests in Washington. These duties came to include nonvoting service in the U.S. House of Representatives (the primary role of the Resident Commissioner today). Through the Jones Act (1917), Congress authorized appropriations for legislative staff and franking privileges for the Resident Commissioner. Devoted primarily to strengthening Puerto Rico's civil government, the Jones Act also extended U.S. citizenship to Puerto Ricans and established a bill of rights for the island. Congress recognized island authority over matters of internal governance in 1950 through the Federal Relations Act (FRA) and when it approved the island's Constitution in 1952. No major status changes have occurred since.

After enactment of the FRA and approval of the Constitution, Puerto Rico became known formally as the "Commonwealth of Puerto Rico." Use of the word "commonwealth" and whether the term carries particular legal or political significance is a topic of substantial historical and scholarly debate—most of which is beyond the scope of this report. A brief summary of the competing major perspectives, however, provides important context for understanding the ongoing status debate.

On one hand, some contend that Puerto Rico's commonwealth status signifies a unique recognition somewhere between territory and state. This perspective is often called "enhanced commonwealth" or "new commonwealth." As prominent territories scholar Arnold H. Leibowitz has summarized, those holding this view have

argued that more than local self-government was achieved by the 1950-1952 legislation. It contends that a new legal entity was created with a unique status in American law: the Commonwealth, a status which is an internationally recognized non-colonial status.... Most important, in this view, Commonwealth is not a "territory" covered by the 'Territory Clause' of the Constitution, nor quite obviously is it a state; rather, Commonwealth is sui generis and its judicial bounds are determined by a "compact" which cannot be changed without the consent of both Puerto Rico and the United States.

Others, however, contend that, at least in the Puerto Rican context, the term "commonwealth" does not hold particular legal or political significance. From this viewpoint, "commonwealth" is a stylistic or historical term of art, as used in the formal names of states such as the Commonwealth of Pennsylvania. Some also suggest that commonwealth refers to a form of government, but does not designate a unique non-territorial status. As Leibowitz has observed,

From the outset the non-Commonwealth parties in Puerto Rico, seeking either Statehood or independence ... questioned the concept of the Commonwealth. They have argued that although Congress may delegate powers to a territorial government, the broad powers granted to Congress under the Territorial Clause of the Constitution and the implied powers of the national government remain and may be exercised should the need arise. Further they cite the legislative history of Public Law 600 [the FRA] to challenge the compact and Commonwealth concept.

Debate over significance of the "commonwealth" term notwithstanding, action by Congress would be necessary to alter Puerto Rico's political status. Doing so, of course, would require passage of legislation by Congress and approval by the President.

Finally, those rejecting the status quo also generally suggest that Puerto Rico's current status was not intended to be—or perhaps should not be—permanent, and that statehood or independence are natural next steps.

What Was the 2012 Status Plebiscite About?

Brief Answer

The November 2012 plebiscite—a non-binding popular vote—allowed voters in Puerto Rico to express their preference about whether they wanted to maintain their current status relationship with the United States or choose another option. Other options listed on the ballot included (1) statehood, (2) independence, or (3) "sovereign free associated state." The Puerto Rico Legislative Assembly (territorial legislature) authorized the plebiscite in 2011.

Discussion

A plebiscite could have been federally authorized or initiated within Puerto Rico. In this case, the 111 th Congress ultimately declined to enact legislation ( H.R. 2499 ) to authorize a status plebiscite, although the measure passed the House in 2010. Those calling for congressional action had suggested that federal "buy-in" would increase a plebiscite's legitimacy and the chances for a resolution to the status issue. Efforts to call a plebiscite shifted back to Puerto Rico after H.R. 2499 stalled in Congress. In addition, former Resident Commissioner Luis Fortuño (NPP) had returned to San Juan to assume the governorship in 2009. Governor Fortuño urged the Legislative Assembly to authorize a plebiscite, essentially renewing the debate (but not necessarily the form) surrounding H.R. 2499 and building on similar efforts Mr. Fortuño had undertaken while in Congress. Local legislation authorizing the plebiscite was enacted in December 2011.

The plebiscite was held on the same day as the November 6, 2012, general election, which also included three other ballots on races for governor, Resident Commissioner, Legislative Assembly, and municipal offices. As Figure 2 below shows, the plebiscite ballot included two questions:

Question 1 asked whether voters wish to retain the territorial status quo or not. Question 2 asked voters to choose between three "non-territorial options" regardless of their choice on question 1. As listed on the ballot, these options include (1) statehood, (2) independence, and (3) "sovereign free associated state."

The statehood and independence options were essentially self-explanatory, although instructions listed on the ballot provided descriptions of each option. The "sovereign free associated state" option is not a term of art historically associated with the status issue. The term resembles language used to describe "freely associated" states, such as the relationship the United States maintains with the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. As in those areas, the "free associated" option for Puerto Rico would entail, the ballot instructions suggest, independence but ongoing, negotiated ties with the United States. Additional discussion of various ballot options appears in the section of this report titled " Considering the Status Options Presented ."

What Were the Results of the 2012 Plebiscite?

Brief Answer

Results of the plebiscite have been the subject of controversy. According to results certified by the Puerto Rico State Elections Commission, approximately 54.0% of those who cast ballots answered "no" to the first question. In the second question, approximately 61.2% of voters chose statehood. A concurrent resolution approved by the territorial legislature contends that the results were "inconclusive." The new governor has endorsed the concurrent resolution.

Discussion

On December 31, 2012, the Puerto Rico State Elections Commission (CEE, as the agency is commonly known for its Spanish acronym), issued certified election results as follow.

On question 1, when asked if Puerto Rico should retain its current status, 53.97% answered "no"; 46.03% answered "yes." On question 2, when asked to select among the three listed status options, 61.16% chose statehood; 33.34% chose "sovereign free associated state," and 5.49% chose independence.

Debate has emerged in Puerto Rico about whether the certified results accurately reflect voters' sentiment and all available policy choices. In particular, debate has focused on whether almost 500,000 blank answers on the second question should be included in the total tally, thereby affecting whether any option received a majority. Additional discussion appears in the " Interpreting the Plebiscite Results " section of this report.

Have Other Status Votes Been Held Previously?

Brief Answer

Puerto Rico held four status plebiscites or referenda before the one in 2012: in 1998, 1993, 1991, and 1967. Ballot wording and options during each plebiscite or referenda differed. A majority of voters did not choose a clear change in Puerto Rico's status on any of these occasions.

Discussion

None of the previous status votes is exactly comparable to the one authorized for 2012. The votes are also generally not comparable to each other due to varying question wording and order. Most recently, in 1998, a slim majority of voters (50.3%) chose "none of the above" from five status options. The status quo, whether in the form of a "commonwealth" option or another question about whether to revisit status, has received the most votes (but not necessarily a majority) in previous plebiscites or referenda. "Statehood" has been the second-place finisher each of the three times the option has appeared on the ballot. On those occasions, 46.4% (1993 and 1998) and 38.9% (1967) of voters chose statehood.

As these results indicate, voters have been divided on previous status questions. Interpretation of the results has been a topic of debate in Puerto Rico and beyond. The particulars have varied with each popular vote. There have been consistent topics of interest, however, across each vote. Major aspects of debate have been whether the options presented were practically or constitutionally viable, how options were worded and ordered, and how voter turnout may have affected the results.

Potential Issues for Congress

Has Congress Considered Puerto Rico Status Recently?

Brief Answer

Congress has previously considered status legislation occasionally but has not amended Puerto Rico's status since the 1950-1952 period noted above. The most recent substantial activity occurred during the 111 th Congress (2009-2011), when the House passed H.R. 2499 , sponsored by Resident Commissioner Pierluisi. The legislation, which the Senate declined to pass, would have authorized a plebiscite somewhat similar to the one the Puerto Rico Legislative Assembly later authorized for 2012. In the 113 th Congress, Mr. Pierluisi has introduced H.R. 2000 . That bill would authorize a "ratification vote" asking voters a single yes-no question about whether they want Puerto Rico to be admitted as a state.

Discussion

Congressional activity on status issues has varied over time. As with many policy issues, long stretches of relative quiet may be followed by active consideration of one or more bills. In the 109 th Congress (2005-2007), the House and Senate began actively reconsidering status legislation for the first time since 1998. Most of the new legislation proposed authorizing Puerto Ricans to reconsider their political status through a plebiscite, but some measures proposed conventions to draft status proposals.

In the 113 th Congress, Mr. Pierluisi has proposed, via H.R. 2000 , that another vote be held to "ratify" Puerto Rico's desire for statehood. Under that proposal, voters would select "yes" or "no" in response to a general description of statehood followed by the question, "Do you want Puerto Rico to be admitted as a State of the United States?" Congress most recently substantially considered Puerto Rico's status during the 111 th Congress. The House passed (223-169) H.R. 2499 (Pierluisi) on April 29, 2010. The bill would have authorized a two-step plebiscite somewhat similar to the one the Puerto Rico Legislative Assembly authorized for 2012. Similar to question 1 in the 2012 plebiscite, the first plebiscite proposed in H.R. 2499 would have asked voters to choose between a status change and the status quo. If a majority of voters chose change in the first plebiscite, a second plebiscite would have presented a choice between independence, "sovereignty in association with the United States," or statehood. The version passed by the House, as amended, would have added a fourth question to the second plebiscite, permitting voters to indicate a preference for maintaining commonwealth status. The Senate Committee on Energy and Natural Resources held a hearing on the measure, but it was not the subject of additional action in the chamber. The plebiscite approach proposed in H.R. 2499 during the 111 th Congress was substantially similar to H.R. 900 (Serrano), proposed in the 110 th Congress. Also during the 110 th Congress, Senator Salazar introduced S. 1936 , which proposed an alternative plebiscite mechanism. As an alternative to the plebiscite model, some legislation introduced in recent Congresses has proposed conventions in which Puerto Ricans could develop status proposals rather than choose among predetermined alternatives. During the 110 th Congress, the House Committee on Natural Resources included one such bill, H.R. 1230 (Velazquez), in a hearing on status legislation. Convention approaches were also proposed during House floor consideration of H.R. 2499 in the 111 th Congress.

Additional legislative history information appears in another CRS product.

Which Issues Might be Relevant for Congress?

Brief Answer

Results of the plebiscite are non-binding. As such, it remains to be seen whether the House and Senate will choose to take additional action on the plebiscite or Puerto Rico's political status in general. The discussion below considers selected issues that might be particularly relevant as Congress considers how or whether to proceed.

Discussion

This section comments on selected issues that may be relevant as Congress considers the plebiscite, with an emphasis on issues that may be most relevant to the House and Senate. The analysis is divided into two categories: (1) considering the status options presented and (2) interpreting the plebiscite results. Other factors not discussed here could also be relevant, particularly as additional developments occur and more information becomes available.

Considering the Status Options Presented

The options presented on the 2012 ballot have generated controversy in some cases. In particular, because the instructions asked voters to select an option in question 2 regardless of their answer to question 1, some argued that the options favored statehood, which is historically a more popular option than independence or free association. The statehood and independence options on the ballot were largely self-explanatory. The "sovereign free associated state" option was somewhat less clear, although the description listed on the ballot provided additional information. Because free association implies independence (but presumably more ongoing connections to the United States than the "independence" option), the final ramifications of this option remain to be seen if it were selected in the future.

The 2012 ballot provided no option for expressing a preference for the status quo (generally, the "pro-commonwealth" position) other than answering "yes" to question 1. In particular, it is unclear which option—if any—to question 2 was desirable for those who prefer the status quo (presumably PDP supporters). The legislation authorizing the plebiscite suggests that the "sovereign free associated" language was adapted from PDP platform language, a point that some in the PDP have disputed.

This report focuses on the plebiscite method because it is the focus of current debate. As noted previously, however, some have advocated that if status is to be revisited, an approach such as a convention should be used rather than one that presents pre-determined options. Those opposed to a convention generally suggest that it would not necessarily select from constitutionally viable options.

The 2012 ballot did not include "enhanced commonwealth" status—which some (particularly some in the PDP) have suggested may be an option for Puerto Rico, and which those favoring the perspective have suggested could afford Puerto Rico a status somewhere between that of a territory and that of a state. The May 2012 concurrent resolution approved by the Puerto Rico Legislative Assembly, and endorsed by the governor, calls on the federal status education campaign proposed in President Obama's FY2014 budget request to "incorporate[] all options, including the enhanced Commonwealth, based on the principles of fairness and equity." Recent White House Task Force reports and many (but not all) in Congress have argued that the enhanced commonwealth option is unconstitutional.

President Obama's FY2014 Commerce, Justice, Science, and Related Agencies budget proposal includes $2.5 million for "objective, nonpartisan voter education about, and a plebiscite on, options that would resolve Puerto Rico's future political status." Funding would go to the CEE. The proposal would condition such funding on certification to congressional appropriators, from the U.S. Attorney General, that "the voter education materials, plebiscite ballot, and related materials are not incompatible with the Constitution and laws and policies of the United States." This language, which appears to be a reference to precluding the "enhanced commonwealth" concept, might be particularly important given recent legislative activity. Specifically, in December 2010, Senate Energy and Natural Resources Committee Chairman Jeff Bingaman and Ranking Member Lisa Murkowski wrote to President Obama noting that enhanced or "new" commonwealth "is incompatible with the Constitution and basic laws of the United States in several respects."

Interpreting the Plebiscite Results

The plebiscite results are potentially significant if they are interpreted to mark the electorate's desire to change the island's present political status. The significance of the plebiscite remains to be seen, however, particularly because in the same election in which voters arguably endorsed a change in the status quo and favored statehood, they also voted out the pro-statehood incumbent governor and former Resident Commissioner, Luis Fortuño, as well as majorities in the territorial legislature believed to be generally supportive of statehood. No change in Puerto Rico's political status could occur without congressional action. As noted previously, since the 2012 plebiscite, debate has ensued about whether the certified results tallied by the CEE correctly represent voter sentiment or available status choices. Most of the controversy concerns how or whether to consider ballots that did not answer question 2 (so-called "blank votes"; in this report called "blank answers"). Before the election, the PPD encouraged its supporters to boycott the second question. The certified results list 498,604 "blank votes," but do not include them when calculating percentages listed in the final results. Specifically, the certified results that reflect approximately 61.2% in favor of statehood are calculated from votes cast using the three options listed on the ballot—statehood, "sovereign free associated state," and independence. Those ballots total 1,363,854 votes cast. The concurrent resolution passed by the Puerto Rico Legislative Assembly and endorsed by the governor, however, calculates percentages including the ballots that did not answer question 2 (called "blank ballots" in the resolution, although they are really blank answers to one question on the ballot). The results listed in the concurrent resolution for question 2 are: 44.4% favoring statehood, 24.3% favoring "sovereign free associated state," 4% favoring independence, and 26.5% blank answers. To summarize, a key issue of debate is, essentially, which denominator should be used when calculating election results (in other words, how large the ballot universe should be). The CEE results are based on only those ballots with answers using the available options and find a majority favoring statehood. The results listed in the Legislative Assembly concurrent resolution, by contrast, count the blank answers, which increases the denominator (i.e., makes the pool of votes larger) and results in no option receiving a majority. Although it is clear that, before the plebiscite, the PPD encouraged its supporters to boycott question 2, in the absence of additional information, voter intent in casting blank answers on individual ballots is unclear.

Congress has generally emphasized the need for a clear choice surrounding status if it is to take legislative action. It remains to be seen whether the 2012 plebiscite or the "ratification" vote proposed in H.R. 2000 , if approved, would be interpreted in Washington as providing a sufficient mandate one way or another to move forward with reconsidering Puerto Rico's political status.

Only those registered to vote in Puerto Rico were permitted to participate in the plebiscite. Some previous proposals to revisit status (e.g., H.R. 900 introduced in the 110 th Congress) have proposed that those born on the island but living elsewhere also be permitted to participate.

Conclusion

Congress first began considering Puerto Rico's political status more than a century ago. Some suggest that voters on the island took a decisive step toward change in their answers to question 1 in the 2012 plebiscite, and that a majority opted for statehood in question 2. Those who support the 2012 plebiscite generally suggest that the choices presented in the plebiscite are the best consensus options available. Others contend that the status quo is preferred and that the 2012 plebiscite design was weighted in favor of statehood and that the results were inconclusive. Congress might now make its own assessment of the results. The issues raised here are by no means exhaustive, but do appear to represent major points of interest surrounding the plebiscite. Updates will be provided as events warrant.