District of Columbia House Voting Rights Act of 2009

Floor Speech

DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2009 -- (Senate - February 25, 2009)

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Mr. SESSIONS. Mr. President, this is a distressing situation where, for some reason, we have abandoned the knowledge we gained in 1977 that it takes a constitutional amendment to get representation in the Congress for the District of Columbia. There is so much in the Constitution that refers to this, but article I--the very first article--section 2, says the House of Representatives--that is what we are talking about: giving a Member of the House a vote for the District of Columbia--shall be composed of Members ``chosen every second year by the people of the several States.'' It goes on to say that the requirements of a Representative are that they should be--they must be, when elected, ``an inhabitant of that state in which he shall be chosen.'' The Senate--discussed in section 3--of the United States ``shall be composed of two Senators from each State.''

So I know there is politics here, and I hope when the Supreme Court reads this debate they look right through it because I don't think it is a sound position we are dealing with. I believe Senator McCain has rightly raised a point of order as to the constitutionality of this bill.

I wish to make some general remarks.

I think the legislation is an affront to the Constitution. Professor Jonathan Turley, one of the liberal outstanding scholars of the law, who has testified before our committee a number of times, testified before the House Judiciary Committee recently--this is the language he used, and I am sure he would consider himself a Democrat. He said he considers this bill to be ``one of the most premeditated unconstitutional acts by Congress in decades.''

Congress cannot, consistent with the Constitution, pass a bill that gives congressional voting rights to a non-state without violating the plain text of the Constitution. The Framers of our Constitution envisioned a Federal city that would not be beholden to any State government. The text of the Constitution does not provide anywhere that a non-state may have a congressional voting Member. Also, the District of Columbia is not a forgotten city. In fact, it receives more Federal dollars, per capita, than any State in the United States.

History is clear that the Framers excluded the District of Columbia from having direct congressional representation. Our Founders could have placed the seat of the Federal Government within a State--and that was discussed--thus ensuring direct congressional representation from that city, but they chose not to do so. As James Madison stated in Federalist No. 43, there was fear that the State that encompassed the Nation's Capital would have too much influence over Congress. It has a lot now. The Framers feared that, symbolically, the honor given to one State would create ``an imputation of awe and influence'' as compared to other States. That is, that the State would have an advantage in some fashion.

Thus, when the Framers of our Constitution considered carefully how to treat the Nation's Capital, they provided in the District clause--article I, section 8, clause 17, of the Constitution--that Congress had the power to ``exercise exclusive Legislation in all cases whatsoever, over such District.''

So it gave Congress the legislative power over the District, clearly. Congress was, of course, made up of Representatives from States. This meant that residents of the District would not have direct representation in Congress--they understood that, clearly, from the beginning and, indeed, they have never had it--but instead, they would have indirect representation and that such direct representation was reserved only for the residents of States.

Second, this bill violates the plain text of the Constitution, as I noted. Article 1, section 2 says ``each State shall have at least one representative.'' Further, one of the qualifications to be a Congressman is to ``be an Inhabitant of that State in which he shall be chosen.'' As George Smith, the former senior counsel at the Department of Justice's Office of Legal Counsel recently wrote and was published: ``All told, no fewer than 11 constitutional provisions make it clear that congressional representation is linked inextricably to statehood.''

Congress has recognized this fact in years past. In 1977, Congress passed a constitutional amendment, which was never ratified by the States, but we passed it. It was a constitutional amendment that would have given the D.C. residents congressional representation. I suppose that was then and this is now. Now we are just going to pass a law that doesn't have to have a supermajority in Congress or be ratified by the States. That is a lot easier to do. I remind my colleagues that while political winds may change, the plain text of the Constitution doesn't. The Constitution says only States may have congressional representation, and no bill, no mere congressional legislation, no law we pass can change that fact. The Constitution is the supreme law of the land. Our legislation can't alter the constitutional requirements. We can alter the Constitution through the amendment process, as has been previously done, to fix this very problem.

Alexander Hamilton, many years ago, wrote:

The qualifications of the persons who may ..... be chosen, are defined and fixed in the Constitution, and are unalterable by the legislature.

Finally, the District is not, as I said, forgotten. Its residents have indirect representation. All 435 Members of the Congress travel in the traffic here, go in and out of the city, and 100 Senators likewise do the same. They have done pretty well by way of getting money out of the Federal Government.

One of the Framers' concerns, which Madison articulated, was a fear that the ``host'' State would benefit too much from ``the gradual accumulation of public improvements at the stationary residence of the Government.'' According to the most recent data available, as of 2005, the District of Columbia taxpayers received more in Federal funding per dollar of Federal taxes paid than any of the 50 States. According to the Tax Foundation, for every $1 of Federal tax paid in 2005 by the District of Columbia citizens, they received approximately $5.55 in Federal spending. This ranks the District the highest nationally by a wide margin. For example, New Mexico, which is perceived to be the most benefitted State, received $2.03 in Federal spending per $1 of tax payments their citizens made. But even that amount is $3.52 less than what the citizens of D.C. receive. Perhaps, some would say Madison's fear has become a reality, with all the jobs that are here and paying good wages--how many of us would love to carve out some of these agencies and have them be settled in Birmingham or Baltimore or New York? Then that tax revenue would be spent in our States. But it is being spent here.

I am just saying I don't believe the District of Columbia is being abused. In fact, they are doing pretty well with taxpayers' money all in all. I know the argument that you don't collect property tax on Government property and everything, but they are doing pretty well under any fair analysis.

The Framers envisioned a Federal district serving as the National Government's home. That district was not to be a State, and the District of Columbia was never to be treated as a State. Granting a non-state congressional representation and voting rights in the Congress of the United States violates the Framers' intent, pretty clearly, and the plain language of the Constitution. Congress, as Professor Turley notes, ``cannot legislatively amend the Constitution by re-defining a voting member of [the House of Representatives].''

We have all sworn to uphold the Constitution and to defend it. As written, this bill violates the Constitution and it will, I predict, be struck down by the Court. I think it is going to come back from the Court like a rubber ball off that wall. If it doesn't, we are going to learn something about the Supreme Court of the United States--something we don't want to know. I submit that we cannot in good faith vote for this bill without conflicting with our oath to the Constitution. So that is why I cannot support it.

I would just point out a recent case decided November 4, 2005, in the U.S. Court of Appeals for the District of Columbia. The panel consisted of now-Chief Justice John Roberts; Judge Harry Edwards, appointed by President Carter; and Judith Rogers, appointed by President Clinton, for whatever that is worth. I hate to even say that because we expect our judges to put away partisan activities when they put their robes on. So that is just background.

Basically, the court dealt with an argument over taxes. As part of their holding--it is a per curiam opinion; no one judge was considered to be the author. They all agreed to this language. They said:

Congress, when it legislates for the District, stands in the same relation to District residents as a state legislature does to the residents of its own State.

So we stand in the same position to the people of D.C., as set up by our Founders, as the State legislatures do to the people of the States. The court also noted:

Not only may statutes of Congress or otherwise national application be applied to the District of Columbia--

That is the tax laws--

but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes.

Then the court said:

This is true notwithstanding that the Constitution denies District residents voting representation in Congress.

So this panel, in 2005, concluded--all three judges--that the Constitution denies District residents voting representation in Congress.

I am not personally of the view that people who voluntarily live within the borders of the District of Columbia have to have direct congressional representation. I guess it is a matter that we can discuss and debate. Arguments on both sides can be made. I simply say the matter is conclusively decided by the plain language of the Constitution.

As Mr. Smith says, 11 different places in the Constitution say that representation in Congress must come from States. It does not come from districts. It does not come from territories. It does not come from tribal areas. It comes from States.

If we would like to change it, maybe we can, but we are bound by the laws and our Constitution, and a mere statutory act of this Congress is not able to reverse the Constitution. Therefore, I will object to the passage of this legislation. I think it is incorrect. I will support Mr. McCain's constitutional point of order because I see no other rational conclusion.

As shown by a recent opinion from the District Court of the District of Columbia in 2005, the Constitution does not give congressional voting rights to residents of the District of Columbia.

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