District Of Columbia House Voting Rights Act Of 2009

Floor Speech

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Mr. McCONNELL. Mr. President, in recent months, a number of our colleagues on the other side of the aisle have expressed support for reinstating the so-called fairness doctrine. But let's be honest. The fairness doctrine was anything but fair. It amounted to Government control over political speech, and in the end it actually resulted in less, not more, political discourse over the airwaves because broadcasters did not want to deal with all of its redtape. That is precisely why the Federal Communications Commission repealed it back in 1987, and why we must keep it from being reinstated now.

The reality behind this so-called fairness doctrine is that some of my friends on the other side do not like what they are hearing on the radio these days. So instead of addressing the criticisms head on, they want to silence them.

Americans will not stand for that, and we will not let it happen. Government is not the speech police, and I will not support--and I am confident the American people do not support--efforts to restrict free speech.

The Founding Fathers enshrined the right to free speech in the very first amendment to the Constitution because they knew it was fundamental--that it was the one right without which the others would lose their force. They also knew future generations would have to continue to defend that right from those who viewed it as an obstacle to their goals.

We should adopt the DeMint amendment to kill the so-called fairness doctrine once and for all.

I yield the floor.

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Mr. McCONNELL. Mr. President, I commend to my fellow Senators the April 3, 1987 U.S. Justice Department Office of Legal Policy Report to the Attorney General entitled ``The Question of Statehood for the District of Columbia.'' I ask unanimous consent that the Executive Summary and section titled ``Proposals for Giving Representation in Congress to the District of Columbia, Voting Member in the House of Representatives'' be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Executive Summary

Efforts to admit the District of Columbia to the Union as a state should be vigorously opposed. Granting the national capital statehood through statutory means raises numerous troubling constitutional questions. After careful consideration of these issues, we have concluded that an amendment to the Constitution would be required before the District of Columbia may be admitted to the Union as a state. Statehood for the Nation's capital is inconsistent with the language of the Constitution, as well as the intent of its Framers, and would work a basic change in the federal system as it has existed for the past two hundred years. Under our Constitution, power was divided between the states and the federal government in the hope, as Madison wrote, that ``[t]he different governments will control each other,'' thus securing self-government, individual liberty, and the rights of minorities. In order to serve its function in the federal structure a state must be independent of the federal government. However, the District of Columbia is not independent; it is a political and economic dependency of the national government.

At the same time, it is essential that the federal government maintain its independence of the states. If the District of Columbia were now admitted to statehood, it would not be one state among many. Because it is the national capital, the District would be primus inter pares, first among equals. The ``State of Columbia ..... could come perilously close to being the state whose sole business is to govern, to control all the other states. It would be the imperial state; it would be `Rome on the Potomac.''' It was this very dilemma that prompted the Founders to establish the federal capital in a district located outside of the borders of any one of the states, under the exclusive jurisdiction of Congress. Their reasons for creating the District are still valid and militate against granting it statehood.

Many have recognized the fundamental flaws in plans to grant the District of Columbia statehood. For instance, while testifying in support of the proposed 1978 District amendment, which would have treated the District of Columbia ``as if it were a State'' for purposes of national elections, Senator Edward Kennedy dismissed what he called ``the statehood fallacy,'' and stated that, ``[t]he District is neither a city nor a State. In fact, statehood may well be an impossible alternative, given the practical and constitutional questions involved in changing the historical status of the Nation's Capital.'' A pamphlet entitled ``Democracy Denied'' circulated in support of the 1978 amendment, and fully endorsed by District Delegate Walter E. Fauntroy, plainly acknowledged that granting statehood to the District of Columbia ``would defeat the purpose of having a federal city, i.e., the creation of a district over which the Congress would have exclusive control.'' That pamphlet also recognized that statehood ``presents a troublesome problem with the 23rd Amendment if the federal district were to be wiped out by legislation.'' Indeed, Delegate Fauntroy has opposed statehood for the District in the past, correctly pointing out that ``this would be in direct defiance of the prescriptions of the Founding Fathers.'' As former Senator Mathias of Maryland stated, ``[i]t is not a State ..... it should not be a State.''

These points are well taken. The factors that mitigated against statehood for the District of Columbia in 1978 have not changed. The rejection of the District voting rights constitutional amendment by the states does not make statehood any more desirable, or any less constitutionally suspect, today than it was a decade ago. Granting statehood to the District of Columbia would defeat the purpose of having a federal city, would be in direct defiance of the intent of the Founders, and would require an amendment to the Constitution.

I. NEED FOR AN AMENDMENT TO THE CONSTITUTION BEFORE THE DISTRICT OF COLUMBIA MAY BE ADMITTED TO THE UNION AS A STATE

Even if statehood for the District of Columbia represented sound policy, we do not believe that it can be accomplished merely by a statute admitting the District to the Union. The Constitution contemplates a federal district as the seat of the general government, and would have to be amended. The Department of Justice has long taken this position. In 1978, Assistant Attorney General John M. Hannon concluded on behalf of the Carter Administration that, ``it was the intent of the Framers that the actual seat of the Federal Government, as opposed to its other installations, be outside any State and independent of the cooperation and consent of the State authorities ....... If these reasons have lost validity, the appropriate response would be to provide statehood for the District by constitutional amendment rather than to ignore the Framers' intentions.''

The retention of federal authority over a truncated, federal service area would not answer this constitutional objection. The language of the Constitution grants Congress exclusive authority over the district that became the seat of government, not merely over the seat of the government. The district that became the seat of government is the District of Columbia. It does not appear that Congress may, consistent with the language of the Constitution, abandon its exclusive authority over any part of the District.

Further, the Twenty-third Amendment requires that ``[t]he District constituting the seat of Government of the United States'' appoint electors to participate in the Electoral College. The amendment was proposed, drafted and ratified with reference to the District of Columbia. When the states adopted this amendment, they confirmed the understanding that the District is a unique juridical entity with permanent status under the Constitution. Another amendment would be necessary to remake this entity.

Finally, we believe that Congress' ability to admit the District of Columbia into the Union as a new state would depend upon the consent of the legislature of the original ceding state. Article IV, section 3 of the Constitution provides that: ``no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the legislatures of the States concerned as well as of the Congress.'' Accordingly, the consent of Maryland would be necessary before the District of Columbia could be admitted to the Union. Should Maryland refuse to consent, the area that is now the District of Columbia could not be made a state without amendment of Article IV, section 3.

Thus, before the District of Columbia may be admitted to the Union as a state, the Constitution would have to be amended. Such an amendment, however, would be unwise.

II. THE SOUND HISTORICAL REASONS FOR A FEDERAL DISTRICT STILL OPERATE TODAY

In the Founders' view, a federal enclave where Congress could exercise complete authority, insulating itself from insult and securing its deliberations from interruption, was an ``indispensible necessity.'' They settled upon the device of a federal district as the means by which the federal government might remain independent of the influence of any single state, to avoid, in the words of Virginia's George Mason, ``a provincial tincture to ye Natl. deliberations.''

The passing years have, if anything, increased the need for ultimate congressional control of the federal city. The District is an integral part of the operations of the nation's government, which depends upon a much more complex array of services, utilities, transportation facilities, and communication networks than it did at the Founding. If the District were to become a state, its financial problems, labor troubles, and other concerns would still affect the federal government's operations. Congress, however, would be deprived of a direct, controlling voice in the resolution of such problems. In a very real sense, the federal government would be dependent upon the State of Columbia for its day to day existence.

The retention of congressional authority over a much reduced federal enclave would not solve this problem. The Founder's contemplated more than a cluster of buildings, however grand, and their surrounding parks and gardens as the national capital. The creation of a new ``federal town'' was intended, in large part so that Congress could independently control the basic services necessary to the operation of the federal government. As former Senator Birch Bayh pointed out in 1978, ``when our Founding Fathers established this as a capital city ..... they did not just establish a place that should be the Federal city and say this is where the Federal buildings are. But they envisioned this as a viable city, a capital city with people who work, have businesses, and have transportation lines, and homes. The essential establishment of the Nation's Capital was not an establishment of the Nation's Federal buildings but the Nation's city.''

Further, there remain virtually insurmountable practical problems with District statehood. The operations of the federal government sprawl over the District. As a result, the new ``state'' would be honeycombed with federal installations, its territory fragmented by competing jurisdictions. As Assistant Attorney General Patricia Wald asked while testifying on behalf of the Carter Administration, regarding the proposed 1978 District amendment, ``[w]ould the remaining non-Federal. area constitute in any real sense a geographically homogeneous entity that justifies statehood?'' It was for these very reasons that former Mayor Washington expressed doubts about statehood for the District. In 1975 he commented that the city of Washington is ``so physically, and economically and socially bound together that I would have problems with statehood in terms of exacting from it some enclaves, or little enclaves all around the city. Ultimately, it seems to me, that would erode the very fabric of the city itself, and the viability of the city.''

Finally, in a very real sense the District belongs not only to those who reside within its borders, but to the Nation as a whole. In opposing statehood for the District in 1978, Senator Bayh, an otherwise ardent proponent of direct District participation in congressional elections, eloquently summed up the objection: ``I guess as a Senator from Indiana I hate to see us taking the Nation's Capital from [5,000,000] Hoosiers. It is part ours. I do not see why the District should be a State because it is, indeed, the Nation's Capital.''

III. THE DISTRICT OF COLUMBIA IS NOT INDEPENDENT OF THE FEDERAL GOVERNMENT

A. Dependence on the Federal Establishment

The states of the American Union are more than merely geographic entities: Each is what has been termed ``a proper Madisonian society''--a society composed of a ``diversity of interests and financial independence.'' It is this diversity which guards the liberty of the individual and the rights of minorities. As Madison wrote, ``the security for civil rights ..... consists in the multiplicity of interests ..... The degree of security ..... will depend on the number of interests ..... and this may be presumed to depend on the extent of country and number of people comprehended under the same government.''

The District of Columbia lacks this essential political requisite for statehood. It has only one significant ``industry,'' government. As a result, the District has one monolithic interest group, those who work for, provide services to, or otherwise deal with, the federal government. The national government was, historically, the city's only reason for being. Close to two-thirds of the District's workforce is employed either directly or indirectly in the business of the federal government. Indeed, in 1982 the District government maintained that, in the Washington Metropolitan area, for every federal worker laid off as a result of government reductions in force, one person would be thrown out of work in the private sector.

The implications of this monolithic interest are far reaching. For instance, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), has recently decided that the delicate balance between federal and state power is to be guarded primarily by the intrinsic role the states play in the structure of the national government and the political process. The congressional delegation from the District of Columbia, however, would have little interest in preserving the balance between federal and state authority entrusted to it by Garcia. The continued centralization of power in the hands of the national government would, in fact, be to the direct benefit of ``Columbia'' and its residents. Hence; the system of competing sovereignties-designed to preserve our fundamental liberties would be compromised.

B. Economic Dependence

In addition to political independence and diversity, a state must have ``sufficient population and resources to support a state government and to provide its share of the cost of the Federal Government.'' The District of Columbia simply lacks the resources both to support a state government and to provide its fair share of the cost of the federal government. The District is a federal dependency. Annually, in addition to all other federal aid programs, it receives a direct payment from the federal treasury of a half billion dollars; some $522 million was budgeted for the District in Fiscal 1987, $445 million to be paid directly to the District's local government. All in all, District residents outstrip the residents of the states in per capita federal aid by a wide margin. For instance, in 1983 the District received $2,177 per capita in federal aid, some five and one-half times the national average of $384.

Not surprisingly, Washington Mayor Marion Barry has plainly stated that the District would still ``require the support of the Federal Government'' if statehood were granted. The continuation of federal support is ordinarily justified because of the percentage of federal land in the District of Columbia that cannot be taxed by the local government. However, the federal government owns a greater percentage of the land area of 10 states, each of which bears the full burdens of statehood without the sort of massive federal support annually received by the District of Columbia. If the District aspires to statehood, it must be prepared to stand as an equal with the other states in its fiscal affairs.

CONCLUSION

The District of Columbia should not be granted statehood. In our considered opinion, an amendment to the Constitution would be needed before the District could be admitted as a state, and in any case, the reasons that led the Founder's to establish the national capital in a district outside the borders of any state are still valid. The District's special status is an integral part of our system of federalism, which itself was a compromise between pure democracy and the need to secure individual liberties and minority rights. The residents of the District enjoy all of the rights of other citizens, save the right to vote in congressional elections. They exchanged this right, as Mr. Justice Story wrote, for the benefits of living in the ``metropolis of a great and noble republic.'' Instead, ``their rights [are] under the immediate protection of the representatives of the whole Union.'' This was the price of the national capital, and District residents have enjoyed the fruits of this bargain for almost two centuries.

III. PROPOSALS FOR GIVING REPRESENTATION IN CONGRESS TO THE DISTRICT OF COLUMBIA

The numerous schemes proposed over the last two hundred years to give the residents of the federal district some sort of direct voting representation in Congress may be distilled into five basic proposals: (1) legislation to allow the District a voting member in the House of Representatives alone; (2) retrocession of the District of Columbia to Maryland, retaining a truncated federal district; (3) allowing District residents to vote as residents of Maryland in national elections; (4) an amendment to the Constitution to give the District full representation in both House and Senate as if it were a state; and (5) full statehood. None of these proposals offers a sound policy solution, and several appear to be fatally flawed when exposed to constitutional scrutiny.

A. Voting Member in the House of Representatives

From time to time it has'' been suggested that the District be granted, by simple legislation, a voting member in the House of Representatives. This proposal, however, runs into significant constitutional difficulties.

Those sections of the Constitution which define the political structure of the federal government speak uniformly in terms of the states and their citizens. Article I, section 2 provides that, ``[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States ....... No person shall be a Representative ..... who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.'' Article I, section 3 provides that, ``[t]he Senate of the United States shall be composed of two Senators from each State ....... No Person shall be a Senator....... who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.'' With respect to the election of the President, Article II, section 1 provides that, ``[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.'' The Seventeenth Amendment directs that ``[t]he Senate of the United States shall be composed of two Senators from each State, elected by the people thereof.'' In short, ``[d]irect representation in the Congress by a voting member has never been a right of United States citizenship. Instead, the right to be so represented has been a right of the citizens of the States.''

The word ``state'' as used in Article I may not be interpreted to include the District of Columbia, even though as a ``distinct political society'' it might qualify under a more general definition of that term. Consistent with the intent of the Framers, such arguments were properly dismissed long ago by Chief Justice Marshall in Hepburn v. Ellzey. In that case, plaintiffs, residents of the District, claimed that they were citizens of a state for purposes of diversity jurisdiction in the federal courts. The Court rejected this position. Marshall reasoned that Congress had adopted the definition of ``state'' as found in the Constitution in the act providing for diversity jurisdiction, and that the capital could not be considered such a ``state''. Citing Article I, sections 2 and 3, and Article II, section 1, he concluded that ``the members of the American confederacy only are the states contemplated.'' ``These clauses show that the word state is used in the constitution as designating a member of the union, and excludes from the term the significance attached to it by writers on the law of nations.'' Congress, to be sure, has often treated the District of Columbia as a state for purposes of statutory benefit programs. It is customarily included in the major federal grant programs by the well-worn phrase ``for purposes of this legislation, the term `State' shall include the District of Columbia.'' The courts, also, have occasionally interpreted the word ``state'' to include the District of Columbia. However, the District has never been automatically included under the term ``state'' even in federal statutes. In District of Columbia v. Carter, the Supreme Court held that it was not a ``State or Territory'' under 42 U.S.C. §1983, which creates a federal cause of action for civil rights violations under color of state law. Under the test articulated by Justice Brennan in that case, ``[w]hether the District of Columbia constitutes a ``State or Territory'' within the meaning of any particular statutory or constitutional provision depends upon the character and aim of the specific provision involved.'' In any event, allowing the District to participate on an equal footing with the states in federal statutory programs is different in kind from reading the language of the Constitution itself in such a way as to allow alteration of the very composition of the Congress by legislative fiat.

The Constitutional mandate is clear. Only United States citizens who are also citizens of a state are entitled to elect members of Congress. This is hardly a novel proposition. There are many different levels of rights recognized in our system. Aliens, for instance, enjoy certain basic rights, including the benefit of the Equal Protection Clause but are not citizens of the United States and have no vote. The residents of United States possessions overseas also enjoy the protection of the Constitution, but may not vote in federal elections. Many of them are United States citizens--the residents of Puerto Rico and Guam, for instance, fit this category. Like the residents of the District of Columbia, American citizens who are not also citizens of a state do not participate in congressional elections, and they never have enjoyed such participation. The residents of the District of Columbia may not participate directly in congressional elections without becoming citizens of a state, or without an amendment to the Constitution.

Mr. McCONNELL. Mr. President, a few weeks ago, I had the honor of raising my right hand and reciting a solemn oath required by the Constitution itself. According to that oath, the first and last duty of a U.S. Senator is to support and defend the U.S. Constitution. By opposing the legislation before us, I believe I am doing both.

The Constitution is short because its authors wanted to be clear, and on the issue of congressional representation they could not have been more so. According to Article I, Section II, only States elect Members of Congress. And, according to the same article, the seat of the Federal Government is not to be considered a State. So the question before us is not whether the Framers meant for the seat of Government to have representation in Congress. They clearly did not. Rather, the question before us is why they didn't want the seat of Government to have representation. And, as a follow-up: What recourse did they leave those who might want to revise what they had written.

In answer to the first question, the Framers opposed statehood for a number of good reasons. First, they didn't want the Federal Government to be beholden to a single State, a situation that would of course unfairly benefit the residents of that State, either materially or through added prestige, at the expense of all the other States. Second, they wanted the Federal Government to have the freedom to relocate if the need arose.

This was not an easy issue for the Framers. But the plain text of the Constitution leaves no doubt as to how they came down on the question: In the end, they decided the interests of the whole were best served by carving out a Federal district that stood apart from the States. This way Federal officials would be able to protect the interests of the whole and give the Federal Government the freedom it would need to operate with complete independence and freedom of movement.

Clearly, not everyone is satisfied with the result. But there should be no doubt about what the words of the Constitution says--not just on the day it was ratified, but throughout our history.

The 23rd amendment, for instance, gave Washington, DC the same number of electoral votes that it would receive as ``if it were a state.'' What this means, of course, is that at the time this amendment was ratified in 1961, no one was under the illusion that DC was a State--or that it should be treated as one, short of a constitutional amendment.

Clearly, the Framers recognized the deficiencies of the final product. In creating a Federal district, they knew permanent residents of that district would lack representation in Congress. And this is why they left us a remedy within the Constitution itself. If and when the ``People of the United States'' wished to revise the U.S. Constitution, they could do so by amending it, just as they did in 1961.

The process of amendment is clearly outlined in article V, and it has served the American people well for more than two centuries. Over the years, we have amended our founding document 27 times. From eradicating slavery, to securing the right to vote for women, to putting a limit on the years a President can serve in office, the people of the United States have used the amendment process as the way to secure or expand rights.

So the surest way to honor the aspirations of DC residents is to pursue a remedy which respects the Constitution. One way is through a constitutional amendment that uses the same language as the bill before us. Another would be to allow the residents of the District to vote as if they were residents of a bordering State, or even to declare them residents of a bordering State.

As the Senate's greatest student and fiercest living guardian of the Constitution, the senior Senator from West Virginia, said just last year on the Senate floor:

If we wish to grant representatives of the citizens of the District of Columbia full voting rights, ``let us do so, once again, the proper way, by passing a resolution to amend the Constitution consistent with its own terms.''

The bottom line is this: Any proposal to secure the right to vote must honor the Constitution, which Lincoln called the ``only safeguard of our liberties.'' Anything less would violate the oath we have sworn to uphold, and would guarantee a challenge in the courts that would only further prolong this debate.

The better way is the surer way--and that's the constitutional way.

I will oppose this proposal. I urge my colleagues to do the same.

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