Greater Greater Washington

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Vote for the budget autonomy referendum on April 23

Besides the race for DC Council at large on April 23, DC residents will have the opportunity to vote on a charter amendment that would free the District from having to submit its budget to Congress and wait for approval before being able to spend local tax money raised right here in DC. We hope residents vote yes on this amendment.


Photo by l'ennui d'ennui on Flickr.

It would free the District from members of Congress attaching riders to score political points back home while trampling on DC residents' right to self-government in local affairs. It would free the District from the threat of having to shut down basic public services if the federal government shuts down.

In the comments on a guest post we ran in February by DC Appleseed's Walter Smith, several readers expressed a belief that a referendum would just be advisory, that Congress would not follow our request, and it's a waste of time. This is incorrect. The referendum is not advisory at all.

If it passes, DC will have amended its own charter, which it has the power to do. It will no longer have wait for Congress to approve its budget before spending local tax dollars. Congress could block the amendment from taking effect, but to do that, both houses of Congress would have to act.

Congress can also always pass laws forcing DC to do things in the future, or taking away DC's autonomy, but again, it would require an affirmative act of Congress (and the President could veto such changes).

Besides, there are both Democrats and Republicans who support this. They can't get a clean bill through Congress to give us the right, but by this method, they don't have to; all they have to do is get Congress not to interfere. That's not so hard.

Why does DC have this power?

The Home Rule Act, which Congress passed in 1973, has several sections. Title IV, the main part, sets up the DC locally-elected government and its powers and structure.

Title III section 303 says that DC can amend any part of Title IV with three exceptions:

  • 401(a), which says "There is established a Council of the District of Columbia; and the members of the Council shall be elected by the registered qualified electors of the District";
  • 421(a), "There is established the Office of Mayor of the District of Columbia; and the Mayor shall be elected by the registered qualified electors of the District";
  • all of section C, which relates to the judiciary.
The budget process, which DC wants to change, is in section D. That's not on the list. Therefore, lawyers supporting the referendum conclude, DC is within its rights to try to amend that part of the charter.

Congress also made a specific list of things DC can't do without Congressional approval, such as changing the height limit, imposing a commuter tax, exercising any power over the zoo, or changing the way the judiciary operates. Another section of the law prohibits charter amendments from giving DC power over these things. The budget process is not on this list either.

(Congress was really quite nervous about what DC would do with power over the criminal laws; another provision blocks the DC Council from changing the criminal laws for the first 4 years of Home Rule.)

There is one provision which makes some lawyers doubt whether the referendum is legal. That's section 603, which says in part,

(a) Nothing in this act shall be construed as making any change in existing law, regulation, or basic procedure and practice relating to the respective roles of the Congress, the President, the federal Office of Management and Budget, and the Comptroller General of the United States in the preparation, review, submission, examination, authorization, and appropriation of the total budget of the District of Columbia government.
Wait, doesn't that mean nothing can change with the budget process?

But what is "this act"? That's the 1973 Home Rule Act. This provision doesn't say that DC can't change the budget process by amendment, but rather than in 1973, when the act passed, Congress didn't intend to revamp the budget process at the time.

As DC Vote chairman John Bouker said in his testimony to the DC Council,

Section 603(a) is not framed as a "limitation" on the Council's authority, as is the case with some of the other provisions in Section 603. Instead, it is a rule of construction which clarifies that, at the time of passage in 1973, "[n]othing in the Act shall be construed" to change then-existing law regarding the District's budget process.
Supportive lawyers note that Congress went to great lengths to enumerate the parts of the charter DC couldn't change, like all of section C on the judiciary, so if they wanted to keep the budget process sacrosanct, why wouldn't they have listed section D as well? It doesn't make a lot of sense to be extremely clear about which parts DC can't amend and then have a subtle additional part with language that sounds like it refers to 1973.

Some others don't see it this way. But ultimately it's in Congress' hands. The DC government believes it's legal and, if the referendum passes, will operate on that basis. If Congress wants DC to still have to submit its budget, both houses can pass a resolution to say so. Since there are leaders on both sides of the political aisle who do support the idea, Congress will most likely not step in.

Even if some lawyers and judges disagree, the courts won't intervene, because Congress is probably the only body with standing to sue, explained Smith. You have to be harmed by something to sue to stop it, and only Congress' power over the budget will change. But Congress won't sue because it doesn't have to; it could just pass a resolution to stop the change. Which it won't do.

Essentially, this referendum shifts the burden from one where Congress has to act (very hard to achieve) to one where it simply has to not act (far easier). DC voters can take this step knowing that Congress almost certainly won't act, and by voting for this amendment, they will gain an important element of self-government.

Comments

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They can't get a clean bill through Congress to give us the right, but by this method, they don't have to; all they have to do is get Congress not to interfere.

If they want to, they can just fold a line into a Postal Office naming bill, and prevent it. Or bury it deep into some spending bill. That's how the Monsanto Protection Act got passed: anonymously slipped into a spending bill that had to be passed.

by Jasper on Apr 17, 2013 11:57 am • linkreport

Can I vote "hell yes!"? That should be an option on the referendum.

by Ward 1 Guy on Apr 17, 2013 12:12 pm • linkreport

I'm not about standing, but you could probaby sue DC under 603(a) and block the buget. Tricky.

Might come down to gay rights. If S.Ct finds in favor of California passing a referendum banning gay marriage, then I'd say DC is in the clear on the budget.

Otherwise, you've got a problem.

by charlie on Apr 17, 2013 12:20 pm • linkreport

I'm on board, but I suspect you're off the mark on standing. Seems to me that anybody taxed by something in a future DC budget could take it to court and say it's not legal because Congress didn't approve it.

by Gavin on Apr 17, 2013 12:53 pm • linkreport

@Gavin, as I said not sure about standing. Your argument is pretty good.

I am just pointing out that the failure of congress to do anything is not a predicate for saying this is legal and kosher. The court will want its pounds.

by charlie on Apr 17, 2013 1:09 pm • linkreport

"if they wanted to keep the budget process sacrosanct, why wouldn't they have listed section D as well?"

Here's where the argument falls apart because it leads to the natural question, "Well, if Congress didn't mean to bind the city's authority to alter the budget, then why do they even bother mentioning it in section 303(d) anyway?"

It also leads to other questions like eliminating the Congressional approval period, removing the Height Act, enacting a commuter tax, etc. Those are all exceptions mentioned in the same series of limitations as the language about the budget. As such, it seems pretty clear that Congress meant for the budget language to be a limitation even if that word was not explicitly used.

That said, I'm voting for the amendment anyway. The language of the amendment says "This Charter Amendment, if ratified, enacted and upheld," which means that there would be no practical effect until the courts had a chance to weigh in and likely strike down the amendment as a violation of the Home Rule Act.

by Adam L on Apr 17, 2013 2:20 pm • linkreport

^Oh. And for the record, I fully support legislative and budgetary autonomy for the District; I just don't think this particular method will work.

by Adam L on Apr 17, 2013 2:21 pm • linkreport

Adam L: No. The list that has the commuter tax, height limit, etc. does NOT have the budget approval.

That list is Section 602. Section 602 is in Title VI, which is not part of Title IV, so DC can't amend it by a charter amendment. DC clearly can't give itself the right to change the building heights or tax federal property or legislate about the Financial Control Board (Congress added that to the list in 1995).

But except for the control board (which now doesn't exist), the list in Section 602 does not mention the budget process.

Also, there's a clear answer to the question "why did Congress include 603(a)?" Namely, that 603(a) says that Congress wasn't trying to invalidate the preexisting budget procedure just because it passed the act, not that it's another limit on DC's amendment rights. Every other limitation is written as a clear limitation "The Council shall have no authority" over such and such this one has a totally different kind of wording.

As for standing, standing is a super-arcane part of law. It's really hard for laypeople to intuitively understand it. I know I don't. And how standing works with separation of powers who has standing to challenge a procedural act of Congress is even more unintuitive.

Your instinct about who has standing is meaningless. So is mine. The lawyers at Appleseed, DC Vote, etc. say standing is not an issue. I also didn't want to take a lot of space to go into detail about why they say this. They might be wrong, and other lawyers might have other views, but this isn't something any of us can just intuitively judge.

by David Alpert on Apr 17, 2013 4:31 pm • linkreport

I guess the question is whether allowing the citizens to grant themselves budget autonomy counts as a "change in... basic procedure and practice relating to the respective roles of the Congress..."

I disagree with the suggestion that if this passes, it will never be challenged in the courts (unless it is repealed).
As far as I know, Congressmen and Senators have standing because they vote on the budget. So it would not take an Act of Congress to sue.

That is not a reason to vote against the initiative, however. It will be interesting--and possibly useful--to see which Congressmen want to spend their spare time circumscribing the rights of DC citizens. I suspect Rand Paul has better things to do.

by JimT on Apr 17, 2013 5:39 pm • linkreport

@DA

Sorry, I could've stated that better. What I meant is that Section 303(d) states the following: "The amending procedure provided in this section may not be used to enact any law or affect any law with respect to which the Council may not enact any act, resolution, or rule under the limitations specified in sections 601, 602, and 603"

That means to me that you can't change anything related to: the constitutional role of Congress (Section 601); the limitations placed on the D.C. Council in regards to the Height Act, commuter tax, etc. (Section 602); or the budget as quoted above in this article (section 603). That is what I meant by "exceptions mentioned in the same series of limitations as the language about the budget." All of those sections are listed in a row in 303(d). As such, it would make sense that Congress intended that no charter amendment could be used to change any of those sections, just as the DC Attorney General has said. To me, this is a simple plain-language reading of the text that requires no linguistic gymnastics to arrive at the conclusion taken by the attorneys at D.C. Vote and others.

by Adam L on Apr 17, 2013 7:49 pm • linkreport

I don't really understand how this will impact me. What I do know is that I have little confidence in the DC gov't and fear that this will give them too much freedom to spend our tax dollars. Are my fears warranted?

by Rick on Apr 17, 2013 11:58 pm • linkreport

@ Rick:Are my fears warranted?

Dutch saying (don't know if it exists in English):

Fear is a bad adviser.

by Jasper on Apr 18, 2013 8:20 am • linkreport

And do you have confidence in the Congress that makes you want them to have more control of the city?

by Alan B. on Apr 18, 2013 9:13 am • linkreport

I'd like to know who is backing the referendum campaign. It seems rather well-funded, with thousands of signs put up in public space tree boxes and poles. I hope it isn't Jeffrey Thompson and his shadow network, which logically could stand to benefit from ever less congressional oversight of the DC budget process. Finally, the whole visual campaign is a turn-off: It looks like 60s radical poster art, with a clenched fist grasping a fist-full of dollars, with the capital as a backdrop. All I can think of, when I see that visual, are Thompson, Barry and their cronies grabbing even more fist fulls taxpayer dollars with less oversight and accountability. Count me a big NO on this referendum.

by Sally on Apr 18, 2013 11:22 am • linkreport

The accountability argument is a total red herring. We should get accountability the way they do it in every other city or town in the United States: through elections for local officials. Last I heard no Senator from Alaska was "accountable" to voters here.

by Silvie on Apr 23, 2013 8:44 pm • linkreport

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