Posts about Congress

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.

With 9.8 million people, Los Angeles County is larger than North Carolina, the 10th most populous US state. (It's also geographically larger than Rhode Island and Delaware, combined).

Baltimore County (which doesn't include Baltimore City) is more populous than Wyoming, Vermont, North Dakota and Alaska; Prince George's is also larger than South Dakota; Montgomery County larger than Delaware; and Fairfax County has more people than all of those as well as Montana and Rhode Island.

Thanks to Dan Malouff for the tip via Twitter.

DC Appleseed has long supported this new strategy for advancing DC democracy. In 2010, DC Appleseed proposed using this strategy to allow DC residents to elect their Attorney General, a move which was ultimately successful. Last May, I testified to the Council about other potential uses for this strategy, including budget autonomy. For several reasons, this referendum is the right strategy now for the District.

Budget autonomy is important

Unlike other states and cities, the District cannot spend the roughly $6 billion in revenue it raises every year without an act of Congress. As a practical matter, this requirement is completely unnecessary. Congress almost never changes the city's budget request. But the requirement nevertheless imposes significant burdens and costs on the District.

First, it adds about 3 months to the budget process. That creates temporary cash shortages that force the District to borrow more money and incur millions in additional interest charges. Second, the lag time between Council approval and the start of the federal fiscal year undermines the District's ability to accurately forecast revenues and expenditures. Finally, the process permits the District to be needlessly ensnared in a federal budget battle that could shut down the government.

The budget autonomy referendum would fix all of this by allowing the District to enact the local budget just as it does all other legislation. The budget would be introduced in the Council, subjected to hearings and markups, and passed after 2 readings.

After receiving mayoral approval, it would be transmitted to Congress and become law after a 30-day review period. Congress would still retain its ultimate authority to legislate for the District, but the budget could take effect without the need for affirmative congressional action. This would be an important step forward for DC democracy.

The District needs a new strategy

The District has long sought, but been unable to, obtain budget autonomy despite bipartisan support in Congress. Rep. Darrell Issa (R-CA), the chairman of the House committee overseeing the District, has been at the forefront with his support, along with Congresswoman Eleanor Holmes Norton (D-DC).

The difficulty lies in the fact that Congress has been unable to pass a "clean" budget autonomy bill that did not also take away certain other District rights. Just last June, Sen. Joseph Lieberman (I-CT) withdrew his budget autonomy bill when it became clear that it would not pass without riders undermining the Council's Home Rule prerogatives.

Riders similarly doomed bills that would have given the District's Delegate a vote in the House of Representatives. These riders have become the fatal obstacle to congressional action that would otherwise advance DC democracy.

This is not to say that such efforts on the Hill should not continue. However, it's time to explore other strategies that might produce a "clean" bill advancing DC democracy. The budget autonomy referendum is such a strategy.

New strategy has many benefits

There are several clear benefits to the budget autonomy referendum. First, it gives DC residents a meaningful role in achieving greater democracy and makes use of the city's broad authority under the Home Rule Act to make changes to that Act. The referendum also offers DC residents an opportunity to make visible to Congress the importance of this issue to the people of the District.

Second, the referendum will itself be the "clean" budget autonomy bill the District is seeking. And under the Home Rule Act itself, Congress is not permitted to amend the referendum by adding riders; instead, it must either approve it by doing nothing, or disapprove it by joint resolution.

Finally, the Home Rule Act makes it hard for Congress to disapprove the referendum. Under that Act, the referendum giving the city budget autonomy will automatically become law unless both Houses of Congress disapprove it within 35 days and the President signs that disapproval.

Even if both houses could pass the disapproval resolution, it seems highly unlikely that the President would sign it. When he decided to put DC's "Taxation Without Representation" license plates on his inauguration vehicles, President Obama issued a strong statement declaring his "willingness to fight for voting rights, Home Rule and budget autonomy for the District."

DC should move forward despite concerns

Some have raised concerns that the referendum is beyond the District's authority, or that it will undermine the city's relationship with Congress, or that it does not bring us full democracy. None of these concerns should keep the residents of the District from fully supporting the referendum.

First, no proposal for greater DC democracy has ever been or will ever be a "slam dunk" legally or politically. There were similar doubts about the soundness of the DC Voting Rights Act, but that bill received strong support and passed both Houses of Congress nonetheless—because it was the best and only viable option then available. That is true now of the referendum.

Second, the referendum is the city's way of showing its support for budget autonomy, and in no way detracts from Congress's own authority on that issue. In fact, former Rep. Tom Davis (R-VA)—Issa's predecessor on the oversight committee—testified to the DC Council that Congress would not view the measure as a slight. And Rep. Jose Serrano, ranking member of the subcommittee on DC appropriations, issued a statement in favor of the referendum, calling it "democracy at its very core."

Finally, some of the top law firms in the city, and the DC Council's own general counsel, have vetted the referendum's legal underpinnings. All agree that that the measure is within the District's authority. And even though the referendum was challenged before the District's Board of Elections, the Board rejected the challenge and certified the issue for the April 23 ballot.

The road to greater democracy has always been filled with obstacles and uncertainty. That is true also for the April 23 referendum. But that referendum is now the best available step forward on that road.

There's a similar benefit for parking costs, but workers can deduct more than for transit—up to $240 per month since the start of 2012. Some members of Congress had been trying to restore parity between transit and parking benefits, and got it into the Senate's transportation bill in March, but the provision didn't survive into the final bill.

The bill Congress just approved for the "fiscal cliff" contains this provision, meaning benefits go up to $240 per month, several people have confirmed. Unfortunately, it's still only temporary, as this new level expires again at the end of 2013 unless Congress extends it once more.

Technically, the new level is also retroactive until the start of 2012, but unlike with tax credits you can claim on this April's taxes for activities in 2012, there's no way for riders to realistically take advantage of it for months gone by.

Tom Bulger, a WMATA board member and lobbyist who's been pushing for the extension, noted that Congressional Republicans had been strongly opposed to any changes in law that increase any taxes, including letting previous tax cuts expire, but hadn't extended that same passion to the transit benefit.

Even if House Republicans just went along somewhat reluctantly with a Senate deal yesterday, in approving this extension, they were now able to give many American workers a tax cut along with helping our cities function more effectively and ending one small example of the many ways government "picks winners and losers" among transportation modes.

A letter from critics of Home Rule fretted that the DC Council "would be able to alter, amend, repeal or supersede virtually any law including Titles 22, 23, and 24 of the criminal code. (p. 1568) The majority (Democratic) House staff responded in their own memo:

The above statement is a prime example of an assumption of bad faith on the part of duly elected official sunder the bill. It is logical to assume that the local elected government will have just as much stake in maintaining peace, law, and justice as the presently appointed officials have in maintaining the integiity of the city government. (1645)

Nonetheless, the Congressmen in charge of the DC committee acceded to this concern in their committee print, the version of the bill they brought to the floor that tried to respond to some of the opponents' arguments. In that version, the titles of the DC Code involving crimes, criminal procedure, and treatment of prisoners were part of the list of laws the Council can't legislate, such as changing the height limit or imposing a commuter tax.

The House passed the bill with a prohibition on changing criminal laws. That would have meant that Congress would be the one still setting any criminal laws in DC. The Senate version did not restrict this, and the conference committee compromised by limiting this authority for only the first 2 years after Home Rule. (2361)

One-house veto lasted until Chadha and Gary

Congress didn't just let DC have complete control over the criminal laws after that. Instead, it set up a "one-house veto." Normally, to block a DC law, both houses of Congress have to pass a joint resolution, and the President has the ability to veto that, just like with a bill. That sets a fairly high bar for the federal government to overturn a DC law.

With the criminal code, Congress decided to make it easier. They added a provision that a change to criminal law will not take effect even if only one house passes a resolution against it. This one-house veto also applied to an act changing the Mayor or councilmembers' pay. (2917)

This provision lasted until 1983, when something got in the way: the US Supreme Court's decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). There had also been a one-house veto in place for deportation decisions: the INS could hold off on a deportation proceeding for 7 years if deportation would create "extreme hardship."

The INS used this discretion to help Jagdish Rai Chadha, who had overstayed a student visa. He had been born in Kenya to Indian parents and had a British passport, but neither India nor Britain would let him back into their nations. The House used its one-house veto to block the leniency, but the Supreme Court held that since the Constitution specifies a set process for Congressional action including bicameralism (both houses must pass the same bill or resolution) and presentment (it goes to the President for the chance to veto), Congress can't decide to elect a different process for some actions.

The decision had far-reaching consequences besides INS procedures: it ended every one-house veto, including the ones in the Home Rule Act. In Gary v. United States, 499 A.2d 815 (1984), the DC Court of Appeals (DC's highest state court) struck down the one-house veto.

Therefore, District residents enjoy the ability to elect officials who can change the criminal laws as needed. A sympathetic young Indian/British immigrant led to Congress' power over the District growing a little less in a significant area.

All numbers in parentheses refer to page numbers in Home Rule for the District of Columbia, 1973-1974, Background and Legislative History of H.R. 9056, H.R. 9682, and Related Bills Culminating in the District of Columbia Self-Government and Governmental Reorganization Act, Approved December 24, 1973 (Public Law 93-198), Serial No, S-4, US Government Printing Office, December 31, 1974.

Meanwhile, there are federal district courts in each state, whose appeals go up to circuit courts that span multiple states and up to the United States Supreme Court. If you're on trial for robbery, or if you sue your neighbor for damaging your property, you're almost certainly in state court; if it's international smuggling or a patent case (since patents are a federal law and not state or local), you're probably in federal court.

The DC Superior Court plays the equivalent role to a state court in the District's judicial system. The court hears the same kinds of civil and criminal cases which go to state courts elsewhere. Appeals go to the DC Court of Appeals.

There's also a separate federal court for DC, which only hears the same kinds of federal cases as other federal courts, as well as a lot of cases involving the federal government, and a DC Circuit at the appeals level. We're not talking about the federal courts here at all, just the DC courts which play the same role as a state court.

States either have their governors appoint state court judges, or they elect the judges. In the District, however, the chief executive of DC does not appoint judges. Instead, as with many elements of the DC government, there is a federal-local hybrid process.

A Judicial Nominating Commission of local and federal appointees selects 3 candidates for a judicial vacancy. The President chooses among those candidates to pick a nominee, or can reject them all, in which case the JNC has to pick some more. The Senate then confirms (or doesn't confirm) the nominee.

The authors of the Home Rule Act got the idea of the JNC from Missouri (p. 1732), which has a similar (but non-federal) commission they felt worked well there and would ensure well-qualified judges. (It seems, overall, to have worked pretty well at that.)

House Republicans changed the appointment from the Mayor to the President

The bill that passed the Senate in 1973, and the version that reached the floor of the House, gave the mayor the power to choose among the candidates from the JNC, and the DC Council the responsibility of confirming them. (1754-1755) On the floor, however, an amendment changed that.

Rep. William Harsha, Jr. (R-OH) proposed changing the original bill to give the President and the Senate the power over judges. (2364) He had the support of Attorney General Elliot Richardson, who would resign that year in the Watergate scandal.

Minority Leader Gerald Ford (R-MI, who would become Vice-President that year and President the following year) supported the amendment. He said,

It seems to me that each one of us from 435 districts each year has a tremendous number of our constituents coming to the Nation's Capital. I believe that our constituents deserve the kind of judges that would be appointed by the President rather than the kind of judges appointed by a mayor. (2365)

On the other hand, Rep. Henry P. Smith III (R-NY) noted that "if one of [Mr. Ford's] constituents comes to my home town and is apprehended there, he is tried by a judge elected by my home town people and not a judge elected by the people of the State of Michigan." (2372)

The subject also came up during the prior Rules Committee meeting that some cities, like New York and Newark, have another municipal court, which handles some violations of city laws; there, mayors appoint the judges. (1765) Overall, though, in the many times it came up during committee deliberations, it seemed members of Congress variously thought of DC as equivalent to a state or as a city.

It acts like a state for many purposes, including judicial, but its chief executive is called a mayor, not a governor, and its legislature at the time bore the name City Council, though the Home Rule Act changed it to the less specific Council of the District of Columbia. A state chief executive appoints judges to state courts (when they're not elected), but a city chief executive usually does not.

The Harsha amendment passed 228 to 186 with 20 not voting (2376).

Conference committee then switches the JNC

In the House version of the bill, while the Mayor originally held the power of appointment, members of the JNC were mostly federal: 2 chosen by the DC Bar Association, 2 by the Mayor, 1 by the Speaker of the House, 1 by the President of the Senate, and 3 by the President. That's 5 federal, 2 local, and 2 from the bar, with the clear balance of power on the federal side.

During the debate on the Harsha amendment, Rep. Brock Adams (D-WA) explained that this was intentional: they made the commission mostly federal but put the appointment power in the local sphere.

Once the Harsha amendment passed, the conferees then went and switched around the JNC. They made it comprise 7 members: 2 from the DC Bar, 2 by the Mayor, 1 byt he DC Council, 1 by the Chief Judge of the US District Court for the District of Columbia (the lower federal court), and 1 by the President of the United States. Only 2 of these are federal. (3065-3066)

In other words, since the appointment power had shifted from local to federal, the members flipped the JNC from federal to local. That's its composition to this day. Rep. Joel Broyhill, (R-VA), one of the main opponents of the Home Rule Act, denounced this change as he wanted to keep both the nomination and appointments powers federal, but the decision had been made and the bill passed with the system we have today.