DOJ Repeats Opposition to D.C. Bill

Posted May 23, 2007 at 6:23pm

While Members of Congress and a range of experts once again debated the District of Columbia House Voting Rights Bill on Wednesday, a Justice Department official reaffirmed the Bush administration’s opposition to the measure.

But supporters said the hearing served as a “necessarily hurdle” that needed to be overcome to get the bill through the chamber, adding they remain optimistic about the measure’s chances.

“This is obviously not an easy question of constitutional interpretation,” said Sen. Russ Feingold (D-Wis.), who handled the gavel at full Judiciary Committee hearing. “There is no slam dunk here. But the answer is of enormous consequence.”

Sponsored by Sen. Joe Lieberman (ID-Conn.) and Utah Sens. Orrin Hatch (R) and Bob Bennett (R), the bill would grant Democratic-leaning D.C. a vote in the House while also giving one to the Beehive State, which just missed getting a fourth seat after the 2000 Census. A similar measure passed the House in April.

But ever since Rep. Tom Davis (R-Va.) designed the basic framework of the bill a few years ago, the measure has been dogged by opposition from those who argue only states are granted Congressional representation under the Constitution. Supporters, meanwhile, say the document’s District Clause — which grants Congress the right to extend court jurisdiction to District residents and tax them — provides the authority to extend representation.

The two sides went head-to-head once again on Wednesday.

“The administration strongly opposes this legislation not on grounds of policy, but on grounds of constitutionality,” said John Elwood, who serves as deputy assistant attorney general in Justice’s Office of Legal Counsel.

Elwood reaffirmed that President Bush’s senior advisers would recommend he veto the bill if it passed Congress, arguing that if D.C. were to obtain a vote this way, it would serve as “an unstable form of representation” that could be taken away by a future Congress.

“If the District is to be accorded Congressional representation without statehood, it must be accomplished through a process that is consistent with our constitutional scheme, such as amendment,” Elwood testified.

(Supporters of the bill noted that Bush himself has not publicly said he would veto the bill.)

Feingold put Elwood on the spot late in the two-and-a-half-hour hearing, asking if Justice officials would stand up for the measure in court should it become law. The Senator pointed to the fact that Solicitor General Theodore Olson defending the 2002 McCain-Feingold campaign finance bill before the Supreme Court, despite the fact he himself did not agree with the measure.

Elwood responded that he is not in a senior enough position to answer that question, although he did add that Justice is “not a policy shop” and “if representation is given, we think it should be given in a manner in line with the Constitution.”

Judiciary Chairman Patrick Leahy (D-Vt.) urged Bush to sign the bill should it reach his desk. While the president has spent much of his administration striving to bring democracy to Iraq, Leahy said, he could help correct “an unfair and undemocratic practice” in the nation’s capital.

“The president spends a lot of time here in Washington, D.C.,” he said. “I wish he would speak so enthusiastically about voting rights for the American citizens living literally in his backyard.”

Nine witnesses testified at the hearing, including supporters such as Utah Attorney General Mark Shurtleff, Rep. Chris Cannon (R-Utah) and Del. Eleanor Holmes Norton (D-D.C.), who co-sponsored the House version of the bill.

One familiar face at the hearing was George Washington University Law professor Jonathan Turley, whose testimony marked the third time this year alone he has appeared before Congress to argue against the measure.

Norton noted this during her testimony, telling the panel that while she hasn’t been able to change Turley’s mind on the issue, she did manage to persuade his mother to support the bill.

“The apple has fallen very far from the tree,” Norton joked.

Turley called the lack of a full D.C. vote “a scandal,” but he remained solidly opposed to the bill, arguing that the Constitution clearly reads that only states should get Congressional representation.

“The framers were obsessed about states,” he said. “They spent a lot of time on the Composition Clause. … It says what they meant.”

The Founding Fathers discussed granting the District representation and ultimately declined to do so, Turley added.

But not all the witnesses agreed with his assessment. Patricia Wald, a former chief judge for the U.S. Court of Appeals for the District of Columbia, said there is a range of opinions found in the records from the country’s early years.

“It’s like the Bible; there’s something for everyone in there,” Wald said.

Richard Bress, a partner in the D.C. firm Latham & Watkins, said there were a number of “snippets” that can be found in the historical record, and that many of those who didn’t support D.C. representation in the country’s early years were anti-federalists — people who didn’t want to give any power at all to the federal government.

Plus, the population of the District at the time was only a few thousand people, and the founders assumed other states “would take care of” those living in the District.

“Today, of course, things are different,” Bress said.

The Senate version of the bill differs from that passed by the House. In the House’s measure, Utah would gain an at-large district, while the Senate version would allow the state Legislature to redistrict for a fourth seat.

The change came after Hatch — considered by observers to be the key ally for the bill in the Senate — expressed concerns about the at-large provision.

“This avoids potential constitutional difficulties on the Utah side of the equation,” Hatch said. “On the District of Columbia side, America’s founders might not have foreseen the District becoming the major population center it is today. But while they did not affirmatively provide in the Constitution for District representation, I do not believe they negatively denied Congress the power to do so.”

The measure is expected to be brought for a markup within weeks by the Lieberman-chaired Homeland Security and Governmental Affairs Committee. That panel already has held a hearing on the measure, and supporters said Wednesday they are optimistic about its chances there.

“Everyday we are feeling better,” said Ilir Zherka, executive director of the advocacy group DC Vote.

D.C. Shadow Sen. Paul Strauss (D), who was recognized by Feingold during the hearing, said afterward that D.C. residents are continuing to lobby Members to get the bill through.

“We don’t want to lose the momentum of the House send-off,” he said.