An accident of history
Washington D.C. disenfranchisement through the ages

By John Flanagan on March 25, 2011 11:59 am— Commentary

Driving along Pennsylvania Avenue, “America’s Main Street,” is a lesson in the development of the world’s oldest constitutional republic. The White House and Capitol, which bookend this grand boulevard, showcase the struggle of checks and balances. However, it’s hard to miss the ominous ticker that stands close to the White House. Every day, it counts up dollar-by-dollar the taxes D.C. residents have paid without a vote in Congress.

Almost any American can tell you that the central drama of the War of Independence centered around the idea that the British imposed “taxation without representation” on North American colonies. But in a move that would become one of the great ironies of the American Revolution, the first U.S. Congress created a federal district whose residents would suffer just the same fate. The U.S. constitution calls for “representatives of the various states” in Congress, but D.C. was expressly created independent of the 13 states. Also, the constitution gives Congress complete authority over the federal district, which was just the kind of government the American patriots fought to avoid.

The creation of this disenfranchised District of Columbia was an accident of history, a convergence of the interests between a skittish federal government concerned for its safety and a reticent South that wanted a capital close to its sphere of influence. There are ways to remedy this inconsistency, but there are no simple fixes to a problem that is more than 200 years in the making.

 

On June 20, 1783, nearly 400 Continental Army soldiers protested at Independence Hall, then the seat of Congress, over unpaid wages for service in the Revolutionary War. At the time, the national government had no standing army of its own under the Articles of Confederation. So when the mutineers arrived in Philadelphia, Congress had to beg the government of Pennsylvania for protection. The national legislature was forced to decamp to Princeton, New Jersey. After a shameful exile, Congress formed a committee to study the idea of creating a “federal town” to secure its own safety.

The committee recommended the creation of a district over which Congress would have exclusive jurisdiction. The proposal made its way into the U.S. Constitution as Article I, Section 8, Clause 17, also known as the District Clause. The measure, which comes near the end of a long list of delegated federal powers, calls for Congress “to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.”

James Madison defended the District Clause in Federalist No. 48 by cautioning that “a dependence … on the State comprehending the seat of Government for protection in this exercise of their duty, might bring on the national councils an imputation of awe or influence.” He also addressed Pendleton’s worry that future citizens of the federal district would be disenfranchised by arguing that they would retain voting rights in the ceding states. In concluding, Madison promises, “a municipal Legislature for local purposes, derived from their own suffrages, will of course be allowed them.”

As an extra safeguard, Alexander Hamilton, one of the delegates of the original Constitutional Convention, added an amendment guaranteeing that the residents of the new federal district would temporarily retain their old state citizenships for the purposes of voting, to gain full representation later. However, this language never made it into the final draft. Sure enough, when the District of Columbia was formally organized under the Organic Act of 1801, the residents of D.C., who had been previously represented by congressmen from Maryland and Virginia, formally lost congressional representation.

In 1800, D.C. had only 8,144 residents. By 1870, the population had grown to 131,700. The Civil War and the resulting increase in federal power raised the profile of the District of Columbia and made a more modern and efficient government necessary. The Organic Act of 1871, which created a single government for the District, called for a presidentially appointed governor and a bicameral legislature with local suffrage in the lower house and presidential appointees in the upper house. D.C. also had a non-voting delegate to Congress during this period.

But when D.C.’s second governor, “Boss” Andrew Shepherd, went on a financially ruinous spending spree, Congress abolished this form of government. In the place of an elected legislature and congressional delegate, the president would appoint a three-member Board of Commissioners. But the triumvirate that would rule Washington for almost a century to follow was not accountable to the people it served. Its only distributional requirement was that the Board be composed of one Democrat, one Republican, and one engineer of no specified party.

While the Board was theoretically the local government of D.C., Congress regularly interfered with D.C. affairs through the District of Columbia committees in each chamber. Only the most marginal congressmen were appointed to what was viewed as an undistinguished committee. This attracted fringe elements from both parties, such as Chairman John McMillan (D-SC), a staunch segregationist who would rule the city through the 1960’s and early 1970’s.

But greater sovereignty for the District would only come when D.C. residents actively campaigned in McMillan’s district to have him ousted from the head of the D.C. House Committee. After that, the D.C. Home Rule Charter sailed through Congress and was signed by the President in 1973. In 1974, the charter was put to the citizens of D.C. and overwhelmingly approved.

However, the Home Rule charter provided neither voting representation in Congress, nor full sovereignty for the District of Columbia. Congress still has the privilege of vetoing any law the local government may propose, and D.C. only sends a nonvoting delegate to Congress.

Efforts to expand D.C.’s voting rights came in 1978 with an amendment that would give the federal district representation as if it were a state. However, the amendment failed to be ratified by the requisite number of states prior to its expiration in 1985. Senator Edward Kennedy of Massachusetts, who co-sponsored the amendment, famously claimed that opposition “has seemed to arise from … the fear that senators elected from the District may be too liberal, too urban, too black, or too Democratic.

 

Since then, D.C. has continued to lack voting representation in Congress and has also suffered painful vacillations in its sovereignty. Throughout the 1990’s, Republicans refused to allow the District to pass progressive legislation that would have legalized domestic partnerships and medicinal marijuana. Also, from 1995 to 2001, a budget crisis prompted Congress to override the District’s home rule and require all laws to be submitted to a Congressionally-approved Budget and Control Board. Congress can similarly alter the terms of D.C.’s nominal sovereignty at any time.

While 59 percent of D.C.’s revenue came from local taxes in 2001, monies collected by the D.C. government are treated as federal taxes and must be appropriated to the District by an act of Congress. Congressional Republicans, in particular, have used this requirement as an opportunity to pass so-called “budget riders” that stipulate how D.C. may spend its own revenue.

The most recent batch of budget riders came with the Republican Revolution of 1996, when House Republicans managed to place restrictions preventing the implementation of D.C.’s medical marijuana, domestic partnership, and needle exchange programs. Also, Congress repeatedly threatened to weaken D.C.’s gun laws before D.C. v. Heller struck them down, and tried to abrogate the District’s traditionally liberal contraception and abortion laws.

This subversion of the democratic voice of the people is unfair and, in the case of limiting anti-HIV initiatives such as needle exchanges, leads to severe consequences. When Democrats returned to the majority in the House in 2006, they repealed almost all of these riders, but there is nothing to prevent the new Republican majority from bringing back these undemocratic measures.

Although it is apparently not so obvious for lawmakers, Americans who are informed on the issue demand that D.C.’s unjust situation be remedied. In 2005, D.C. Vote, an organization that pushes for D.C. voting rights in Congress, conducted a poll of around 1,000 adults from around the country. Only 18 percent correctly identified that D.C. does not have full voting rights in Congress, but 82 percent of those polled supported equal voting rights in the House and Senate.

 

There are four potential remedies for D.C.’s current voting rights and sovereignty situation. D.C. could be returned to Maryland, Congress could give D.C. the right to vote by legislative initiative, the non-federal portion of D.C. could be admitted as a state, or a constitutional amendment could grant D.C. residents additional rights without altering its status as a federal territory.

In 1847, frustrated by a lack of development on its side of the Potomac, the portion of the District of Columbia ceded by Virginia successfully petitioned to be returned to that state. What’s left of D.C. is what was ceded by Maryland. Becoming a part of Maryland would give D.C. a vote in both houses of Congress, but the plan has only ever enjoyed limited debate in Congress and neither Maryland nor D.C. voters support the measure.

Recent activism has centered on a legislative path to equal representation. In 2007, Rep. Tom Davis (R-VA) and Delegate Eleanor Holmes Norton (D-DC) introduced the District of Columbia Voting Rights Act, which would give D.C. a single vote in the House of Representatives. However, last-minute Republican amendments that threatened to abrogated D.C. gun laws caused the bill to die in the House.

Even if the measure had passed, there are serious questions as to its constitutionality. On one hand, the Constitution only calls for the states to be represented in Congress. Others argue that the District Clause gives Congress the ability to extend representation to D.C.. In National Mutual Insurance v. Tidewater (1949), Congress ruled that the District Clause allowed Congress to extend state-like privileges to D.C. in entering lawsuits against parties from different jurisdictions, even though the Constitution only establishes this right for states.

In the same manner, Senator Orrin Hatch (R-UT) argues that Congress may extend voting rights to D.C. in the House of Representatives. However, incongruously, Hatch argues against representation in the Senate on the grounds that that the body was explicitly created to represent states. This bizarre reasoning seems disingenuous when one learns that Utah, Hatch’s home state, would have gained a House seat as a result of the DCVRA, in a trade meant to placate Republicans.

In the last decade, proposals for D.C. statehood have gained traction among local activists. All the candidates at a recent D.C. Council election forum supported the idea, and 59 percent of D.C. residents who participated in a recent Washington Post poll supported statehood. Most proposals call for a “rump” federal district around the White House and Capitol Complex, while the rest of D.C. would be admitted as the state of New Columbia. This would remedy D.C.’s voting rights problems by giving the District two Senators and a Representative in Congress. However, some believe Maryland would have to approve this decision because it ceded the land for D.C. It is unlikely that Republicans would get behind a proposal that would give solidly Democratic D.C. two votes in the Senate.

The surest road to representation is a Constitutional Amendment that would give D.C. voting rights or would permanently alter its status, but this was unsuccessful in the 1980’s when it was first proposed. A more concerted effort on D.C.’s part might make the difference. Unfortunately, Congress also bars the D.C. government from spending money to advocate for D.C. voting rights or home rule.

 

The road ahead for D.C. voting rights is uncertain. A constitutional amendment and an act of Congress that would give D.C. equal voting rights have both failed, and there is no indication that Republicans will allow New Columbia to become the 51st state any time soon. That said, D.C. residents have shown that they can overcome great hurdles. The fight for the present Home Rule Charter butted up against the likes of segregationist John McMillan. Home rule activists succeeded by going into his district and campaigning for their rights.

Full District of Columbia voting rights and increased home rule are clearly the best possible remedies to the District’s unjust situation. However, the poisonous rhetoric and deal making on Capitol Hill make it difficult for politicians to arrive at this obvious conclusion. Activists must therefore take the viable proposals of statehood and constitutional enfranchisement directly to the American people. Once they have been made aware of the situation, it is hard to imagine that a people raised on the legend of “taxation without representation” will do anything but oblige D.C.’s request.

Tags: Congress, D.C., elections, history, Home Rule, representation, taxes, voting