Representation Starts in Constitution

John C. Fortier John C. Fortier

Residents of the District of Columbia deserve congressional representation. But they are not well-served by a current bill to give D.C. a full voting member in the House, offset by a new House seat in Republican-­leaning Utah. Congress will most likely pass this bill, President Barack Obama will sign it and then the courts will find it patently unconstitutional.

Supporters of D.C. voting rights will then have to turn their efforts to much more difficult and conventional ways to grant the District congressional representation, which will involve making significant compromises.

The elephant in the room is the elephants themselves: the Republicans and the question of political balance. The District of Columbia is not an abstract place, but a very real and very Democratic jurisdiction.

D.C. residents should be represented in Congress. They are citizens of the United States who serve their country, pay taxes and live under federal laws. D.C. is not a faraway territory; its citizens and the citizens of other states commingle regularly. D.C.'s population, about 550,000, is the size of that of a small state. Only Wyoming has fewer people, but slow-growing Vermont and North Dakota are only slightly larger. And in the 1960s, the 23rd Amendment was ratified, giving D.C. the right to participate in presidential elections. Why should D.C. residents have the right to vote for president but not for representatives in Congress?

There have traditionally been three constitutional, but difficult, options for granting D.C. congressional representation. The first is to admit the District of Columbia as a state. This could be done by a simple piece of legislation that passes both houses of Congress and is signed by the president. But some wonder whether the District has the tax base to stand on its own, among other challenges.

The second would be a constitutional amendment, but this would require a two-thirds vote of both the House and the Senate and ratification by three-quarters of the states. Finally, there is the option of retrocession, merging the District with Maryland. After all, the District was originally part of Maryland. This would require Congress passing a law and the consent of D.C. and Maryland.

The elephant in the room is the elephants themselves: the Republicans and the question of political balance. The District of Columbia is not an abstract place, but a very real and very Democratic jurisdiction. While many Republicans see the justice in D.C. representation, they view it as coming at their expense. Admit D.C. as a state, and Democrats get one more vote in the House and, more significantly, two additional votes in the Senate. No party willingly gives an advantage to its rival. And throughout our history, we have had numerous cases of states admitted to the union in pairs to preserve political balance.

One appeal of D.C. merging with Maryland is that District residents would be represented in the Senate, but there would be no net increase in Democratic senators.

Frustrated with the traditional avenues, former Rep. Tom Davis and D.C. Del. Eleanor Holmes Norton came up with a new approach: Pass a simple piece of legislation expanding the size of the House from 435 to 437 and designating that one of those seats would go to the District of Columbia (the other would go to Utah, which missed getting an extra seat by a hair after the last census reapportionment).

The bill rests on an expansive and constitutionally dubious premise. The Constitution gives Congress the power to "exercise exclusive legislation in all cases whatsoever, over such District," a power that courts have interpreted broadly. Proponents of the bill argue that this clause gives Congress the power to treat the District like a state and to grant it congressional representation.

But this clause is more accurately read to mean that Congress may rule over the District like a state government rules over a state. It can set up the form of local government for the District or rule it directly. But this clause does not give Congress the power to do what only the Constitution can do: decide which entities are represented in Congress.

The Constitution is explicit; only states have representatives in the House and the Senate. The bottom line for D.C. representation in Congress is that we must either change the Constitution or make the District a state or part of a state.

By pursuing the Norton Bill, advocates of D.C. voting are going down a long detour and wasting valuable time. The real answer lies with one of the three traditional, constitutional and politically difficult avenues. And to successfully pursue one of those courses means dealing with Republican concerns that D.C. voting will hurt them politically.

The justice of the cause does not mean that compromise is not necessary; compromise is more necessary because it serves a just end.

John C. Fortier is a research fellow at AEI.

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