University of the District of Columbia Law Review Volume 21 Issue 2 Article 5 March 2019 Laboratory Of Democracy: How the District of Columbia is Using the Home Rule Act to Achieve Elements of Statehood Walter A. Smith Jr. Kevin M. Hilgers Follow this and additional works at: https://digitalcommons.law.udc.edu/udclr Part of the Constitutional Law Commons, Legislation Commons, and the State and Local Government Law Commons Recommended Citation Walter A. Smith Jr. & Kevin M. Hilgers, Laboratory Of Democracy: How the District of Columbia is Using the Home Rule Act to Achieve Elements of Statehood, 21 U.D.C. L. Rev. 108 (2019). Available at: https://digitalcommons.law.udc.edu/udclr/vol21/iss2/5 This Article is brought to you for free and open access by Digital Commons @ UDC Law. It has been accepted for inclusion in University of the District of Columbia Law Review by an authorized editor of Digital Commons @ UDC Law. LABORATORY OF DEMOCRACY: HOW THE DISTRICT OF COLUMBIA IS USING THE HOME RULE ACT TO ACHIEVE ELEMENTS OF STATEHOOD Walter A. Smith Jr. &Kevin M. Hilgers* INTRODUCTION On January 3, 2019, Congresswoman Eleanor Holmes Norton, the District of Columbia's (the "District') nonvoting delegate to the House of Representatives, reintroduced the Washington, D.C. Admission Act, which would make much of the District the 51st state.1 While Norton had made a tradition of opening each new Congress by introducing D.C. democracy bills,2 the context this time gave District advocates more reason to be optimistic. With the Democrats gaining control of the House, the bill gained a record 155 original cosponsors, and Representative Elijah Cummings, chair of the House Committee on Oversight and Reform, committed to holding a hearing on a statehood bill for the first time since 1993. Meanwhile, blocks from the Capitol, a lawsuit had been brought two months prior by a group of District residents against the federal government arguing that the denial of the full congressional voting rights was unconstitutional. 4 This strategy of asking Congress or the courts for relief has been tried before with limited success and may yet succeed in the current environment.5 However, there is another strategy that has been applied in recent years that indisputably has secured greater autonomy for the District's nearly 700,000 residents, who have long lived without the same basic rights to democracy as other Americans. This article discusses this new strategy adopted by the District in recent years to take advantage of authority, by District voters and the District government, and to advance democracy at the local * Executive Director, DC Appleseed Center for Law and Justice, and Associate, Goldblatt Martin Pozen LLP. Thanks to the many lawyers who have committed extensive pro bono time developing the legal arguments outlined in this article, including, but not limited to: Jon Bouker, Aaron Brand, Rick Bress, Karen Dunn, Merril Hirsh, Lone Masters, Alan Morrison, Brian Netter, Thorn Pozen, Gary Thompson, Wayne Turner, Ilir Zherka, and David Zvenyach. Washington, D.C. Admission Act, H.R. 51, 116th Cong. (2019). 2 See also., H.R. 1291, 115th Cong. (2017); H.R. 733, 110th Cong. (2007); H.R. 1054, 110th Cong. (2017); H.R. 4054,105th Cong. (1998); H.R. 4055, 105th Cong. (1998). Press Release, Norton introduces D.C. Statehood bill with record number of original cosponsors, announces House Oversight Committee will hold hearing and markup this year, https://norton.house.gov/media- center/press-releases/norton-introduces-dc-statehood-bill-with-record-number-of-original (last updated Jan. 3,2019). Castafion v. United States, Amended Complaint, Case No. 18-2545 (D.D.C. Nov. 26, 2018), http://www.dcappleseed.com/wp-content/uploads/2018/12/Amended-Complaint.pdf. Adams v. Clinton, 90 F.Supp.2d 35 (D.D.C. 2000); Jenna Portnoy, To Dream the Impossible Dream:D.C. Officials File Bill, Petition for Statehood, WASH POST, Mar. 1, 2017; Press Release, Norton Releases Prepared Remarks for D.C. StatehoodPress Conference, https://norton.house.gov/media-center/press-releases/norton-releases- prepared-remarks-for-dc-statehood-press-conference (last updated Mar. 1, 2017). 108 level, instead of relying exclusively on the federal government to take affirmative action on the District's behalf First, the article recounts the history of Congress's inability or unwillingness to give the District greater democracy. Second, it explains how given this history, the District can and should rely on the broad authority delegated to it by Congress in the Home Rule Act to advance democracy. Finally, the article describes several initiatives of the new strategy through which the District has applied or is applying this principle. I. CONGRESS IAS DEMONSTRATED THAT IT IS EITHER UNWILLING OR UNABLE TO GIVE THE DISTRICT GREATER DEMOCRACY. In 1970, Congress gave the District a non-voting delegate seat to the United States House of Representatives.6 In 1973, it adopted the District of Columbia Self-Government and Reorganization Act ("Home Rule Act"), which created the locally elected government that exists today.7 Since then, however, Congress has been either unwilling or unable to make meaningful additions to the limited democracy it established more than forty years ago. For instance, in 1978, Congress passed a proposed constitutional amendment that would have given District residents full voting rights in Congress.8 This proposed amendment expired in 1985 after being ratified by only sixteen of the necessary thirty-eight state legislatures. In 1993, a statehood bill was brought to the House floor for the first and only time, but it failed 277-153.9 The District then pursued congressional voting rights through the courts, but to no avail. In Adams v. Clinton, Judge Merrick Garland, writing for a 2-1 majority of a three-judge panel of the United States District Court for the District of Columbia, determined that under Article I of the Constitution District residents were not constitutionally entitled to voting representation in the House.10 Judge Garland reasoned that Article I requires voting representation only for residents of states, and the District is not a state." Judge Garland noted, however, that advocates could seek a remedy through "other venues." 12 Judge Garland's observation helped set in motion a new direction for voting rights advocacy. In 2007, Congressman Tom Davis of Virginia and Congresswoman Eleanor Holmes Norton 6 District of Columbia Delegate Act, Pub. L. No. 91-405, § 201-06, 84 Stat. 845, 848-55 (1970) (codified at 2 U.S.C. § 25a (2012)) (the "Delegate Act"). District of Columbia Self-Government and Reorganization Act, Pub. L. No. 93-198, 87 Stat. 777 (1973) (codified at D.C. Code §§ 1-201.01-207.71) (hereinafter "Home Rule Act"). H.J. Res. 554, 95th Cong. (1978). New Columbia Admission Act, H.R. 51, 103rd Cong. (1993). Io Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000). Id. at 48-49. 12 Id. at 72. 109 introduced a bill that would give the District a Member of the House with full voting rights, and also give Utah an additional Member.13 This measure was passed by bipartisan majorities in the House in 2007 and the Senate in 2009.14 However, the Senate added an amendment to the 2009 bill that would have significantly undermined the District's gun safety laws and prohibited the Council from legislating in this area." This amendment effectively killed the bill.16 Most local District leaders called for the bill to be withdrawn deciding that a significant cutback on the city's gun safety laws was too steep a price for voting representation in the House.17 In addition to this effective denial of congressional voting rights, Congress has also been unable to grant the District autonomy over local matters enjoyed by other local governments. For example, for years, the District has been asking Congress for local "budget autonomy" the ability to spend local dollars without an affirmative congressional appropriation and legislative autonomy the ability to enact local laws without waiting for congressional review of those laws." Both of these changes would significantly improve local governance without interfering with Congress's prerogatives, either practically or constitutionally.19 As with congressional voting rights, these ideas have drawn significant support from leaders in both parties.20 In fact, Republican chairs of the committee with oversight of the District have either co-sponsored legislation or expressed support for such greater District autonomy.21 Nonetheless, they have never been able to garner majority support.22 Like the voting rights bill, this has been due in large part to the inclusion of amendments that otherwise undermine home rule and are unacceptable to local officials.23 13 H.R. 1905, 110th Cong. (2007). 14 District of Columbia House Voting Rights Act, H.R.1905, 110th Cong. (2007); S. 160, 111th Cong. (2009). 15155 CONG. REc. S2507, S2513 -16, S2526 -38 (daily ed. Feb. 26, 2009). 16 See Byron Tau, How the Gun Lobby Shot Down D.C.'s CongressionalVote, CITY PAPER (June 4, 2010). 17 Id. 1 See, e.g., H.R. 960, and H.R. 1045, Greater Autonomy for the Nation's Capitol: Hearing Before the Subcomm. on Fed. Workforce, PostalServ., and the District of Columbia, 111th Cong. (2011) [hereinafter Greater Autonomy for the Nation's Capitol]; Budget Autonomy for the District of Columbia: Restoring Trust in Our Nation's Capital: Hearing Before the H. Comm. on Gov't Reform, 108th Cong. (2003). 1 See GreaterAutonomy for the Nation's Capitol, supranote 17, at 40 (statement of Adrian Fenty). 20 See, e.g., Press Release, Davis Introduces D.C. Budget Autonomy Legislation (Apr. 13, 2005), httns://www.dcvote.or2/news/davis-introduces-dc-bud2et-autonomy-le2islation (announcing introduction of bipartisan congressional budget autonomy legislation).