Partial citizenship breakthrough for DC?

One of the embarrassments–or at least it should be an embarrassment–of the US political system is the absence of any voting representation in federal affairs for residents of the capital territory, the District of Columbia. That may be about to change, incrementally. No, DC is not about to become a state or state-equivalent, with full Senate as well as House representation, as it should. However, DC may soon get a voting Representative in the House.

In classic American style, however, this (partial) breakthrough for citizenship and democracy will not come about because it is such an obviously right thing to do, but through a partisan logroll. It seems that Utah politicos are upset that it just missed out on an additional House seat after the 2000 census.* So, how about this solution: DC gets its seat (sure to be held more or less in perpetuity by a Black Caucus Democrat) and Utah gets one, too (sure to be held more or less in perpetuity by a white Republican).

Utah’s grievance comes with a religious special-status plea, to boot! The Guardian: “Utah insists that the 2000 census undercounted the state’s population because so many of the state’s young Mormon men were out of state or out of the country doing missionary work.” I wonder how many other states might have experienced undercounts because residents–less identifiable as a bloc than Utah Mormons–were abroad.

Of course, there is a better and simpler way to deal with situations akin to Utah’s without special claims. Even the alleged undercount showed Utah had grown, and other states grew yet lost seats that they already had to faster-growing states. The solution is to let the House grow as the population grows. Then House representation would be less an interstate (and interpartisan) source of conflict than it is under the fixed size, which has been at 435 since 1912, when the USA had one-third the population it has now!* Well, at least Utah’s grievance may lead to the right outcome for DC–or, rather, half the right outcome.

Now, what about representation in the Senate? There is no objective argument for denying residents of the capital territory representation in either house of the national legislature. Several federal systems have special territories for their capitals, which thus give them fewer sovereign rights as units of the federation than the states have. However, no other federation deprives its capital residents of representation in both houses of the federal legislature. In most cases, the capital territory is represented as if it were a state.*

That would require statehood (which requires only ordinary legislation) or a constitutional amendment to grant a non-state territory entitlement to representation in the Senate. Apparently, there is some question as to whether Congress can grant DC a voting House member through ordinary legislation. As the Guardian notes:

The Constitution says that the House shall be composed of members chosen by “the people of the several states.” But it also gives Congress the power “to exercise exclusive legislation” over the seat of the federal government, interpreted by some to mean that Congress can, if it wants, give D.C. voting rights.

Whatever the situation with respect to the constitutional question, it is unconscionable to treat DC residents as second-class citizens just because they happen to live near federal government buildings. Can anyone seriously argue that this situation would still be tolerated today if the District had a different racial composition to its population? It is a national shame. The partisan logroll that may remedy its lack of House vote is a step forward (in outcome, of not process). But it is only one step. (And see the bolded parts of the “other blog action” below for some reasons to doubt that even this is a step forward.)


*1. Other than temporary increases when Hawaii and Alaska entered the union in 1959. The House reverted to 435 after the 1960 census, meaning other states lost members as of 1962 to ensure seats for the new states.

*2. A partial exception is Australia, where the capital territory (ACT) has two senators, whereas each state has twelve. Two senators put ACT on par with the Northern Territory. In the USA–also nearly unique among federations–territories (e.g. Puerto Rico and Guam) also do not have congressional representation (aside from nonvoting “delegates” in the House, as DC likewise has). [Thanks to Alan for correcting an error in the original version of this note; see his comment for further detail.]

Other blog action on this topic:

(Surprisingly little action in the blogosphere on this so far, actually.)

Current DC nonvoting delegate Eleanor Holmes Norton, at The Hill Blog, calls this bill “An easy test for Democrats.”

Undernews disagrees with Norton and claims the bill is a “trick to increase GOP power.” Alluding to the constitutional argument, it says, “if Congress approves this measure, Utah will have a new seat while DC’s status will be headed for a long wrangle in the court. Result: one more GOP vote in the House as least until the case is decided. Plus Utah gains one more GOP electoral vote out of the deal.” (My emphasis; also note that DC’s electoral votes are not affected, as it has had three electors since the ratification of the Twenty-Third Amendment to the US Constitution in 1961.)

Rusty at why.i.hate.dc is not too pleased with the logroll aspect of the compromise, either: “Let me explain to Rep. Davis [R-Va., and co-sponsor] and Del. Norton how representative democracy works. The people elect representative to vote on their behalf. It’s not meant to preserve political balance. If an area that’s 90% Democrat is having their human rights trampled on, giving Republicans an extra vote to offset that new vote is not an appropriate solution. Someone explain to me the purpose of having a DC vote when Republicans in Utah get a new vote of their own. Everything cancels out. DC residents are no better off.” (Posted in December when a previous effort to pass this legislation failed; again, my emphasis.)

Shining City Atop a Hill is pleased.

A Big Time tiebreaker

The founders of the US Constitution really did not think through the vice presidency very well. Originally, they let it be filled by the candidate who came in second in electoral votes, which created two problems that they did not anticipate: It could mean a president and VP of different parties, and it could mean a tie vote for president if a party failed to have one of its electors abstain. (The latter led to an election crisis in 1800-01 that nearly destroyed the young republic.) These two problems were fixed by a subsequent constitutional amendment. But left unfixed today is another anomalous provision: that which effectively gives the executive branch two votes in the case of a tie in the Senate–one to break the tie, and then a second if the bill reaches the President’s desk. Continue reading

ANWR and the defense-bill filibuster

The filibuster in the Senate that just defeated a defense bill because it contained, among other things, a measure to open up part of the Alaskan National Wildlife Refuge to oil drilling, may look to some like nothing more than irrational obstructionism. However, the issue is largely one of procedures, and their abuse.

The party that currently has the majority of seats in each house has failed, despite those majorities, to obtain passage of an ANWR drilling measure. So it decided to use the gambit of an end-of-session conference report on a “must-pass” appropriations bill to force the wavering members of its own caucus in line. This is precisely the same tactic being followed with the “Patriot Act.” As far as their own caucus goes, it has worked, but the Senate is not–yet–a majoritarian body by design, and the other party was not buying in to the gambit.

This is not the first time, and it will not, sadly, be the last time that a party with the seat majority has used a conference report–which can’t be amended on the floor (i.e. is “fast-tracked”)–to pass a provision that there is no issue-specific majority on. But it is an abuse. A conference committee should not be able to act as secret “third chamber” to ram through by majority vote a package that contains within it provisions, non-germane to the basic underlying bill, for which there is not, in fact, a majority.

The Republican leadership faces a choice on this issue, as well as on the “Patriot Act” and other issues: compromise or polarize. Once again, it has chosen the latter, calculating (perhaps correctly) that a narrative of “national security” will resonate more with the electorate than one of “abuse of power.”

US Supreme Court to hear DeLaymander case/Frist and Byrd spat on ‘nuclear option’–on anniversary of Bush v. Gore

The United States Supreme Court has agreed to hear a challenge to the mid-decade redistricting in Texas in 2003, which was engineered by US House majority leader, Tom DeLay (R-Tex).

Meanwhile, in the last two days Senate Majority Leader Bill Frist (R-Tenn.) and senior Democrat Robert Byrd of W.Va. have engaged in a verbal skirmish surrounding the possibility that a filibuster by the party with the minority of seats in the body could prompt the party with manufactured majority of seats to “go nuclear” and unilaterally abolish the right of filibuster. Even though there has been no filibuster threat thus far, Frist on Sunday said “the answer is yes” when asked if the Republicans would change the rules to stop a filibuster of Samuel Alito’s confirmation. Byrd today responded on the floor of the Senate: “If he ever tries to exercise that, he’s going to see a real filibuster if I’m living and able to stand on my feet or sit in my seat. If the senator wants a fight, let him try it.”

Interesting that both of these matters would come precisely at the fifth anniversary of Bush v. Gore. These cases all tie together and provide a trifecta of one party using dubious manipulation of law and rules to solidify its grip on the levers of federal power.

In Bush v. Gore, the Supreme Court handed the presidency to America’s (and probably Florida’s) Second Choice. As my remarks on the Senate filibuster allude to, Republicans are also America’s Second Choice in Senate elections since 2000 (thus the filibuster currently prevents a minority party from acting like a majority party). And in the House, while the Republicans had the plurality (not majority) of votes in 2004, they lost votes compared to 2002, yet gained seats. The net gain is accounted for by the DeLay’s blatant and extraordinary mid-decade partisan gerrymander. (About halfway through an LA Times article there is a good quick summary of that redistricting.)

How will the Court rule on the Delaymander case? The case is similar to one in Pennsylvania in which a 5-4 ruling rejected the notion that an excessively partisan redistricting plan violated equal protection. (The first-linked story, from Bloomberg, has an overview.) Justice Kennedy sided with the majority in that case. Rick Hasen, quoted in both the Bloomberg and Times stories, suggests “One possibility is that Justice Kennedy has come to a firmer conclusion as to how to deal with these cases.”

New Chief Justice John Roberts will hear the Delaymander case. We can probably predict where he comes down on the matter, given that Roberts helped prepare the Republicans’ case in Bush v. Gore.

As for Samuel Alito–who will be on the Court by then if either there is no filibuster or the Republicans nuke it–we know he does not object to legislative malapportionment. Is it a stretch to think he considers partisan gerrymandering to be just fine, too?

I think we know how this is going to turn out.

[UPDATE: Scott Lemieux, at LGM has his usual perceptive analysis, asking whether: (1) The Delaymander is so ourtageous that it will be the case that prompts Kennedy to develop, with the 4 dissenters in the Pennsylvania case, a standard for unconstitutional partisan gerrymanders; or (2) Kennedy is ready to go with Scalia and argue that all partisan gerrymander cases are non-justiciable. Althouse believes the latter: “Perhaps it will use this occasion, however, to set a clear standard for bowing out of these controversies altogether.”]

[Scott also notes that Alito’s vote, which we can assume, as I did above, to be that the gerrymander is constitutionally permissible, will not affect the balance in the case, given that he replaces O’Connor, who voted with the majority in the Pennsylvania case.]

[Don’t miss Rick Hasen’s post on this topic.]

A time bomb under American democracy

Those are the words in an excellent post at Make My Vote Count. Of course, they refer to the US Senate and its malapportionment and the fact that it will only get worse unless something is done about it. But what can be done, given that the Constitution explicitly bans any amendment that would deprive states of equal representation. A time bomb indeed.

The day before the same folks discussed the other body in House of Horrors. Scary stuff, indeed.

Federalism and Constitution Day once more

OK, I relent. I was not going to say any more about this issue.

But Steven posted the other day a further clarification of a point he and I have been bouncing forth and back and forth again, with Scott also getting into the mix (and all of us making appearance in the comments to Scott’s post).

The main question, as I see it, is to what extent does Congress violate the principles of federalism when it imposes its policy will on the states through earmarks, mandates, and the like, outside its enumerated powers? My answer is, not at all, because the very principle of federalism is that the central and state governments each have their independent sovereignty and they are free to enter into mutually beneficial relationships or not, as each side sees fit. If states don’t want the mandate, they can refuse the cash and approach the policy their own way, with their own funds.

Steven, in his “fourth time” post, agrees that there is no real “federalism” issue raised when Congress sees a problem that states are more capable of administering and offers money in exchange for states addressing the problem under terms set down by Congress. He uses food stamps as an example (see the fourth paragraph of the just-linked post), and it is a good example. (As an aside, I am quite sure that he is right that this is an aspect of federalism that is not well taught in our schools, including, I would note, our universities. Outside of my classes, of course.)

So, what is Steven’s objection?

…what I find irksome is when the policy relationship entered into between the state and federal governments can then be used by the feds to adjust its demands on the states. Byrd’s rider in the appropriation bill is just that sort of ex post alteration to the contract…

But wait a second! This is the problem, I think: seeing policy bargains between sovereign institutions as contracts. That is the wrong analogy. It is an ongoing series of transactions, not a relationship governed by any single transaction as formalized as the word contract implies. A contract, properly understood, requires a neutral third-party enforcer. (Regular contracts among citizens and corporations, for example, being enforced under the government’s contract laws.)

Transactions between governments in a federation, on the other hand, are exchanges between independent authorities with only weak third-party enforcement. The judiciary can be involved if there is a question of constitutional jurisdiction, but it is not as if every individual transaction between federal and state governments is subject to judicial review. Besides, the judiciary in question is part of the federal government, even if the purpose of Senate confirmation procedures is to involve an institution that, at least in theory, represents states. (Increasingly it represents the party with the manufactured majority of seats, rather than the states, but that is another thread.)

I find it interesting—and it is a theme I am developing with coauthors on two projects, one on Mexican presidentialism and federalism, and the other on the US in comparative perspective—that the founders of the US Constitution were very explicit, in the Federalist Papers, about the transactional relationship they were setting up between the executive and the legislature: Institutions with separate agency that would have to work together to accomplish their respective goals. However, they did not elaborate a similar transactional relationship between national and state governments. They appeared to think of the levels as having a more separate existence.

Yet the very logic of the separate yet overlapping institutions of federalism mandate a theoretically almost identical transactional relationship as that between the separate but overlapping branches of any one level. If the founders did not foresee it this way, it is only because they imagined greater separation of tasks between the levels of government than between the branches of the federal government.

Yet, in their wisdom, the founders did not bar Congress from carrying out other functions beyond those explicitly enumerated. This allowed the functions of the federal government to grow without overtaking the sovereignty of the states. Each level still has to bargain with the other. And, because congressional power originates in part from the states (at least in theory), congress does not make laws in some sort of hypothetical vacuum in which the same interests arising out of the states are somehow not represented at the federal level.