Legislating Around The Constitution, Part Two

By Marc Korman.

In Part One we talked about Maryland’s participation in the National Popular Vote effort. But Maryland is also heavily involved with another effort to legislate around the Constitution, the District of Columbia House Voting Rights Act of 2009.

Students in Poli Sci 101 can tell you that the House has 435 members. But in truth, it has 435 voting members. Guam, American Samoa, Puerto Rico, the Virgin Islands, and Washington, DC all have a representative, though not a full Congressmember, in the House. While these representatives can introduce legislation and serve and vote on committees, they cannot vote on final passage of legislation on the House floor. Thus, the DC license plate phrase “Taxation Without Representation.”

DC has a long history of being treated as a step child. It did not receive electoral votes until the 1960s and the major home rule reforms providing for self government did not pass until the 1970s. There have been varied failed efforts to give DC voting rights in Congress. Congress even passed a constitutional amendment granting DC House and Senate representation in 1978, but it expired without being ratified by the requisite number of states.

The latest effort would use a statute to give Washington, DC a single voting seat in the House of Representatives, but no representation in the Senate. The legislation is supported by Majority Leader Steny Hoyer of Maryland, who testified in favor of the bill recently, giving it bright prospects for passage.

The bill would increase the House from 435 to 437 members. One seat would go to DC and the other would go to the next state eligible for a seat based on population, which is currently projected to be Utah. Utah’s involvement is the key to the bill. Republicans know that DC is overwhelmingly Democratic, with President Obama winning 93% of the vote there. But the almost inevitable gain of a Democratic House vote would be offset by the likely gain of a Republican vote from conservative Utah, a state John McCain won with 63% of the vote.

But there are those who oppose the bill. For example, some Members of Congress support returning DC to Maryland and Virginia, the two states that originally provided the land for the national capital. I’m not sure Maryland would be crazy about that, but there is some precedence for retrocession, as Virginia had 31 square miles of land ceded to DC returned in 1847.

Although the statute offers the path of least resistance to House representation for DC, there are those who question its constitutionality. The Constitution says that states shall have representatives in Congress, but DC is not a state. Proponents of the bill say that is a matter for the courts, not Congress to settle. But ideally, Congress would not spend a lot of time passing unconstitutional legislation.

Personally, I support both elimination of the antiquated Electoral College and full voting rights for DC. Were anyone to ask me how to vote on these bills, I would say vote for them. But my hope would be that these statutes would spur action for Constitutional amendments. Amending the Constitution for these two noble goals is much safer ground.