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Timothy Cooper
A D.C. Bill of Rights: A Plea for Consensus
May 15, 2001




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By Timothy Cooper

Against a backdrop of considerable consternation over the loss of DC voting rights cases in the US Supreme Court, a quiet chaos has spread through the rank and file of the DC democracy movement as it endeavors to develop new winnable strategies to obtain true political rights for Washingtonians. Yet if there is to be any realistic hope of ever winning representation in Congress — a political imperative sought by DC residents and leaders for 200 years — the strategic fissures within the movement that have historically worked at cross-purposes must first be reconciled.

To reach critical mass in the local campaign for genuine political equality, a grand consensus must first be developed. This will help the city avoid the kind of dissension and resistance within the movement that inevitably dilutes its reach and power. The latest round of voting rights lawsuits — which stood in marked conflict with each other every step of the way-- represents the sharp ideological divisions that have historically split the city into various camps: those seeking strictly voting representation in Congress and those seeking either statehood or DC retrocession to Maryland.

But a city divided against itself cannot hope to unite a nation behind its campaign for equal rights. The District’s population is only two-tenths of 1% of that of the entire country’s, yet the city is proposing to ignite a national campaign to win 5% of all Congressional seats. Any realistic campaign to win the hearts and minds of the American public requires that the District stand wholly unified in the face of such sizeable odds.

Senator Ted Stevens (R-AK) once said of the campaign for Alaskan statehood, "Just imagine this: It’s the turn of the century, [the] territory [is] unorganized, with 64,000 residents, connected only by boat to the contiguous states, and by 1958 had only 226,000 residents, [yet] they succeeded in becoming a full partner in the greatest nation in the world. We did that because we were, are, and must continue to be a team."

The District has no such team; it has only a loose confederacy of politically warring tribes, which seek to undermine each other at every possible opportunity. It is a recipe for continued ineffectiveness, when winning power is the name of the game. However, until an acceptable compromise is struck between the opposing forces, which also has the full faith and backing of the business community, grassroots, political leaders, and Washington’s elite, the same ideological strategies are likely to divide the city at the expense of winning full democracy.

Is it possible to reach consensus citywide? Whether or not it can, the recent presidential victory of George W. Bush provides the city ample time to find out before it gears up to mount its next major offensive. Perhaps a DC Democracy Congress should be called to hash it out. In any event, any strategic decision should be ratified by 70% of District voters across all wards, in order to demonstrate citywide solidarity. Consensus is everything — if we want to win.

Remedies of Choice.

As everyone knows, not all remedies are the same. Various notions of political equality are not necessarily the equivalent of constitutional parity. Moreover, some remedies may be more politically difficult to attain than others. Whatever the remedy, three threshold questions must first be answered by leaders and District residents:

  1. Do DC residents actually want equal constitutional rights?
  2. If so, do they insist on obtaining those rights while living in the District, or are they willing to be included in the state of Maryland? and
  3. Are DC residents willing to settle for something less than equal rights, like representation in the House of Representatives only, or full representation in the House and the Senate, with control over the District’s local affairs continuing under the ultimate authority of Congress?

A review of the pros and cons of traditional remedies under consideration is useful.

  1. Statehood: Pro: It provides absolute and permanent political equality for DC residents, giving DC residents full Congressional representation as well as complete control over its local affairs comparable to other states. Con: A statehood bill was defeated in 1993 by a 277-153 margin. 41% of all Democrats in Congress voted against it, notwithstanding the fact that DC statehood was endorsed in the Democratic Party platform. In addition, statehood has never garnered citywide support. While a Washington Post February 2000 poll found that 58% of all DC residents support DC statehood — up from 46% in 1997 — only 45% of whites in Washington support it, compared to 63% of African-Americans. Most importantly, however, is the fact that statehood is not possible until the District can retain and pay for all its state functions, specifically its prison system and courts. This crucial consideration has been recognized by Delegate Norton, but few others. (All territories, including, for instance, Wyoming, Idaho, Nevada, Utah, Washington, North Dakota, South Dakota, Missouri, Montana, and Alaska, came into the Union on an equal footing with the other states. While the equal footing doctrine is not mandated by the constitution, Congress has traditionally employed it for the admission of new states.)
  2. Retrocession to Maryland: Pro: It provides for full Congressional representation for DC residents and local control under the final authority of the Maryland state legislature, as opposed to Congress. Con: It has never won the support of the District’s population, or that of the people of the state of Maryland. A Wirthlin Group poll conducted in Oct.-Nov. 1994 found that only 19% of DC residents supported retrocession and only 24% of Marylanders supported the idea. The Maryland State Legislature would have to ratify any DC retrocession bill passed by Congress. Moreover, the District’s future political power in Congress would be substantially diluted by an act of retrocession. The District would share the Maryland congressional delegation rather than enjoy one all its own. And the District’s special historical, political, cultural, and even legal identity, developed painstakingly and at considerable cost over 200 years, would inevitably be compromised by absorption into the state of Maryland.
  3. Voting Rights Amendment: Pro: It would provide for either full Congressional voting rights or a vote in the House of Representatives only. Con: It is generally considered more difficult to attain than statehood, having once already failed to win ratification, garnering support in only 34% of the requisite state legislatures in 1985. An amendment for a vote in the House only is considered easier to win than statehood because it would probably receive the endorsement of moderate House Republicans such as Rep. Tom Davis (R-VA). Neither version of the constitutional amendment, however, would guarantee local governmental autonomy.

Fiscal and Political Deficits

Of the aforementioned remedies, only two guarantee equal constitutional rights for District residents. If the answer of DC residents to the first threshold question is that they want equal rights, as opposed to something less than equal rights, then the other alternative remedies should be set aside as inadequate. While strategic arguments can certainly be made in favor of the "less than equal" alternatives — for instance, that they are a "down payment on statehood" or are a "stepping stone" to equal constitutional rights — they would also send a powerful message to the nation that DC residents are willing to settle for less than political equality, despite bearing equal responsibilities as US citizens. Is this the message we wish to convey to the nation? And wouldn’t DC be as unfaithful to the basic principles of this nation as those who oppose us, should we argue for anything less than constitutional equality?

Yet the most popular alternatives of DC statehood and Maryland retrocession appear to be unrealistic. DC cannot apply for statehood without paying for all of its state functions. But according to Stephen Fuller, an economist at George Mason University, this scenario is unlikely to occur any time soon. Describing the long-term, fiscal forecasts of the city as "not rosy," Fuller comments that the District’s budget growth is "never going to be enough to reinvest in its capital structures," estimating that it will require $3 billion alone to revamp the DC public school system "to make [it] on a par with Arlington County’s." Further, "[t]here are only 570,000 residents," he adds, "and the city is landlocked, and has only a certain capacity to increase its tax base." In other words, the District needs additional revenue sources since "it has squeezed the maximum out of the ones it has." As to whether or not the District will ever be able to reclaim its state functions given the dim fiscal forecasts, Fuller answers the question with a question, "Any sober person might say, ‘Why would it want to?’"

While the District’s finances are strikingly better off than they were when the city’s leaders struck a grand bargain with the federal government in 1997 to save the city from plummeting into bankruptcy, the consequence of that deal is to have undercut any new petition for statehood. And while the District’s corrections system and courts could conceivably be reclaimed somewhere down the road, the hard strategic questions are: What precisely are the city’s plans to reclaim them and how long is it likely to take? The viability of any future campaign for DC statehood hinges on realistic answers to these questions.

DC retrocession is probably an even remoter possibility at this point than statehood, due to its lack of a requisite core political constituency, either in Maryland or in DC. For this reason, retrocession continues to be an orphan remedy, despite the fact that Rep. Ralph Regula (R-OH) ritualistically introduces a retrocession bill in Congress each year.

Which brings us to the ultimate, thorny question: If DC residents truly want to win equal constitutional rights, where do they turn to win the twin objectives of equal Congressional representation and full self-government, while recognizing the harsh parameters of the city’s asthmatic fiscal health?

The Hard Numbers

In a 1997 — at the nadir of the District’s economic downturn — Mark David Richards conducted a nationally representative telephone survey of 1,000 US adults (Margin of error is plus or minus 3 percentage points), asking Americans if they agreed or disagreed that the residents of Washington, D.C. should have voting representation in the Congress, like other US citizens. 79% agreed. Importantly, a whopping 87% of those Americans also agreed that local residents should have the right to elect their own local officials to run their city government, just like other US citizens.

Then in 1999 Richards conducted another national poll of US adults that provided some basic facts about the current situation and asked, "In your opinion, should DC citizens have equal voting rights in the House and the Senate, or not?" 72% supported equal voting rights in the House and the Senate. An underlying belief that all Americans should have equal political rights is a likely explanation for the high level of public support. Of those who supported equal voting rights for DC, an overwhelming 82% said that they would support an equal constitutional rights amendment. 59% said that they would support merging DC into Maryland, and 57% said they would support DC statehood.

The equal constitutional rights amendment was also the only remedy of the three that gained majority support among all demographic groups, including women, men, liberals, moderates, conservatives, Democrats, Independents and Republicans. The level of support ranged from 57% for conservatives to 81% for Democrats.

While the American public is supportive of equal political rights for DC, it remains conflicted, as does DC itself, over the best means to remedy the injustice. But the twenty-five percent difference between support for an amendment for equal constitutional rights and support for DC statehood is statistically significant and should be carefully considered in any debate over DC’s long-term strategy.

Local Business & DC Elites

At the heart of the conflict between DC pro-democracy forces lies the question of whether or not the District will ever be viable as a self-sustaining state. Historically, the business community, city elites, and DC voters west of the Rock Creek Park have been wary of inflated claims that financial independence from the federal government was practicable, or even beneficial. Without some certainty that the District can economically survive if the financial crutch of Congress is withdrawn, those fears are likely to continue in perpetuity, and support for statehood by those powers will likely go on being denied. Severance of Congress’s purse strings is the one fiscal nightmare that they truly dread.

And for good reason. Notwithstanding claims about the District’s fiscal self-sufficiency from statehood advocates during the statehood debate in 1993, shortly after the bill was defeated, the city’s financial roof caved in, resulting in the creation of a financial control board, and worse, the temporary takeover of the District by the federal government in 1997. It was self-evident that the city was in no condition to support statehood. Nor would it have been, even if it had won the right to negotiate reciprocal taxing agreements with Maryland and Virginia with statehood. Mismanagement, severe limitations on the city’s taxing authority, additional burdens imposed on DC by the federal government, and a razor thin tax base all contributed to the city’s financial demise.

Yet the city’s political agenda demands equal political rights. A more flexible plan is required to align the legitimate concerns of a cautious business community with the fundamental aspirations of the majority of Washingtonians. After all, any successful national campaign for equal rights will require business’s serious financial commitment, and city elites and DC voters west of Rock Creek Park are an important political constituency in any consensus building process.

A Strategic Compromise.

So the big question begs itself: What strategic compromise can reconcile the imperative of forging a consensus on remedy, the majoritarian expressed intention to win equal political rights through statehood, the city’s loss of key state functions, the District’s dim, long-term, fiscal prospects, Americans’ preference to support an amendment for equal constitutional rights, and the historical concern of the local business community and city elites about irrevocably cutting Congressional purse strings?

Surprisingly, the answer may lie South of the Border, in a region of the world relatively inexperienced in the ways of democracy, but light years ahead of the US in solving the problem of the disenfranchisement of the residents of their own federal districts.

While the citizens of Caracas, Venezuela; Mexico City, Mexico; Buenos Aires, Argentina, and Brasilia, Brazil — all federal districts and modeled after America’s own, the District of Columbia — they nevertheless enjoy full voting rights in their national legislatures. This was not always the case.

Brasilia, for instance, was founded in 1889 as the capital of the Federal Republic of Brazil and copying the US example, disenfranchised those citizens living in its own federal district (FD). They had no representation in the national legislature and as late as 1969 the residents of the FD were denied representation in their own local legislature, as it was governed by a special Senate committee and its so-called "governor" was appointed by the president with the consent of the Senate.

Not until Brazil amended its constitution in 1988 were the residents of the FD treated as citizens of the states, with equal representation granted them in both chambers of the national legislature. According to political science professor Charles Wesley Harris of Howard University, the new constitution not only granted the FD "the same legislative powers as the states and municipalities," but also endowed it with "the same taxation and revenue powers (and limitations) as the state." Moreover, the FD was generally granted budgetary autonomy, and receives "special payments" as the seat of national government.

If it works for Brasilia, why not for DC?

In lieu of statehood, why not craft an amendment for equal constitutional rights for DC residents — a "DC Bill of Rights" — that would effectively treat DC citizens as residents of a state for all constitutional intents and purposes? As Professor Harris concludes, "[w]ith the national constitution providing for the federal district to be treated as a state, [Brasilia] is strong in both local autonomy and representation in the…. national congress." If DC statehood is out of reach for the foreseeable future, shouldn’t we shoot to win DC residents the very essence of states’ rights?

A "DC Bill of Rights" — as distinct from a voting rights only amendment — would grant DC residents not only full Congressional voting rights, but also the same rights, powers, privileges and protections guaranteed to all other US citizens living in the fifty states. Under this constitutional design, DC could enjoy full representation as well as budgetary and legislative autonomy — but without statehood — even as the federal government would continue to pay for and run the District’s prison system, courts and its obligations under Medicaid. This remedy of choice would square the built-in limitations of our hobbled economic circumstances with our inalienable right to equal constitutional rights. Moreover, it would ensure the solvency of the city, putting to rest the concerns of local business, and others, about the economic stress statehood would inevitably put on the city’s finances. Furthermore, it should satisfy the principle imperatives of those statehood advocates who rightfully demand legislative and budgetary autonomy, as well as full Congressional representation, while not precluding the eventuality of statehood when the city can retain and pay for its state functions.

Thus, the amendment for equal constitutional rights, or "DC Bill of Rights" may be a remedy of choice for all seasons. It is capable of engendering consensus support across the city by virtue of its responsiveness to the legitimate concerns of the various factions working for democracy in DC. And most importantly, it represents the best chance DC has for gaining the requisite political level of support from the American public.

Many complex constitutional questions would have to be considered in drafting an equal rights amendment: Would the 23rd amendment, which grants DC residents the right to vote in presidential elections, be repealed? Would a separate National Capital Service Area have to be drawn, composed exclusively of the federal areas of the city, such as the Congress and the White House? Would the Federal Height Act of 1910 be affected? Would Capitol Police have jurisdiction in non-federal jurisdiction areas? And how would the constitutional tension between Congress’s right to exercise "exclusive legislation" authority over the District and DC citizens’ right "to be treated as residents of a state for all constitutional intents and purposes?" resolve itself in a court of law?

One thing is certain: Gone would be the days when Congress had the unfettered right to veto any DC legislation based on a personal whim or political fancy. Should a legal clash arise between Congress and the city over any DC legislation, Congress would be required to demonstrate to the courts that a "compelling national interest" existed — such as national defense or security — before it could override local law. Of course, if Congress could demonstrate such a compelling national interest, Congress’s intervention would probably not be unreasonable. Indeed, DC residents might even welcome it.

In any event, this is the kind of limited compromise DC residents should consider making, given the fact that the federal government does have legitimate national interests in the nation’s capital. The big difference between life under an amendment and life now is that our local interests would be protected on a basis equal to all other US citizens living in the states. Even if the same right to legislative and/or budgetary autonomy could be won by statute, it could be overturned at the sole discretion of Congress. A profound change in the constitution is the only way — short of statehood — that will guarantee political equality for all District residents.

The Amendment Text

For purposes of discussion, the language of an amendment for equal constitutional rights might read as follows:

Section 1. All US citizens residing in the non-federal areas of the District of Columbia shall be treated as residents of a state for all constitutional intents and purposes, and shall enjoy those same rights, powers and privileges, including:

equal representation in the House of Representatives under Article 1

equal representation in the US Senate under the 17th amendment

the right to a republican form of government under Article 4

the right to all powers and privileges under the 9th and 10th amendments

equal protection under the 14th amendment.

Section 2. Congress shall limit its power to exercise its "exclusive legislation" over the District of Columbia under Article 1, Section 8, paragraph 17 of the constitution to the following geographical areas, except in the case of a compelling national interest:

all federal buildings and properties, and the National Park Service areas

all foreign embassies and missions.

Section 3. The Federal Height Act of 1910 shall remain in full force and effect.

Section 4. All other federal laws shall apply to the District of Columbia, as if it was a state.

Section 5. General services may be provided to the federal government by the government of the District of Columbia on an as needed basis on such terms as are mutually satisfactory to the parties. The federal government shall have jurisdiction over and provide for the District of Columbia’s courts and correctional facilities until such time as the District becomes a state.

Section 6. Nothing shall prevent the federal government from compensating the District of Columbia in the form of payment in lieu of taxes for revenues foregone as the seat of national government.

Section 7. The 23rd amendment shall be repealed concurrently with the passage of this amendment.

Section 8. Nothing in this amendment shall prohibit the District of Columbia from becoming a state in due course. At such time as the District becomes a state, this amendment shall become null and void. The Congress shall have the power to enforce these articles by appropriate legislation.

Obviously, the passage of such a sweeping constitutional amendment will be reliant on the majority support of, shall we say, a more progressive Congress than the one currently in power. But in light of the significant national support for the amendment concept, as demonstrated in recent polls, the established precedent of an amendment for DC rights once before having been passed with at least a measure of bi-partisan support in Congress, and the inherent difficulty of convincing America that a city-- the nation’s capital in fact -- should be made into a state, it is at least arguable that the strategic advantage shifts in an amendment’s favor. However, to begin with, the idea should be tested for traction with the current Democratic Congressional leadership.

Lessons Learned

Why should a "DC Bill of Rights" fair any better in the national marketplace of political ideas than the ill-fated and more limited 1978 amendment? A review of the key factors that contributed to the latter’s downfall sheds light on the deficits of the old campaign and provides valuable lessons for any future undertaking.

According to Professor Harris, the principle reason for the failure of the voting rights amendment was that "no effective national campaign ever materialized" and the unsuccessful one that was mounted "was plagued by inadequate funds." As a result, DC advocates were overwhelmed and outmaneuvered by political opponents, incapable of countering their specious but nevertheless effective arguments: "Our Founding Fathers never intended for DC to vote in Congress." ; "Voting rights are a raw grab for partisan power." ; "Many cities have populations larger than DC’s and they don’t have their own senators and congresspersons."

Adding to the difficulty of mounting a national campaign from a minute political base was the fact that support for the voting rights amendment at the local level was fractured. For instance, the DC Statehood Party was opposed to the amendment because it fell short of its demand for both voting rights and local autonomy. Moreover, efforts to build a strong local coalition were, in the words of Professor Harris, only "partially successful." The campaign’s leadership was for a time divided between two competing camps. Also the local business community, "a prime source of necessary funds had not been effectively enlisted as an equal partner."

Shockingly, Congressional members who helped steer the amendment through Congress were scarcely involved in the national campaign, though they had access to political networks within their own states that should have been put to work. Lastly, the campaign failed to capitalize on key bi-partisan support from such central Republican Party figures as Senator Bob Dole of Kansas, Republican Party chairman Bill Brock, and Rep. Stewart McKinney of Connecticut. As it became increasingly clear that the campaign was facing improbable odds, DC leaders switched gears, putting their hopes on a new campaign for statehood. A sea change in strategic thinking had occurred. The campaign had failed.

A Paradigm Shift

Without a paradigm shift in DC’s strategic thinking, any new campaign for equal rights is likely to suffer the same fate as all those that have come before. The passage of an amendment for equal constitutional rights, or a "DC Bill of Rights", will require a degree of political sophistication and financial commitment unprecedented in the annals of DC’s historical campaign for basic equality. It must be far more scientific, applying mainstream sales tools commonly employed by Madison Avenue for promoting everything from the presidency to Bayer Aspirin.

Among other things, message testing should be done, and a television, radio and print campaign must be generated based on the most effective message found. Advertisements then need to be tested before being taken into prime time. And media counter- messages must also be developed to answer opponents arguments. Those opposing the last amendment instructed their supporters not to argue on the merits of equality, but to argue against the remedy. Armed with a war chest of tested messages and counter-messages, DC will have its best shot at seizing the brass ring.

To accomplish this, serious funds will need to be raised—in the several millions. Only the DC business community has the capability of contributing at the requisite high levels. National civil rights and labor groups, while critical to generating support at the grassroots and legislative level, cannot be relied upon to finance a national campaign. But in order to win the commitment of the business community, they must first buy into the strategic plan. The amendment offers that prospect.

Moreover, any amendment for equal constitutional rights will also have to rely on the steadfast support of the Washington Post. According to Sen. Ted Stevens, the Alaskan statehood campaign garnered the support of 80% of the American public because of the commitment on the part of Alaska’s major newspaper publishers to lobby "publishers of dailies, of weeklies, of monthly papers, magazine publishers of all descriptions, those who broadcast the news in movie houses, and on television, and on radio." This is a must.

In addition, DC’s issue must be internationalized. The fact that DC residents are the only residents of a federal district in the Americas that are denied voting representation is a strategic tool of potentially monumental importance. It should be made excruciatingly awkward for the American government to proselytize on behalf of human rights around the globe and yet deny such basic rights as voting to the citizens of its own capital city. The case still pending before the Inter-American Commission on Human Rights of the Organization of America States may end up exposing this disparate and ultra-hypocritical treatment of DC residents on the world stage, creating a stinging source of consternation for America, which may help prompt national action on resolving this egregious wrong in an expedited manner. This contradiction between principle and behavior may yet represent America’s political Achilles’ heel on DC rights.

Lastly, and perhaps most importantly, DC residents must become far more involved in the campaign for political equality. Currently, a feeling that DC can’t succeed saps the energy of DC residents. An historical victim mentality persists. When the time comes, local residents have a moral mandate to be marching in the streets, lobbying on Capitol Hill, meeting with state legislators, and speaking up. Unless the American public perceives that DC really cares, why should they?

Whether or not the stars will align at precisely the right time is anyone’s guess. But before we can even begin to work for that, city leaders, citizens, and local businesses must reach a consensus about how to proceed. And while the resurrection of a constitutional amendment strategy will naturally be met with resistance, it may be worth noting Professor Charles Harris’s most eloquent statement on the art of the possible: "The art of forging compromises and the revisitation of issues and problems due to changed circumstances are primary ingredients of US politics and public policy. As legislators come and go and coalitions form and dissolve around issues and problems, what is rejected or vetoed at one time may be approved at another." This may be the time.

In Conclusion

Imagine for a moment the Indian independence movement which ousted the British Empire from Indian soil in the 20th century. Imagine Mahatma Gandhi, on the one hand, advocating for the complete independence of India; Hindu leader Pandit Nehru, on the other hand, advocating for limited home rule; and Muslim leader Mohamed Ali Jinnah advocating for the creation of a separate Islamic state—all at the same time. Until the people of the District reach an unshakeable consensus on their next major strategic move, the DC democracy movement will have about as much chance of succeeding as the Indian independence movement would have under those imaginary conditions. Consensus is strength.

The late great statehood advocate, Josephine Butler, once said that true revolution takes revolutionary patience. To accomplish what no other generation has ever done before, we must, on the one hand, continue to be visibly impatient with the status of our circumstances; yet, on the other hand, we must be truly patient with each other—for in the end, the campaign for DC political equality will only be won through consensus.

The writer is the executive director of Democracy First
4101 Davenport St., NW
202/244-9479/ 202 361-0989

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