Response to questions about the DC Equality Amendment, June 1, 2002

We are honored to answer the probing questions asked by DC statehood supporters regarding our Equal Constitutional Rights Amendment (Equality Amendment). As serious dialogue and constructive exchanges serve as the foundations of the democratic process, we appreciate the opportunity to join with you in a great debate about what constitutes political equality for the people of Washington, DC. and about how we might move forward together in developing a sound and effective strategy for achieving our common objectives.

As modern leaders in a movement spanning 200 years, we must constantly assess and make judgments about present and future strategies. That is the chore of leadership. It is therefore imperative that strategies that do not fit the realities of present-day circumstances be reconsidered. This is where we are today with regard to the statehood strategy, supported by so many of us for so long.

Consequently, the single most important strategic question that should be before us is: What constitutes the most comprehensive, politically feasible and constitutionally sound remedy to win equal political rights in light of the city’s prevailing economic circumstances and yet will not preclude the possibility of securing statehood at a later date?

We believe that our proposed Equality Amendment answers this question. It will bring the District as close to enjoying the full rights and privileges of statehood as any remedy on the table today—other than, of course, statehood. But, unlike statehood, it has the legal and political flexibility to take into account the city’s circumscribed economic circumstances, which preclude any legislative action on the part of DC’s leadership to apply for statehood both now and for the foreseeable future.

Polls suggest that the Equality Amendment may garner higher levels of bipartisan support than either statehood or DC retrocession. And perhaps most importantly, the Equality Amendment offers an irrefutable political argument for why US citizens should support DC political rights. It is based on a proposition that no American can credibly argue against because it represents core American values that are impossible to assail without undercutting the most fundamental of American principles: Equal rights and the freedom to enjoy a government that derives its just powers from the consent of governed.

We appreciate the fact that the dialogue we are engaging in represents only the beginning of a thoughtful debate. And we look forward to your answers to our questions and to continuing this conversation.

EQUAL RIGHTS & ECONOMIC VIABILITY

THE RATIONALE

It bears repeating that the systemic challenge that the city faces today that creates both a political and legal impediment to the passage of DC statehood legislation stem from the failure of DC to create a sustainable state economy that is capable of fully financing the panoply of state functions required for admission of the District of Columbia into the Union as a sovereign state.

This is not a new condition. DC has struggled to be sustainable and viable ever since it was founded. Even more germane, however, to this part of the discussion is the fact that the relinquishment of the city’s state functions, transferred to the federal government in 1997, with, it should be emphasized, the support and democratic consent of the DC Delegate, the Mayor and the DC City Council, has created an insurmountable political and legal impediment to advancing the legislative cause of statehood for what could very likely be at least a generation or more.

While it is not the only stumbling block to achieving statehood in light of DC’s historically frail and anemic economy, it is certainly the most serious. Thus, the bargain made by our elected officials with the White House and the Congress in 1997 to transfer state functions to the federal government is the basis for statehood’s quandary and has radically undercut the strategy for statehood.

While it is conceivable that circumstances will someday change, bringing about a windfall of wealth to the city to pay for the onerous financial burdens of statehood, it is impossible to intelligently debate a strategy today based on purely speculative change of circumstances. Unless, of course, we are willing to simply suspend making all progress on DC rights until the DC’s leadership or the various political parties devise a winnable plan to transform DC’s vulnerable economy and create a thriving state economy capable of paying for all of its state functions.

To make progress, it is imperative, then, that at a minimum we openly and frankly address the city’s current financial state and devise a political strategy based on these proscribed circumstances.

In any event, the basis for our responses to questions raised about the Equality Amendment and the impetus for our questions to DC statehood supporters are predicated on the premise that the people of the city wish to pursue a remedy to their political plight today.

RESPONSES TO QUESTIONS

1. EQUAL RIGHTS

Our distinguished colleague, Sam Smith, has written that the Equality Amendment convenes "some of the rights of statehood but without its political efficiency, comprehensiveness or permanence." d)

The Equality Amendment states under Section 1 that "[a]ll US citizens who are permanent residents of the District of Columbia shall be treated as residents of a state for all constitutional intents and purposes, enjoying those same rights, powers and privileges as the people of the several states, including:

The rights enumerated above encompass all of the rights that would be guaranteed under statehood and is completely comprehensive in regard to the allocation of equal rights to District residents.

2. POLITICAL EFFICIENCY

The claim that the Equality Amendment is without "political efficiency" compared with statehood is untrue. We believe that recent history makes clear that the Equality Amendment strategy will likely be far more politically efficient than the statehood strategy would be even under the best of circumstances.

After a successful hearing in the House in 1993, DC statehood legislation was soundly defeated along party lines. It was also very significant that at the time of the vote, the House, the Senate and the presidency were controlled by Democrats. No further hearings have been held in the House since. Del. Norton has declined to introduce a statehood bill in the House since 1995. There have been no hearings held on DC statehood legislation in the US Senate— ever.

Significantly, though, hearings were held in both the House of Representatives and the US Senate on two previous constitutional amendments in support of DC voting rights (the 1960 presidential voting rights amendment and 1978 congressional voting rights amendment). Both amendments were then passed by majority votes in both houses, where they enjoyed considerable bipartisan support. One of the amendments was later ratified by the requisite number of state legislatures, the other was not.

Viewed from an objective, historical perspective, the constitutional amendment appears to have enjoyed a significantly higher success rate than statehood.

3. CONSTITUTIONAL PERMANENCEY

The claim that the Equality Amendment does not have the "permanence" of statehood is also untrue. We find this to be a curious assumption in light of the fact that only one constitutional amendment in US history has ever been repealed. The 18^th amendment, which prohibited the "manufacture, sale, or transportation of intoxicating liquors," was repealed in 1933 by the 21^st amendment. But the prohibition of manufacturing intoxicating liquors is in an altogether different category than the preservation of fundamental political rights in a democratic society.

Furthermore, the 23^rd amendment, which granted DC residents the right to vote for US president, has never been challenged since its ratification in 1961— over 40 years ago. It is inconceivable that a movement to rescind the Equality Amendment could ever be successful, especially considering that the District would have two United States Senators in place to lobby against it. It is histrionic to suggest that the Equality Amendment would assume a lesser degree of historical permanence than any other constitutional amendment— the majority of which were ratified over 100 years ago.

4. STATE FUNCTIONS/STATE ECONOMY

The claim that the authors of the Equality Amendment proposal "assume that because certain functions of the city were transferred in 1997 this irrevocably prevents DC from becoming a state on an equal footing with other states" is false.

We have never stated that the transfer of certain functions to the federal government was irrevocable. We have, however, stated that until such time as the District can afford to pay for these transferred state functions the District cannot apply successfully for statehood. This is a fact, based on political and legal precedent, not on our opinion.

While it is true that those laws can be repealed, it is by no means a simple matter. Those laws will only be repealed when the District has demonstrated to a skeptical Congress that it possesses the sustainable means to pay the heavy costs of those state functions and can do so in perpetuity.

Which brings us to a central argument of Equality Amendment opponents that the District does not require the creation of a new state economy, even though the acknowledged goal is the creation of a new state. As Sam Smith has stated, the "financial issue is moot for two basic reasons" because "under statehood, DC would be in far better status to obtain a fair federal payment, could impose a commuter tax, and could tax Fannie Mae."

The fact that the District would be in a more solvent economic position than now is indisputable and we have supported a fair federal payment and reciprocal taxing authority for years. But as legendary DC statehood advocate Josephine Butler used to say, a "state economy cannot rely on a commuter tax alone."

Moreover, at present the statehood strategy is a contradiction in terms because it claims that it is possible to win a statehood vote before having the financial resources to reclaim the District’s lost state functions. But this is impossible because DC statehood will not be— cannot be— voted on in Congress until these functions are retrieved.

What this proposition offers the District is the statehood chicken without the economic egg.

The Equality Amendment carries with it no such contradictions. It is not reliant on retrieving the state functions transferred to the federal government. Nor does it create a strategic impediment for making meaningful progress in resolving a complicated predicament that offers no easy way out. And protesting the systemic injustice of the District’s anemic economic status, while important, does little, if anything, to address the absence of a true state economy required for the bid for statehood.

Only the creation of a vibrant state economy— or conceivably the migration of two hundred thousand new middle-class taxpayers to the District— is likely to resolve the current statehood conundrum, together, of course, with winning a fair federal payment and reciprocal taxing authority. But it is unlikely that the confluence of these events will take place any time soon, unless, of course, the District’s various leadership elements demonstrate a far greater degree of ingenuity in this regard than they have in the past.

(It should be recalled, for instance, that the attrition of nearly two hundred and fifty thousand District residents to the suburbs took place over a forty-year period. Any resurgence in DC’s population to 1960s levels is likely to take a generation or more to accomplish, if ever.)

5. A WINNING STRATEGY

Finally, it has been claimed that "[t]he last voting rights amendment— which turned out to be an utter failure— was endorsed by a number of southern members of Congress because they knew full well that the state legislatures would take care of those uppity residents of the capital, as they did. So the city wasted seven years pursuing a dream whose failure was preordained."

We would remind statehood supporters that it has been almost ten years since the last statehood bill was voted on and lost in the House of Representatives, and since then no hearings have been held on any statehood bill in either the House or the Senate. Moreover, there will be no hearings on a DC statehood bill, let alone a vote on it in either of the two Houses of Congress, until the District has met all of the political and legal requirements for statehood.

Moreover, we submit that the last voting rights amendment campaign was not adequately organized, under-funded, and undercut by a local strategy at odds with itself: namely that its political forces were fatally divided between those DC residents in favor of Congressional voting rights alone and those demanding that Congressional voting rights and self-governance be obtained through statehood. The reticence of the voting rights only faction represented a reluctance to believe that DC’s economy was robust enough to support the full burdens and responsibilities of a state. In hindsight, their fear was well-founded. The city effectively went bankrupt twenty years later.

(During the 1993 statehood campaign on Capitol Hill, for instance, the District’s leadership, with the exception of Council Chairman John Wilson— who famously predicated the District’s impeding financial train wreck— was officially claiming that the District was solvent, and capable of financing the state of New Columbia.)

But now, with the burdensome costs of certain state functions transferred to the federal government, a repetition of this strategic divide should be avoidable. The Equality Amendment can and will bridge the various elements of the DC democracy movement because the language of the Equality Amendment fuses DC’s right to full congressional representation with its right to self-governance over those functions which the city now has responsibility for.

The Equality Amendment will usher in a new era for the people of Washington, DC of equal rights for equal responsibilities.

Furthermore, we maintain that a well-organized campaign, employing modern political campaign techniques, and funded by the DC business community confident of the District’s ability to carry its current load of financial responsibilities, can be and will be successful.

Recent national poll data supports this proposition because the American public is more supportive of an equal constitutional rights amendment as a remedy to the disenfranchisement of DC residents than either DC statehood or DC retrocession to Maryland. The difference in US public support between the amendment remedy and DC statehood/DC retrocession is twenty percentage points— a significant political advantage in any national campaign.

Finally, while the amendment strategy requires ratification by the 3/4ths of all state legislatures, a winning bid for statehood would inevitably require a comparable level of support from inside the nation’s state legislatures in order for statehood legislation to pass in Congress. A state-by-state campaign will permit the amendment drive to carefully devise individually tailored strategies. This will allow us to concentrate our forces in a single state at a time, rather than spreading ourselves too thin, as was the case in the national grassroots statehood campaign led by the Leadership Conference on Civil Rights in 1993. Moreover, before any legislative drive begins, a national education campaign will be required. And unlike the 1978 amendment campaign, there should be no time limit set on winning the Equality Amendment’s ratification.

6. ANTI-COLONIALISM

The claim that the Equality Amendment is "just another form of colonialism" is false. We regret this statement. Our proposal offers DC residents full congressional representation and self-government with equal rights for equal responsibilities under law. Since the financial illusion was shattered that DC could adequately fund itself as a state without a state economy in place, the Equality Amendment represents the most comprehensive, most permanent and most politically viable strategy put forward to date for ending the city’s second-class status. And unlike statehood, the Equality Amendment is not reliant on the creation of a state economy, or the grant of a commuter tax, or obtaining a fairer federal payment, or the return of two hundred thousand middle-class residents, or the retrieval of state functions from the federal government. It is ready to go today.

7. COMPARATIVE FEDERAL DISTRICTS

Our distinguished colleague, George LaRoche, has written that our Washington Times article, "Implicit Statehood," "misrepresents the status of residents of some of the other federal capitals, painting them as more ‘equal’ to the remainder of the citizens of their countries than they are in actuality— especially in Mexico and Brazil."

Our article states as follows: "While the residents of Canberra, New Delhi, Caracas, Mexico City, and Brasilia— once denied equal voting rights in their national legislatures— are guaranteed full political participation today, only the residents of the District of Columbia, despite 200 years of protest, remain wholly disenfranchised."

All of the residents of the federal capitals of each of these cities enjoy equal voting representation compared to the residents of the states in each of those countries.

Moreover, with regard the status of the residents of the Federal District of Brazil in its bi-cameral legislature— the Legislative Assembly and the Chamber of Deputies (the equivalent of the US Senate)— Chapter 5, Section 1, Article 32 of the Brazilian constitution defines that status as follows:

CHAPTER V - THE FEDERAL DISTRICT AND THE TERRITORIES

SECTION I - THE FEDERAL DISTRICT

Article 32. The Federal District, which may not be divided into municipalities shall be governed by an organic law, voted in two readings, with a minimum interval of ten days, and approved by two-thirds of the Legislative Chamber, which shall enact it, in accordance with the principles set forth in this Constitution.

Paragraph l - The legislative powers reserved to the states and municipalities are attributed to the Federal District.

Paragraph 2 - The election of the Governor and the Vice-Governor, complying with the rules of article 77, and of the District Deputies shall coincide with that of the state Governors and Deputies, for a term of office of the same duration.

Paragraph 3 - The provisions of article 27 apply to the District Deputies and the Legislative Chamber. (emphasis added)

Paragraph 4 - A federal law shall provide for the use, by the Government of the Federal District, of the civil and military polices and the military fire brigade.

Article 27. The number of Deputies in the Legislative Assembly shall correspond to three times the representation of the state in the Chamber of Deputies and, when the number of thirty-six has been reached, it shall be increased by as many members as the number of Federal Deputies in excess of twelve. (emphasis added)

Paragraph 1 - The term of office of the State Deputies shall be four years and the provisions of this Constitution shall be applied to them in what refers to the electoral system, inviolability, immunities, remuneration, loss of office, leave of absence, impediments and incorporation into the Armed Forces.

Paragraph 2 - The remuneration of the State Deputies shall be established in each legislative term, for the subsequent one, by the Legislative Assembly, as provided by articles 150, II, 153, III, and 153, paragraph 2, I, in the proportion of seventy-five percent, at most, of the remuneration established, in legal tender, for the Federal Deputies.

Paragraph 3 - The Legislative Assemblies shall have the power to provide upon their internal regulations, police and the administrative services of their Secretariat and to fill in the respective offices."

On the matter of local autonomy for the Federal District of Brazil, the constitution guarantees the following:

Article 23. The Union, the states, the Federal District and the municipalities, in common, have the power:

I. to ensure that the Constitution, the laws and the democratic institutions are respected and that public property is preserved;

II. to provide for health and public assistance, for the protection and safeguard of handicapped persons;

III. to protect the documents, works and other assets of historical, artistic or cultural value, the monuments, the remarkable landscapes and the archaeological sites;

IV. to prevent works of art and other assets of historical, artistic and cultural value from being taken out of the country, destroyed or from being deprived of their original characteristics;

V. to provide the means of access to culture, education and science;

VI. to protect the environment and to fight pollution in any of its forms;

VII. to preserve the forests, fauna and flora;

VIII. to promote agriculture and cattle breeding and organize the supply of foodstuff;

IX. to promote housing construction programs and the improvement of housing and basic sanitation conditions;

X. to fight the causes of poverty and the factors leading to substandard living conditions, promoting the social integration of the unprivileged sectors of the population;

XI. to register, monitor and control the concessions of rights to research and exploit hydric and mineral resources within their territories;

XII. to establish and to implement an educational policy for traffic safety.

Sole paragraph - A supplementary law shall establish rules for the cooperation between the Union and the states, the Federal District and the municipalities aiming at the attainment of balanced development and well-being on a nationwide scope.

Article 24. The Union, the states and the Federal District have the power to legislate concurrently on:

I. tax, financial, penitentiary, economic and urbanistic law;

II. budget;

III. trade boards

IV. costs of forensic services;

V. production and consumption;

VI. forests, hunting, fishing, fauna, preservation of nature, defense of the soil and natural resources, protection of the environment and control of pollution;

VII. protection of the historic, cultural and artistic heritage, as well as of assets of touristic interest and landscapes of outstanding beauty;

VIII. liability for damages to the environment, to consumers, to assets and rights of artistic, aesthetic, historical, and touristic value, as well as to remarkable landscapes;

IX. education, culture, teaching and sports;

X. establishment, operation and procedures of small claims courts;

XI. judicial procedures;

XII. social security, protection and defense of health;

XIII. legal assistance and public defense;

XIV. protection and social integration of handicapped persons;

XV. protection of childhood and youth;

XVI. organization, guarantees, rights and duties of the civil policies.

Paragraph 1 - Within the scope of concurrent legislation, the competence of the Union shall be limited to the establishment of general rules.

Paragraph 2 - The competence of the Union to legislate upon general rules does not exclude the supplementary competence of the states

Paragraph 3 - If there is no federal law or general rules, the states shall exercise full legislative competence to provide for their peculiarities.

Paragraph 4 - The supervenience of a federal law over general rules suspends the effectiveness of a state law to the extent that the two are contrary.

On the matter of federal intervention in the affairs of the Federal District of Brazil, the constitution guarantees the following:

*Article 34. The Union shall not intervene in the states or in the Federal District, except:

I. to maintain national integrity;

II. to repel foreign invasion or that of one unit of the Federation into another;

III. to put an end to serious jeopardy to public order;

IV. to guarantee the free exercise of any of the powers of the units of the Federation;

V. to reorganize the finances of a unit of the Federation that:

a.stops the payment of Its funded debt for more than two consecutive years, except for reasons of force majeure;

b.fails to deliver to the municipalities the tax revenues established in this Constitution, within the periods of time set forth by law;

VI. to provide for the enforcement of federal law, judicial order or decision;

VII. to ensure compliance with the following constitutional principles:

a. republican form, representative system and democratic regime;

b. rights of the human person;

c. municipal autonomy;

d. rendering of accounts of the direct and indirect public administration

e. the application of the mandatory minimum of the income resulting from state taxes, including those originating from transfers, to the maintenance and development of education.

The plain language of the Brazilian constitution verifies that the residents of the Federal District are treated comparably to the residents of the 26 states comprising the Republic of Brazil. But our main point is that we can learn from the approaches taken by other federal districts, but create an amendment that is suitable to the needs of the District of Columbia.

8. POLITICAL PROSPECTS

Mr. LaRoche also asked, "[O]n what basis can we expect that Congress would pass and the necessary number of states ratify a constitutional amendment creating a special, completely novel status for the District of Columbia, which status might (according to this argument) place the District in the same— but yet necessarily different— position as a state? If the chances of getting statehood are so slim, then why are the chances of getting such an amendment better, especially when it takes MORE political clout and effort to pass and ratify an amendment to the Constitution?"

This question is also echoed by our colleague, Mike Livingston, who asked, "How would an equal rights amendment be politically different now than when Del. Fauntroy introduced it?"

We have answered these important questions above. We would, however, note that we are not claiming "the chances of getting statehood are…. slim," as has been suggested. We are saying that for the foreseeable future, they are non-existent. The residents of the District therefore have a choice to make: either they can start work to change those economic circumstances and systemic limitations, so that years hence when the various conditions for statehood are met they can apply for statehood, or they can begin to lobby for the passage of the Equality Amendment today.

We maintain that Rep. Ralph Regula’s (R-OH) bill on DC retrocession does not constitute a viable remedy for three reasons: 1) it has failed to attract meaningful political support in either the District or Maryland, making it strategically moot; 2) its net result would be the dilution of DC senatorial voting power by approximately 90% of what it will be under the Equality Amendment; 3) it will mean the substitution of Congress’s traditional oversight for that of the Maryland state legislature— a political body as alien to the District as Congress itself.

9: EQUALITY: EQUAL RIGHTS FOR EQUAL RESPONSIBILITIES

It has been asked, "[W]hy should the citizens of the District of Columbia be in any position which is any different than that of the rest of the citizens of the United States? Why should they be in either a worse or even in a better position?"

As noted above, the political and legal premise of the Equality Amendment is Equal Rights for Equal Responsibilities. Insofar as the District— which is the federal capital and not just any other territory— bears the same rights and responsibilities of a state, the Equality Amendment provides equal rights for equal responsibilities.

Moreover, because DC does not now bear all of the legal responsibilities of a state, it is entirely reasonable and justifiable to construct a new constitutional status for it that reflects this condition in order to guarantee without further delay fundamental rights to 570,000 residents that have already been disenfranchised for over 200 years.

Additionally, the Equality Amendment allows the federal government to retain the elements that are most vital to its central role— maintaining security in the national capital— while guaranteeing DC residents political and economic equality.

10. THE NECESSITY OF INVENTION

It has been stated that "[t]he present status of DC residents continues because of congressional choice, not because of Constitutional definition. Proof of this lies in the fact that Congress chose to cede (the former) Alexandria County back to Virginia without encountering any constitutional problems. Congress could do the same for the remainder of the District (at least all of it outside the small areas actually used by the federal government); better, it could admit the District as a state in its own right, without constitutional problem. So, at present, changing the status of District residents only requires a change in congressional treatment; it does not require a constitutional amendment."

This purely legal commentary, while presumably accurate, ignores the aforementioned legal, political and economic barriers to statehood and the various impediments and voting inequities of DC retrocession that make the invention of the Equality Amendment necessary. We believe that the current predicament of the District cannot be viewed in a legal vacuum. The realpolitik of DC’s circumstances must be taken into account.

(It should be noted, however, that Howard University constitutional lawyer, Adam Kurland— who maintains that Congress cannot simply pass legislation granting DC Citizens voting rights in Congress— also claims "that Statehood raises additional practical and legal complexities that can be avoided with a D.C. Voting Rights amendment." Further, he asserts that "any proposed statehood legislation should be made contingent upon repeal of the 23^rd amendment" and so therefore, "as a practical matter, D.C. Statehood also requires resort to the constitutional amendment process.")

11. STATEHOOD’S FUTURE

It has been stated that "[I]f this (or any similar) amendment passes, then any further change to the status of District residents would require further amendment to the Constitution. So we should look at such proposals as ‘terminal’ steps in the political welfare of District residents. They would tend to be the last step, the culmination, rather than stages on a process."

This argument completely ignores the existence of the 23^rd amendment, which granted DC residents the right to vote in presidential elections and was ratified in 1961. If the 23^rd amendment did not stand in the way of a Congressional vote on DC statehood in 1993, the Equality Amendment will not stand as a legal impediment to a future statehood vote. As with the 23^rd amendment, the Equality Amendment could and should be repealed contemporaneously with the admission of the District as a state.

On a political note, the District would be far better positioned than it is today to pass future statehood legislation with a full complement of US Senators and a representative(s) already enrolled in the US Congress.

OUR QUESTIONS

1) What is your plan(s) for the development of a sustainable state economy to pay for the District’s state functions under statehood and to serve as a viable hedge against periodic economic downturns and regional/national recessions?

2) How long would the implementation of any such proposals be likely to take and when could new revenues generated by this economy be expected to flow into the city’s coffers?

3) When do you envision the District's state functions being returned? Will it take 5, 10, 15, 20 or more years? How will they be paid for if and when they are returned and what guarantee can you give that the District will be able to pay for them in perpetuity?

4) What will be your strategy for achieving statehood if the District cannot reclaim its state functions during this time and has not yet produced a vigorous state economy sufficient to fund the new state?

5) When and how do you expect to win approval for a fairer federal payment and reciprocal axing authority?

6) Why isn’t the Equality Amendment an acceptable vehicle for righting the District’s inequities in light of the District’s current systemic circumstances and in view of the fact that it provides equal rights for equal responsibilities to DC residents and is virtually constitutionally unassailable?

7) Why must the people of the District wait to launch a campaign for equal rights, contingent on the successful re-acquisition of state functions, when that process could take a generation?

Response to Questions about the DC Equality Amendment Timothy D. Cooper, Charles Wesley Harris, and Mark David Richards June 1, 2002