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An insert to the June 1999 DC Voter by the League of Women Voters

The Constitution gives the U. S. Congress power over the District of Columbia, per Article I, Section 8, clause 17 to "exercise exclusive legislation in all Cases whatsoever over such capital may... become the seat of the Government of the United States" as well as enclaves it might acquire.

Each American citizen is represented in Congress by one person in the House of Representatives and two Senators except citizens of the nation's capital (and those living in territories, where other factors operate).

  • D.C. was part of the original colonies; its citizens did vote in Congress before the capital was moved to D.C.; D.C. citizens are inheritors of the Constitutional claim for voting rights, equal treatment under the law, and other principles.
  • Americans living in the nation's capital -- Americans who pay federal taxes and can be called to war -- should be treated as other Americans.
  • According to the "Federalist Papers," the lack of attention in the Constitution to D.C.'s situation reflects an oversight.
  • In the last official (1990) census, the District's population (over 600,000) was greater than that of several states (Alaska, Wyoming and Vermont).

While the Constitution speaks of representation in Congress in terms of "states," the District is in fact treated as if it were a state for over 500 purposes, including constitutional ones as affirmed by the Supreme Court, e.g.:

  • Article I, Section 8: Congress regulates business across D.C. borders and levies taxes;
  • Article IV: requires full faith and credit be given to public acts of every other state and guarantees privileges and immunities of citizenship and a republican form of government;
  • Bill of Rights applies to the District, e.g., Sixth Amendment, provides right to trial by jury;

Each chamber in Congress has special responsibilities. Representation is not effective, nor complete if not in both chambers. For example:

  • Only the House has the power to initiate spending bills.
  • Only the Senate votes on treaties and Presidential nominees.
  • Conference committees, reflecting differing views of each chamber, are pivotal to the outcome of legislation.

Among world democracies, notably those where power is divided between the national government and the states, only the U. S. denies voting representation in the national legislature by citizens of the national capital.

The District's budget is now financed by locally raised revenues. (See separate "Questions & Answers" package; it elaborates on D.C. finances.)

D.C. citizens are denied voting representation in that legislative body which:

  • spends their taxes and runs their lives on a national level,
  • serves as a de facto state legislature, and
  • even has control over locally raised funds and legislation.
  • Non-D.C. residents in effect can have more control over the District's local affairs than D.C. residents themselves do.

[April 1999]

[April 1999]

Twenty Questions & Answers


1. Q. What is the problem?
A. Over one-half million American citizens have no voting voice in the U. S. Congress, the body which governs them, but then only because they live in the nation's capital.

2. What's new?
A. Based on the evolution of constitutional law, legal experts have concluded that the U. S. Congress, under its own authority pursuant to the Constitution, has the power to provide a remedy for the District's lack of voting representation. This is the subject a 1998 lawsuit filed in the U. S. District Court for the District of Columbia (civil Action No. 98-CV-2187-LFO; Clifford Alexander et. al, Plaintiffs, v. William M. Daley, as Secretary of Commerce et al.)

3 Q. What does the U. S. Constitution say about the District of Columbia? About the Congress in relation to the District?
A. Article I, Section 8, clause 17 gives the Congress exclusive jurisdiction over the District, specifically:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"

The fact that Congress has exclusive power over the District makes it all the more important that District citizens be represented in Congress.

4. Are there other federal enclaves acquired under clause 17 where residents of the federal enclave can vote for representation in the U. S. Congress?
A. Yes. A notable example concerns the reservation of the National Institutes of Health, located outside Washington, D.C., in nearby Bethesda, Maryland. These citizens are like millions of others living on federal enclaves who vote in the jurisdictions from which their enclaves were created. This reflects the force of the "equal protection" provisions of the Constitution (14th Amendment).

5. Q. Would voting representation for the District in Congress be inconsistent with the Constitution?
A. Constitutional experts have testified that there is no constitutional barrier to representation in both Senate and House for D.C. (See also Q&A 8).

6. Q. So U. S. citizens residing in the District of Columbia have no voting representation in Congress. Isn't this what the Founding Fathers intended?
No. It was an oversight. The federal district was a new concept when the Constitution was written, its site undecided. The Founding Fathers did not envision a major city with a large permanent population. In treating the new district concept, James Madison writing in the "Federalist Papers, No. 43" said: "The inhabitants of the District will find sufficient inducements of interest to become willing parties of the cession; as they will have had their voice in the election of the government which is to exercise authority over them..."
In the early days, when the capital was moved in 1800 from Philadelphia to the new District of Columbia, population was far below the 30,000 specified in relation to establishment of Congressional districts. From 1790 to 1800 people living in the territory of the District continued to vote in national elections in Maryland or Virginia. Further, at the outset the right to vote was highly limited. It has been enlarged such that the principle "one person, one vote" is now central to our system of laws.

7. Q. Was the seat of the federal government created to protect federal interests? Wouldn't D.C. representation in Congress threaten the federal interest?
A. This is a "red herring." The Continental Congress wanted to create a federal district so that no one state could interpose its jurisdiction between the national government and the seat of that government. This desire arose from experience when the Congress was meeting in Philadelphia and feared attack from disgruntled unpaid soldiers but could not compel the state of Pennsylvania to protect it.
Remember, there was great concern about safety and defense after the Revolutionary War. Protecting the young government had high priority. However, the population in the District was very small at the outset. It did not constitute a practical threat and, today, the federal government is well able to defend itself. Moreover, as American citizens, D. C. citizens have the same concern with the full range of federal interests as any other citizens, e.g. health care and foreign policy. Additionally, there are many important federal operations in the states which could be viewed as being equally important as operations in the District. The Pentagon in Virginia is but one example. Finally, the parallel should be tested. There is no more inherent conflict between federal interests and those living in the nation's capital than there is between residents of state capitals and respective state governments.

8. Q. The Constitution provides for congressional representation from states. The District of Columbia is not a state. Why should it have Congressional representation as if it were a state?
A. The District is responsible for conducting state-level functions in addition to classic local functions (see Q&A 13).
More importantly, the District is treated as if it were a state for over 500 purposes, including constitutional ones as affirmed by the Supreme Court. For example:

  • Article I, Section 8: Congress regulates business across District borders and levies taxes;
  • Article IV: requires that full faith and credit be given to public acts of every other state and guarantees privileges and immunities of citizenship as well as a republican form of government;
  • Bill of Rights Applies in the District, e.g. Sixth Amendment; provides right to trial by Jury.

Under the earlier-mentioned Alexander v. Daley lawsuit, plaintiffs addressed the statist argument from various perspectives. A basic argument is made:

  • Article I, Section 2 of the Constitution provides: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States..." At that time no federal seat of government had been defined; it was a theoretical
    construct. The entities with which drafters were familiar were states and thus logical to mention. But it is the "people'' who chose.
  • Before amendment, Article I, Section 3 addressed composition of the Senate in terms of 'two Senators from each State chose by the Legislature thereof." However, the Seventeenth Amendment to the Constitution ( 1913) provided for election of Senators by direct popular vote: "The Senate ... shall be composed of two Senators from each State, elected by the people thereof..."

The plaintiffs in Alexander v. Daley argue that the "people" are the same people for the purposes of electing both Senators and Representatives. This is reinforced by the importance of the modern principle of "one person, one vote."

9. Q. The District has a non-voting Delegate in the House of Representatives. Isn't this enough?
A. No. The Delegate has no vote, thus no bargaining power which makes representation truly credible. Moreover, D.C. has no representation in the Senate. Each chamber in Congress has special responsibilities. Representation is not effective, nor complete, if not in both chambers. For example, only the Senate votes on treaties and Presidential nominees. Only the House of Representatives has the power to initiate spending bills. Conference committees, reflecting differing views of each chamber, are pivotal to the final outcome of legislation.

10. Q. If District citizens are allowed to have voting representation, won't this dilute the representation of the states?
A. The original 13 states -- of which the District was a part -- shared representation with new states 37 times. Two senators for the District would not impinge on the equal treatment of any state vis-a- vis the other states. Any reapportionment for the House of Representatives would follow traditional requirements and accord with results of the census.

11. Q. Would D.C. residents gain undue influence in Congress because they live so close?
A. This has no practical consequence in and of itself. In fact the U. S. Capitol is located geographically closer to (a part of ) Maryland than it is to some District neighborhoods. Access and influence in Congress is not dependent purely on where one lives, especially in modern times of communication and travel.

12. Q. If D.C. residents want congressional representation, then why don't they move out?
A. To those born in the District, such suggestion is an affront to their birthright. Others may not be able to afford to move even if they should so desire. No one elsewhere in the country has to move to vote as Americans. Even American citizens residing outside the country can retain voting rights for Congress. On a practical level, as the core for the metropolitan region, the District's economic health is important to the economic health of the metropolitan region. Encouraging residents to leave, and thus reduce the District's revenue base, would be counter-productive.

13. Q. Do D.C. citizens pay federal taxes, including income taxes? Doesn't the federal government totally finance the District?
A. The District pays a heavy total federal tax burden. For example, according to the latest official IRS data, on an annual basis District residents paid over $ 1.8 billion in federal individual income taxes alone.
The federal government does not generally finance the District. In fact, the District's budget is now financed by locally raised revenues. (D.C. is eligible for various federal grants, like other jurisdictions. ) Bear in mind that, and unlike other jurisdictions, the District's local budget goes through the entire federal budget process regardless of sources of revenues. This process includes potential risk of D.C. government shutdown should the federal not act on relevant appropriation authority.
In 1997, legislation provided for federal assumption of selected state-level responsibilities and a greater percentage of medicaid, as well as certain pension liability (some of which had improperly been placed on the District). At the same time the legislation eliminated provision for an annual Federal Payment, a provision first established in 1874. The Payment had been at the annual level of about $660 million.
Some argue that the loss of the Payment is offset by the federal government's assumption of responsibilities under the 1997 legislation. This clouds understanding of the financial net benefit to the District, because calculations of the off-set include responsibilities of the federal government in any event. (Certain pension problems imposed on the District were created by federal non-action; the federal government also took over certain assets which the District had amassed. As to Medicaid, the federal share increased, more in line with other jurisdictions and appropriate to a fully urban jurisdiction like the District. )
For FY1998, Congress and the Administration authorized a transitional one-time federal "contribution" of $190 million. Any future such contribution(s) would be subject to the annual budget process. In fact none was provided for with respect to FYl999. Bear in mind that the Federal Payment owed the District was based on broader elements than a so-called PILOT - - payment in lieu of taxes, with which states may be familiar. In addition to requiring D.C. services and thus a PILOT, Congress denied the District access to certain sources of revenues (e.g. reciprocal income tax with neighboring states). Moreover, the services required by the federal government are not only ordinary ones like fire protection Federal services are required reflecting the status of a national capital, e.g., support for national celebrations and diplomatic presence.
Both the federal restrictions and federal need for special services continue, not withstanding the cancellation of the Federal Payment and lack of a predictable contribution of any kind.

14. Q. If D.C. gets voting representation in Congress, what about the U. S. territories?
A. The two cases are uniquely different. District citizens pay over $1.8 billion in federal individual income taxes. Residents of the territories (Guam, American Samoa, the Virgin Island, and Puerto Rico) pay zero. Moreover, the District's claim stands on its own because it was part of the original 13 states; the people of the District are inheritors.

15. Q. In other countries, are the citizens of the capital cities allowed to vote for national representatives?
A. Yes. Among world democracies, particularly those with a federal system, the United States stands out uniquely in denying residents of the national capital voting representation in the national legislature.

16. Q. Has the U. S. joined any international agreements which address representation in national governments?
A. Yes. The U.S. subscribed to the 1948 UN Declaration on Human Rights, and it is a party to the subsequent International Convention on Civil and Political Rights. Among other things, these instruments recognize the right of citizens to take part in the government of one's country through freely chosen representatives.

17. Q. Is racism the real reason D.C. has been denied voting representation?
A. That may be the view of some, since around the 1960's; but bear in mind that D.C. has been denied its claim for the many, many years when the majority of the population was white.

18. Q. Does the lawsuit (mentioned in Q&A 2 ) seek a particular remedy?
A. No; it is open as to solution.. It does rely on the power which Congress currently holds under Article I, Section 8, clause 17 to provide remedy, which thus could be by simple legislation providing for D.C. voting representation as if it were a state. The suit does, however, seek allowance for a period in which Congress may choose to act before the Court would have to issue direction.
Basically, this lawsuit seeks recognition of a basic American principle, namely, citizens' rights to elect representatives to the body which makes their laws, taxes them and can call them to war. The Congress also serves in effect as the District's state legislature. As noted under Q&A9, in pursuit of the fundamental right, representation in both houses of Congress is called for.

19. Q. As a point of fact, isn't there another similar lawsuit? What is it about?
A. Yes. This suit (Adams et al. v. President Clinton et al. ) also seeks voting representation in Congress but it relies on different legal theories and relationship of the District to Congress. Generally speaking, its says that District residents have a right to be a state or be part of a state (presumably retrocession to Maryland). of the Constitutional provisions for equal protection of the law and the guarantee of a republican form of government. The two cases have been consolidated for consideration by the U. S. District Court for the District of Columbia.

20. Q. As a point of information. what are the positions of "shadow" Representative and Senators currently elected in the District of Columbia?
A. In the 1970's District citizens pursued voting representation in Congress through amendment to the U.S. Constitution. The Congress did pass the requisite legislation for representation as if D. C. were a state but the amendment did not receive the required state approvals by the specified deadline. D.C. citizens then turned to the statehood avenue. Sending the "shadow" delegation to lobby Congress mirrors the approach used by a number of former territories seeking statehood. Congress has not acted on accepting any delegation from the District.

Prepared by: The League of Women Voters of the District of Columbia (from its materials and drawing upon history from "A Simple Case of Democracy Denied," a booklet prepared by the Office of former D.C. Delegate Walter Fauntroy)

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