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The Challenge of D.C. Representation: Opinion Piece by W&L’s Mark Rush in Times-Dispatch

The Challenge of D.C. Representation
Mark Rush
Robert G. Brown Professor of Law and Politics at Washington and Lee University.

LEXINGTON — It’s hard to find anyone who disagrees in principle with the current efforts to grant the District of Columbia representation in the House of Representatives. The population of the District of Columbia is bigger than that of several states. Yet, those states have representation in the House and Senate and the District does not. This just doesn’t seem fair.

Unfortunately, it is completely and unquestionably unconstitutional. The Constitution says that states — and no other political entity — may be represented in the Congress. That’s it. D.C. can’t have representation. Neither can Puerto Rico or Guam. If you want voting representation in the House (and Senate) you need to be admitted to the Union as a state.

Critics might contend that this is as impractical as it is unfair. The process of admitting new states to the union is tedious. To admit a new state to the union requires as little as a simple majority vote in the Congress or as much as an amendment to the Constitution. To give the District of Columbia voting rights in the Electoral College required the passage of the 23rd Amendment. To give it voting rights in the Congress (without granting it statehood) would require a similar amendment.

Such an amendment already failed once. The D.C. Voting Rights Amendment did not get the support of the 38 states necessary for its passage and therefore expired in 1985.

THE CURRENT controversy surrounding the D.C. Voting Rights initiative demonstrates why it is better — though much more tedious — to seek statehood or representation via the amendment process. Altering the composition of the Congress (and therefore the federal balance of power) is not a garden variety political matter. It embodies a fundamental and enduring change to the manner in which the federal government will operate. The Framers of the Constitution agreed and therefore said that profound matters such as this should require more effort and deliberation than goes into the passage of ordinary laws. The controversy surrounding the current legislative initiative serves only to endorse the Framers’ wisdom.

The process by which legislation is made invites the influence of and interference by special interests. This is in keeping with the vision of politics that informed James Madison’s writing in the Federalist. In order to make it difficult for any one group to rise up and dominate our politics, Madison envisioned that the constitutional system — replete with separated national powers, a division of powers between the federal and state governments, and staggered electoral terms for the president and Congress — would make it difficult for majorities to govern efficiently or to pass laws quickly. Madison expected that the legislative process would be besieged my many interest groups with conflicting interests. They would check and balance one another in the same way that the three branches of the federal government would.

So, it should come as no surprise that the gun lobby would show up in the midst of the debate about granting the District of Columbia voting representation in the House, and demand that any representation for the District be premised on the repeal of some of its restrictions on firearms.

This is Madisonian politics at its best.

Of course, it seems unfair — or at least, foul play — that something as constitutionally fundamental as the representation of the District of Columbia in the House should be predicated on a Faustian bargain regarding gun control. But this is the nature of the legislative process. Since the current proposal to grant D.C. voting rights entails ordinary legislation, it is subject to all of the interest-group politics that afflicts any other piece of legislation.

WERE D.C. to seek and gain statehood (via the amendment process or via a congressional vote), a proposal such as that to repeal D.C. gun laws would be unconstitutional. Since all states have equal status under the constitutional system, it would be unconstitutional to attempt to admit a state with a gun law condition that would render it essentially a “second-class citizen.” The state of “New Columbia” would have all of the rights that the other 50 states have.

So, the current proposal to give D.C. voting representation may be doomed. It will either founder on the shoals of interest-group politics or, even if it passes, it will probably be declared unconstitutional.

Nonetheless, it is important to note that the Constitution does provide two ways to grant the District representation and voting power in the Congress. The real question is whether Congress has the political will or desire to use the means required by the Constitution to grant the representation its residents deserve.

(This piece originally appeared in the Richmond Times-Dispatch.)