Photo by l’ennui d’ennui on Flickr.
Besides the race for DC Council at large on April 23, DC residents will have the opportunity to vote on a charter amendment that would free the District from having to submit its budget to Congress and wait for approval before being able to spend local tax money raised right here in DC. We hope residents vote yes on this amendment.
It would free the District from members of Congress attaching riders to score political points back home while trampling on DC residents’ right to self-
government in local affairs. It would free the District from the threat of having to shut down basic public services if the federal government shuts down.
In the comments on a guest post we ran in February by DC Appleseed’s Walter Smith, several readers expressed a belief that a referendum would just be advisory, that Congress would not follow our request, and it’s a waste of time. This is incorrect. The referendum is not advisory at all.
If it passes, DC will have amended its own charter, which it has the power to do. It will no longer have wait for Congress to approve its budget before spending local tax dollars. Congress could block the amendment from taking effect, but to do that, both houses of Congress would have to act.
Congress can also always pass laws forcing DC to do things in the future, or taking away DC’s autonomy, but again, it would require an affirmative act of Congress (and the President could veto such changes).
Besides, there are both Democrats and Republicans who support this. They can’t get a clean bill through Congress to give us the right, but by this method, they don’t have to; all they have to do is get Congress not to interfere. That’s not so hard.
Why does DC have this power?
The Home Rule Act, which Congress passed in 1973, has several sections. Title IV, the main part, sets up the DC locally-elected government and its powers and structure.
Title III section 303 says that DC can amend any part of Title IV with three exceptions:
- 401(a), which says “There is established a Council of the District of Columbia; and the members of the Council shall be elected by the registered qualified electors of the District”;
- 421(a), “There is established the Office of Mayor of the District of Columbia; and the Mayor shall be elected by the registered qualified electors of the District”;
- all of section C, which relates to the judiciary.
The budget process, which DC wants to change, is in section D. That’s not on the list. Therefore, lawyers supporting the referendum conclude, DC is within its rights to try to amend that part of the charter.
Congress also made a specific list of things DC can’t do without Congressional approval, such as changing the height limit, imposing a commuter tax, exercising any power over the zoo, or changing the way the judiciary operates. Another section of the law prohibits charter amendments from giving DC power over these things. The budget process is not on this list either.
(Congress was really quite nervous about what DC would do with power over the criminal laws; another provision blocks the DC Council from changing the criminal laws for the first 4 years of Home Rule.)
There is one provision which makes some lawyers doubt whether the referendum is legal. That’s section 603, which says in part,
(a) Nothing in this act shall be construed as making any change in existing law, regulation, or basic procedure and practice relating to the respective roles of the Congress, the President, the federal Office of Management and Budget, and the Comptroller General of the United States in the preparation, review, submission, examination, authorization, and appropriation of the total budget of the District of Columbia government.
Wait, doesn’t that mean nothing can change with the budget process?
But what is “this act”? That’s the 1973 Home Rule Act. This provision doesn’t say that DC can’t change the budget process by amendment, but rather than in 1973, when the act passed, Congress didn’t intend to revamp the budget process at the time.
As DC Vote chairman John Bouker said in his testimony to the DC Council,
Section 603(a) is not framed as a “limitation” on the Council’s authority, as is the case with some of the other provisions in Section 603. Instead, it is a rule of construction which clarifies that, at the time of passage in 1973, “[n]othing in the Act shall be construed” to change then-existing law regarding the District’s budget process.
Supportive lawyers note that Congress went to great lengths to enumerate the parts of the charter DC couldn’t change, like all of section C on the judiciary, so if they wanted to keep the budget process sacrosanct, why wouldn’t they have listed section D as well? It doesn’t make a lot of sense to be extremely clear about which parts DC can’t amend and then have a subtle additional part with language that sounds like it refers to 1973.
Some others don’t see it this way. But ultimately it’s in Congress’ hands. The DC government believes it’s legal and, if the referendum passes, will operate on that basis. If Congress wants DC to still have to submit its budget, both houses can pass a resolution to say so. Since there are leaders on both sides of the political aisle who do support the idea, Congress will most likely not step in.
Even if some lawyers and judges disagree, the courts won’t intervene, because Congress is probably the only body with standing to sue, explained Smith. You have to be harmed by something to sue to stop it, and only Congress’ power over the budget will change. But Congress won’t sue because it doesn’t have to; it could just pass a resolution to stop the change. Which it won’t do.
Essentially, this referendum shifts the burden from one where Congress has to act (very hard to achieve) to one where it simply has to not act (far easier). DC voters can take this step knowing that Congress almost certainly won’t act, and by voting for this amendment, they will gain an important element of self-government.