Irv Nathan says he’s done fighting the budget autonomy referendum

January 9, 2013

D.C. Attorney General Irvin B. Nathan said he won’t sue his own government. (Bill O’Leary/The Washington Post)

A day after election officials ruled against him, Attorney General Irvin B. Nathan said he has no plans to continue fighting against the budget autonomy referendum that has divided the city government’s top legal minds.

“I don’t plan on any other action,” Nathan said at a mayoral news conference Wednesday. He said he was “disappointed about the board’s action” to put the referendum on the April 23 ballot over his objections, but not so disappointed that he would ask a court to enjoin the board from moving forward.

Amending the charter by act of Congress rather than a legally dubious referendum, he said, is the “only sound and long-term way of getting budget autonomy.” He also praised the lawyers in his office for “showing the courage to live up to the highest standards of the bar in urging public officials to adhere to the law.”

That could be read as criticism of the man who appointed Nathan and who stood next to him Wednesday: Mayor Vincent C. Gray (D), who knew of Nathan’s objections but went ahead and signed the council’s unanimously passed bill.

Gray, for his part, said his signature — offered despite “significant doubt as to its legality and wisdom,” according to a letter sent to the council – reflected pragmatic concerns. “I fervently want to see budget autonomy in the District of Columbia,” he said.

Now, should voters ratify the charter amendment and it passes a congressional review period, it’s not entirely clear who would defend it if it ends up challenged in court.

Nathan suggested after a board hearing Monday, and again Wednesday, that his office — the District government’s in-house law firm — could not do so now that he’s gone on the record with detailed legal objections to the maneuver.

Nathan said Monday that the D.C. Council’s attorneys, as well as lawyers for the outside advocacy groups that have pushed the referendum strategy, could fill in — that is, if Congress doesn’t intervene first.

Gray said he’s had no conversations with anyone on Capitol Hill about the measure — including Rep. Darrell Issa (R-Calif.), who has called the measure akin to a “partial succession.” Nathan said he’s had informal conversations about it with the general counsel to the House of Representatives, a position Nathan himself held from 2007 to 2010.

Also on Wednesday, the Board of Elections issued a more detailed explanation of its decision to move forward with the referendum. The three-member board found that the budget autonomy maneuver was not “patently illegal” and hence was suitable for the ballot.

But an unusual concurring opinion from two of the board’s three members, Devarieste Curry and Stephen Danzansky, held that if a majority found the charter amendment patently illegal it could then refuse to put it on the ballot.

That was a reversal of a 12-year-old board precedent and a brushback to the D.C. Council, whose chief lawyer had argued that the board simply had no power to question a charter amendment duly passed by lawmakers. 

So call that a partial victory for Nathan, and he can also take some comfort in the fact that Curry and Danzansky called his arguments against the legitimacy of the budget autonomy maneuver “extremely compelling” — if not extremely compelling enough to meet the “patently illegal” standard.

In other words: Close one, Irv, but no cigar.

Mike DeBonis covers local politics and government for The Washington Post. He also writes a blog and a political analysis column that runs on Fridays.
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Mike DeBonis · January 9, 2013