D.C. budget autonomy fight could turn on Home Rule Act’s history


Budget autonomy referendum’s future lies in the hands of the D.C. Council and its lawyers. Attorneys Brian Netter and Karen Dunn appear with Council Chairman Phil Mendelson after filing suit in April. (Mike DeBonis/The Washington Post)

The first court battle over whether D.C. can win greater spending freedom from Congress is over, but the war continues.

In May, a federal trial judge ruled that a charter amendment passed by the D.C. Council and ratified last year by city voters was invalid and could not change the city’s relationship with Congress. In his opinion, U.S. District Judge Emmet G. Sullivan delved deeply into the legislative history of the 1973 Home Rule Act before determining that Congress “is the only entity that can provide budget autonomy.”

The council has now taken its case to the U.S. Circuit Court of Appeals, and in papers filed with that court last week, its lawyers are offering new research indicating, they argue, that federal lawmakers did in fact give the District the right to change its budgetary relationship with Capitol Hill.

Meanwhile, some notable D.C. lawyers have notified the court that they intend to argue on the council’s behalf — including former attorney general Peter J. Nickles, as well as a group of lawyers that includes a current candidate for attorney general, Mark H. Tuohey, and three other former presidents of the D.C. Bar: Carolyn B. Lamm, Thomas S. Williamson Jr. and Melvin White.

Nickles and the lawyers’ group are expected to file briefs before the end of the week. D.C. Attorney General Irvin B. Nathan — who is representing the defendants in the case, Mayor Vincent C. Gray (D) and Chief Financial Officer Jeffrey S. DeWitt — is scheduled to brief his arguments in support of Sullivan’s ruling by July 31. The council will have an opportunity to reply to Nathan’s brief.

The most intriguing of the new arguments presented by the council’s pro bono lawyers, Karen L. Dunn and Brian D. Netter, concerns the history behind a key passage of the Home Rule Act — Section 603(a), which says nothing in the act “shall be construed as making any change in existing law, regulation, or basic procedure and practice” with regard to congressional approval of the District’s budget.

Nathan, in his lower-court arguments, and Sullivan, in his ruling, leaned heavily on that section and its legislative history — saying it was the essential product of the compromise that won passage for the Home Rule Act nearly 40 years ago.

But Dunn and Netter argue that a closer look at the history behind Section 603(a) shows that Congress left the door open to amendment down the road, like the one passed by D.C. voters last year. Sullivan’s decision, they say in their brief, “rests on misinterpretations of the Home Rule Act’s text, structure, purpose, and legislative history.”

The correct interpretation, they say, involves looking at the watered-down substitute home-rule bill offered by Rep. Ancher Nelson (R-Minn.), the ranking member of the House District Committee. That legislation, meant to given Congress a much broader say in District affairs than the bill drafted by Democrats in the House or Senate, included this provision:

Notwithstanding any other provision of law, unless specifically authorized or directed by the Congress, there shall be no change made in existing laws, regulations, or basic procedures and practices as they relate to the respective roles of the Congress, the President, the Federal Office of Management and Budget, the United States Department of the Treasury, the Comptroller General of the United States, the District of Columbia Council, and the Commissioner in … the preparation, review, submission, examination, authorization, and appropriation of the total budget for the District of Columbia.

In the end, to get a bill through the lower house, Rep. Charles Diggs (D-Mich.), the chairman of the District Committee, adopted parts of Nelson’s substitute. Part of the Republican language ended up as the crucial Section 603(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.

But only part did, the council’s lawyers note. That Diggs took out the language about future budgetary changes being impermissible “unless specifically authorized or directed by the Congress” indicates, they argue, that Diggs and his colleagues who passed the compromise bill intended the budget process to be subject to the amendment process that was also included in the final bill.

Will any of this be persuasive to the judges of the D.C. Circuit? That remains to be seen: No panel has yet been selected, and oral arguments have not yet been scheduled. The circuit judges might not be as keen as Sullivan to examine the Diggs compromise and related history of the Home Rule Act. But if they are, they’ll have to contend with what exactly Charles Diggs and Ancher Nelson — both long dead — had in mind 41 years ago.

Mike DeBonis covers Congress and national politics for The Washington Post. He previously covered D.C. politics and government from 2007 to 2015.
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