Report Questions Constitutionality of Giving D.C. a Vote

By Mary Beth Sheridan
Washington Post Staff Writer
Tuesday, February 13, 2007

The research arm of Congress says that legislation to give the District a vote in the House of Representatives is probably unconstitutional, a finding that could jeopardize its chances of passage, officials and analysts said yesterday.

The report by the Congressional Research Service is not binding, and its conclusions reflect what some prominent legal scholars have been warning for years. But it could carry extra weight because the service generally gets high marks for its nonpartisan advice to the House and Senate.

The report, dated Jan. 24 and made public yesterday, declared: "Although not beyond question, it would appear likely that the Congress does not have authority to grant voting representation in the House of Representatives to the District."

The bill's chief sponsors, D.C. Del. Eleanor Holmes Norton (D) and Rep. Thomas M. Davis III (R-Va.), have lined up other legal opinions to counter the research service's conclusions. But the report gives added ammunition to lawmakers who want to torpedo the bill and could signal a court fight if the legislation passes.

The report lands at a time when the D.C. voting rights effort has been gaining momentum. The new Democratic majority in the House has vowed to move quickly on such legislation.

Thomas Mann, a congressional scholar at the Brookings Institution, said the report represents "a creature of the Congress . . . saying this doesn't really pass constitutional muster. That has to be taken seriously and will certainly be used by those who oppose it."

A spokesman for Davis noted that some legal experts , including Kenneth W. Starr, a former federal appellate judge and onetime independent counsel, and Viet D. Dinh, a former assistant attorney general, had analyzed the measure and found it constitutional.

"We are still satisfied that it's legal," the spokesman, Brian McNichols, said.

Norton said she was not concerned about the measure failing on constitutional grounds. "An unprecedented bill always raises constitutional issues," she said.

The D.C. vote bill seeks to gain bipartisan support by increasing the size of the House from 435 to 437 seats. One new seat would go to the District, which is overwhelmingly Democratic; the other would go to Utah, the state next in line to increase its delegation according to Census returns and a Republican stronghold.

The research report was done at the request of several legislators who wanted a legal opinion, officials said. It was written by Kenneth R. Thomas, a veteran constitutional lawyer at the service.

The report was distributed yesterday by the human rights group Worldrights, which has said the D.C. bill does not go far enough. The group is pushing for full representation for the District, including two voting senators.

An earlier version of the report was prepared confidentially several years ago and not distributed widely on Capitol Hill. Davis read it and sought additional legal opinions, his spokesman said.

The latest report focuses on the two parts of the Constitution that are at the center of the D.C. vote debate. One is a clause that limits House membership to individuals chosen "by the People of the several States." Courts have determined that the phrase excludes the District, the report says.

The second relevant part of the Constitution, the "District Clause," grants Congress broad authority over the city. The bill's proponents note that the Supreme Court ruled in 1949 that Congress could use its powers to give D.C. residents the same rights as other citizens.

That case, National Mutual Insurance Co. v. Tidewater, concerned the right to have a federal court hear lawsuits involving people of two states.

But the research service says that ruling was narrow. Six justices wrote that the congressional powers over the District weren't big enough to justify making "structural changes to the federal government," the report says. Giving a vote to the District would be such a change, it says.

Congress created the Congressional Research Service to be a source of nonpartisan, objective analysis and research on legislative issues. Part of the Library of Congress, it works for members of Congress, their committees and staff and issues hundreds of reports each year.

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