The D.C. Council is moving forward with a proposal to use the referendum process to give the District autonomy over its local budget — that is, the approximately $6 billion a year that the District raises in local taxes — and thereby enable it to avoid the need to wait for congressional action as part of the often-delayed federal budget process. But this raises one big question: Can the referendum process lawfully be employed in this way to reduce the role of Congress under the Home Rule Act?
At the outset, let us state that we strongly believe that, after almost four decades of home rule, the District should be able to enact its budget for local revenue without having to get approval from Congress. Section 446 of the D.C. Charter (part of the Home Rule Act) is obsolete in this respect. Unfortunately, only an act of Congress can cure this defect.
Under the Constitution, Congress has the exclusive authority to legislate for the District. The Home Rule Act is the product of Congress’s exercise of that authority, and what Congress has given, Congress can limit or even take away. To advance the discussion on this important issue, we want to state firmly the Home Rule Act does not permit a referendum on budget autonomy. The only way the charter can be amended as proposed is through an act of Congress.
To understand why, one has to look closely at the pertinent provisions of the Home Rule Act, so bear with us as we walk through the law. Section 303 of the act specifies that it may not be used “under the limitations of sections 601, 602, and 603.” Those sections are titled “Reservation of Congressional Authority,” and Section 603(a) states: “Nothing in this Act shall be construed as making any change in existing law, regulation, or basic procedure and practice” regarding “the preparation, review, submission, examination, authorization and appropriation of the total budget of the District of Columbia government.” When the Home Rule Act was enacted, existing law, procedure and practice required the District’s total budget to be approved by Congress, and the language of the act leaves little doubt that Congress intended to prevent the District from using Section 303 to eliminate this authority — including over the portion of the D.C. budget based on local revenue.
Essentially, the District is seeking to replace affirmative congressional review of its local budget (meaning that Congress must act to pass legislation approving the budget) with passive review (meaning the local budget becomes law unless Congress takes action to disapprove it). But Congress understood that overturning D.C. Council legislation under passive review — entailing diverting Congress from pressing national issues, expending scarce legislative time and resources to educate members about D.C. matters, winning majorities in both houses of Congress and obtaining the president’s sign-on — is a cumbersome process. Indeed, Congress has rarely overturned council legislation during the almost four decades of home rule. It is absurd to think that Congress gave the District the power to make its budget acts subject only to passive review, especially when such a change itself would be subject only to passive review.
Besides Section 603(a), Congress made its primary role in enacting the District’s budget triply sure. Section 303 also adds the limitation in Section 603(e) declaring the continued applicability to the District of the federal Anti-Deficiency Act, which requires that expenditures of the federal and the D.C. governments not exceed the amounts as appropriated by Congress. Section 303 further adds the limitation in Section 602(a)(3), which prohibits the council from amending any act of Congress, such as the Anti-Deficiency Act, that concerns the functions of the United States. It’s no wonder that for almost four decades, the District’s elected leadership, officials and lawyers have not viewed Section 303 as a vehicle for changing the District’s budget procedures.
Finally, among the legal risks of the current proposal is the prospect that the District will be sued and that the courts will rule this use of Section 303 to be unlawful. Unfortunately, if the District inflicts such an injury on itself, the cause of getting Congress to approve D.C. budget autonomy — the proper method to accomplish this — may be set back many years as members bristle at this attempt to circumvent their authority. Even if no suit is brought, D.C. government personnel who obligate and spend locally raised revenue will be in the untenable position of risking prosecution under the Anti-Deficiency Act — a strict liability statute that, under the Supremacy Clause of the U.S. Constitution, would preempt the proposed charter amendment.
It is simply unfair to place the District’s employees in the position of choosing possible insubordination if they refuse to obligate or spend District funds, on the one hand, and prosecution under the Anti-Deficiency Act if they obligate or spend funds, on the other.
Wayne Witkowski is a former deputy attorney general for the Legal Counsel Division in the D.C. attorney general’s office. Leonard Becker served as general counsel to Mayor Anthony A. Williams from 2003 through 2006.