The Wrong Remedy for Taxation Without Representation

When it comes to political coloration, the District of Columbia is bluer than Lake Tahoe. In 2004, John Kerry got 48 percent of the vote nationally and 62 percent in his home state of Massachusetts. But in Washington, D.C., he got 90 percent.

District residents have long chafed at their lack of voting representation in Congress. They have only a delegate, who takes part in House proceedings but has exactly the same voting privileges as Paul McCartney, Catherine Deneuve and King Abdullah of Jordan. Which is to say, none.

But given their Democratic leanings, the plight of Washingtonians has never aroused much sympathy in the Republican Party. One of President Bush’s first acts upon arriving in Washington was to remove the standard D.C. license plates from the presidential limousine, because of the disagreeable slogan they bore: "Taxation Without Representation."

Life, however, is full of surprises. In a monument to implausibility, a House committee recently approved a bill to give the District a voting member in the House, apparently on simple grounds of equity. Republicans acted to neutralize the effect on the House by creating a fourth seat for Utah, which is expected to fill it with a Republican to balance the Democrat the District will presumably elect. The House would expand from 435 to 437 members.

The effort to fully enfranchise Washingtonians is a welcome and overdue recognition of the deep injustice of the status quo. Unfortunately, it’s probably also unconstitutional.

At the time the Constitution was ratified, residents of that particular area were citizens of either Maryland or Virginia. But when those states ceded land to the federal government to create a capital, the inhabitants suddenly became nonvoters, because they didn’t reside in any state.

For a long time, their second-class citizenship went unaddressed. After all, lots of Americans were second-class citizens in those days. But once the franchise had been extended to blacks, women and 18-year-olds, the anomaly became too glaring to tolerate. In 1961, a constitutional amendment was ratified granting D.C. voters the right to vote in presidential elections.

But that did nothing to provide them a voice in Congress. In 1970, D.C. got a voice — but only a voice, in the form of a nonvoting delegate in the House.

Being a nonvoting member of Congress is like being a non-dancing member of the Rockettes. So Washingtonians have pressed for some remedy for their limbo status. A constitutional amendment to give D.C. two senators and a representative failed. An effort to gain outright statehood went nowhere.

The District of Columbia Fair and Equal House Voting Rights Act of 2006 sets its sights lower: Instead of two senators and a House member, D.C. would get only a House member. Recently, the House Government Reform Committee passed the measure by a 29-4 vote, with Chairman Thomas Davis III, R-Va., announcing, "We’ve set partisanship aside to right a fundamental wrong."

That they have. But they’ve done it in a way that does violence to the Constitution, which doesn’t allow the legislative branch to create new House seats at will. It says, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." Not to belabor the obvious, but D.C. is not a state, which means its residents may not elect a House representative.

Former special prosecutor and solicitor general Kenneth Starr and retired federal appeals court Judge Patricia Wald defended the bill in The Washington Post. Because the Constitution gives it the authority "to exercise exclusive legislation in all cases whatsoever" over the District, they argued, Congress is free to give it a House member.

But federal courts have ruled to the contrary. And as George Mason University law professor Ronald Rotunda points out, that passage gives Congress the same authority over all areas obtained by the federal government "for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings."

If Congress can grant a House representation to the District, it can do likewise for Camp Pendleton, Fort Hood, Minot Air Force Base and every other military installation in the country. Once this theory starts rolling, there is no obvious place for it to stop.

Correcting the wrong done to Washingtonians would be much easier if we didn’t have to choose between amending the Constitution and creating a 51st state. But in politics, some remedies are bad and some are good. And some are too good to be true.