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December 9th was a wild day for the cause of home rule in the District of Columbia — a power that Congress granted in 1973, but with enough caveats that it continually gets yanked away. A month earlier, D.C. voters had gone to the polls to vote on, among other things, a ballot initiative to legalize the possession of small amounts of marijuana in the District. The measure was rooted in a push for social justice: A 2010 American Civil Liberties Union report found that black Washingtonians were eight times as likely to be arrested for marijuana possession as white residents, even though blacks and whites nationally smoke pot at around the same rate. Amid contested mayoral and D.C. Council races, passage of the marijuana initiative seemed a given from the start, with polls showing overwhelming support. On November 4th, voters approved it by more than a two-to-one margin.
A month later, Congress was poised to take it away.
Because the District needs prior congressional appropriation to spend its own locally raised funds, Congress can curtail virtually any District policy its members dislike. On that morning in December, word circulated that House Republicans were likely to slip a so-called rider into the omnibus spending bill based on language proposed earlier by Rep. Andy Harris, a Republican from Maryland. As negotiations progressed, the terms of the rider crystallized: Marijuana would remain illegal, and the existing D.C. law that had decriminalized possession last summer might be threatened too.
The rider infuriated D.C. officials and some congressional Democrats. But as they spoke out against it, the word “marijuana” barely appeared in their defense of the will of D.C. voters. Instead, a different word kept coming up: “statehood.”
The incident was, in the words of Eleanor Holmes Norton, D.C.’s non-voting delegate to Congress for the past 24 years, “a classic example of why we need statehood.”
Harris himself made the statehood argument several times, if perhaps inadvertently. When a reporter from Talking Points Memo asked him if his rider might violate the principle of states’ rights that he embraces, he responded, “D.C.’s not a state.” The next day, in an interview with Politico, he said of D.C. residents, “If they don’t like that oversight, move outside of the federal district to one of the 50 states that is not covered by the jurisdiction of Congress as a whole.”
A voting rights sculpture, on the corner of 11th St. NW and Florida Ave NW (Photo by Mr. TinDC ON Flickr)
Of course, rather than moving to a state, D.C. residents would prefer to bring statehood to the District. The marijuana debacle — still unresolved, now that the D.C. Council transmitted the initiative to Congress for review in a move that Harris and others consider illegal — was only the latest in a long series of federal intrusions on D.C. home rule that have led some Washingtonians to believe that short of statehood, there’s not much the city can do to protect its right to self-governance.
It’s not just a matter of fairness, although that’s a factor: The District has more residents than two states, Wyoming and Vermont, that each send two senators and one voting representative to Washington, and whose laws and budgets are generally protected from federal interference. Nor is it only a question of democratic rights, even if every D.C.-issued license plate reminds visitors and congresspeople that the city is subject to “Taxation Without Representation.”
There’s also the urban factor. The District is a city, with a city’s priorities and needs. But unlike other cities, its municipal policies are subject to the whims of Congress, and it has no elected state officials to defend its interests. Instead, it has become, at turns, a testing ground and a fiefdom for federal officials from faraway rural areas whose policy philosophies have entirely different implications at home than they do in the capital city. Time and again, the city’s ability to address its uniquely urban challenges, to grow and prosper, to fulfill the wishes of its city-dwelling residents, has been squashed by federal control.
In other words, it’s precisely because D.C. is a city, and not a typical state, that statehood is so badly needed.
‘‘The indispensable necessity of complete authority at the seat of government, carries its own evidence with it,” James Madison wrote in 1788 in Federalist No. 43, part of his ongoing effort to promote the ratification of the U.S. Constitution. If the capital were to be located within a state, or comprise one of its own, Madison wrote, the federal government would be overly dependent on that state, which would wield an undue influence. The solution, as written into the Constitution, was to create a federal district “not exceeding ten Miles square” as the seat of government.
Absent was any discussion of the inverse problem that might arise — that residents of this new District could have too little influence over the government. For the first half-century of its existence, it wasn’t a major concern, given that the capital was a small backwater. In 1840, its population was still just 33,745, according to the U.S. Census Bureau. That changed during and following the Civil War, when a growing federal government and an influx of freed slaves from the South swelled the population to 131,700 in 1870 and 230,392 in 1890. The District’s head count peaked in 1950 at more than 800,000 residents, topping 13 of the 48 states at the time.
The ensuing decades were not, however, good times for District governance. Congress was in charge, and the chairmen of the two committees with D.C. oversight powers were southern Democrats who presided over the majority-black city with the heavy-handed disdain of plantation owners. Racism was the ruling order of the day. William Natcher of Kentucky, who became chair of the House appropriations committee in charge of District matters in 1961, called D.C. “probably the most wicked city in the world”; his signature accomplishment in that role was delaying the construction of the D.C. area’s Metro system because he feared freeways serving predominantly white suburbs were getting short shrift. John McMillan of South Carolina chaired the Committee on the District of Columbia for most of the nearly three decades between 1945 and 1973. Legend has it that McMillan, a staunch segregationist, greeted the 1967 arrival of the city’s appointed mayor-commissioner, Walter Washington, by delivering him a truckload of watermelons.
The same year McMillan exited the government, Congress passed the District of Columbia Home Rule Act. The law gave the city the right to elect a mayor and a city council while retaining many other limits on autonomy. The city was still barred from taxing federal property and from altering the federal statute that limits building heights. Voters could not pass any legislation without giving Congress a chance to veto it. “The Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District,” the act decreed.
The most problematic power retained by Congress, from the District’s perspective, was the ability to restrict city spending, even of dollars raised through local taxes and fees. Some of the initiatives Congress quashed were simply too progressive for congressional conservatives. There was the medical marijuana initiative, passed by D.C. voters in 1998, which a Georgia Republican prevented the city from implementing for more than a decade. There was the 1992 bill allowing same-sex domestic partnerships, which Republicans in Congress held up for 10 years with riders. There was the 2011 budget deal that banned local funding for abortions in D.C., after President Obama reportedly told House Speaker John Boehner during the negotiations, “John, I will give you D.C. abortion.”
Those actions all hindered the ambitions of a city that struggled with high teen pregnancy and sought to be a pioneer on medical marijuana and gay rights. But other congressional moves had a more powerful — and sometimes deadly — impact as the result of a disconnect between lawmakers from non-urban areas and a city population with its own specific needs.
From 1998 to 2008, and again in 2011, Congress prevented the District from spending its funds on a needle-exchange program, at a time when the city had surpassed epidemic levels of HIV and AIDS infection. Norton accused Congress of killing District residents, citing the fact that D.C. had the highest AIDS rate in the country. That statistic compared D.C. to states — hardly fair, given that AIDS had disproportionately affected cities — but the comparison highlighted the need for D.C. to be treated specifically as an urban jurisdiction, something Congress had not sought to do.
“Occasionally, Congress members’ unfamiliarity with urban living leads to peculiar legislative attempts to make the city more like the suburban or rural landscape to which they’re accustomed.”
Last summer, Rep. Thomas Massie of Kentucky sought to attach a rider to a spending bill that would have gutted the city’s gun-control laws, giving it perhaps the loosest gun control in the country. Ultimately, the Republican leadership left the rider off the bill. But the threat was enough to leave Washingtonians shaken, in a city that not long ago was called the murder capital of America for its out-of-control gun violence.
Paul Strauss, an attorney who serves as one of the city’s two elected (but unpaid) “shadow senators” on Capitol Hill, a position designed to press Congress for D.C. autonomy, says the gun provision scared him more than anything, because guns are simply more dangerous in a densely populated city than in the countryside. “If I lived in Wyoming and I was worried about bears, I’d probably have a firearm in the house,” he says. “But I live in the city. I’m not worried about bears. I’m worried about criminals.”
“Look at the two members who pressed guns and marijuana this year,” says Norton, referring to Massie and Harris. “Neither is from a city. They don’t understand and don’t want to understand urban areas.”
Occasionally, Congress members’ unfamiliarity with urban living leads to peculiar legislative attempts to make the city more like the suburban or rural landscape to which they’re accustomed. Reps. Kerry Bentivolio (R-Mich.) and Steve Stockman (R-Texas) drafted legislation last year to ban traffic cameras in D.C. — a means of reducing speeds and improving pedestrian safety in the city, and one that’s a perpetual nuisance to suburban commuters (and, apparently, congressmen in residence). Stockman also introduced a bill to require that a gun firing range open in the city. Neither piece of legislation became law.
These efforts by Congress to impose anti-urban ideas on an urban environment certainly help make the case for statehood. But there are more systemic factors, beyond the whims of a few legislators, that hold back the city’s economic growth and demonstrate the potential benefits of unshackling the city from federal control.
After decades of decline, D.C.’s population is now growing by around 1,000 residents per month. This growth is a boon for the city’s bottom line: Budgets once so lopsidedly red that Congress had to impose control in the 1990s now routinely feature surpluses. But it can’t be sustained without concerted efforts in planning, transportation, development and livability.
The discussion gained urgency in late 2012, when Rep. Darrell Issa, the Republican in charge of the House committee with D.C. oversight, asked the District and the National Capital Planning Commission to recommend changes to the 1910 Height of Buildings Act, which for more than a century has restricted the city’s ability to grow vertically. Citing the need to accommodate a growing population, the mayor’s office recommended allowing slightly taller buildings in the historic downtown area and giving control over building heights elsewhere to the District government, rather than Congress. “Even under just 30 years of forecasts,” the report from the mayor’s office stated, “the current height limits constrain our ability to meet our expected growth.”
The NCPC rejected these sweeping changes, and Congress ultimately adopted just a very minor alteration to the law while retaining future control of it. Even if the District had won the right to set its own building limits, it’s far from clear that heights would have risen, especially after the D.C. Council passed a symbolic resolution opposing any changes to the height law. But at least the power to make changes would have been in local hands should a greater need arise, rather than under the control of a few federal representatives who might prefer not to have their views blocked.
Then there’s the National Park Service. The federal agency controls 16 percent of D.C.’s land area, including city squares and circles that no one thinks of as national parkland. The federal agency’s broad guidelines apply some of the same rules to Dupont Circle and Franklin Square as to Yosemite and Yellowstone, making it nearly impossible to install things like cafes and playgrounds and restrooms that would serve an urban population. The Park Service and other federal agencies have at times thrown up roadblocks to the addition of public transportation facilities in historic but city-integrated places like the National Mall (where the Park Service initially opposed the installation of bike-sharing docks and the creation of the Circulator bus route) and the downtown area (where the agencies opposed the use of overhead wires for the planned streetcar network). When the federal government shut down in 2013, trash collection stopped at parks throughout the city, until the mayor instructed local public works officials to pick up the feds’ trash too.
“A lot of times you’re dealing with the Park Service, you get the impression they think no one actually goes into the parks,” says Strauss. “It’d make their lives easier.”
“If the spending bill is implemented,” Fox News reported on December 9th as the marijuana rider language came into focus, “it would mark the first time Congress has meddled in local D.C. affairs in decades. Congress was granted [sic] the federal city ‘home rule’ in the 1970s but generally stays out of D.C. affairs, though it can always legally intervene.” Fox added that Congress could prevent the ballot initiative from being implemented “because it is technically the ‘super’ city council in Washington.”
The New York Times followed up with the less egregious but still erroneous claim (since corrected) that while marijuana legalization was blocked, “possession of the drug was decriminalized” through the congressional deal. (In fact, marijuana is already decriminalized in D.C., although the rider could undo that, depending on how the language is interpreted.)
The misreporting in two of America’s top news sources highlights the central challenge facing statehood advocates: getting the rest of the country to understand the issue, and to care. Unlike the enfranchisement of women and African-Americans last century, D.C. statehood doesn’t bring new voting constituents to any current elected official. As a result, members of Congress feel little political pressure to take action; in fact, they stand to see their power diluted by the addition of a new delegation.
There are, of course, solutions short of statehood. One is legislative autonomy, which would remove Congress’ power to review, and potentially reject, every piece of legislation passed in the District. But practically, it wouldn’t make a big difference, since Congress has passed a so-called resolution of disapproval of D.C. legislation only four times in 40 years, according to James Jones of the autonomy advocacy group DC Vote. Granting a vote in Congress to the District’s delegate would also be a small step forward, but realistically one vote among nearly 440 is unlikely to have an effect.
Bigger gains could come from budget autonomy, which would give the District the right to spend locally raised funds without federal approval. This is the area where D.C.’s been hit by all the riders in congressional budget wrangling. “We’re so easy to trade away,” Jones says. But even here, Congress could probably still attach riders to non-spending bills that would hamper D.C.’s right to self-governance.
That’s why many D.C. rights advocates say it’s time to stop pushing for anything short of statehood. “We’ve gone for partial representation,” says Franklin Garcia, who was elected in November to be D.C.’s shadow representative, the House counterpart to the shadow senators. “The effort is the same, and it hasn’t gotten the city very far. Statehood is the only way to ensure that we get all the rights that other citizens have.”
“All those things could be revoked,” says Josh Burch, a leading statehood advocate and the founder of Neighbors United for DC Statehood. “They could pass budget autonomy this year and still put riders on other bills. Congress can always pass another law that supersedes the other ones passed. As soon as we become a state, we have autonomy over that.”
At times in the past year, the statehood push appeared to have momentum. President Obama stated his support at a D.C. school in July, telling the assembled crowd, “I’m for it.” Two months later, Attorney General Eric Holder also spoke in favor of congressional representation for the District. Vice President Joe Biden joined the chorus last month, telling a crowd at a D.C. event, “You should be a state.” Issa, a conservative Republican, has been a surprising advocate of D.C. autonomy. In September, the Senate held its first hearing on statehood in 20 years, and Washingtonians packed the hearing room to show their support.
From left, Del. Eleanor Holmes Norton, D-D.C., the District of Columbia’s non-voting delegate in the House of Representatives, former D.C. Mayor Vincent C. Gray, and Council Chairman Philip H. Mendelson, prepare to testify before the Senate Committee on Homeland Security & Governmental Affairs at a hearing on a D.C. statehood bill heard on Capitol Hill this past fall. (AP Photo/J. Scott Applewhite)
But those positive signs look fleeting. Obama has begun his final two years as president with a Republican-controlled Congress. Holder announced his retirement the same week he advocated voting rights. The Senate hearing drew just two senators: Democrat Tom Carper, who convened the hearing, and Republican Tom Coburn, who stopped by just to call it a waste of time. Last month, Issa stepped down as committee chair; he was replaced by Utah Republican Jason Chaffetz, who thinks D.C. autonomy is unconstitutional and has called for the District to be absorbed into Maryland.
“Jason Chaffetz is someone who was so anxious about city life that he stayed on his couch rather than engaging the city,” says Strauss. (Chaffetz brought a cot to Congress with him when he was elected in 2008 so he could sleep in his office rather than renting a place in the city.) “You’ll see Rand Paul at the Capital Grille having a steak. I’ve never heard of Jason Chaffetz doing that.”
Still, some advocates see hope in the rising tide of libertarianism in the Republican Party, which ought to frown upon tight federal control of the District. “I think that the growing power of the libertarian wing of the Republican Party is going to be helpful,” says Jones. He also sees a positive sign in the Republican leadership’s push to cut government waste. “It’s pretty wasteful when we have to give all of our laws to Congress to review for 30 days.”
No one expects statehood anytime soon. It could very well be another 20 years before Congress even calls its next hearing to discuss the matter. But Garcia is optimistic about the long game.
“I was looking at historical data,” he says. “And a lot of these territories that became states, it took them over 100 years. We’re over 200 years now. I don’t know what it’ll take to get it done, but it’s possible.”
Norton isn’t convinced. “Statehood? Having lost the Senate? Please.”
Our features are made possible with generous support from The Ford Foundation.
Aaron Wiener covers urban development for the Washington City Paper. He previously worked as a correspondent for the Los Angeles Times in Berlin and an editor at The Washington Independent, Talking Points Memo, and The Washington Post. He has also written for Slate, Foreign Policy, Monocle, The New Republic, and The American Prospect, among other publications.