Jonathan Turley · February 2008
76 GEO. WASH. L. REV. 305 (2008)
When the Democratic majority took control of the 110th Congress, one of the first matters on the agenda was one of its the oldest controversies: the representational status of the District of Columbia in Congress. In a bipartisan effort, sponsors proposed giving the District of Columbia a vote in the House of Representatives, but not the Senate. To satisfy political necessities, the sponsors agreed to add a presumptively Republican seat for Utah to balance the presumptively Democratic seat in the District of Columbia. Suddenly, a majority of members in the House had a stake in securing a vote for the District and the bill moved swiftly through the House in a newfound campaign for “equal representation.” It was the very model of how political convenience can be the enemy of constitutional principle. Members have shown little patience with constitutional language and case law that bars them from creating this new form of voting member. Although the future remains uncertain, it is clear that only a few votes are needed to pass the bill in the Senate and override a possible presidential veto. It is the closest the District has come in decades to a true congressional vote, albeit half representation in only one house. The understandable excitement over such a potentially historic change, however, has distracted many from the serious constitutional implications of the plan. Allowing Congress to create a new form of voting member would threaten not only the integrity of the House but the stability of the legislative branch in the carefully balanced tripartite system.
Despite the best of motivations, the current effort to legislatively create a voting member in the House for the District is fundamentally flawed on a constitutional level. Considerable expense would likely come from an inevitable and likely successful legal challenge, all for a bill that would achieve only partial representational status. District residents deserve full representation and although this bill would not offer such reform, there are alternatives, including a three-phased proposal that I have advocated in the past.
The controversy over the District vote was joined by an equally controversial effort to add an at-large district to the State of Utah. The Senate wisely changed the at-large provision for the Utah district to require the creation of new individual districts. This change left the constitutional question squarely on the District’s member and the ability of Congress to manipulate its own rolls by adding a new form of voting member. This Article lays out the textual, historical, and policy arguments for why Congress lacks such authority.
