Mr. President, I thank the Chair. I thank the majority leader for his statement on this bill, S. 160, the DC House Voting Rights Act. I think he got right to the point. This measure has been before…
Mr. President, I thank the Chair. I thank the majority leader for his statement on this bill, S. 160, the DC House Voting Rights Act. I think he got right to the point. This measure has been before Congress for quite a long time. The bill before us is the result of a bipartisan compromise that was worked out in the House of Representatives last year between Delegate Norton and then-Congressman Tom Davis.
There are questions about the bill. Obviously, there are different points of view. I am very grateful that yesterday 62 Members of this body, including 8 Republicans, voted to stop a filibuster to invoke cloture to get to this bill. I think people are ready to debate it on its merits.
I feel very strongly that this bill rights a historic injustice. It is hard to believe, when you stop to think about it; maybe we become accustomed to things and forget how unacceptable they are and how unaccustomed we should be, but 600,000 Americans are deprived of having voting representation in the Congress of the United States because they happen to live, of all places, in the capital of this greatest democracy in the world.
There are a lot of historic reasons for this originally, but then they became political reasons, frankly partisan. But none of them holds any real sway against the ideal that animates our country. This is a representative democracy. And finally the residents of the District got a delegate in the House, but the delegate cannot vote.
Think of it. If any one of us, the 100 of us who are privileged to be Senators were told for some reason that we could be Senators, we could represent our States, we could participate in debates, but then when the roll was called, we could not vote--it is unbelievable. This is what we have done to the 600,000 residents of the District of Columbia and to their Delegate in the House.
This bill would right that wrong. I would say that few, if any, of our colleagues would argue that somehow the status quo is acceptable; that is, that 600,000 people do not have a voting representative in Congress.
We are the only democracy--and, of course, we believe we are the greatest democracy in the world. Historically, we began the moment of democracy throughout the world. We are the only democracy in the world where the residents of our capital do not have any voting representation in Congress.
So I think, generally speaking, Members of the Senate understand and accept the injustice of the status quo. The objections are primarily constitutional as I have heard them. I believe the arguments on behalf of the constitutionality of this proposal are strong and convincing, certainly to me.
My cosponsor of this legislation, the distinguished Senator from Utah, Orrin Hatch, who has, generally speaking, been acknowledged as a wonderful lawyer, a great constitutional scholar, in fact, has written an essay for the Harvard Law Journal, making the case for the constitutionality of this proposal. I commend that to all of our colleagues, particularly those who have doubts about the constitutionality of this measure.
But I honestly think that most people have accepted the injustice question. The constitutionality, okay, let's have some amendments. As Senator Reid said, we have got today, tomorrow. We are here. Let's have some amendments and put it in issue, give the Senate the choice that deals with the constitutionality. Some think there ought to be a constitutional amendment to achieve voting representation in the Congress. I do not think that is necessary.
Some think the District of Columbia, the residents should, for purposes of representation in Congress, become part of Maryland or Virginia. There is some historical precedent for that argument, way back. Let's debate it. But let's get it done. This measure has strong support and it has the urgency of justice delayed about it.
So the question before the Senate, as it so often is, are we going to face the differences here and debate them and then have a vote so we can conclude this debate and go back to our States Thursday evening and have a good weekend with our constituents at home or are we going to delay this and use this as a vehicle for unrelated matters that will achieve nothing? That, as usual, is the challenge before us.
I am here, and I look forward to colleagues coming as soon as possible to speak, and hopefully to offer amendments, with the goal that Senator Reid has set--we can finish this goal by tomorrow, Thursday. Senator Reid has made it clear that if he gets the sense during the day today that there is going to be delay, and there are amendments that are not relevant to the bill, he is going to file cloture. That will mean we will have to stay here on Friday to vote on cloture, and we will not be able to finish this bill presumably until the first part of next week. I hope that does not happen. Please come to the floor and let's talk about it.
I do want to, while I have a moment--I am sure Members are rushing from their offices right now to come to the floor to offer amendments-- I do want to talk for the record about the interesting compromise that Delegate Norton and Congressman Davis achieved last year, and this answers the question of: Why Utah?
This bill would increase the size of the House of Representatives to 437, adding two new Members to the House. This is quite historic both in terms of righting the injustice suffered for now more than two centuries by the residents of our Nation's capital, but also that we are adding Members to the House of Representatives. That does not happen too often in our history.
One of those seats would go to the District of Columbia, the other as part of the compromise would, for the next 2 years, until the reapportionment of the House that will follow the 2010 census, go to Utah. I would say to clarify, that after the 2010 census, the District would retain its seat because of the injustice that we are correcting. But the second seat would go to whichever State deserves it; that is, according to the population found in the 2010 census.
So let me explain why Utah now. Utah has had an objection to the outcome of the 2000 census and the Congressional apportionment that followed it. According to the 2000 census, the State of Utah missed out on getting a fourth seat in the House of Representatives by 857 people.
This was a very thin margin of error, particularly when one considers the methodology of the count and the way it uniquely affected Utah. Remember, 857 people short of getting a fourth seat as compared to another State. According to officials of the State of Utah, somewhere between 11,000 and 14,000 members of the Church of Latter-day Saints, Mormons, missionaries living abroad but citizens of the United States, residents of Utah, were not counted. It is true, however, that members of the military who are abroad are counted.
In two separate court cases, the State of Utah argued that the methodology of the count of the census was flawed because government officials, including military personnel, were counted in the census, while other Americans, including the LDS missionaries, were not. Our colleagues in the House had an insight. It was one of those moments of compromise. Perhaps it seems we are combining apples and pears, but-- and I will stop the metaphor and not go on to a sweet fruit salad--the fact is, this made a lot of sense. Our colleagues in the House recognized that in these two sets of complaints--the historic one for the District and the one for Utah, more current--there was a potential solution to the longstanding impasse on DC voting rights.
Let's state what is implicit. Over time, I fear people concluded, notwithstanding the justice of the argument made by residents of the District that they deserve voting representation, it is clear, and we must acknowledge what is clear, the registration of voters
in the District is overwhelmingly Democratic. So in terms of partisan balance in the House, the feeling, obviously, was that when the District of Columbia gets a voting representative in the House of Representatives, that representative will almost always be Democratic. Utah tends to be Republican, though not totally; there is one Member of the House from Utah today who is a Democrat.
There was another judgment involved, an interesting one which we tend not to think of. If we just added one seat for the District of Columbia, a voting representative, we would end up with 436 Members of the House, an even number, and no constitutional mechanism for breaking a tie. Obviously, presumably a motion that resulted in a tie would fail, but it seems an unsatisfactory resolution to the problem. Without an odd number of Members of the House, gridlock would ensue in too many cases. How would the House, for instance, organize itself if the split between the political parties was even? Clearly, the Vice President does not serve as a tie-breaking vote for the House, as is the case in the Senate. It could be impossible to elect a Speaker or appoint committee chairs. So the solution devised by our colleagues in the House in the last session of Congress increased the size of the House by two Members to 437, which pairs a new seat for the District of Columbia with a new seat for Utah. That simultaneously gives the District the representation it deserves, keeps the House as an uneven number of seats, and balances a likely Democratic seat from the District with a likely Republican seat from Utah.
This is the balance that resulted in the legislation that is before us. It is a compromise but, as in so many cases--and it is a pragmatic compromise--it results in a good solution, frankly, to two problems, one longstanding for the District, the other more current and brief for Utah.
In submitting this legislation from the committee, we are not judging the manner in which the 2000 census was conducted or the outcome of legal disputes that followed. That is a matter of record. However, it is a statistical fact that Utah was the next State in line to receive an additional seat in the House of Representatives. Given that fact, it is a reasonable bipartisan compromise to create the two voting seats proposed in S. 160. I stress, again, that Utah only receives this seat under this bill for 2 years. The bill has no impact on the conduct of the next census in 2010 and subsequent reapportionment. Once reapportionment is conducted for the 2012 election, the Utah seat will be awarded based on population increases to the State that thereby has earned it. It could be Utah. It could be another State. If Utah's 2010 population does not entitle the State to a fourth congressional seat, it will not retain the seat it will receive under this bill.
The bill offers an opportunity to right the wrong Utah believes it suffered in 2000, the closeness of its numbers and also the fact that Mormon missionaries, way beyond the 857 gap between Utah and the State that got the additional seat, way beyond that number, 11,000 to 14,000. I think this is a very fair compromise that ensures, bottom line, every citizen of the country is given the most precious right democracy can provide, the right to vote for someone who can represent him or her with a vote in Congress. When one doesn't have that, as is the case with the District of Columbia, apart from the frustration I described earlier that Delegate Norton must experience every time the roll is opened in the House, we have the inequity of residents of the District volunteering and being sent to war. Yet the Delegate of the District in the House has no vote on questions of war or peace. We have soldiers returning as veterans, and yet the representative from the District has no vote on the benefits we will confer or not confer on veterans. The residents of the District are not only taxed without representation, which is, as our Founders asserted, a form of tyranny, but they are taxed very heavily. They pay the second highest rate of Federal taxation per capita. Yet they have no voting representation in Congress on the rate of taxation, the manner of taxation or, of course, where the revenue goes.
They are the only governmental entity, outside of a Federal agency, that has to have its budget approved by the Congress. When we are tied up in gridlock and the budget doesn't pass, it means the District of Columbia is in a terrible predicament because it can't get the money it needs to operate. Yet the District has no voting representation on matters of appropriations in Congress. This is the moment to end this antiquity, a profoundly unjust and, frankly, un-America antiquity.
I urge colleagues to come to the Chamber. Let's have some amendments and debate, and let's get this done by tomorrow afternoon.
I yield the floor and suggest the absence of a quorum.
Mr. President, I appreciate very much that Senator McCain came to the floor to raise this point of order. As I said earlier, this is a matter that concerns people. I feel strongly that the measure is constitutional. But this is exactly what we should be debating. I look forward to his arguments and to responding to them.
I thank the Chair.
Mr. President, I thank my friend from Arizona for his kind words and also for the serious constitutional questions he raised.
As I said earlier, this is exactly what we ought to be debating on this bill. I take it as a given that neither he nor anyone else I heard speak in this Chamber would say that it is fair or just or consistent with the first principles of our representative democracy, this great Republic of ours, that 600,000 Americans be denied the fundamental right to be represented in Congress by somebody who can actually vote. Pretty much everybody will agree that is wrong, all the more unacceptable because these 600,000 people happen to live in the Capital of this great democracy of ours.
The question is, in one sense, the constitutionality of S. 160, the House District Voting Rights Act that is before us, and in a second sense, which the Senator from Arizona has raised, the wisdom, if you will, of combining the voting rights for residents of the District with an extra seat, in the short run, for the State of Utah. I wish to take some time to respond to these serious arguments.
As I understand it--and I think I do--what the Senator from Arizona and other opponents of the constitutionality of this bill say is that the question of the District of Columbia's voting rights in the House should be settled by section 2 of article I of our Constitution, which says the House shall be made up of Members chosen ``by the People of the several States.'' And they argue that because the District of Columbia is not a State, its residents cannot have representation in the House, presumably at least not without a constitutional amendment.
Those of us who feel strongly that this measure before the Senate is constitutional base our claim on the District clause of the Constitution which states that the Congress has the power ``To exercise exclusive Legislation in all Cases whatsoever, over such District,'' referring, of course, to the Federal District that was created at the time of the Constitution as the National Capital.
Our courts have described in the centuries since this authority in the District clause as a ``unique and sovereign power'' and ``sweeping and inclusive in its character.'' Unlike many congressional powers, it is not balanced against the countervailing rights of the States.
As former, I believe he was Associate Attorney General, maybe Deputy Attorney General during the previous administration, the Bush administration, Viet Dinh, stated in his testimony before the House of Representatives on this matter:
[W]hen Congress acts pursuant to the District Clause, it
acts as a legislature of national character, exercising
``complete legislative control as contrasted with the limited
power of a state legislature, on the one hand, and as
contrasted with the limited sovereignty which Congress
exercises within the boundaries of the states, on the
other.''
That is a very interesting argument about the unique powers of Congress pursuant to this District clause.
Then Mr. Viet Dinh concludes in support of this legislation and the constitutionality of this legislation:
In few, if any, other areas does the Constitution grant any
broader authority for Congress to legislate.
That is what we are doing here.
Those who question the constitutionality of the legislation, as I mentioned, rely on section 2 of article I. They rely uniquely and almost totally on the word ``States,'' that the Members of the House shall be chosen by ``the People of the several States.'' So they say the District of Columbia is not a State; therefore, without amending the Constitution, we, in Congress, even under the powerful District clause, do not have the power to grant voting rights in Congress to the Representative of the District of Columbia.
But there is a very clear and powerful line of Supreme Court cases in which the High Court and other courts have upheld Congress's right to treat the District of Columbia as a State and
to treat it as a State for matters that are extremely consequential: for Federal taxation; in other words, the right to tax residents of the States might free the residents of the District from this obligation.
Yet the courts have said the District itself can be treated as a State for purposes of Federal taxation, for purposes of Federal court jurisdiction. This was the question of diversity of jurisdiction. I don't have to go into the details. The courts have said it would be an anomaly to say because you happen to be an American living in the District, you cannot gain access to the Federal courts because the Constitution says the various States with regard to diversity and jurisdiction. The same with the right to a jury trial and, very powerfully, the same with regard to interstate commerce. There it is interstate commerce. We have the interstate commerce clause of the Constitution which has given birth to probably thousands of pieces of legislation, a very active role of oversight for the Government. And even though it is the interstate commerce clause, the courts have said very clearly that the District should be considered a State, notwithstanding the literal words in the Constitution. Because effectively, if you don't, you will create an enclave where people can't be taxed, people can't gain access to the Federal courts, people don't have a right to a jury trial, and people can't be protected by generations of legislation and regulation passed pursuant to the interstate commerce clause.
For instance, as long ago as 1805, in the case of Hepburn v. Ellzey, Justice Marshall--the great Justice Marshall--ruled that the District of Columbia could not be considered a State for purposes of diversity jurisdiction under the Constitution, which allows Federal courts to hear disputes between residents of different States. His opinion, nonetheless, remarked on the incongruity of such a result, and Justice Marshall invited Congress to find a solution. Many years later-- unfortunately, many years later--Congress did so, and in 1949 the Supreme Court, in the Tidewater case, upheld a congressional statute that said the District should be treated as a State for purposes of diversity jurisdiction.
Citing such cases, former Federal Circuit Court Judge Patricia Wald has testified--and again she testified on behalf of this legislation and its constitutionality:
The rationale of the courts in all these cases has been
that Congress, under the District Clause, has the power to
impose on District residents similar obligations and to grant
similar rights as the States claim power to do under the
Constitution itself.
So Congress is saying because the States get certain powers from the Constitution, if we don't treat the District as a State, its residents will be deprived of protections, or the Federal Government will be deprived of the right to tax them, for instance. And Judge Wald continued:
Given that the District is in reality what I might call a
City-State of 600,000 people--
Where the population, as I indicated in my opening statement yesterday morning, is just about equal to or greater than four States--
engaged in a multitude of private businesses and occupations,
there is realistically no other way that a federalist union
can do business under the Constitution.
It is also true that Congress has already extended the right of Federal representation, voting representation in Congress, to those who are not citizens of any State. I know this is an unusual statement and an exception, but there is the Uniformed and Overseas Citizens Voting Act. And in that, Congress authorized American citizens overseas to continue to vote for Members of Congress in their last domestic State of residence, regardless of whether they had been citizens of that State and no matter how long they stay overseas. Indeed, as I mentioned yesterday, these people would lose this unusual right to voting representation here in Congress, in States they no longer reside in-- and they may not have been there in quite a while--by absentee ballot from elsewhere in the world, only if they renounced their American citizenship or they returned to the United States and came to live in the District of Columbia. Now, that is an anomalous and unacceptable result. Citizens of Federal enclaves within a State are also free to vote in Federal elections held by the State--a right upheld by the Supreme Court.
Notably, Congress has already used this vast authority that I have referred to under the District clause to extend voting rights to residents of the District of Columbia. Between 1789 and 1800, Congress, acting under the District clause, granted residents of the new District--the Nation's capital--the right to vote in their former States of Maryland and Virginia, even though they were actually no longer residents of those States--the land having been formally ceded to the Federal Government to form the new capital district.
Let me now address a few of the other arguments that have been raised by Members, constitutional arguments that have been raised by those who oppose the bill on constitutional grounds.
It has been argued that because the constitutional amendment XXIII was required to grant the District Presidential electors in the electoral college, likewise a constitutional amendment should be required to provide the District with voting representation in the House. But these two issues are distinct. The XXIII amendment worked a fundamental change to the electoral college under Article II of the Constitution. As such, Congress could not legislate with the same latitude it has within Article I, where the District clause is found along with the clause governing composition of the U.S. House.
Some opponents of our proposal also cite the 1990 case of Adams v. Clinton to argue that it would be unconstitutional to grant DC citizens voting rights in the House. That is not the case, in my opinion. In Adams, the DC Government and residents brought a case alleging it was a denial of their constitutional rights to exclude them from representation in Congress. The majority opinion of the three-judge court stated, ``We are not blind to the inequity of the situation plaintiffs seek to change,'' but concluded that the court itself could not grant the District residents voting rights in Congress as a matter of constitutional right. But the court did not address whether Congress was empowered to provide voting rights through exercise of the District clause.
As former Solicitor General and Federal Circuit Court Judge Kenneth Starr testified before the House in 2004 on legislation similar to the one before us now, S. 160:
While the Constitution may not affirmatively grant the
District's residents the right to vote in congressional
elections, the Constitution does affirmatively grant Congress
plenary power to govern the District's affairs.
In fact, the majority opinion in Adams arguably invited such an approach by stating that for plaintiffs to obtain Federal representation, ``they must plead their cause in other venues.'' And presumably that meant the Congress.
Another concern raised by opponents of the bill is that it is a slippery slope, as the Senator from Arizona said. If Congress has the authority to grant the District a voting representative in the House, what is to stop it from adding two Senators or extending full voting rights to the U.S. territories? I respectfully suggest that these concerns are unfounded. The legislation before us only addresses DC voting rights in the House, and the legal case for this action and its validity is unique.
First, with respect to the Senate, this bill could not be clearer. In Section 2(a)(2) it states:
The District of Columbia shall not be considered a State
for purposes of representation in the United States Senate.
But our colleagues have argued: Could some future Congress, using the arguments used on behalf of this bill, pass similar legislation to give DC full voting rights in the Senate? To me, that is a very debatable argument at best. Even some of the legal experts who support this bill believe a different and much more difficult analysis would apply to a bill regarding Senate representation because of the distinct language and history of the constitutional provisions governing composition of the Senate and the greater emphasis on the States as such.
The territories are also a distinct and different case. Different constitutional provisions provide for the creation of the District and the Federal territories. The District enjoys a unique legal and historical status, and one
that largely mirrors the rights and responsibilities of the States. Its residents pay full taxes and face military conscription. The same is not true of the residents of the territories. Amendment XXIII extended the right to vote in Presidential elections to residents of the District but not to residents of the American territories.
As legal expert Richard Bress concluded in testimony on our legislation last session:
Taken together, these differences between the territories
and the District render highly unlikely the suggestion that
granting voting rights to District residents would lead, as a
legal or policy matter, to granting similar privileges to
residents of the U.S. territories.
Finally, in his comments, Senator McCain questioned: How do we put together voting rights for the District of Columbia with an extra seat for Utah; isn't this just a pragmatic political agreement? Well, in some sense it is. But in another sense, like so many pragmatic agreements around here--and this is one of the best of them because it is bipartisan--it achieves a just result: Finally, after all these years in which this outrageous anomaly has been allowed to exist, District residents will get voting representation in the House, and it also corrects what I think was an injustice done to the State of Utah in the last census--and which is one that I referred to earlier--when it came just 857 votes short of another seat, but the census did not count what was estimated--or proven in the court case--between 11,000 and 14,000 Mormon missionaries who were clearly residents of Utah but were elsewhere in the world on their years of missionary service.
The truth is that for too long now partisan concerns have stopped Members of Congress from doing what they knew was right, which is to give residents of the District voting rights. And the partisan concerns are understandable, even if they should not have blocked the result. It is a matter of fact that the residents of the District are overwhelmingly registered as members of the Democratic party. So in the normal course, it would be extremely likely that any Member of the House from the District would be voting and organizing with the Democrats. And I suppose if the shoe were on the other foot and this was a largely Republican voting population, to be fair about it, Democrats would probably have a similar feeling.
Last session, acknowledging the inequity of the District's case and the understandable if ultimately unacceptable partisan concerns, two of our colleagues in the House--Delegate Eleanor Holmes Norton of the District and Tom Davis former Republican Congressman from Virginia-- tried to work this out. Acknowledging the inequity that I referred to which Utah felt it suffered, and actually went to court on in the last census, a decision was made to put these two together.
There was also an institutional necessity, if I can add to this. It wasn't a kind of apples and oranges--two problems, let's bring them together and have a bipartisan result, because the new Member of the House from Utah is likely to be a member of the Republican Party. If we only added the one seat for the District, the House would have an even number of Members. One can imagine the gridlock that you would not want to see in the House. You could have an equal number of Members of both parties and a failure to organize, failure to be able to select a Speaker, or a failure to be able to organize committees. On a tie vote, there is no one in the House to exercise tie-breaking authority, similar to the Vice President here in the Senate. So legislation could fail as a result of a tie vote, and that is not a good result either. There was that institutional benefit that if you are going to add one, you really should add two to bring the total back to an uneven number and avoid the problems we have talked about.
I do want to make clear that this kind of equitable grant of an additional seat to Utah, based on what happened after the last census, is only for 2 years. Obviously, if we give the District voting rights, it will go on forever, but it is only for 2 years because another census is coming in 2010 and there will be a reapportionment following that census. If Utah is next in line for that extra seat based on population, of course Utah will hold that extra seat. But if there is another State that, based on population, has a greater claim for that extra seat, then they will get it as well.
I am happy to acknowledge that the bill before us is the result of a political compromise, a bipartisan compromise in the House, but I am not embarrassed by it. I do not think it taints the result because the result is so profoundly just in the case of the District, and I believe also just in the case of Utah, and it only lasts for this one time.
I have tried to argue here, No. 1, on the constitutionality of this measure under the District clause; No. 2, that, yes, this is a bipartisan political agreement, but it is done for good reasons, and that does not taint it at all; and No. 3, I would say that in the bill before us there is provision for an expedited appeal to the courts on the constitutionality. We know there are constitutional differences that have been argued by the Senator from Arizona and myself this morning. We assume they will be tested in court. In the interests of efficient functioning of our Government, we provide in this measure for an expedited appeal.
This is not the first time this would happen. The most significant case I remember, and I am sure it is one of many, is the landmark campaign finance reform legislation that bears the name of my friend from Arizona and our friend from Wisconsin, the McCain-Feingold legislation. Some argued vociferously on the floor that it was unconstitutional. So within the legislation, in a way quite similar to what we have done here on this, it was provided that there be an expedited appeal. That was a way of saying, even if you believe this legislation may be unconstitutional, we are a legislative body, we do not know, really. I believe this legislation is constitutional, but ultimately--I feel that very strongly, I said that it is, but the ultimate arbiter of that, of course, is the courts.
So I urge my colleagues who have constitutional questions about this legislation but really want to stop the inequity imposed on the residents of the District, that they do not have voting representation here, to vote for this measure because it contains with it an expedited appeal which will occur on the constitutionality of the legislation.
With that, I yield the floor.
Mr. President, I ask unanimous consent that a vote on the McCain constitutional point of order occur at 2 p.m. today; that the 10 minutes immediately prior to the vote be equally divided and controlled between Senators McCain and myself or our designees; and that no amendments or motions be in order to the constitutional point of order.
Mr. President, I will not object. I just wish to say this amendment is supported not only by myself but the majority leader. It adds language to the bill. It is similar language that was in the so-called McCain-Feingold bill. So we support the amendment.
Mr. President, I move to reconsider the vote.
It is fortuitous that I happened to be on the Senate floor managing the DC Voting Rights Act. But I take this opportunity to thank my friend from Iowa for this introduction of this legislation.
It is consistent with not only the actions that I have been privileged to be involved with him on but what our committee has stood for. We will give it a thorough review and, hopefully, we will be able to bring it forward. Senator Akaka is a very active and senior member of our committee. I am sure his advocacy will help a lot in moving the legislation forward. I thank my friend from Iowa for introducing this legislation.
Mr. President, I believe the distinguished Senator from West Virginia, Mr. Byrd, is going to speak in support of the point of order Senator McCain has raised.
Mr. President, during the remarks we have just been privileged to hear, the Senator from West Virginia said: ``I--let me identify myself: Robert C. Byrd.'' May I say, there was no need for that identification. There is only one Robert C. Byrd. And may I add, it has been an honor to serve with you now for 20-plus years, to learn from you, to respect your love of the Senate, of the Constitution, and to hear you deliver the remarks that you have just delivered.
Thank you, sir.
In the spirit of your history of great debate, I nonetheless, and with total respect, rise to oppose the point of order brought forth by the Senator from Arizona.
We have here a contest between two provisions of our great Constitution. The Senator from Arizona and the Senator from West Virginia rely on the provisions of article I, section 2, clause 1 that says the House Members be chosen by the people of the several States. Those of us who support the measure before us, S. 160, rely instead on article I, section 8, clause 17, the so-called District clause.
It is true the Constitution does require that House Members be elected by the people of the several States. But it is also true Congress has repeatedly not applied that language literally. To fully protect the interests of people living in the Capital City, the Framers gave Congress extremely broad authority over all matters related to the Federal District under the so-called District clause I have referred to.
Here is where the courts have spoken exactly to where we are now. The courts have said this clause, the District clause, gives Congress extraordinary and plenary power over the District of Columbia and, more to the point, have upheld congressional treatment of the District as a State for very important purposes of diversity jurisdiction and interstate commerce.
Article III, for instance, of the Constitution provides that courts may hear cases ``between Citizens of different States.'' The Supreme Court actually initially ruled under this language that residents of our Nation's Capital could not sue residents of other States in Federal courts. But in 1940, Congress said that was wrong and asked that residents of the District be treated as a State for that purpose, a law that was upheld in the case of DC v. Tidewater Transfer Company of 1949.
The Constitution also allows Congress to regulate commerce among the several States. That is the language of the Constitution, which literally would exclude the District of Columbia and make it impossible for its residents to enjoy all the protections adopted under the Commerce clause. But Congress's authority to treat the District as a State for Commerce clause purposes was upheld in the case of Stoughtenburg v. Hennick.
So what we are asking for has constitutional precedent. More to the point, ultimately, or as much to the point, is the underlying reality that the Senator from West Virginia and the Senator from Arizona speak to eloquently, which I presume all of us share, which is, it is an outrageous injustice that 600,000 residents of America who happen to live in our Capital City do not have any voting representation in Congress.
Final point. The legislation before us presumes that there will be a legal challenge to its constitutionality, and that will be decided under the expedited procedures provided for in this legislation, in wording almost exactly similar to that provided in the so-called McCain-Feingold landmark campaign finance reform legislation. The Supreme Court will decide.
So if you feel the status quo is unjust, I still urge you to vote for this legislation, even if you wonder about the constitutional basis of it because ultimately that is the judgment of one of the other two branches of our Government that the Supreme Court will decide. Therefore, I respectfully ask my colleagues to vote no on the point of order.
Mr. President, I move to reconsider the vote, and I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. President, I suggest the absence of a quorum.
Mr. President, I rise to oppose the amendment offered by the Senator from Nevada, Mr. Ensign, with regard to gun control. I do so for five reasons.
First, this amendment is completely unrelated to the DC House Voting Rights Act before us today. If it bears any relationship to this bill, it is in an inadvertent, unintended way to make the point of how badly we in Congress treat the District, as if we have the right not only to deprive it of voting representation in the House of Representatives-- 600,000 residents without voting representation, no government with consent of the governed--but we exercise, by this amendment, if it passes, the right to intervene in the District when its own legislative body, the council, has legislated and impose our desires on them.
Let me come back to my first point. The amendment is unrelated to the DC House Voting Rights Act. We should not be adding controversial, non- germane issues to what I believe is a historic civil rights bill that finally nullifies what has gone on for most of American history, which is a voting rights injustice. Residents of the District have fought for decades to win the voting rights the rest of us take for granted. It has taken tremendous work over more than this year to get this bill to where it is today, to enable us to actually be on the Senate floor debating a voting rights bill.
We had a good debate earlier on a constitutional point of order raised by the Senator from Arizona, Mr. McCain, that went to the heart of the bill. That is what we ought to be debating. That point of order was rejected, but it was relevant to what we are all about in S. 160. Congress has on many occasions, of course, debated legislation related to gun ownership, which is the subject of the Ensign amendment, unrelated to the DC House Voting Rights Act. No doubt we will have the opportunity to debate the issue of gun ownership and gun rights in the future. Opponents have raised relevant concerns about the constitutionality and appropriateness of the legislation we are considering. That is what we should be debating, not gun legislation.
I fear, of course, in doing so, what we are doing on the Ensign amendment is we are going to cloud the prospects for this bill with controversial, unrelated amendments that take us from the focus here, which is that 600,000 Americans do not have voting representation in Congress.
Second, I believe Congress should not limit the District's ability to enact its own measures with regard to gun violence. Some Senators, Members of this body, may believe as a policy matter that the District's gun laws are not adequate, not correct, but the District's gun laws have no effect whatsoever on the varying gun ownership laws of the States. The fact is that none of our constituents--not one of our constituents--will be affected or is affected by the gun laws of the District of Columbia. We do not represent anybody who is a resident and voter in the District of Columbia.
The gun rights of residents of other States are guided and controlled and enabled pursuant to the laws and regulations enacted by the elected officials and executive officials in those States. Likewise, the elected officials of the District of Columbia have enacted laws regarding gun ownership that I believe this body should respect, just as I would want this body to respect the laws of my State with regard to guns or anything else. As I will explain in a moment, in fact, the District of Columbia has enacted new gun laws in response to the court case of DC v. Heller. Congress should not be singling out particular States and localities to repeal their laws on guns or anything else.
This is not a uniform nationwide standard that will be adopted if the Ensign amendment passes. This is a law with regard to guns for the District of Columbia. It is as if a law of my State of Connecticut was challenged in the Supreme Court, and it was invalidated, and actually my legislature then responded to the constitutional invalidation by adopting a law which they believed was consistent with the Supreme Court decision, but then we in Congress came along and said: No, Connecticut, that is not enough. We are going to tell you exactly what your law should be--not for the entire United States of America but for the State of Connecticut. I would be outraged. Any Member of this Chamber would be outraged if we did to one of our States what this amendment proposes to do to the District. It is just not fair, and it is not consistent with our basic principles of limited Federal Government and the rights of States and localities to legislate for themselves.
That is my second point. Congress should not limit the District's ability to enact laws of its own regarding guns or anything else.
The third point is this: This amendment is actually outdated. The Ensign amendment is the same as legislation that passed the House last September to remove restrictions on gun ownership in the District. But there is an important point that has been left out here.
Last month, January, the District's government enacted new gun laws that are their response to the holding of the Supreme Court in the DC v. Heller decision. The Heller decision struck down several provisions of the District's previous municipal code regarding guns. The decision particularly invalidated the District's handgun ban and trigger lock- storage requirement. But consistent with the newly enacted District of Columbia law adopted by the council, those provisions are no longer in the law. So the Ensign amendment, in fact, is outdated. In fact, if you look carefully at this amendment, it repeals and modifies provisions that used to be in the DC law but no longer are because the recent enactment of the DC City Council removed those provisions of the law.
So my third point is the Ensign amendment is outdated and does not relate to the reality that has been created by the District's City Council itself.
Fourth, let me talk about the District's new gun measures and their relationship to the Heller decision. The
Supreme Court made clear in its decision in Heller that the second amendment meant something. It is something this Senator has always felt. There is a constitutional right to bear arms. But that right, I have always felt, is no more unlimited than any other right in the Constitution, including the fundamental--I would almost say sacred-- rights in the first amendment. Those are not unlimited either, as we know. So the Supreme Court decision said that the total bans in the DC law on gun ownership, possession of guns in the home, were unconstitutional and violative of the second amendment. But the decision also made clear that reasonable regulation of gun ownership was permissible.
This amendment essentially invalidates a whole series of what I believe the Supreme Court would find to be reasonable regulations of gun ownership and again does not acknowledge what the DC City Council has done.
The gun laws the District passed last month restore the right of gun ownership for self-defense in homes here in the District and amend the District's safe-storage requirements so that a firearm no longer needs to be kept bound by a trigger lock within the home. The District's new gun law permanently repealed DC's ban on semiautomatic firearms and permits residents to own semiautomatic pistols. If you look at the Ensign amendment, you would not believe that was true. In fact, in the Inoperable Pistol Amendment Act of 2008, the city of the District of Columbia provided a self-defense exception to allow residents with registered firearms to carry these weapons lawfully in their homes or places of business. Additionally, the Firearms Control Amendment Act of 2008 exempted from the registration requirement ``[a]ny person who temporarily possesses a firearm registered to another person while in the home of the registrant'' if that person believes they are in imminent danger. So these are the very real rights of gun owners that are now enshrined, adopted in the DC law that has been passed.
My fifth point is this, and I referred to it a moment ago: The Ensign amendment goes much further than the Supreme Court did in limiting the right of localities, States, and municipalities to regulate gun ownership while recognizing the second amendment constitutional right to bear arms. In fact, Justice Scalia wrote the majority opinion in the Heller case, and he specifically noted that a wide range of gun laws would be lawful and not violative of the second amendment--everything from laws ``forbidding the carrying of firearms in sensitive places'' to ``conditions and qualifications on the commercial sale of arms.''
The amendment offered by my colleague from Nevada would overturn provisions that the Heller decision did not address and did not strike down.
This amendment provides that the government of the District of Columbia ``shall not have authority to enact laws or regulations that discourage or eliminate the private ownership or use of firearms.'' Potentially, this could prevent the District from passing legislation regarding background checks, which have been widely accepted by courts, or registration regulations that are needed to help law enforcement keep tabs of who is buying and owning guns in the District.
The Ensign amendment repeals DC's ban on sniper rifles that can pierce armor plating up to a mile away and its ban on military-style semiautomatic weapons and high-capacity ammunition magazines.
The amendment repeals DC's requirements--modeled on a California law which has been strongly supported by law enforcement agencies--that semiautomatic pistols manufactured after January 1, 2011, be microstamp-ready. Microstamping is a law enforcement tool that helps solve gun crimes by imprinting shell casings with a unique identifier so they can quickly be matched to the handguns that fire them.
The Ensign amendment also repeals the District's age limits for legal gun possession. Imagine how we would feel in my State of Connecticut or in the Presiding Officer's State of Illinois if Congress came along and told us how to write laws for our States.
This amendment repeals the District of Columbia's prohibition on gun possession by anyone who was voluntarily committed to a mental institution in the last 5 years. It repeals the District's prohibition on gun possession for those who have been adjudicated as chronic alcoholics and those who have failed a vision test. This would be--I do not even want to say it. It is shocking.
The amendment also weakens Federal law. Federal law prohibits gun dealers from selling handguns directly to out-of-State consumer buyers because of the high risk this creates for interstate gun trafficking. But this amendment would allow DC residents to cross State lines to buy handguns in neighboring States, undermining those Federal antitrafficking laws.
It is no surprise that the chief of police of the District of Columbia, Cathy Lanier, has testified that the legislation on which the Ensign amendment is based would undermine safety and security in the Nation's Capital.
So those are five reasons why I believe this amendment should not be adopted. But as the chairman of the committee that has reported out the underlying bill and as somebody who personally has worked for a lot of years to try to right this wrong on the residents of the District of Columbia, our Nation's Capital--the capital of the greatest democracy in the world--not having a voting representative in Congress, I just think this amendment, leaving aside its merits or demerits, adds something to this historic piece of legislation that just does not belong and may, along the way, complicate its path to passage.
So regardless of your position on gun control--and I state again, I have always believed the second amendment has meaning, that it makes constitutional the right to bear arms, but that it is not unlimited-- this amendment comes close to a judgment that the second amendment really is unlimited. So that is why I, on its merits, think it goes too far.
But whatever you think of the merits, if you really believe in helping eliminate one of the last vestiges of voting rights blocks in our country--when you think about it, when the Constitution was adopted, people of color could not vote. Good God, people of color were only counted as three-fifths of people who were White. Woman could not vote. A lot of men could not vote if they were not property owners. And over the years, on this journey of ours, from the ideals in our Declaration of Independence, we have gone forward to eliminate one after another block to the reality that the Government was premised on that you would not have governing without the consent of the governed. Yet this bizarre anomaly remains in our Nation's Capital where people are deprived of the right to have a voting representative here.
So I appeal to my colleagues, whatever your position on gun ownership and gun violence, whatever your position on the amendment offered by the Senator from Nevada, please don't stand in the doorway, as Bob Dylan once sang, and block this underlying bill or cause it to become more controversial than it should be.
I thank my colleagues, I thank the Chair, and I yield the floor.
Mr. President, I ask unanimous consent the order for the quorum call be rescinded.
Mr. President, I have a unanimous consent to offer that has been cleared on both sides. It is as follows:
I ask unanimous consent that at 5:45 p.m. today, the Senate proceed to vote in relation to the Coburn amendment No. 581, with the time until then equally divided and controlled between Senators Coburn and Lieberman or their designees, and that no amendment be in order to the Coburn amendment prior to the vote in relation to the amendment.
Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
Mr. President, I ask unanimous consent that I be allowed to speak for a few minutes or until Senator Coburn arrives, whichever event occurs earlier.
I thank the Chair.
I rise to speak against Coburn amendment No. 581. I suppose that in part I should say that this amendment, sponsored as it is by an opponent of the underlying bill, accepts one of the major contentions we are making about the inequity of the current situation, which is that the 600,000 residents of the District of Columbia, uniquely among all Americans, do not have voting representation in Congress. Nonetheless, they are taxed. I mean, this goes back to one of the early American Revolutionary slogans or principles, which is ``taxation without representation is tyranny.'' Our proposal, S. 160, the House Voting Rights Act, responds to that inequity by providing for voting representation in the House of Representatives for the District of Columbia. The Coburn amendment takes the opposite view and says that since the District does not have representation, well, by God, they should not be subject to taxation. So it would eliminate the Federal tax. This amendment would eliminate Federal taxes for DC residents. But that is not what DC residents are asking or we are offering on their behalf. I mean, the point of this is that residents of the District of Columbia do pay taxes. They pay higher per capita taxes to the Federal Government than any other entity but one. They are second highest, approximately $20 billion a year.
Second, they not only have been conscripted into our military services, but since the Volunteer Army, they have volunteered. Residents of this District have not only served, but they have sacrificed their lives in the cause of American security and freedom.
So the point is that there is something very, I hope, inspiring about this. The residents of the District of Columbia are not asking for any free ride. They want to be contributors to America in every way, including Federal taxation, but they also expect to be represented in the House of Representatives with a voting Representative. So on behalf of what I would describe as the patriotic citizens of the District of Columbia, I would say this amendment makes a point, but it is not a sound or fair one.
I polled the members of my staff who live in the District of Columbia to ask how they would advise me to vote. I am pleased to say that they put principle ahead of personal interests and have urged me to vote against this amendment.
I also say that if the amendment passed, we would have yet another enormous gap, and this gap we now have between Federal expenditures and revenues would grow even larger.
So perhaps Senator Coburn is making a point, but it is not one that I believe we ought to adopt in an amendment; therefore, I would urge my colleagues to oppose the amendment.
To my friend from Arizona, I do have some ideas about such an amendment, but I guess it would be best to not verbalize them on the floor.
Actually, we are at a time in our history, difficult as it is economically, where I think people are turning to the Federal Government and asking for not such a free ride but asking for help. There is a wonderful word; I do not know if it is in the dictionary; the word is ``deviltry.'' It is another way to say mischievous or mischief.
I think our friend from Oklahoma may be up to a little deviltry with this amendment.
I ask for the yeas and nays.
Mr. President, I have a unanimous consent agreement to propound which has been cleared on both sides.
I ask unanimous consent that when the Senate resumes consideration of S. 160 on Thursday, February 26, the time until 10:30 a.m. be for debate with respect to the Kyl amendment No. 585, with the time equally divided and controlled between Senators Kyl and Lieberman or their designees, with no amendment in order to the amendment prior to the vote, and that at 10:30 a.m. the Senate proceed to vote in relation to the amendment.
I thank the Chair.
I suggest the absence of a quorum.
