- The Washington Times - Thursday, March 5, 2009

Taxation without representation is fundamentally flawed. It was wrong when Great Britain governed the American Colonies. It is still wrong today. Citizens of the District of Columbia deserve to be represented by a voting Member of Congress.

However, we can correct this without violating the Constitution. The Founding Fathers’ decision to exclude the District from congressional representation was no oversight. They made clear their intent that members of the House are chosen “by the People of the several States,” and that Washington, D.C., was not intended to be a state. I cannot accept that this foundational principle was meant to be trumped by Congress’ plenary power in the “District Clause.”

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The United States of America has endured over these last two centuries in large part because of our respect for the rule of law under the Constitution. My oath to uphold the Constitution does not depend upon political convenience. We must not provide representation for D.C. residents by compromising our adherence to the letter or spirit of our Founding documents.

It is unfortunate, then, that a historic opportunity to pursue a defensible solution is quickly slipping through the fingers of the 111th Congress. The Senate’s bill to grant D.C. a voting member in the House passed last Thursday. The House’s version, temporarily stalled, should follow shortly.

But it will not be enough that the bill wins passage in both the Senate and the House, or that President Obama is expected to sign it shortly thereafter. The Judicial Branch will soon have the opportunity to act as a check and a balance, and I believe they will find this law unconstitutional.

I am not alone in this belief. A report from the nonpartisan Congressional Research Service again expressed concerns last month that Congress does not have sufficient power to grant D.C. a voting Member through this bill.

If the courts agree, as previous federal court decisions suggest they will, the bill’s proponents will have feverishly raised supporters’ hopes and expectations, only to take the District back to Square One.

But the tragedy will be what might have been. The current genuinely bipartisan groundswell of support for more fair and equal representation for the citizens of D.C. could have led to a solution that was constitutional, broadly supported and which affirmed the president’s call for a change from traditional Washington partisanship.

The provision to give Utah the fourth seat in the House it nearly received after the 2000 census is no comfort. Utah deserves the additional seat but should not accept it as a political bribe. Offering a new member of Congress to a state, even a deserving one, to curry political favor and support for unconstitutional legislation does not represent the type of bipartisan compromise that Americans expect and deserve.

This is not, and should not be a partisan issue. None of my Republican colleagues were heard calling for exclusion of the District’s citizens from their right to representation in Congress. Instead, Republicans proposed alternatives that were constitutional.

The best alternative is retrocession of residential areas of D.C. back to Maryland, as was done with Arlington, Va. Under this option, D.C. residents would receive not only a vote in the House and two in the Senate, but a state legislature, a governor and many other benefits.

Texas Republican Louie Gohmert proposed a version that was broadly supported by Republicans, but was rejected in traditional partisan fashion.

Another constitutional alternative is to amend the Constitution. Admittedly, this solution has been considered and rejected twice - once by the Founders and again recently. In 1978, Congress passed an amendment granting D.C. voting rights in Congress, but only 16 states voted to ratify. At the time, the Judiciary Committee, chaired by Democrat Peter Rodino, issued a report stating that, “If the citizens of the District are to have voting representation in the Congress, a constitutional amendment is essential; statutory action alone will not suffice.”

Supporters of the current legislation cite a Supreme Court case on diversity jurisdiction from nearly 60 years ago. But in 2000, a three-judge panel of the D.C. federal court stated, “We conclude … that the Constitution does not contemplate that the District may serve as a state for purposes of the apportionment of congressional representatives.” The Supreme Court affirmed that decision.

Despite the overwhelming weight of the evidence, supporters of the current legislation persist in their course, heedless of offers to find a constitutional solution with bipartisan support. The debate has been clouded by impassioned rhetoric about the injustice of the status quo, which is hardly contested. What is needed is a continued honest exchange about the appropriate, constitutional way to remedy that injustice.

If the Supreme Court does strike down the D.C. Voting Rights Act in the coming months, as I believe they will, we will be forced to start over again. At that time, I look forward to standing together with colleagues on both sides of the aisle to uphold our Constitution while exploring solutions to a problem we all acknowledge must be addressed.

Jason Chaffetz, Utah Republican, is a member of the U.S. House of Representatives.

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