On Tuesday, the Mayor sent a letter to Mendelson outlining his concerns with the bill, which was passed by the Council later that day and will allow voters to authorize changes to the Home Rule Charter in special elections set for April 23, 2013. With its expected passage, the referendum will amend the charter to give the District government autonomous control over the $4 billion it collects each year in local tax revenue. The changes will go into effect automatically unless Congress acts to block them—a long shot considering that the President would balk at signing any proposal to do so.
Gray’s biggest issue with the referendum is that it may violate federal law. “I am doubtful,” he wrote, “that Congress has delegated the power to the District to convert unilaterally the role played by Congress and the President in the District’s budget from active participation to passive review.” He also expressed concern over what impact the bill would have on his negotiations with House Republicans to secure budget autonomy through congressional approval.
I’m no lawyer, but it seems the mayor has a point about the bill’s legality. Along with his letter, Gray attached a copy of a Washington Post op-ed written by Wayne Witkowski, a former D.C. Deputy Attorney General, and Leonard Becker, a former general counsel to Mayor Anthony A. Williams. They say that the Home Rule Charter includes language specifically intended to prevent what the Council is trying to do.
“Section 603(a),” they write, “states: ‘Nothing in this Act shall be construed as making any change in existing law, regulation, or basic procedure and practice’ regarding ‘the preparation, review, submission, examination, authorization and appropriation of the total budget of the District of Columbia government.’”
Let’s not get ahead of ourselves. If the era of Obamacare and Citizens United has taught us anything, it should be that the courts can surprise us with their interpretations of existing law. Even so, it’s almost certain the charter amendments will face a court challenge down the road and it’s very possible they will be struck down.
And so what? The District has little to lose from circumventing Congress with this proposal, and everything to gain. Gray is probably correct in assuming that the referendum will anger congressional Republicans by usurping their authority, but it’s not like Rep. Darrell Issa (R-Calif) and his Republican cohorts were doing us any favors anyway. It’s politically impossible for them to sign on to any D.C. budget autonomy proposal without stipulations curtailing a woman’s right to choose, gun control, and funding for programs like needle exchanges—demands Gray rightly refuses to accept. With a deal in Congress not expected for years, our next best option is to opt out of that process.
What’s more, a high-profile legal battle over budget autonomy may be exactly what the District needs. Even if the charter amendments are struck down, D.C. can still win in the court of public opinion. Mayor Gray and the Council will have the opportunity to portray District residents (correctly) as the victims of a cruel accident of history—a people without control over their own tax dollars, whose laws and values are routinely trampled by lawmakers who do not represent them and refuse to negotiate unless they are allowed impose regressive policies.
In that narrative, Mendelson’s referendum is less a circumvention of Congress and more an attempt to win policymaking power almost all other governments enjoy. D.C. becomes the archetype of an oppressed minority, shut out of the democratic system by antiquated laws and powerful far-off interests preserving the status quo for their own political aims despite the popular will. That’s a storyline capable of winning support not only for budget autonomy, but for bigger causes like statehood as well.
Mayor Gray needs to face the facts. It’s up to the city and no one else to make budget autonomy a reality. By approving such a bold proposal, the D.C. Council has taken responsibility not only for the legal risks, but also for their constituents’ best interest. As we move closer to April 23, Gray will need to reconcile his apprehension with the potential of this referendum. As he does he would do well to keep Henry David Thoreau’s words in mind: “If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law.”