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DC Voting, Fairness Doctrine and Race-Based Government: Will Mitch McConnell Fight or Play Games?

In the coming weeks and months, Democrats will unleash a volley of attacks on the Constitution of the United States and our nation’s founding principles. This, of course, we expect… and it starts next week.

The question, however, is whether Republicans – particularly Mitch McConnell and Senate Republican leadership – have the will to stand up and defend the Constitution without bowing to Democrat bluster and offering some “cover-vote” as an alternative they can supposedly “be for?”

We will find out soon enough – the following are the known direct assaults on the Constitution lurking right around the corner:

- Next week, Democrats are bringing to the floor of the United States Senate an unconstitutional power-grab to give Washington, DC voting representation in the House of Representatives – in clear contradiction both to Article 1, Section 8 of the Constitution itself and, perhaps worse, to our nation’s founding principles;
- Notwithstanding their own claims to the contrary, Democrats continue to rumble about bringing up the so-called Fairness Doctrine – a clear violation of both the text and the spirit of the First Amendment; and
- While not yet scheduled, the Senate will no-doubt again try to pass S.381 – Danny Akaka’s “Native Hawaiian Government Reorganization Act,” or the bill better known to those of us who revere the Constitution as the “Unconstitutional Race-Based Government Act.”.

But let’s focus, for now, on the most pressing problem. S.160, the District of Colombia House Voting Rights Act of 2009, will be on center stage in the United States Senate next week. The bill would give DC a voting representative in the U.S. House.

Ignore the fact D.C. appears to be doing just fine – what with receiving more federal spending per capita ($73,900 in 2007) than any state – over 5 times the nearest (Virginia) and 8 times the average ($8339). Ignore also the fact a primary motivation for this effort is the nakedly political maneuver to gain an additional Democrat seat in Congress from the reliably Democrat-voting District.

There is, nevertheless, a problem of basic representation for over 500,000 American citizens that can and, perhaps, should be dealt with. One of those ways is the bill before the Senate.

But, that legislation is contrary to the plain text of the Constitution (see here, here and here). Such a statute simply cannot provide DC representation without violating the Constitution (notwithstanding the arguments of Ken Starr, Viet Dinh and others). And that alone should be reason enough to oppose it.

For some Republicans, that apparently is not sufficient. Democrats enjoy the support of the unconscionably self-serving Orrin Hatch (who will get a Utah Congressional seat out of his unprincipled co-sponsorship) and those ever-helpful stalwarts, Susan Collins and George Voinovich (each of whom voted for this thing in committee).

But, the important question is this: what will the Republican power players do?

The typical playbook of Mitch McConnell and the current crop of leadership consists of only a few pages – notably, finding “something Republicans can be for” and then over-thinking it to death while getting praised for great strategy.

Now, there are a number of possible alternatives (see Heritage Paper from 2007) – such as carving out most of DC and giving it to Maryland, eliminating federal taxes for DC residents, counting DC residents among Maryland residents for voting purposes, or, even granting statehood (Constitutionally sound, but not a good solution for various reasons).  But, the plan will no doubt be to have some Republican Senator offer a Constitutional Amendment to create a representative for DC under the theory that this will give Republicans “cover” to be “for something” because it is at least technically Constitutional, and because it adds another layer to the process (ratification) that might prevent the unwanted political outcome of a DC rep.

The problem is that such an amendment does not respect the core principles embodied in the Constitution and undermines the fundamental structure of the Union – whereby the states, and the citizens thereof, are bound together in a federal structure. We are the United STATES of America – and that is fundamental to our system of representation, as exemplified by the electoral college, the Senate’s composition of 2 per state, and the fact congressional representation is bound within states (not across state lines) – something that would not be necessary if the only issue we are concerned about is “representing the people.”

Why does this matter? Because you cannot simply make this stuff up as you go along for political purposes. Republicans have been doing that for too long.

You have to believe something. If the Fairness doctrine is put forward by Democrats, will Republicans throw the book at it? Will they filibuster, give speeches, hold news conferences, and all – or will they offer a watered down variation to “soften the blow” and find “middle ground” to be bipartisan? There is no middle ground here – there is no fairness doctrine “lite” that will respect the First Amendment.

Similarly, when the Native Hawaiians bill comes back to the Senate to craft a government based on “drops of blood,” will Republicans pull out the stops to kill it, or will they make nice, take a consent agreement for limited debate and again offer some “cover vote” alternative? Again, there is no “lite” version of legislation that shreds our very notions of color-blindness and equality.

Senate leadership is full of smart, supposedly conservative lawyers. It is their responsibility to fight these fights on the merits, and to avoid the misguided temptation to seek alternatives for the sake of them, as opposed to alternatives that are the right policy for the right reasons.

If the lack of representation for the residents of DC is a problem, there are several alternatives – retrocession (which may also raise some Constitutional issues), voting as if part of Maryland (which has some practical questions), or elimination of federal taxes – that do not undermine our federalist system and Republicans would be wise to pursue those instead of playing games – this time with the Constitution.

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