A BASIC DISRESPECT FOR DEMOCRACY

Do U.S. Citizens Living In The District Have Any Political Rights?

Congress doesn't seem to think so. Consider its actions in the omnibus
appropriations bill in October: Congress passed an amendment, introduced by
Rep. Robert L. Barr Jr. (R-Ga.), forbidding the District to spend money on
Initiative 59, a local measure that would allow marijuana to be prescribed
for medical reasons.

The initiative, placed on the November ballot by thousands of signatures,
appears to have passed by a wide margin according to exit polls, but the
D.C. Board of Elections and Ethics cannot spend even $2 to determine the
results because of the Barr amendment.

Congress passed another appropriations rider, this one at the behest of
Rep. Charles Taylor (R-N.C.), forbidding the D.C. Corporation Counsel or
any other D.C. officer to assist a "petition drive or civil action" to
vindicate the voting rights of D.C. residents in Congress. The measure
follows on the heels of D.C. Corporation Counsel John Ferren's delivery of
a petition for redress of grievances to Congress and his filing of a
lawsuit for restoration of the right of D.C. citizens to vote for senators
and a representative -- a right that was exercised for a decade but lost in
1800. By impounding ballot boxes and placing a gag order on Ferren,
Congress tramples basic First Amendment freedoms. "Above all else," the
Supreme Court has found, "the First Amendment means that government has no
power to restrict expression because of its message, its ideas, its subject
matter or its content" (Chicago Police Department v. Mosley, 1972). Yet
these moves to squash democracy in the District are targeted directly at
political messages and ideas.

The Barr amendment wipes out initiatives that would legalize marijuana use
in certain circumstances but does not prevent initiatives that would
further criminalize marijuana use. The Taylor amendment stops Ferren from
assisting any effort or suit to "provide for voting representation in
Congress" but allows him to expend resources fighting voting representation
for the District.

Three years ago, the Supreme Court termed this kind of "viewpoint
discrimination" an "egregious" violation of the First Amendment. In
Rosenberger v. University of Virginia, the court struck down the University
of Virginia's policy of funding student publications with a secular
perspective but denying funding to publications with a religious
perspective. "The government must abstain from regulating speech when the
specific motivating ideology or the opinion or perspective of the speaker
is the rationale for the restriction," Justice Anthony Kennedy wrote.
Congress clearly is taking "aim at the suppression of dangerous ideas" --
medical marijuana and voting rights.

Its effort is not to make public policy, rational or otherwise, but to shut
people up. When Congress tried to order members of the D.C. Council how to
vote in 1989, then-Chairman Dave Clarke went to court and established that
the First Amendment applies in the District. The D.C. Circuit Court found,
"There can be no more definite expression of opinion than by voting on a
controversial public issue."

Ironically, Congress's assault on the District's effort to sue for proper
voting representation underscores the urgency of the Corporation Counsel's
voting-rights lawsuit.

Perhaps judges will see that the First Amendment is being mocked in the
District, but defensive court cases offer no long-term safety for democracy.

Ultimately, D.C. residents need -- and, under Equal Protection, have a
right to -- equal representation in Congress. If that comes to pass,
overseers from faraway precincts will no longer be free to abuse our basic
democratic rights in the shadow of the Capitol and the Supreme Court.

- -- Jamin B. Raskin and Jon Desenberg are, respectively, a professor of
constitutional law and a law student at American University's Washington
College of Law.