ORAL ARGUMENT NOT YET SCHEDULED. No In the United States Court of Appeals for the District of Columbia Circuit

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1 USCA Case # Document # Filed: 07/08/2014 Page 1 of 33 ORAL ARGUMENT NOT YET SCHEDULED No In the United States Court of Appeals for the District of Columbia Circuit COUNCIL OF THE DISTRICT OF COLUMBIA, Plaintiff-Appellant, v. VINCENT C. GRAY, et al., Defendants-Appellees. On Appeal from the United States District Court for the District of Columbia No.1:14-cv EGS (Hon. Emmet G. Sullivan) BRIEF FOR CONCERNED D.C. LEGAL PROFESSIONALS AS AMICI CURIAE IN SUPPORT OF APPELLANT Lorelie S. Masters Karl J. Sandstrom PERKINS COIE LLP Sabahat Chaudhary Jonathan L. Cloar PERKINS COIE LLP 700 Thirteenth Street, NW 700 Thirteenth St., NW Washington, DC Washington, DC Telephone: Telephone: LMasters@perkinscoie.com KSandstrom@perkinscoie.com SChaudhary@perkinscoie.com JCloar@perkinscoie.com Counsel to Amici Curiae Concerned D.C. Legal Professionals Of Counsel

2 USCA Case # Document # Filed: 07/08/2014 Page 2 of 33 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rules 26.1 and 28(a)(1), the undersigned counsel certifies as follows: A. Parties and Amici. All parties and amici appearing before the District Court and in this Court are listed in the Brief for Appellants. This brief is filed on behalf of amici Concerned D.C. Legal Professionals, many of whom filed an amicus brief in the District Court. Amici are participating in this case as individual persons, and not as a corporation, association, joint venture, partnership, syndicate, or other similar entity. B. Rulings Under Review. Accurate references to the rulings at issue appear in the Brief for Appellants. C. Related Cases. Accurate references to related cases appear in the Brief for Appellants. i

3 USCA Case # Document # Filed: 07/08/2014 Page 3 of 33 STATEMENT REGARDING CONSENT TO FILE AND SEPARATE BRIEFING All parties have consented to the filing of this brief. Concerned D.C. Legal Professionals filed their notice of their intent to participate in this case as amici curiae on July 3, 2014 (amended July 7, 2014). Pursuant to Circuit Rule 29(d), Concerned D.C. Legal Professionals certify that a separate brief is necessary to provide the Court with the perspective of local attorneys and professionals on the history and significance of the Home Rule Act and the right of the District s citizens to determine how their local tax dollars are spent. As with their amicus brief below, the amicus brief submitted by Concerned D.C. Legal Professionals discusses this history and perspective in more depth and from a broader historical perspective than that provided elsewhere in briefing on the issues in this case. No counsel for a party authored this brief in whole or in part, and no person other than the amici curiae or their counsel contributed money that was intended to fund the preparation or submission of this brief. See Fed. R. App. P. 29(c)(5). ii

4 USCA Case # Document # Filed: 07/08/2014 Page 4 of 33 TABLE OF CONTENTS PAGE CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES... i STATEMENT REGARDING CONSENT TO FILE AND SEPARATE BRIEFING... ii TABLE OF AUTHORITIES... iv GLOSSARY... vi STATUTES AND REGULATIONS... 1 STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF AUTHORITY TO FILE... 1 INTRODUCTION AND SUMMARY OF ARGUMENT... 3 ARGUMENT... 7 I. AFTER A LONG FIGHT, THE DISTRICT OF COLUMBIA IN 1973 REGAINED HOME RULE... 7 II. III. THE HOME RULE ACT GRANTS D.C. RESIDENTS THE RIGHT TO SELF-GOVERNANCE THE HOME RULE ACT AND THE DISTRICT OF COLUMBIA CHARTER SHOULD BE INTERPRETED CONSISTENT WITH THEIR PURPOSE TO EFFECT SELF- GOVERNANCE CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE iii

5 USCA Case # Document # Filed: 07/08/2014 Page 5 of 33 TABLE OF AUTHORITIES CASES PAGE(S) Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889 (D.C. 1981) Haggar Co. v. Helvering, 308 U.S. 389 (1940) Holy Trinity Church v. United States, 143 U.S. 457 (1892) *Jackson v. District of Columbia Bd. of Elections & Ethics, 999 A.2d 89 (D.C. 2010)... 14, 15 Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) Wagner v. Federal Election Comm n, 717 F.3d 1007 (D.C. Cir. 2013) STATUTES An Act Providing a Permanent Form of Government for the District of Columbia, 20 Stat. 102 (approved June 11, 1878) (repealed 1967)... 7 An Act to Incorporate Inhabitants of the City of Washington, in the District of Columbia, ch. 53, 2 Stat. 195 (approved May 3, 1802)... 7 D.C. Code to District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No , 87 Stat. 777 (see Balanced Budget Act of 1997, Pub. L. No , 11717, 111 Stat. 251, 786)... 7 *Home Rule Act 102(a), D.C. Code (a)... 12, 19 *Home Rule Act 302, D.C. Code , 19 Authorities upon which this brief chiefly relies are marked with asterisks. iv

6 USCA Case # Document # Filed: TABLE OF AUTHORITIES 07/08/2014 Page 6 of 33 (continued) PAGE(S) *Home Rule Act 303, D.C. Code , 21 *Home Rule Act 701, D.C. Code Pub L , 131(b), 98 Stat (Oct. 12, 1984) Reorganization Plan No. 3 of 1967, 81 Stat. 948 (1967) OTHER AUTHORITIES H.R. Rep. No (1973) (Conference Report) Home Rule Here Approved as a Goal for Big Civil Rights March on Aug. 28, Wash. Post & Times Herald, Aug. 11, John Henderson, Why Home Rule Was Taken from D.C., The Wash. Star, Nov. 22, Michael K. Fauntroy, Home Rule for the District of Columbia, in Democratic Destiny and the District of Columbia (Ronald Walters & Toni-Michelle C. Travis, eds., 2010) Robert Harrison, Washington During the Civil War and Reconstruction (2011)... 8 S. 1435, 93d Cong., 325 (d) (as passed by Senate, July 10, 1973) Staff of H. Comm. on the District of Columbia, 93d Cong., Home Rule for the District of Columbia: Background and Legislative History 1206 (Comm. Print 1976)... 8 v

7 USCA Case # Document # Filed: 07/08/2014 Page 7 of 33 GLOSSARY BAA Budget Autonomy Act vi

8 USCA Case # Document # Filed: 07/08/2014 Page 8 of 33 STATUTES AND REGULATIONS Appellant s Brief contains the pertinent statutes. STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF AUTHORITY TO FILE Concerned D.C. Legal Professionals 1 have a keen interest in the governance and rights of the residents of Washington, D.C., the place where they practice their professions, and where many of them, and many of their clients, live and call home. Amici include: Marc Fleischaker. Mr. Fleischaker is a partner and Chairman Emeritus at Arent Fox LLP in Washington, D.C. He is currently serving as, among other positions, the President of the Board of Directors for the District of Columbia Bar Foundation. Ronald C. Jessamy. Mr. Jessamy is a past President of the Washington Bar Association and partner at Ronald C. Jessamy, PLLC. For 40 years, he has practiced law in Washington, D.C. He is an active participant in numerous business and civic activities in the District of Columbia and has served on a 1 The views expressed are those of the Concerned D.C. Legal Professionals, not necessarily those of the District of Columbia Bar or of its Board of Governors, or those of the Washington Bar Association of the District of Columbia, or other organizations with which the amici may be affiliated. 1

9 USCA Case # Document # Filed: 07/08/2014 Page 9 of 33 number of committees working to advance the interests of the citizens and institutions in the District of Columbia. Carolyn B. Lamm. Ms. Lamm is a Washington, D.C. resident and partner at White & Case LLP. She served as President of both the American Bar Association ( ) and the District of Columbia Bar Association ( ). She has lived and practiced law in the District of Columbia for decades. Daniel Solomon. Mr. Solomon is a native Washingtonian and directs the Naomi & Nehemiah Cohen Foundation (NNC Foundation). He is a founder and current board member of DC Vote, and, with the NNC Foundation, remains a steadfast supporter of DC Vote. He is a board member of the University of the District of Columbia School of Law Foundation and a former board member of the Washington Regional Association of Grantmakers. Bruce V. Spiva. Mr. Spiva has lived in Washington, D.C., for 18 years and currently serves on the D.C. Bar Foundation s Board of Directors. He previously served as Chair of DC Vote for four years and as Co-Chair of the D.C. Bar Litigation Section. He is a founder and principal of The Spiva Law Firm PLLC, in Washington, D.C. Melvin White. Mr. White of the Law Office of Melvin White has served as President of the District of Columbia Bar Association ( ). 2

10 USCA Case # Document # Filed: 07/08/2014 Page 10 of 33 Thomas Williamson, Jr. Mr. Williamson practices law at Covington & Burling LLP in Washington, D.C., and has served as President of the District of Columbia Bar Association ( ). Before private practice, Mr. Williamson was Solicitor of Labor at the U.S. Department of Labor and Deputy Inspector General at the U.S. Department of Energy. The amici have assumed leadership roles in initiatives to expand and enhance self-government for citizens of the District. Accordingly, they have a unique interest in the right of the District s citizens to determine how their local tax dollars are spent, as well as in the efficacy of legal processes that promote the ability of District citizens to govern themselves. This brief will provide an overview of the history leading to the Home Rule Act and highlight the broad authority granted to the District of Columbia to establish and fund local governmental activity, providing to the Court a contextual lens through which to view this dispute. INTRODUCTION AND SUMMARY OF ARGUMENT The Home Rule Act of 1973 was the result of a century-long effort to restore to the citizens of our nation s capital the right to self-governance, a right they enjoyed for the first 72 years of the District of Columbia s history. In enacting the Home Rule Act, Congress brought to end a struggle the citizens of the District of Columbia had waged for the most basic of rights: to choose who governs them on 3

11 USCA Case # Document # Filed: 07/08/2014 Page 11 of 33 matters of local importance. The Act left it to the citizens of the District to choose their own form of government, and they adopted by referendum the District s Home Rule Charter, which established the structure, responsibilities, and authority of the District government. The Charter is the foundational document of the government of the District of Columbia. As an essential feature, the Charter explicitly provides for the right to amend it to meet the needs and aspirations of its citizens. The amendment procedure is in keeping with the power given to the citizens of all states in the United States to amend their governing documents. The Home Rule Act makes clear that the power of District citizens to amend the Charter can be withheld, or a Charter amendment reversed, only by a duly enacted act of Congress. The Budget Autonomy Act ( BAA ) was duly enacted pursuant to the Home Rule Act s amendment process. It was passed by the Council of the District of Columbia and ratified by the voters of the District of Columbia in Congress did not exercise its reserved right to reject the amendment during the review period mandated by the Act, and consequently the BAA became law. The BAA is fully consistent with the congressional purpose behind the Home Rule Act and Charter to provide self-governance for the District s citizens. An essential prerogative of self-rule is command over how local revenue is allocated. The BAA does no more than to assert that right on behalf of citizens of 4

12 USCA Case # Document # Filed: 07/08/2014 Page 12 of 33 the District. It allows the citizens of the District to fully express their preference over how local revenue is to be allocated. Indeed, the BAA does not reduce Congress s plenary authority over the District of the Columbia; Congress retains the right it always has had to review District legislation, with the Act allowing Congress, through its passive review, either to defer to local choice as expressed under the BAA or to override the District s budget and assume responsibility for allocating the District s local tax revenue. By the late 1960 s and early 1970 s, Congress could no longer ignore the desires of the citizens of the District for self-government. Home Rule, thus, was not intended to be an empty promise. Rather, it reflected a commitment by Congress to shared sovereignty. Congress devolved its authority over local matters to the government and citizens of the District and agreed to supplant local decisions, only after review and, under current procedure, through a law duly enacted by Congress. Supporters of the BAA understand that Congress may reassert its authority over the District, but the very fact that Congress has that authority only strengthens the position that Congress also gave the District broad authority to adopt the BAA, subject always to revision or overturning by Congress. Congress, in providing an avenue for the citizens and government of the District of Columbia to amend the Charter, gave meaning to the long struggle for Home Rule in the District. There is no power more central to local government 5

13 USCA Case # Document # Filed: 07/08/2014 Page 13 of 33 than the ability to decide how to spend local tax dollars. In adopting the Home Rule Act, Congress expressed no intention to retain all power over this most basic of local governmental functions. The Court here should overturn the decision below and adopt an interpretation of the Home Rule Act that gives effect to its intent: to provide for self-governance and allow for duly enacted referenda that amend the District s Charter. 6

14 USCA Case # Document # Filed: 07/08/2014 Page 14 of 33 ARGUMENT I. AFTER A LONG FIGHT, THE DISTRICT OF COLUMBIA IN 1973 REGAINED HOME RULE [The Home Rule Act] will give the people of the District of Columbia the right to elect their own city officials and to govern themselves in local affairs... rights and privileges which have long been enjoyed by most of their countrymen. - President Richard M. Nixon President Nixon signed the Home Rule Act into law on December 24, See District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No , 87 Stat. 777 (see Balanced Budget Act of 1997, Pub. L. No , 11717, 111 Stat. 251, 786). 2 This was not the District citizens first taste of self-governance and the right to elect their local leaders. After enjoying selfrule for nearly three-quarters of a century, 3 Congress abolished the District s locally-elected government in 1874; thereafter, three Presidentially-appointed Commissioners ruled the District for nearly a century. See An Act Providing a Permanent Form of Government for the District of Columbia, 20 Stat In 1997, Congress changed the title of this statute to District of Columbia Home Rule Act. It had traditionally been, and now typically is, called the Home Rule Act. 3 See An Act to Incorporate Inhabitants of the City of Washington, in the District of Columbia, ch. 53, 2 Stat. 195 (approved May 3, 1802) (incorporating Washington, D.C., and establishing a 12-member Council elected by District residents and an appointed mayor). Congress revised the form of elected government for the District several times over the next seven decades, but it included an elected government throughout that time. 7

15 USCA Case # Document # Filed: 07/08/2014 Page 15 of 33 (approved June 11, 1878) (repealed 1967). As a result, the District s citizens have the unfortunate distinction of being the only American citizens who have had the right of self-government taken away from them by the Congress. See Staff of H. Comm. on the District of Columbia, 93d Cong., Home Rule for the District of Columbia: Background and Legislative History 1206 (Comm. Print 1976) ( Home Rule History ) (remarks of Representative Diggs). While the disenfranchisement of the District s citizens in 1874 was ostensibly a response to financial mismanagement, District residents publicly recognized it as an occasion to limit the influence within Washington, D.C. s local government of the mass of African-American voters enfranchised as a result of the Civil War. See, e.g., John Henderson, Why Home Rule Was Taken from D.C., The Wash. Star, Nov. 22, 1973 G, at 2. 4 Historians who analyzed contemporary publications related to the disenfranchisement of the District s citizens in the 1870 s have found that the subtext that runs throughout this discourse is a repudiation of black voting. See Robert Harrison, Washington During the Civil War and Reconstruction 303 (2011). White citizens blamed the District s problems in the 1870 s on African-American voters, and [t]he racist dimension to local support for direct rule was very evident, and sometimes explicit. Id. at 304. The election of a number of African-Americans to the D.C. Council only 4 For the Court s convenience, amici are submitting a compendium of attachments cited in their brief from historical and other sources that may be difficult to locate. 8

16 USCA Case # Document # Filed: 07/08/2014 Page 16 of 33 exacerbated the hostility toward Home Rule. This disenfranchisement continued for nearly a century despite regular calls to reinstate self-rule. Similar to the fate of other voting rights and civil rights legislation, District Home Rule fell victim to the post-reconstruction legislative paralysis that gripped Congress on these subjects. The end of World War II brought with it a revitalized Civil Rights Movement, and denying the citizens of the District the basic right of selfgovernance became increasingly untenable. Indeed, every President beginning with President Harry S. Truman called for local self-government for District residents. In 1949, in support of a bill to give home rule to the people of the District of Columbia, President Truman urged support for Home Rule: [t]he people of the District of Columbia should not be placed in a different status from that of the people of all other American cities and almost all democratic capitals of the world insofar as local self-government is concerned.... We should take adequate steps to assure that citizens of the United States are not denied their franchise merely because they reside at the Nation s Capital. See Letter from President Truman to the Speaker of the House of Representatives (July 25, 1949). The Senate passed bills for District self-government in the 81st ( ), 82nd ( ), 84th ( ), and 85th ( ) Congresses, but the bills did not pass the House of Representatives where the racial politics of the 1950 s continued to play out. See Home Rule History at (Congressional 9

17 USCA Case # Document # Filed: 07/08/2014 Page 17 of 33 Action on District of Columbia Home Rule, A Descriptive Survey). The Civil Rights Movement and ferment in the 1960 s ushered in an era of change, and a recognition that the lack of voting rights and political autonomy in the District of Columbia was no longer acceptable in the world s oldest democracy. Indeed, Home Rule for the District of Columbia was one issue at the center of the Civil Rights Movement and a cause that the historic March on Washington for Jobs and Freedom explicitly supported on August 28, See Home Rule Here Approved as a Goal for Big Civil Rights March on Aug. 28, Wash. Post & Times Herald, Aug. 11, 1963, at B6. After the March on Washington, the Voting Rights Act of 1965 set the stage for passage of the Home Rule Act by increasing the number of African-American voters in the South, which in turn diminished the power of Southern racial conservatives in Congress who had opposed Home Rule for the District of Columbia. See Michael K. Fauntroy, Home Rule for the District of Columbia, in Democratic Destiny and the District of Columbia 21, (Ronald Walters & Toni-Michelle C. Travis, eds., 2010). In 1967, President Lyndon B. Johnson took the first major step towards District Home Rule by presenting to Congress a plan to reorganize the District s government. The structure in place since 1874 of three Presidentially-appointed Commissioners ruling the District was replaced by a nine-member Council, a single mayor-commissioner, and an assistant to the mayor-commissioner. These 10

18 USCA Case # Document # Filed: 07/08/2014 Page 18 of 33 positions were all appointed by the President, but the reorganization recognized the need, and provided the framework, for a new government in the District. See Reorganization Plan No. 3 of 1967, 81 Stat. 948 (1967). In 1971, Congress established two courts, the Superior Court and the District of Columbia Court of Appeals, to assume responsibility for local matters, taking away the jurisdiction of federal courts to hear cases of distinct local interest. The establishment of the District s courts gave the District local governance and autonomy over its court system similar to that enjoyed in all of the states in the United States. The progress underway throughout the country on civil and voting rights, the reorganization of the District government, and the restructuring of the D.C. court system signaled a new day for the consideration of D.C. selfgovernance, free from the prejudice that previously had characterized it. Change was in the offing. A bi-partisan consensus was forming in Congress. The country could no longer turn a blind eye to the injustice of denying the citizens of the District the right to self-governance enjoyed by all other American citizens. As then-senator Hubert H. Humphrey, a hero to the Civil Rights Movement, argued in support of Home Rule for the District: [n]owhere in America should the basic principle of democracy be more firmly established than in the Nation s Capital. See Home Rule History at Notwithstanding our country s ideals, for more than 90 years, from 1874 until the Home Rule Act, that 11

19 USCA Case # Document # Filed: 07/08/2014 Page 19 of 33 basic principle was missing. As Senator Humphrey emphasized, [b]y some cruel irony, a nation founded as a haven from tyranny and oppression denie[d] to the citizens of the Nation s Capital the basic rights of democracy. Id. By the early 1970 s, that historical anomaly could no longer be explained away and its consequences ignored. Congress and the President were primed to act and they did. The incremental steps taken by President Johnson were replaced by a devolution of power to the citizens of the District almost as complete as its name suggests, the Home Rule Act. II. THE HOME RULE ACT GRANTS D.C. RESIDENTS THE RIGHT TO SELF-GOVERNANCE Against this background, in 1973, Congress enacted the Home Rule Act to grant to the inhabitants of the District of Columbia powers of local selfgovernment; modernize, reorganize, and otherwise improve the governmental structure of the District of Columbia; and, to the greatest extent possible, consistent with the constitutional mandate, relieve Congress of the burden of legislating upon essentially local District matters. See Home Rule Act 102(a) & 302, D.C. Code (a), (emphasis added). After extended hearings, both houses of Congress passed the Home Rule Act in President Nixon echoed the law s purpose when he signed it into law: I first voted for home rule as a Member of the House of Representatives in 1948, and I have endorsed the 12

20 USCA Case # Document # Filed: 07/08/2014 Page 20 of 33 enactment of home rule legislation during both my terms as President. One of the major goals of this Administration is to place responsibility for local functions under local control and to provide local governments with the authority and resources they need to serve their communities effectively. The measure I sign today represents a significant step in achieving this goal in the city of Washington. It will give the people of the District of Columbia the right to elect their own city officials and to govern themselves in local affairs. As the Nation approaches the 200th anniversary of its founding, it is particularly appropriate to assure those persons who live in our Capital City rights and privileges which have long been enjoyed by most of their countrymen. President Nixon s Statement on Signing the District of Columbia Self-Government and Governmental Reorganization Act (Dec. 24, 1973) (emphasis added). Its very name evidences its purpose and intent: the District of Columbia Self-Government and Governmental Reorganization Act. As the Supreme Court has said, [a]mong other things which may be considered in determining the intent of the legislature is the title of the act. See Holy Trinity Church v. United States, 143 U.S. 457, 462 (1892). Thus, in enacting the Home Rule Act, Congress sought to give the U.S. citizens living in the District rights all other American citizens enjoy: the right to determine how they are governed on matters of local importance and by whom. The natural extension of this authority is the ability to decide how local tax dollars are spent within the District. The Home Rule Act was 13

21 USCA Case # Document # Filed: 07/08/2014 Page 21 of 33 not a clever ruse to give the appearance of self-governance while withholding the essential prerogatives of self-government. Essential to the Home Rule Act is the District s Home Rule Charter. The Charter, which is set forth in Title IV of the Home Rule Act, establishes the structure, responsibilities, and authority of the District government. See D.C. Code to The Home Rule Act and the District Charter... serve as a constitution for the District. Jackson v. District of Columbia Bd. of Elections & Ethics, 999 A.2d 89, 123 (D.C. 2010). The Charter confers broad authority upon the District to oversee its local affairs and established the District government that we see today. Before the Charter became the District s governing document, it had to be, by the provisions of the Home Rule Act itself, accepted by a referendum passed by the citizens of the District. See Home Rule Act 701, D.C. Code This step reinforced the basic tenet of the Charter that is, self-government. The Home Rule Act did not impose a particular form of government on the District but left it to D.C. citizens either to accept or to reject that which was proposed by the Home Rule Act. D.C. residents were required to ratify the Home Rule Act through a referendum process within five months after its signing on December 24, After more than 90 years without a say in how their leaders were chosen, this referendum process vested in District residents the right to choose their form of 14

22 USCA Case # Document # Filed: 07/08/2014 Page 22 of 33 government. Through this referendum process in 1974, the District s residents accepted the authority that Congress specifically delegated to them. Congress also included in the Home Rule Act a means by which District voters could amend the Charter, the District s constitutional document. 5 Thus, District residents approved the Home Rule Act by referendum and did so with the understanding that the referendum process provided a procedure for amending the Charter. The referendum process is in keeping with the power given to the citizens of the states to amend their governing documents. The Home Rule Act expressly and unambiguously sets out the procedure for amending the Charter. The process grants to the District the essential means to control its own governance. See Home Rule Act 303, D.C. Code ; see also Jackson, 999 A.2d at ( [T]hrough section 303 of the Home Rule Act, Congress gave a broad grant of legislative power to the Council.... (emphasis added)). Under the three-step process in the Home Rule Act, after the Council passes a proposed Charter amendment, the Mayor signs it, and District voters ratify it, it is then submitted to Congress for a 35-day period of passive review. Unless Congress adopts a joint resolution disapproving the referendum during that 35-day 5 As passed in 1973, the Home Rule Act allowed District voters to amend the Charter by referendum, subject to a concurrent resolution by Congress approving that amendment. In 1984, Congress amended the Home Rule Act to give District residents the full right to amend the Charter without requiring additional action by Congress. Pub L , 131(b), 98 Stat (Oct. 12, 1984). 15

23 USCA Case # Document # Filed: 07/08/2014 Page 23 of 33 review period and the President signs that resolution, the Charter amendment becomes law. Thus, in enacting the Home Rule Act, Congress gave the District and its voters authority to amend its Charter, subject to express exceptions and always subject to Congressional disapproval. As was the case here, if Congress does not disapprove the amending referendum passed by District voters, it becomes law. In this regard, the Home Rule Act does not admit any doubt: the power of District citizens to amend the Charter can be withheld, or a Charter amendment reversed, only by a duly enacted act of Congress. That did not happen here. Aside from the Home Rule Act s plain language, its legislative history demonstrates Congress s intent to provide the District with this ability to amend the Charter. When interpreting the Home Rule Act, courts must place a central focus on the intent of Congress. See Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889, 904 (D.C. 1981) (internal quotation marks omitted); see also Wagner v. Federal Election Comm n, 717 F.3d 1007, 1013 (D.C. Cir. 2013) ( As in all cases of statutory construction, our task is to interpret the words of... statutes in light of the purposes Congress sought to serve. (internal citation omitted)). The original Senate version of the Home Rule bill that was sent to the House expressly prevented the Council from amending the Charter. See S. 1435, 93d 16

24 USCA Case # Document # Filed: 07/08/2014 Page 24 of 33 Cong., 325 (d) (as passed by Senate, July 10, 1973) ( The Council shall have no authority to pass any act contrary to the provisions of this Act. ). During conference, the House believed it had the sounder position, in allowing the Council to amend the Charter through a referendum. See Home Rule History at 2931 (Staff Memo for Representative Adams). In turn, the Senate conference representatives after negotiations [a]greed to [the] House concept that charter amendments can originate with the Council with a referendum of voters, rather than originating with Congress, as in the Senate bill. Id. at 2931 (Fourth Meeting of Conferees). Accordingly, the Charter amendment process was made part of the Act. See H.R. Rep. No , at 12 (1973) (Conference Report) (including 303). The record is clear that Congress fully considered and intended for the District s Council and voters to be able to amend their foundational governing documents and must have expected that they would, on occasion, do so. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978) ( The pointed omission of the type of qualifying language previously included in... legislation reveals a conscious decision by Congress.... ). The right of the District s citizens to determine how their local tax dollars are spent is essential to their self-governance. Historically, the ability of citizens to govern themselves has been inextricably tied to the ability to control the expenditure of local tax dollars. To the Founders of our country, no grievance 17

25 USCA Case # Document # Filed: 07/08/2014 Page 25 of 33 against the Crown resonated more than withholding from the colonists the right to exercise control over how their money was spent. See, e.g., Declaration of the Causes and Necessity for Taking Up Arms (1775) ( [Parliament] ha[s] undertaken to give and grant our money without our consent, though we have ever exercised an exclusive right to dispose of our own property. ). The text of the Home Rule Act leaves no question regarding its objective that is, to vest in District residents the ability to expand and improve the extent of the Home Rule it confers. It enabled the District to accomplish this result by amending its Charter, allowing it to create a budget process that best serves the needs of the District while reserving to Congress final review, and the ability to change that process if national interests were implicated. Both the Home Rule Act and the BAA sought the right balance between truly local and national interests. The Home Rule Act manifests no intention or desire to continue to subordinate the District to Congress s preferences regarding how the District s own local tax revenue is spent. The Home Rule Act should not be seen as a sleight of hand intended to give the illusion of self-governance while retaining for Congress the true incidents of power over the District and its budget. 18

26 USCA Case # Document # Filed: 07/08/2014 Page 26 of 33 III. THE HOME RULE ACT AND THE DISTRICT OF COLUMBIA CHARTER SHOULD BE INTERPRETED CONSISTENT WITH THEIR PURPOSE TO EFFECT SELF-GOVERNANCE Amici curiae believe that, in the Home Rule Act, Congress delegated authority to the District and its citizens to amend the Charter. To the extent that the Court considers the scope of the Council s and District voters authority to amend the Charter, the Court should interpret the Home Rule Act and Charter in a manner consistent with their purpose to provide self-governance for the District s citizens. It is a basic tenet of statutory construction that statutes must be construed in the light of their purpose. See Haggar Co. v. Helvering, 308 U.S. 389, 394 (1940). As stated in the Home Rule Act, its purpose is to grant to the inhabitants of the District of Columbia powers of local self-government... to the greatest extent possible [and to] relieve Congress of the burden of legislating upon essentially local District matters. See Home Rule Act 102(a) & 302, D.C. Code (a), There is simply no reason to believe that Congress intended to withhold authority implicitly that it had delegated expressly to the citizens of the District. Consistent with these general purposes, the BAA does no more than grant District citizens the same power afforded to citizens and local governments across the country to determine how their local tax dollars are spent and, in doing so, it clearly advances the purposes of the Home Rule Act. It relieves the District of 19

27 USCA Case # Document # Filed: 07/08/2014 Page 27 of 33 the necessity of seeking Congressional approval over matters of which Congress itself explicitly sought to be relieved. Should Congress want to restore a detailed review process over the District budget, the Home Rule Act itself provides the means. To this end, the BAA does not alter Congress s plenary authority over the District of Columbia or how it is exercised. Every fiscal year, Congress will continue to pass one or more appropriations for the District of Columbia. In doing so, it will follow whatever practices and procedures it deems to be appropriate. It may choose to allocate only the federal contribution to the District and leave the District government to determine how the local tax revenue in the D.C. General Fund will be allocated, as the BAA envisions. Alternatively, Congress can choose to override the choices of the District government and continue to exercise allocation authority over all local tax revenue. This is a choice that Congress will make in the same manner that it always has, by passing an appropriation bill. Under the BAA, Congress consequently retains but need not exercise its authority to allocate local tax revenue. Section 303 of the Home Rule Act then does no more than restate the authority that Congress retains and that may not be constitutionally diminished. How that authority is exercised is a Congressional choice. The BAA does not trample on Congressional authority. It only proposes a more constructive, 20

28 USCA Case # Document # Filed: 07/08/2014 Page 28 of 33 interactive, and democratic partnership between the District government and people of the District, on the one hand, and the federal government, on the other. Congress can embrace the BAA or reject it. Through the referendum process that Congress itself ordained, the residents and Council of the District put that choice clearly before Congress. The will of the people and the will of Congress will be best ascertained by allowing Congress to exercise its judgment and respond through law to the legally expressed desires of the voters of the District for local budget autonomy. No one disputes that D.C. citizens and the District s Council enacted the BAA through the referendum amendment process outlined in Section 303 of the Home Rule Act. See Home Rule Act 303, D.C. Code The opposing side s argument appears to be that Congress intended the broad grant of authority to amend the Charter to be used only for less essential purposes. Because the Home Rule Act itself does not express such a sentiment, the argument assumes that Congress would never have given the District authority over its own budget. It is an argument that loses force the more one reviews the history of the Home Rule Act. Congress knew what it was doing, and its words well and fully express its intent. After earlier versions of the same Home Rule bill did not include a power to amend the Charter, Congress expressly inserted such a power in the Home Rule 21

29 USCA Case # Document # Filed: 07/08/2014 Page 29 of 33 Act as passed (and signed into law). The citizens of the District voted overwhelmingly to adopt the Home Rule Act and, after more than 90 years of powerlessness, to accept the authority Congress imparted to them, but under the condition that the Act included a procedure for amending the Charter. In granting this authority, Congress gave the power to amend the Charter to those people who live under it. Now that the District s citizens have validly exercised the power granted to them, this Court should recognize and affirm their right to do so. This promotes the rule of law by enforcing the procedure expressly authorized under the Home Rule Act and promotes the purposes of the Home Rule Act by bolstering the ability of the District s citizens to govern themselves with regard to local matters and their local tax dollars. CONCLUSION The path to self-governance and Home Rule for the residents of the nation s capital has been long and arduous (and remains incomplete). The phase emanating from the Civil Rights Era culminated in the Home Rule Act which expressed the values and aspirations of many Presidents and a Congress that sought to correct a historical wrong. The Home Rule Act and the Charter should be read broadly to grant rights of self-government to the District, consistent with the Constitution and the recognized national needs of the District as the seat of our central government. No other purpose or limitations ought to be presumed. Should the will of the 22

30 USCA Case # Document # Filed: 07/08/2014 Page 30 of 33 citizens of the District be rejected, their will should be rejected in the manner prescribed in the Home Rule Act by a law duly enacted by Congress. The BAA was properly passed under the Home Rule Act s amendment process and does not reduce Congress s plenary authority over the District of Columbia: at any time, Congress may still restrict funding, mandate spending in the District, or dissolve the BAA. The expressed intent of the citizens of the District should not be subordinated to the assumed will or concerns of some; but only as the Home Rule Act provides, to the expressed will of both Houses of Congress and the President of the United States. No other resolution of this dispute fairly reflects, and serves, the history and the citizens of the District. Dated: July 8, 2014 Respectfully submitted, /s/ Lorelie S. Masters Lorelie S. Masters Karl J. Sandstrom PERKINS COIE LLP 700 Thirteenth Street, NW Washington, DC Telephone: Fax: LMasters@perkinscoie.com KSandstrom@perkinscoie.com Counsel to Amici Curiae, Concerned D.C. Legal Professionals Sabahat Chaudhary Jonathan L. Cloar 23

31 USCA Case # Document # Filed: 07/08/2014 Page 31 of 33 PERKINS COIE LLP 700 Thirteenth Street, NW Washington, DC Of Counsel 24

32 USCA Case # Document # Filed: 07/08/2014 Page 32 of 33 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and D.C. Circuit Rule 32(a), I hereby certify that the foregoing brief complies with the applicable type-volume limitations. This brief was prepared in proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font. The brief, excluding the parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) and D.C. Circuit Rule 32(a)(1), contains 5,582 words. This certification is made in reliance on the word-count function of the word processing system used to prepare the brief. Dated: July 8, 2014 /s/ Lorelie S. Masters Lorelie S. Masters 25

33 USCA Case # Document # Filed: 07/08/2014 Page 33 of 33 CERTIFICATE OF SERVICE I hereby certify that, on July 8, 2014, I caused the foregoing Brief for Concerned D.C. Legal Professionals as Amici Curiae in Support of Appellant to be filed with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit via the CM/ECF system, which will send a notification to the attorneys of record in this matter who are registered with the Court s CM/ECF system. Dated: July 8, 2014 /s/ Lorelie S. Masters Lorelie S. Masters 26