Legal opinion on D.C. budget referendum under wraps

D.C. Mayor Vincent C. Gray has made it clear he has misgivings over a D.C. Council-driven referendum to fast-track the city’s effort to spend local funds as it pleases. But for now, a legal opinion that outlines those concerns is for official eyes only.

Efforts to grant the city budget autonomy through legislation on Capitol Hill have been thwarted by legislative riders that would affect the city’s abortion or gun laws. So when advocates from D.C. Vote and D.C. Appleseed Center for Law and Justice approached the mayor months ago with a plan to authorize a D.C. charter referendum on the issue — effectively forcing the Congress to disapprove the will of city voters — Mr. Gray asked D.C. Attorney General Irvin B. Nathan to weigh in on the maneuver’s legal underpinning.

So far, no one is sharing the resulting opinion from Mr. Nathan’s office. Instead the mayor has alluded to the tactic’s shaky legal foundation while simultaneously renewing his support for the concept of budget autonomy.

“This is a product of the attorney general’s office, and I try to respect the position that they take on these issues,” Mr. Gray said Wednesday at his biweekly press briefing. “I would suggest that you talk to the attorney general directly on that.”

Mr. Nathan’s office has said it is not releasing the opinion to news organizations. It rejected a request from The Washington Times under the Freedom of Information Act on the grounds it is a “privileged” document that falls under an exemption from disclosure that includes interagency memos and letters.

The mayor has positioned himself as a staunch advocate for D.C. voting rights and budget autonomy, which would sever the city’s local funds from the federal appropriations process and allow the city to set its own fiscal year. About four months into his term in 2011, Mr. Gray was among several lawmakers and activists arrested while protesting a federal spending plan that compromised abortion rights in the District without the city’s input.

The existence of the opinion was first reported in The Washington Post around the time the D.C. Council introduced a bill on Oct. 2 to authorize the referendum in a special election next spring.

Mr. Gray, who appointed Mr. Nathan at the start of his term, could override its privileged status by asking attorney general’s office to release the document.

“I don’t choose to compel him to do that in this instance,” Mr. Gray said Wednesday of Mr. Nathan. “I’ve indicated very clearly that I support budget autonomy. I’ve certainly indicated I have some questions about this approach, but we want to work in concert with our legislative partners to be able to achieve an outcome in which the District of Columbia will be able to make our decision — and they will be our decisions — about the deployment of our resources.”

Council Chairman Phil Mendelson, a Democrat, has touted the referendum bill as a “two-track” approach to achieving budget autonomy. He said it is not meant to overshadow efforts by Delegate Eleanor Holmes Norton, the District’s non-voting member of Congress, to work with allies like Rep. Darrell E. Issa, California Republican, in passing a clean bill on the Hill.

Mr. Gray said he and city lawmakers share the same goals on budget autonomy, but “we may have some different points of view of how we get there and this is one of them. That’s really all I’m prepared to say at this point.”

Mr. Mendelson has defended the legal underpinning of the charter referendum bill. On the day he introduced it, he characterized the opposition’s stance as reading too far into Congress’ intent.

“Congress never would have intended that we could amend the budget process, because Congress is involved in the process,” he said, describing their view. “Therefore, they never intended that we could cut them out of the process.”

“But we don’t cut them out of the process,” Mr. Mendelson said, pivoting to his viewpoint. “We would approve the budget like any other act — which goes to the Hill — and Congress has plenary authority over the District.”