D.C. Attorney General Irvin B. Nathan asked city election officials on Monday to reject a ballot question designed to free the city’s local budget from the grip of Congress, citing the maneuver’s shaky legal ground and potential backlash from powerful politicians on Capitol Hill.
Mr. Nathan, who served as general counsel to the House of Representatives from 2007 to 2011, asked the D.C. Board of Elections to play referee and prevent a D.C. charter referendum from going before voters this spring. While it could be an unpopular decision to thwart a measure that could clear the way for “budget autonomy” — allowing the city to spend its local funds freely — it would be better for the District in the long run as it attempts to work with Congress through legally sound legislation, he said.
“What makes this so difficult and sad for me is that I fully support the concept of budget autonomy for the District for the revenue that we raise from our citizens,” he said. “It is only just and right that we in the District be able to spend the funds we raise locally without advance permission from the Congress, which may not always have the best interests of the District in mind.”
The charter referendum, if it is approved by the board and rubber-stamped by voters on April 23, would force Congress to actively disapprove the local electorate’s wish to detach its local budget from the spending process on the Hill. The measure also would let city officials set their own fiscal year instead of using the cumbersome federal version from Oct. 1 to Sept. 30.
The issue speaks to the divergent path city officials may choose in their pursuit of greater voting rights and fiscal freedoms — play nice with Congress or aggravate legislators.
The council has not couched the referendum in either extreme, arguing it is a “two-track” effort alongside legislative attempts on the Hill. One such attempt led by Rep. Darrell E. Issa, California Republican, has stalled since 2011 because conservative lawmakers tried to attach measures to the bill that would alter the city’s abortion or gun laws.
City lawmakers and home rule advocates are betting the deadlocked Congress would not take proactive steps to strike down the voters’ will through a referendum. Plus, they say, federal lawmakers still will have ultimate authority over the District and may object to the city’s budget during a routine 30-day period in which it passively reviews any D.C. law.
The board was expected to deliberate late into Monday evening and release a decision by Tuesday morning, an elections board spokeswoman said.
The D.C. Council unanimously authorized the referendum late last year. Mayor Vincent C. Gray signed the bill in late December, despite his reservations about the measure’s legality.
Those doubts primarily stemmed from Mr. Nathan, who testified Monday that it is clear Congress did not intend to let the council alter its affirmative role in the D.C. budget when it extended home rule rights to the city in the early 1970s. Mr. Nathan said his service on the Hill does not color his opinion in the matter, but it does give him a sense of how Congress might react if voters unilaterally changed their role with respect to the District’s budget.
“To put it mildly, it is not likely to be pretty,” he said.
A staffer for Mr. Issa told The Washington Times last month that the decision to pursue the referendum is up to D.C. officials, but a legal challenge to the measure could delay or tangle up their simultaneous efforts through legislation.
Mr. Nathan said it was his role to uphold the laws of the land, both as a member of the D.C. bar and the city government, and he urged the board not to mislead voters into thinking the referendum is on solid legal ground.
But council Chairman Phil Mendelson, a Democrat, told the board that the measure attracted support from the likes of former Rep. Thomas M. Davis III, Virginia Republican who served on the congressional committee with oversight of D.C. affairs. In prior testimony, Mr. Davis said the maneuver would not be a “poke in the eye” to partners on the Hill.
“We’re trying to work with our friends in Congress, and we’re certainly not trying to offend anybody,” Mr. Mendelson said.
City lawmakers’ attorney, V. David Zvenyach, strenuously defended the referendum’s legality before the board. He said the board is required to show deference to the will of popularly elected officials in the District instead of injecting itself as guardians of what should or should not appear on the ballot.
“The board is not a court,” he said.
Mr. Nathan disagreed. He said the board was composed of experienced attorneys with a statutory obligation to weigh whether its actions could violate the law.
He said the city lawmakers’ reasoning would force the board to approve council-created charter amendments that, hypothetically, abolish the mayor, prevent the U.S. attorney from prosecuting local politicians or even resegregate the schools.
“The council is wrong on all counts,” he said.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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