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D.C. Representation

In principle, I support giving the people of Washington, D.C., full representation in Congress. The best and most logical way to accomplish this would be through retrocession.

This is an edited excerpt from an article that originally appeared on Scott Bradford: Off on a Tangent in 2017:

One of the interesting facts about the District of Columbia is that it was originally quite a bit larger than it is today. In 1790, Maryland ceded sixty-eight square miles of land and Virginia ceded thirty-two to the federal government to become the ‘federal city.’ This combined one hundred square miles (“ten miles square”) was the maximum allowed by the Constitution.

In the 1840s, a “retrocession” movement grew on the Virginia-side of the Potomac River. The people passed a referendum asking to be returned to Virginia, Congress passed a bill to make it happen, and — after the Virginia General Assembly’s approval — the thirty-two square miles of Washington, D.C., south and west of the Potomac were ceded back to Virginia in 1847 and became Arlington County. That’s why, to this day, Arlington County looks like it completes D.C.’s partial-diamond shape on a map. It is also why the citizens of Arlington County, now part of a state again, have full voting representation in both houses of Congress.

Given the fact that the federal district need not exist (or, if it must, it need not take up sixty-eight square miles), all or most of the District of Columbia can be ‘retroceded’ to Maryland just like the other thirty-two were ‘retroceded’ to Virginia in 1847. All it would take is the congressional will and the approval of Maryland’s legislature to make it happen, and the people of D.C. would — like their brethren across the river — receive full voting representation in Congress.

This method of giving the people of the federal district full voting representation in Congress would be preferable to the other available methods: amending the constitution, or making D.C. a state all its own.

Amending the constitution is difficult, and it would be all-but impossible to get the legislatures in conservative states to give left-wing D.C. its own voting representative(s) in Congress. This would be a fairly “clean” approach, but it is politically untenable.

A similar challenge would be posed by a statehood effort. Although it would be an easier process than amending the constitution, it would also face stiff opposition from conservatives in the Congress. Because D.C. consistently votes Democratic, statehood would significantly change the balance of power…even more-so than in an amendment scenario, since a state also gets two seats in the Senate. This would also be a “clean” but politically untenable approach.

There is another issue with D.C. statehood, although it is, admittedly, a pretty esoteric ethical concern. That land was ceded to the federal government by the state of Maryland for the purpose of establishing a federal district. It is ethical to use it for anything else?

Anyway, there are two main advantages to the retrocession approach described above, vs. the other options.

First, there is an established precedent. Part of D.C. was retroceded back to Virginia in 1847, so we know how to do it…or at least we can find the records. The legal questions and the process have already been mostly hashed-out. It’s always easier to do something that has been done before than to do something completely new.

Second, although incorporating D.C. into Maryland may increase Maryland’s representation in the House of Representatives at the next census, it would be a (relatively) small change, and there would be no real effect on the balance in the Senate (since both Maryland and D.C. vote fairly consistently Democratic). This makes it less politically untenable…indeed, it may even be able to get some support from moderate Republicans, since it would be fairly harmless.

However, there are also two areas of concern.

First, obviously, D.C. would have to request retrocession (preferably through a referendum), and both Congress and Maryland’s state government would have to approve it. It seems like a no-brainer to me, since it is the most practical way to resolve D.C.’s concerns about representation, and Maryland would benefit with a larger tax-base and a larger House delegation following the next census. But politics can be weird. D.C., especially, has a habit of voting against its own best interests.

Second, there is a significant problem that would arise that is not addressed by the precedent of the Virginia retrocession. In 1961, long after the Virginia retrocession, the Twenty-Third Amendment was ratified. This gave D.C. representation in the Electoral College, which elects the president and vice president. This means that, unless the amendment is repealed, any federal district that remains after the retrocession — no matter how small — would be entitled to three presidential and vice presidential electors.

One way of handling this would be to retrocede all of D.C. back to Maryland and completely eliminate the federal district. This would place the seat of the government in a state, which the founders thought was a bad idea, but it is not prohibited by the constitution. Indeed, the seat of government had been in two states — New York and Pennsylvania — before moving to D.C. Presumably, if no federal district exists, the Twenty-Third Amendment would become a dead letter and the Electoral College would shrink by three.

The other way of handling it would be to maintain a small federal district in the center of D.C. — my preferred approach — and make the retrocession bill contingent upon the repeal of the Twenty-Third Amendment. Congress would pass a constitutional amendment to repeal, and at the same time pass a bill for retrocession with a clause stating that it only takes effect when the repeal amendment is ratified.

Even with these concerns, retrocession remains the most logical and least problematic approach to giving the people of Washington, D.C., full representation in Congress.