Pubdate: Sun, 14 Dec 2014
Source: Washington Post (DC)
Copyright: 2014 The Washington Post Company
Author: Aaron C. Davis
Page: C1


The congressional effort to block marijuana legalization in the 
District has been widely viewed as yet another frustrating defeat for 
self-governance by residents of the nation's capital.

But city leaders are saying otherwise, promising to throw the issue 
back to Congress next month in a way that could prompt the most 
high-profile showdown in years over D.C. rights.

The giant federal budget bill pending in the Senate on Saturday 
includes a provision, inserted by Republicans, that prohibits the 
city from spending tax dollars to enact the marijuana initiative.

D.C. Council Chairman Phil Mendelson (D) said Friday that he plans to 
ignore the provision and instead follow the usual procedure for a 
voter-approved referendum in a city required to submit to federal 
oversight: He will send a bill implementing Initiative 71 to Congress 
in January for a 30-day review, during which federal lawmakers can 
veto it or let it stand.

"I don't feel that I have any choice," Mendelson said. "The voters 
have spoken."

D.C. Democrats say they are ready to wager that Republicans will be 
unwilling to get bogged down in overturning the city's marijuana law, 
which 7 in 10 voters supported in last month's election. Doing so, 
Republican strategists acknowledge, risks exposing a divide between 
Republican conservatives and libertarians that could prove 
consequential to the 2016 presidential race.

Advocates are also hoping that Republicans, who will arrive back in 
Washington with a new Senate majority, will have their sights set on 
other matters, such as overturning President Obama's actions on 
immigration and health-care reform.

Some congressional Republicans have indicated that they are ready to 
do battle on District turf - by trying to loosen the city's strict 
gun-control measures and other liberal policies. However, Del. 
Eleanor Holmes Norton (D), the District's nonvoting member of the 
House, said those issues will be up for debate regardless and the 
District doesn't have anything to lose in provoking further 
confrontation over marijuana.

"Should we accept that it was already struck down, or should we make 
them work for it?" Holmes Norton said of the cohort of conservative 
House Republicans who successfully included the measure targeting the 
pot initiative in the $1.1 trillion spending bill.

"The question is, what should the District's posture now be ... and 
it's absolutely continue the fight," she said. "Adopt your own 
interpretation of what the [budget] language means and put the burden 
on them [the Republican majority] to strike it down. Do not acquiesce."

Congress has the power to not only decide the District's share of 
federal funds, but also to override how it appropriates more than $4 
billion in locally raised tax revenue.

Over four decades of partial autonomy but no vote in Congress, the 
system has led to repeated battles between Capitol Hill overseers and 
the city. The District's stance of protest has taken on a permanent 
quality, with an unofficial motto, "Taxation without representation," 
printed on city license plates.

The fight for D.C. autonomy comes as the city is preparing to usher 
in a new mayor and new council members and when tens of thousands 
have streamed into city. But the battle has waxed and waned since the 1970s.

"I'm having deja vu all over again," said Wayne Turner, a health-care 
lawyer who led the fight with Congress that began in 1998 to let D.C. 
follow California with a voter initiative to legalize medical marijuana.

Two weeks before D.C. voters went to the polls that year, Congress 
passed a spending bill with a provision that preemptively suspended 
the medical marijuana initiative, leaving D.C. elections officials 
unwilling even to count the ballots for fear of congressional retribution.

The election eventually showed that city voters overwhelmingly backed 
medical marijuana, but congressional Republicans - and later, 
Democrats - carried over the prohibition in the federal budget for 10 years.

Turner said he fears that another protracted battle looms over legalization.

"I think this is a teachable moment, not only for people across the 
country about the District's lack of rights, but also for the many 
newer residents who have moved into the city in the past several 
years," said Turner, whose partner, Steve Michael, died of AIDS 
during the city's 1998 petition drive for medical marijuana.

This time, D.C. leaders are preparing from the start to go on the 
offensive, and they are seizing on a technicality in the bill to push 
the issue to a showdown.

D.C. officials say the provision barring D.C. from moving forward on 
marijuana legalization was muddled just enough that they have an opening.

Unlike in other parts of the spending bill, there are some words 
missing. The part targeting D.C.'s marijuana initiative states that 
funding is barred only to "enact," not to "enact or carry out" laws 
related to reducing drug penalties in the city.

Norton said she was told by Democratic budget negotiators that the 
omission was made on purpose to give city leaders a chance to argue 
that in moving forward, the District is only carrying out, and not 
enacting, the measure.

Still, the District may not spend any money to do so-or at least, not 
any money appropriated in the current budget year-if it is to comply 
with the letter of the budget bill. The District will have to 
maneuver carefully to do so. The initiative must be sent to Congress 
for a mandatory 30-day review. And the city must enact a law changing 
its drug penalties and publish those changes in the District register 
- - all ministerial acts that will come with at least some staff time and cost.

In 1998, tabulating the results of the medical marijuana initiative 
cost, by one estimate, just $1.64, but the elections department 
refused to spend it.

Mendelson's act of transmitting the marijuana initiative to Congress, 
therefore, could in itself amount to a violation of the federal 
spending bill if it could be shown to require any expenditure of city 
tax money.

District attorneys met repeatedly last week to debate whether the 
council and mayor could tap city reserve funds from prior years or 
solicit donations to pay for staff time and other incidental costs to 
move ahead.

District officials did not respond Friday to requests for how much 
the task of transmitting the initiative might cost.

Notably, District attorneys - who have recently been quick to issue 
legal opinions on even more complicated matters - were silent for 
days last week on the legality of Mendelson transmitting the 
initiative to Congress.

On Friday evening, the office of the attorney general in the District 
issued a two-sentence statement saying only that it was continuing to 
review the federal budget legislation and will continue to assess how 
it may provide District policymakers "opportunities to implement the 
will of the people reflected in Initiative 71."

One of those advocating for a workaround is Walter Smith, executive 
director of the D.C. Appleseed Center for Law and Justice. Smith said 
he had been in contact with the D.C. Council's top attorney-to urge 
the city to fund implementation of Initiative 71 much the way the it 
tapped its emergency reserves early in the year to stay open during 
the last federal government shutdown.

"There are ways," Smith said. "I don't think the council or Phil 
Mendelson really want to look like they are sticking the finger in 
the eye of Congress, but this isn't that at all. It's just saying 
that under the Home Rule Act, we have other options."

Mendelson said he sees no choice but to push the issue back to Congress.

"This is just procedural," he said, playing down any intent to 
provoke Congress.

Mendelson has told advocates of marijuana legalization that he 
believes the District can make the case that the law has already been 
enacted. In an interview with The Washington Post, he pointed to a 
letter he received Thursday certifying the results of the marijuana 
initiative that said he "must" transmit the legislation to Congress.

"The results indicate that the Initiative was ratified by a majority 
of voters. . . . You must transmit the measure to the Speaker of the 
House of Representatives and to the President of the Senate 
forthwith," said the letter from elections board chief Cliff Tatum.

Rep. Andy Harris (R-Md.), who proposed the anti-marijuana measure 
that became part of the budget bill, warned that D.C. should tread carefully.

"The intent of Congress is clear - and has strong bipartisan 
support," Harris said, noting that 57 Democrats joined Republicans in 
passing the spending bill in the House.

Michael Fauntroy, an associate professor of political science at 
Howard University who has authored a book on the District's fight 
with Congress, said the showdown over marijuana policy may broaden 
awareness nationally of the District's lack of voting rights, but 
it's not the worst offense he's witnessed.

"Nobody is surprised or should be surprised that this is happening. 
We tend to become prisoners of the moment, and the thing that 
happened most recently is what we get so exercised about," he said. 
"But if you go back over history, there is a long list ... Congress 
doesn't hesitate to jump in when they have a point to make."
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MAP posted-by: Jay Bergstrom