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D.C. Board of Elections Reveals Concurrent Opinions on Budget Autonomy Decision

One day after approving a proposed ballot referendum to unlink the District’s budget from the congressional appropriations process, the District of Columbia Board of Elections and Ethics released its justification for the decision, stating that there is nothing “patently illegal” about the proposed amendment to the city’s charter.

Local leaders and political watchers alike had been waiting for the three-member board to publicly articulate its position, given the strength of opposition from some high-ranking public officials and the fact that a grass-roots effort to achieve budget autonomy without congressional action is unprecedented. The board approved inclusion of the referendum on the April 23 special election ballot.

The five-page document released Wednesday is composed of two separate but concurring opinions that arrive at a basic conclusion: because the board could not find evidence that the referendum would be “patently illegal,” it could find no basis upon which to object it.

D.C. Attorney General Irvin B. Nathan, the leading voice against the referendum, testified before the board Monday to articulate concerns shared by Mayor Vincent Gray and key congressional allies of budget autonomy.

Nathan argued that the proposed charter amendment, if passed, would more than likely be challenged in court for illegally attempting to circumvent Congress’s inherent control over the D.C. budget. He also argued it would violate the Antideficiency Act, which forbids federal entities, such as the federal city of D.C., from spending funds before they are appropriated, in this case by Congress.

The D.C. Council’s general counsel, V. David Zvenyach, countered at Monday’s hearing that the Home Rule Act of 1973 includes nothing to prohibit the city from amending its charter to let D.C. spend its money without congressional approval. The council unanimously approved the authorizing legislation in late December, and Council Chairman Phil Mendelson also appeared before the board on Monday.

While Board Chairwoman Deborah Nichols laid out the basic arguments in her two-and-a-half page opinion, Board Members Devarieste Curry and Stephen Danzansky provided additional insight into the board’s decision to place the referendum question on the special election ballot for voters to consider. Specifically, they revealed that “as for the validity of the Charter Amendment itself, the Board was divided on that question.

“Despite the extremely compelling arguments made by the Attorney General regarding the illegality of the Council’s action, a majority of the Board did not think the Charter Amendment is patently legal,” they continued. “Indeed, the Attorney General himself recognized (at least implicitly) the nuances of the law, and the merit of some aspects of the General Counsel’s arguments.”

With this hurdle cleared, it is nearly certain now that the budget autonomy charter referendum will be included on the special election ballot in April to proceed to a vote. But Curry’s and Danzansky’s disclosure about the lack of consensus on a number of sticking points surrounding the issue points to a rocky road ahead.

Budget autonomy would give the mayor and D.C. Council the authority to approve all local spending decisions and set a fiscal calendar that best suits the needs of the city. It also would free the District from the threat of a shutdown each time Congress nears a budget stalemate.

When Rep. Darrell Issa, R-Calif., the chairman of the D.C.-focused Oversight and Government Reform Committee, said he supported budget autonomy in the fall of 2011, other supporters emerged and mobilized around the issue.

Del. Eleanor Holmes Norton said she would vote for the charter amendment on the April ballot, but the Democrat has also expressed reservations about the legality of the measure and she continues to point to the rapidity with which the budget autonomy moment has caught on.

It was a year of stops and starts for budget autonomy legislation, however, as bills and drafts of bills were introduced and withdrawn under threats of being targeted with policy riders, such as restrictions on abortion funding and rollbacks of local gun laws.

Citing these setbacks, supporters of the referendum push say this is the only way to get budget autonomy without strings attached. Others wonder, though, if the intended two-pronged approach — to push budget autonomy on the ground while continuing to negotiate with House and Senate leadership with Norton as the main liaison — might backfire.

“The wishes of the people of the District of Columbia will never alienate me,” Issa said in an interview with CQ Roll Call last month. “It does undermine my ability to get for them what I believe they want … because if it goes to a court challenge, as I am relatively sure it would, then it ties my hand until that’s over with, and that makes no sense.”

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