Can D.C. Sue To Use Our Own Tax Dollars? Can The City Appease A Dictator?

Join Us Saturday To Ask D.C. Attorney General Brian Schwalb These Questions! Also An Update On A Meeting With Interim U.S. Attorney Ed Martin...And Actions To Take

Update: D.C. Attorney General Brian Schwalb will be meeting with us on Saturday, March 15—tomorrow—at the Southwest Library, 900 Wesley Place SW. The meeting will begin promptly at 1:30 pm. Thanks to the 67 people who have RSVPed so far, and to the many of you who submitted questions.

• RSVP here.

• The list of questions sent to Schwalb’s office is here.

• See you tomorrow here

  

Second Update: The U.S. Attorney’s Office for the District of Columbia has been in touch, and I’ll be getting together with staff next week to discuss a meeting for us with Interim U.S. Attorney Ed Martin.

• The meeting request letter we sent to Martin is here.

• Rep. Jamie Raskin has requested that the Justice Department’s Inspector General investigate Martin for ethics violations and for his role in the January 6th insurrection, among other things. Read more here.

Why Can’t D.C. Spend Its Own Money Under Home Rule? Did We Forget About the D.C. Budget Autonomy Act?

A simple answer: Article I, Section 8, of the U.S. Constitution.

The Constitution grants the U.S. Congress power “to exercise exclusive Legislation in all Cases whatsoever” over the nation’s capital.

But Wasn’t D.C. Home Rule Put In Place To Give Self-Determination Over Local Matters? Isn’t Our Budget A Local Matter?

Congress may have expressed an intent to relieve itself to "the greatest extent possible . . . of the burden of legislating upon essentially local District matters," but in the end it didn’t let go of D.C.’s purse strings. That’s because a compromise was struck to get the bill passed, sacrificing the city’s budget autonomy from Congress in exchange for the vote of the powerful chair of the House appropriations D.C. subcommittee at the time.

Congress enshrined its plenary authority over the District of Columbia in the Home Rule Act as well, and it specified that these sections of the law could not be amended in any way. Section 601, in pretty plain language, states:

“Notwithstanding any other provision of this Act, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the Council by this Act, including legislation to amend or repeal any law in force in the District prior to or after enactment of this Act and any act passed by the Council.”

There’s also Section 603(a):

“Nothing in this act shall be construed as making any change in existing law, regulation, or basic procedure and practice relating to the respective roles of the Congress, the President, the federal Office of Management and Budget, and the Comptroller General of the United States in the preparation, review, submission, examination, authorization, and appropriation of the total budget of the District of Columbia government.”

If you want to stop reading here and skip down to “This is Messed Up. What Legal Options Do We Have To Use the $1 Billion Local Dollars in FY25?” feel free. If you want to understand the hot mess that is the Budget Autonomy Act, a breezily written Q&A follows.

But Didn’t We Vote On An Act That Gave D.C. Local Budget Autonomy?

A good portion of the nine percent of D.C. voters who approved the Budget Autonomy Act in a 2013 special election are likely readers of this Substack. That measure appeared on the ballot because the D.C. Council approved and Mayor Vince Gray signed into law a bill that amended the D.C. local funds budget process so it was just like every other piece of legislation: Following Council approval and mayoral consent, it gets sent to Congress for a passive 30-day approval process. If Congress says nada — in other words, doesn’t move a formal disapproval — then it is approved.

Hang On, Didn’t Congress Make It So Those Sections of the Home Rule Act That Deal With Congressional Authority Couldn’t Be Changed?

Yes.

That’s why the Budget Autonomy Act changes another section of the Home Rule Act—the charter portion—that can be amended. It splits D.C.’s budget proposal into two bills: one deals with locally-raised funds, which come from D.C. income, sales, and property taxes, and the other encompasses federal funds. The Budget Autonomy Act alters Sec. 446; instead of sending the whole D.C. budget to the President and Congress, it just sends the federal portion of it that way. The part of the budget that comes from D.C. local taxes and fees gets approved like any other piece of locally-focused legislation: After Council and Mayoral approval (or silence), it goes to Congress for a passive approval.

Is the Budget Autonomy Act Now the Law?

Yes.

So It’s Settled, D.C. Can Control It’s Own Money?

No, because the Budget Autonomy Act has been the subject of lawsuits, and the courts have differed on its legitimacy.

Who Sued?

Well, the D.C. Council sued Mayor Gray, a little interfamilial dispute over enforcement of the law. Gray and his Attorney General, Irv Nathan, said No Way José, this ain’t legit because we aren’t Congress, and the Council disagreed.

But It’s the Law, So Mendo Won?

No, actually U.S. District Court Judge Emmet Sullivan decided that the Budget Autonomy Act wasn’t legit. And therefore if D.C. elected officials and administrators followed it, they would be in violation of the Anti-Deficiency Act, which says that federal entities cannot spend money unless it is approved by Congress through an appropriations act.

Then something else happened: Mayor Gray lost re-election, and Muriel Bowser became mayor. Given the defendant was no longer the mayor and a plaintiff was, Sullivan vacated the decision. The case was remanded to D.C. Superior Court, and the expectation was that it would be dismissed.

But when it got to D.C. Superior Court, it wasn’t dismissed because the plaintiffs asked for a ruling. And the defendant was now newly elected Attorney General Karl Racine.

Wha?

Seriously. That’s what happened, and you can read this.

Did A D.C. Superior Court Judge Decide That the Budget Autonomy Act Is Legit?

Yes. And Racine decided not to appeal the decision.

Beyond the very weedy sparring over how to interpret sections of the Home Rule Act and the Anti-Deficiency Act, the decision pointed out that D.C.’s budget has drastically changed since the home rule compromise was brokered in 1973, and that causes a re-examination of the intent of Congress to relieve itself of largely local matters. At the beginning of Home Rule, D.C. received a large federal payment that was about half of the city’s total budget, and because of that, the members of Congress who chaired the appropriations committees for D.C. had power. Now, there’s no more separate D.C. appropriations committees, because D.C.’s budget is considered almost all “local” funds. About 25 percent of the city’s budget are federal dollars, but those are largely Medicaid and other formula funds and grants that every state gets.

Here’s the point: D.C. appropriations don’t wield the power they used to in Congress, at least when it comes to money. The budget is not a federal matter, it is a local matter and that’s why the local budget approval should be just like any other piece of local legislation. It doesn’t take away Congress’s power of the purse or its plenary authority, it just treats the local funds budget as a local matter.

So Why Are We Freaked Out If the Continuing Resolution Passes without Specific Authorizing Language for FY25? Didn’t Congress Already Approve Our FY25 Budget?

Two simple answers: the U.S. Constitution and the Home Rule Act. And the fact that Congress had always put belt and suspenders on any continuing resolution with language that allowed D.C. to spend its current year budget even if Congress hadn’t fully passed its own. Until now.

In my defense, I did say TLDR (too long, didn’t read) up top.

This Is Messed Up. What Legal Options Do We Have To Use the $1 Billion If the CR Passes With No D.C. Authorization for FY25?

We’ll be asking AG Brian Schwalb that exact question and others tomorrow:

• Can D.C. sue Congress, arguing that Budget Autonomy is the law and Congress already appropriated through passive approval of the FY 25 Local Budget Act?

• Can D.C. sue Congress, arguing that Congress approved the LBA without objection, and D.C. committed to financial agreements based on the fact that the money would be available? Isn’t this a violation of due process?

• Should Mayor Bowser, the CFO, and Council continue to operate under FY25 and have Congress take the city to court?

• Is there any way we can spend the already approved FY25 budget without specific language in the CR? Do we need a standalone bill?

• If DC has to reduce to FY24 budget levels, could DC Water stop water service to the Capitol and White House complexes saying that the bill hasn’t been paid?

If A Shutdown Does Occur, Can D.C. Keep Spending At FY25 Levels?

Again, we’ll ask this of Schwalb tomorrow depending on what happens today.

And Finally, Who Decides How To Cut $1 Billion? What Is The Process?

• Does Mayor Bowser present a budget package to the Council for approval?

• Is it treated like a reprogramming?

• Will the Mayor and/or Council ask for public input?

Actions for You to Help Our Country

Call Congress
Senate Minority Leader Chuck Schumer’s acquiescence on the CR means that it will likely pass later today but there’s still hope until then. Thank you to the many who called, emailed, and visited Congress. I expect there may be disagreement among readers of this Substack about overall strategy, though I personally agree with Sen. Chris Murphy.

It’s still worth it to express your opinion—it’s not too late! Phone calling is effective, because it is hard to ignore. If you want more explanation, 5 calls spells it out and provides phone numbers for you. I’d check social media for the best Senators to target.

Attend an Event
I don’t see too much on the calendar for next week, but that will likely change. I’ll update next week.

This is happening today, Friday, March 14:

Actions for You to Help D.C.

1. Sign On to Our Statement of D.C. Values

2. Join Our Meeting with D.C. Attorney General Brian Schwalb on Saturday, March 15, at 1:30 p.m. at the Southwest Library. RSVP here.

3. Keep calling Congress!

Actions to Help Your Neighbors, Friends, Family, and You

• Call/Text/Email Your Friends and Family
  It’s still the case that D.C. is a company town, and the company is the U.S. government. The sledgehammer being used right now to dismantle our government doesn’t just impact government workers but the many government contractors, think tankers, policy experts, etc. It also has major impacts on our hospitality and retail workers, too. It’s fair to say, as Alec MacGillis does, that D.C. isn’t used to this kind of economic shock and instability.

  
  It’s hitting everyone here hard on a personal level. There’s job instability, the threat to democracy, and the increasing feeling that civil rights are dissolving with the Mahmoud Khalil case and the about-face on diversity, equity and inclusion policies. I’m concerned especially how this will impact race relations in our city.

My apologies on the length today!