Analysis of Chairman's Mark of H.R.856

Senator Murkowski's rewrite of H.R.856 contains several major problems. [The full text of the bill can be found at http://www.englishfirst.org/856new.htm]

(1) The proposed referendum ballot is slanted toward producing a pro-statehood result.

(a) The Commonwealth option in the bill includes a threat against the continued U.S. citizenship of residents of Puerto Rico. The definition for "Commonwealth" (which is the island's present status) includes the phrase [Page 1, line 15-16] "statutory United States citizenship." This is a suggestion that under Commonwealth status, Congress could take away the U.S. citizenship of Puerto Rico residents. About 54% of Puerto Rico residents think their U.S. citizenship is important, according to a recent poll.

(b) The statehood option in this legislation is artfully crafted to protect Puerto Rico's ability to become America's first Spanish-only state.

The statehood option in the Chairman's Mark of H.R. 856 includes language which amounts to a promise that Puerto Rico residents cannot be required to learn English (a language foreign to virtually all island residents) and that Puerto Rico, once it is a state, could become a unilingual Spanish-speaking state: [Page 2, lines 13-14] "admission of Puerto Rico into the Union on an equal footing with other States."

Statehood advocates claim that case law in this area:

. . . [f]or all practical purposes invalidates and rejects the specific language provisions enacted by Congress in the enabling acts of Louisiana, Oklahoma, New Mexico and Arizona. . . . In essence, both language and culture are a patrimony reserved to the states and the people themselves . . . For these reasons, the adoption of Spanish as the official language of Puerto Rico can and will be an integral element of the future State Constitution if the Island ever decides to seek admission into the Union. . . . [N]o matter what dispositions a State constitution, enabling act or admission act might contain, all the power is still retained by the people of the State and it cannot be relinquished [emphasis in original]." [Grupo De Investigadores Puertorriquenos, Breakthrough from Colonialism: An Interdisciplinary Study of Statehood, 1984, 1997, Vol II, p.1454, 1460.]

(c) The proposed Independence option includes a suggestion that the U.S. citizenship of Puerto Rico residents will be forfeited even before actual independence is granted; while Statehood is defined as equal to permanent U.S. citizenship.

[Page 3, lines 14-17] "The report shall also include proposals to limit prospective acquisition of citizenship by birth in Puerto Rico prior to the withdrawal of sovereignty and for the assumption of Puerto Rico citizenship and termination of United States citizenship for residents upon the withdrawal of United States sovereignty."

This language regarding the impact of independence on citizenship seems needlessly aggressive. Meanwhile, the statehood option in the bill includes a guarantee of permanent U.S. citizenship: "with citizenship as provided under the Constitution."

(2) The legislation contains no provisions to guard against vote fraud or electoral abuses.

The bill merely states that "The results of any referendum held under this Act shall be certified to the President of the United States by the Governor of Puerto Rico." The current Governor of Puerto Rico is an ardent supporter of statehood and his party controls much of the electoral apparatus. Opponents of statehood have few resources. It is worth noting that the temptation to 'help' an electorate produce a desired result is not unknown on the mainland.

(3) The legislation contains an open invitation for President Clinton to demand Congress pass a statehood bill, whether or not statehood wins in the referendum in Puerto Rico.

[Page 3, Lines 1-3, 8-9](b) If a majority of the votes cast are for Commonwealth or if no option receives a majority, the report shall indicate what actions the federal government could take to improve social, educational, and economic conditions in Puerto Rico, including, but not limited to, . . . together with whatever recommendations the President may make in other areas.

House Minority Leader Dick Gephardt has endorsed statehood for both Puerto Rico and Washington, D.C. House Speaker Newt Gingrich and many Republican political consultants are pushing Puerto Rico statehood as essential to winning the Hispanic vote. One could easily see Bill Clinton putting a Republican Congress on the spot next year: support Puerto Rico statehood or be denounced as mean-spirited anti-Hispanic racists.

(4) The legislation does not fully preclude "incorporation" of Puerto Rico by the U.S.

The legislation breaks down the statehood process into "incorporation" followed by "statehood." Incorporation by itself is sufficient to end all the caps of federal aid programs to Puerto Rico, whether or not statehood is ever granted.

The bill states [Section 4] that incorporation will require a "specific act of Congress explicitly stating such incorporation or extension." The problem is that once Puerto Rico votes for statehood, the pressure will be on both the Congress and/or the federal courts to provide such incorporation. All Puerto Rico needs is one judge to find that by Puerto Rico voting for statehood after Congress has provided for a referendum process, Puerto Rico has been made a enforceable legal promise. Incorporation could be worth as much as $18 billion to Puerto Rico annually. Litigating this question would be a worthwhile gamble.

In fact, the District of Columbia (Washington, D.C.) is contemplating litigating for statehood despite clear Constitutional language to the contrary. The litigation is based on the 14th Amendment guarantee of equal protection. Benjamin Wittes, a member of the editorial staff of the Washington Post who wrote about the lawsuit ["The Vote for D.C.," July 12, 1998] said:

[T]here is nothing stopping Congress from permitting Washington residents to vote, and decades of 14th Amendment law that, at some point, crystallized into a mandate that it do so.

The courts would have to act boldly in order to buy this argument. . . . That is sometimes all it takes. . . . So if ruling that Washingtonians must get the vote would be a somewhat activist holding, it would be far less extreme than others our judiciary has contemplated in vindicating basic rights.

Given that courts have found a right to welfare for non-citizens, it would not be a great stretch to find that once Puerto Rico votes for statehood, even if Congress takes no further action, a court could rule that the limits on federal benefits to U.S. citizens residing on Puerto Rico are somehow unconstitutional. While litigation over caps on AFDC and SSI benefits for Puerto Rico residents has failed in the past [Harris v. Rosario, 446 U.S. 651 (1980) and Califano v. Torres, 435 U.S. 1 (1978)], that litigation took place at least ten years after Puerto Rico had rejected statehood in 1967 by a vote of 67%-39%.

New Congressional action on "settled issues" is an open invitation to a fresh round of litigation. While the Supreme Court long ago ruled that Puerto Rico was an unincorporated territory in Balzac v. Porto Rico, 258 U.S. 298 (1922), the Court has also much more recently ruled that the equal protection guarantee of the Fourteenth Amendment applies in Puerto Rico [Examining Board v. Flores de Otero, 426 U.S. 572 (1976), Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974)].

(5) The legislation continues the approach first presented in H.R.856 that any referendum which produces a vote for statehood is final while every referendum result in favor of commonwealth status simply means additional referenda until statehood 'wins'.

[Page 1, lines 4-5] The government of Puerto Rico may, from time to time, conduct popular referenda to permit the residents of Puerto Rico an opportunity to express their desire on political status.

Puerto Rico is already able to hold a referendum on statehood whenever it wishes, with or without Congressional approval. By including the phrase "from time to time" this provision suggests that not only will the December 13, 1998 status referendum be officially endorsed by Congress, but that any future status referendum held by Puerto Rico will also be considered official by a future Congress. While one Congress cannot bind a future Congress, this approach will allow Puerto Rico statehood supporters to claim Congressional sanction of a future referendum (should the December 18th referendum fail to produce a pro-statehood majority) is a settled issue.

The major problem with this approach is simple. Statehood is far closer to winning a majority than is independence. If a vote by the people of Puerto Rico in favor of current status (commonwealth) is to be considered a mere interim step, while any future referendum vote in favor of statehood is be considered final, a request for statehood will be inevitable.

Statehood was defeated in both the 1967 and 1993 referenda held in Puerto Rico. The idea that residents of Puerto Rico must continue to vote until they 'get it right' and support statehood is a mockery of the electoral process and amounts to the Congress demanding that Puerto Rico accept statehood, like it or not.

Puerto Rico's pro-statehood Governor Pedro Rossello conceded this point during his speech at Harvard University in favor of the House version of this legislation (the Young bill--H.R.856):

Defenders of the status quo strenuously object to the Young Bill. They call it a "statehood bill." They object because the bill explicitly acknowledges that the status quo – our so-called "commonwealth status" – is not, and can never be, a "sovereign" option.

The bill (at my request, incidentally) does include the status quo as an option on the referendum ballot. But the bill candidly and honestly concedes that a referendum victory for the status quo would constitute a defeat for self-determination. Accordingly, it describes such an outcome as "inconclusive" and directs that, under such circumstances, there shall be further referenda – at least once every ten years – until such time as a majority of the Puerto Rican electorate expresses a preference for either shared sovereignty (through statehood) or "separate sovereignty" as an independent republic.

The Murkowski version of the Young bill does not require referenda every ten years-but the principle is the same.

--prepared August 19, 1998 by the legislative staff of English First