Autonomy vote stands on solid legal ground

The proposed referendum would amend the budget process set out in Section 446. Section 303 does not prohibit the District from amending Section 446. One does not have to be a lawyer to understand that if Congress wanted to exempt the budget process from a referendum, it could have included it in Section 303’s list of prohibited items. It did not do so.

Witkowski and Becker ignore that basic point. They argue that Congress prohibited a referendum on Section 446 circuitously — by referencing Section 603(a) in the list of prohibited items. But Section 603(a) is not framed as a “limitation” on the council’s authority, as are other provisions in Section 603. It is instead framed as an interpretive direction that “nothing in this Act shall be construed” to change then-existing law regarding the District’s budget process.

There is no doubt that the law, as it stood at the time the Home Rule Act was passed, prohibited the District from obligating or spending local funds without an affirmative congressional enactment. This is not, however, the legal question raised by the council’s referendum proposal. Rather, the question is whether the Home Rule Act prohibits the council from changing this process now. Section 603(a) is not most naturally read as such a prohibition.

Finally, the authors raise concerns about the Anti-Deficiency Act, a federal statute that prohibits D.C. officials from spending funds that are not covered by an available fund or appropriation. But if the referendum becomes law, the District would be able to obligate and spend local funds pursuant to a valid legislative appropriation.

The bottom-line concerns raised by the authors come down to fear that a court may overturn the referendum or that Congress may view it as a challenge to its authority. We concede those risks. But if we let the possibility of a challenge stifle every initiative to secure our fundamental rights, we will never win our rightful place in America’s democracy.