[House Report 110-597]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-597
======================================================================
PUERTO RICO DEMOCRACY ACT OF 2007
_______
April 22, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 900]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 900) to provide for a federally sanctioned self-
determination process for the people of Puerto Rico, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Puerto Rico Democracy Act of 2007''.
SEC. 2. PUERTO RICAN DECISION ON PRESENT STATUS.
(a) Plebiscite.--The Puerto Rico State Elections Commission shall
conduct a plebiscite in Puerto Rico not later than December 31, 2009.
The two options set forth on the ballot shall be preceded by the
following statement: Instructions: Mark one of the following two
options:
(1) Puerto Rico should continue to have its present form of
territorial status and relationship with the United States. If
you agree, mark here __________.
(2) Puerto Rico should pursue a constitutionally-viable
permanent non-territorial status. If you agree, mark here
__________.
(b) Recommendatons.--If a majority of the validly-cast ballots in the
plebiscite favors Option 2, Congress recognizes the inherent authority
of the People of Puerto Rico to--
(1) call a Constitutional Convention, constituted by a number
of delegates to be determined in accordance to legislation
approved by the Commonwealth of Puerto Rico, for the purpose of
proposing to the People of Puerto Rico a self-determination
option which, if approved by the People of Puerto Rico in a
referendum, would be presented to Congress by the
Constitutional Convention; or
(2) conduct a plebiscite administered by the Puerto Rico
State Elections Commission to consider a self-determination
option with the results presented to Congress.
SEC. 3. APPLICABLE LAWS AND OTHER REQUIREMENTS.
(a) Applicable Laws.--All Federal laws applicable to the election of
the Resident Commissioner shall, as appropriate and consistent with
this Act, also apply to the plebiscite held pursuant to this Act. Any
reference in such Federal laws to elections shall be considered, as
appropriate, to be a reference to the plebiscite, unless it would
frustrate the purposes of this Act.
(b) Federal Court Jurisdiction.--The Federal courts of the United
States shall have exclusive jurisdiction over any legal claims or
controversies arising from the implementation of this Act.
(c) Eligibility; Ballot.--Persons eligible to vote under this
subsection shall, upon timely request submitted to the Puerto Rico
State Elections Commission in compliance with any terms imposed by the
Electoral Law of Puerto Rico, be entitled to receive an absentee ballot
for the plebiscite. Each of the following shall be eligible to vote in
the plebiscite held under this Act:
(1) All eligible voters under the electoral laws in effect in
Puerto Rico at the time the plebiscite is held.
(2) All United States citizens born in Puerto Rico who
comply, to the satisfaction of the Puerto Rico State Elections
Commission, with all Puerto Rico State Elections Commission
requirements (other than the residency requirement) applicable
to eligibility to vote in a general election.
(d) Certification of Plebiscite Results.--The Puerto Rico State
Elections Commission shall certify the results of the plebiscite held
under this Act to the President of the United States and to the Members
of the Senate and House of Representatives of the United States.
SEC. 4. FUNDS.
During the period beginning October 1, 2007, and ending on the date
the President determines that the plebiscite required by this Act has
been held, the Secretary of the Treasury may allocate, from the funds
provided to the Government of Puerto Rico under section 7652(e) of the
Internal Revenue Code, not more than $5,000,000 for this plebiscite to
the State Elections Commission of Puerto Rico to be used for expenses
of carrying out said plebiscite under this Act, including for voter
education materials as certified by the President's Task Force on
Puerto Rico's Status as not being incompatible with the Constitution
and basic laws and policies of the United States. Such amounts shall be
as identified by the President's Task Force on Puerto Rico's Status as
necessary for such purposes.
PURPOSE OF THE BILL
The Purpose of H.R. 900 is to provide for a federally
sanctioned self- determination process for the people of Puerto
Rico.
BACKGROUND AND NEED FOR LEGISLATION
There are four forms of political status defined in the
U.S. Constitution: states, a District that is the seat of the
federal government, Indian Tribes, and territories. The
Constitution does not grant territorial residents the right to
be represented in Congress or to vote for the President and
Vice President. Through its Territorial Clause, Article 4,
Section 3, Clause 2, the Constitution confers on Congress the
power to govern territories in local as well as national
matters. At the time the Constitution was drafted, the lack of
democracy inherent in this model of territorial administration
was viewed as acceptable because the territories then claimed
under U.S. sovereignty were sparsely populated and considered
permanent parts of the country that would ultimately be
admitted into the federal Union as states, at which point full
rights would be extended to the U.S. citizens residing therein.
This approach--premised on the idea that territorial status
was temporary and would ultimately lead to incorporation as a
state--continued as the nation expanded westward. In 1898,
however, this model was called into question when the United
States acquired the Philippines, along with Puerto Rico and
Guam, as a result of the Spanish-American War. There was a
concern that treating these newly-acquired territories as
previously-acquired territories had been treated would lead to
statehood for the Philippines, a troubling prospect for many
Americans at the time. At the same time, however, governing
territories with established populations without granting them
U.S. citizenship and the promise of eventual statehood--or, in
the alternative, nationhood--contradicted the democratic
principles of government embodied in the U.S. Constitution.
A major national debate on the subject was prematurely
quieted by the Supreme Court's decision in Downes v. Bidwell,
182 U.S. 244 (1901), which held that the United States could
exercise sovereignty over and govern territories that had not
yet been incorporated as states, and upon whose residents U.S.
citizenship had not yet been conferred. The Court further held
that the panoply of rights set forth in the Constitution did
not automatically apply to such unincorporated territories. The
Court's ruling recognized that Congress had not yet established
a policy as to whether Puerto Rico would eventually become a
state or an independent nation.
Although the initial aspiration of most Puerto Rican
leaders was statehood, a competing nationalist sentiment
developed among a segment of the Island's residents as time
went on, provoked by (among other things), the Island's now
decades-long status as an unincorporated territory, the
perception that Puerto Rico enjoyed less self-government and
representation in the federal government than it had enjoyed
under Spain's rule; and the fact that Congress had granted the
Island's residents U.S. citizenship in 1917 without an
accompanying promise of statehood. U.S. citizenship was granted
to residents of Puerto Rico soon after it was decided that the
Philippines would be given its independence, and shortly before
Puerto Ricans were made eligible to be drafted into the U.S.
military.
Later, owing to their recognition that many Puerto Ricans
valued their U.S. citizenship and the attendant benefits
(including eligibility for some federal programs and
assistance), as well as their recognition that many government
officials in both the U.S. and Puerto Rico did not favor the
prospect of Puerto Rican independence, some nationalists in
Puerto Rico developed ideas for a new type of status and
relationship between the United States and Puerto Rico.
Pursuant to this status proposal, Puerto Rico would be granted
some national government powers and a bilateral relationship
with the United States that the latter could not unilaterally
change. In addition, Puerto Rico would be able to continue U.S.
territory benefits. The most important of the leaders who
espoused these ideas was Luis Munoz Marin, who became the
territory's highest elected official as president of the Senate
after a 1940 election; who served as its first elected governor
from 1948 to 1964, and who dominated the Popular Democratic
Party (the PDP, not affiliated with the Democratic Party) for
years afterwards, especially with respect to the status issue.
Munoz's decision to shift the PDP from a pro-independence
party to a party that favored his enhanced autonomy proposal
led to the founding of the Puerto Rican Independence Party
(PIP) in 1946. The substantial support that the PIP initially
enjoyed in Puerto Rico was diminished both by increasing Puerto
Rican reliance on and allegiance to the United States, and by
law enforcement efforts against the independence movement on
the part of the Federal Bureau of Investigation and the Munoz
Administration, due to the terrorist activities of extremist
nationalist groups.
In general, politics in Puerto Rico has largely been a
debate among advocates who support either the enhanced autonomy
status proposed by Munoz and others, statehood, or
independence. The current territorial status has never
satisfied Puerto Rican leaders.
In 1950, after it declined the request of Puerto Rican
leaders and President Truman to adopt a bill that would
authorize Puerto Ricans to choose the territory's status from
among a slate of options, Congress enacted legislation (P.L.
81-600) that authorized Puerto Rico to draft a local
constitution that would be submitted for Congressional
approval. The local constitution was to replace provisions in
an earlier federal law that organized the government of Puerto
Rico. Other provisions of law regarding federal-territorial
relations were to continue as the Puerto Rican Federal
Relations Act. The constitution would be made contingent upon
approval by a referendum of the Puerto Rican people and enacted
``in the nature of a compact.''
In considering P.L. 81-600, the predecessor to this
Committee, the predecessor to this Committee's counterpart in
the Senate, and the Executive Branch agreed that the process it
provided for would not change Puerto Rico's fundamental
relationship vis-a-vis the United States. Governor Munoz and
Resident Commissioner Fernos Isern, both of the PDP, agreed
that the law would not end the plenary authority of Congress
over Puerto Rico.
A Puerto Rican referendum approved the procedure for
adoption of a local constitution set out in P.L. 81-600, and a
constitution was subsequently drafted. The constitution was
approved by a 1952 federal statute, P.L. 82-447, contingent
upon the constitutional convention making certain changes. This
process for adoption of a local constitution was referred to as
``a compact.'' Legislative history reiterated that Puerto
Rico's relationship to the United States was not being changed
by virtue of this process and that congressional authority over
Puerto Rico would continue. The constitution took effect after
being approved by an insular referendum held in 1952. The
referendum was not a political status vote: neither statehood
nor independence was on the ballot, and approval of the local
constitution did not define a new political status for the
territory.
A series of federal laws, all enacted prior to 1950, had
provided for an elected legislature and governor, as well as a
non-voting Resident Commissioner to serve in the U.S. House of
Representatives. The only real authority that Puerto Rico
gained through the 1950-52 process was the authority to amend
the charter of the local government consistent with federal law
and to appoint the insular auditor and local Supreme Court
justices. (Other limitations on Puerto Rico's exercise of self-
government authority on local matters, including a limit on
borrowing authority, were lifted by subsequent statutes.) But
the 1950-52 process was noteworthy because it marked the first
time that a territory was authorized to draft a constitution
without being readied for statehood or nationhood.
The constitution named the local government the ``Estado
Libre Asociado'' in Spanish, which translates literally as
``Associated Free State'' in English. Under international law,
a freely associated state is a sovereign nation in a joint
governing arrangement with another nation that either nation
can unilaterally end. The United States is in free association
with three Pacific island nations that it formerly administered
as parts of a trust territory for the United Nations
(Micronesia, the Marshall Islands, and Palau). The 1950 and
1952 federal laws clearly did not make Puerto Rico an
independent nation in free association with the United States.
Because Puerto Rico, by virtue of its status as a territory,
was not able to choose, on its own, to become an independent
nation, a sovereign nation-state in free association with the
United States, or a state, its constitutional convention
resolved that the local government would be called ``the
Commonwealth'' in English.
The term ``commonwealth'' does not denote a particular
political status. The term is used in the formal names of four
U.S. States (Massachusetts, Pennsylvania, Virginia, and
Kentucky) and another jurisdiction subject to congressional
authority regarding territories (the Northern Mariana Islands).
Although ``commonwealth'' does not signify status in the way
that the terms ``State,'' ``nation,'' and ``territory'' do,
Puerto Rico is often referred to as a ``commonwealth'' and said
to have ``commonwealth status.'' Further, ``commonwealth'' is
also sometimes used as shorthand to refer to the governing
arrangement between the United States and Puerto Rico. Finally,
as if these different usages of the word were not confusing
enough, ``commonwealth'' is used to refer to the PDP's enhanced
autonomy proposals.
The confusion over the meaning and significance of the term
``commonwealth'' has been a major factor contributing to Puerto
Ricans not determining their preference regarding the Island's
future political status. (The confusion has also hampered
congressional action on this issue.) An aspect of the question
in Puerto Rico (although not in the federal government) is
whether Puerto Rico is still a territory. Puerto Rican leaders
do not want Puerto Rico to be a territory. Use of the word
``commonwealth'' obscures the issue for many Puerto Ricans, who
ask: Is ``Commonwealth'' a territory status or something
different? Does it refer to the status quo or to the PDP's
enhanced autonomy proposal?
In large measure, the confusion is one of semantics.
Whether Puerto Rico is called a ``commonwealth'' or a
``territory,'' the important issue is the extent of U.S. and
Puerto Rican authority. Like other territories, Puerto Rico
exercises authority over local government matters that is
similar to the authority that states possess, but unlike
states, territories do not have a zone of reserved sovereignty
that is beyond the reach of Congress in the latter's exercise
of its territorial powers. Thus, the Constitution's Territorial
Clause continues to apply with respect to Puerto Rico, as has
been determined by the Supreme Court. See, e.g., Harris v.
Rosario, 446 U.S. 651 (1980). The same conclusion has also been
reached by the Departments of Justice and State, the Government
Accountability Office, the Congressional Research Service, and
both this Committee and its Senate counterpart. The Supreme
Court has also ruled that Puerto Rico is autonomous, like a
State, over matters not governed by the Constitution, but this
holding is not inconsistent with the Court's holding that the
Territorial Clause applies--because the Territorial Clause is
part of the Constitution and all federal laws applicable to
Puerto Rico implement the Constitution and are the supreme law
in the territory. See Rodriguez v. Popular Democratic Party,
457 U.S. 1 (1982). A PDP contention that the Court's holding in
Harris is limited to federal programs has no basis in the
ruling, which did not so qualify its holding.
The issue of whether Puerto Rico is more properly called a
``commonwealth'' or a ``territory,'' like the issue of
Congressional authority to alter the current allocation of
power between the federal and local governments, both obscures
and distracts from the real issue: namely, that Puerto Ricans
lack nearly all aspects of voting representation in the federal
government that enacts and enforces their national laws. The
Resident Commissioner has been granted the authority to vote in
committees of the House. The Resident Commissioner has also
been granted the authority to vote in the Committee of the
Whole--but only if his vote would not determine the outcome of
the question at issue. Beyond this, Puerto Ricans are
unrepresented in the federal government. By contrast, a state
with an equivalent population would have six representatives,
two senators, and would participate fully in the election of
the President and Vice President (with an eight-member
Electoral College delegation). As former PDP Governor Rafael
Hernandez Colon has written, despite the divergent views that
Puerto Ricans have with respect to their preferred political
status, ``[a]ll factions do agree on the need to end the
present undemocratic arrangement whereby Puerto Rico is subject
to the laws of Congress but cannot vote in it.''
After the insular constitution took effect in 1952, leaders
of the PDP began to claim that Puerto Rico was no longer a
territory, congressional authority regarding the Island had
been permanently limited, and Congress could not change the
federal-territorial governing arrangement or policies
encompassed by it. These claims were made despite the fact that
leaders of the PDP had agreed with federal officials that the
opposite was true when the arrangement was being established,
and notwithstanding the fact that the ``compact'' provided only
for the adoption of a local constitution and the continuation
of provisions of federal law regarding the Island without
placing any limits on federal authority. In essence, the
argument of the PDP has been that the governing arrangement
cannot be unilaterally changed because it was mutually
established and this permanently limits federal territory
governing authority. A simplified version of the argument is
that the arrangement cannot be changed by Congress because it
was called ``a compact.''
These ``compact'' arguments are not supported by the
history of the authorization and approval of the federal-
territorial arrangement. These arguments are likewise
undermined by the federal modifications that have been made to
the arrangement since its establishment. For example, The
Puerto Rican Federal Relations Act provided that all federal
taxes collected on Puerto Rican products would be granted to
Puerto Rico. Subsequent statutes have limited the covered
products to just one--rum--and authorized the federal
government to retain portions of the taxes in the U.S. Treasury
for other federal purposes. To cite another example: although
the local constitution prohibits capital punishment,
subsequently-enacted federal laws have applied capital
punishment in Puerto Rico, thereby overriding the prohibition
in the local constitution and belying the claim that mutual
consent is required for changes to be made to the federal-
territorial governing arrangement.
In support of their claim, PDP officials have cited
statements made by two U.S. representatives to the United
Nations during a 1953 debate. The debate concerned Resolution
748, which then-Governor Munoz prevailed upon the U.N. General
Assembly to pass. The U.N. Charter requires a member nation
that exercises sovereignty over a ``non-self-governing
territory'' to submit an annual report regarding that
territory. Resolution 748 called for Puerto Rico to be removed
from the list of non-self-governing territories. The United
States was happy to be relieved of its reporting responsibility
(and thus supported the Resolution), but it declined to accede
to Munoz's request that the United States declare that Puerto
Rico was no longer a U.S. territory. When confronted with the
claims of other member nations that Puerto Rico was not in fact
self-governing at the national government level, however, the
two U.S. representatives verbally endorsed the PDP's claims
that the ``compact'' could not be unilaterally amended.
Statements by diplomats do not override the Constitution and
federal laws, and, in any event, the U.S.'s written submission
to the U.N. justifying Resolution 748 was more carefully
worded. The written submission emphasized Puerto Rico's local
self-government but did not state that Puerto Rico was no
longer a territory exempt from federal authority, nor state
that the compact could not be unilaterally changed by the
United States. The written submission also explained that
Puerto Rico's local self-government was subject to the U.S.
Constitution and federal laws.
As previously noted, notwithstanding the oral statements
made during debate over Resolution 748, the Supreme Court has
held that the Territorial Clause continues to apply to Puerto
Rico. Some concede this point, but assert that federal
territory governing authority only applies to the application
of federal programs in Puerto Rico--on the rationale that the
Supreme Court's ruling in Harris v. Rosario, 446 U.S. 651
(1980), concerned a federal program. However, the decision in
Harris does not provide any basis for this interpretation. To
the contrary, the straightforward holding is that ``Congress .
. . is empowered under the Territory Clause . . . to `make all
needful Rules and Regulations respecting the Territory . . .
belonging to the United States.''' It is clear that Harris was
not qualified or limited in the manner posited by some
commonwealthers.
Under United States pressure, General Assembly Resolution
748 passed--though only narrowly and with many countries
abstaining. The debate over Resolution 748 prompted the United
Nations to agree on governing arrangements that would provide
full self-government to non-self-governing territories: in
United States terms, these arrangements were statehood,
independence, and free association. In addition, Paragraph 9 of
the Resolution recognized that the federal-territorial
relationship was not permanent and could be altered by the
parties exercising their powers under applicable constitutional
arrangements. Paragraph 9 also expressed the expectation that a
permanent status would be chosen in a process that had due
regard for the freely-expressed wishes of the inhabitants of
the territory.
In 1959, PDP representatives began to seek national
government powers, with the United States continuing to grant
domestic programs and citizenship. This effort has continued to
the present day and is the other major reason why Puerto Ricans
have yet to determine their preference with respect to the
Island's ultimate political status. The hope that such a
``best-of-both-worlds'' status can be created has resulted in
many Puerto Ricans not expressing a preference between the only
constitutionally-valid permanent non-territorial status
options: statehood, independence, and free association. A bill
that Puerto Rico's representatives proposed in 1959 which
incorporated the ``commonwealth'' theme was rejected in
committee. But, notwithstanding the failure of that bill and
other ``commonwealth'' proposals, the PDP still contends that
the full Congress has not provided a definitive response to
their ideas.
In 1962, talks with a task force of the Kennedy White House
led to an agreement that the ``Commonwealth concept'' could be
developed into ``a permanent institution,'' despite the fact
that it cannot provide a democratic form of government at the
national government level. The task force also, however,
determined that there should be a referendum with the options
of independence and statehood included as well. A 1963 bill
introduced in response to a request of PDP representatives
would have provided for the referendum with a ``compact of
permanent union'' option drafted by a United States-Puerto Rico
commission. The compact was to limit U.S. powers in Puerto
Rico, provide for Puerto Rican participation in federal
activities, and include Puerto Rican financial contributions to
the United States. But this compact proposal was rejected in
committee.
In 1964, a law was enacted establishing a United States-
Puerto Rico commission to study the issue of Puerto Rico's
status. In 1966, the commission called for a referendum with
the options of statehood, independence, and a developed
``commonwealth'' in an association that could be binding upon
the U.S. The commission also recommended further joint advisory
groups on status proposals.
A PDP proposal for some greater powers for Puerto Rico won
60% of the vote in a 1967 referendum. Although the Statehood
Republican Party boycotted the referendum--as did the PIP--some
pro-statehooders participated and won 39% of the vote. They
then founded a new statehood party, the New Progressive Party
(NPP). The NPP won most local elected offices in 1968.
By 1965, Cuba had begun asking the United Nations to re-
examine Puerto Rico's status. Starting in 1971, Cuba introduced
annual resolutions on the issue in the Decolonization
Committee. The United States has blocked General Assembly
action and stopped cooperating with the Decolonization
Committee. The U.S. position has not been, as some assert, that
Puerto Rico is not a territory. Rather, the U.S. position of
record, based on General Assembly Resolution 748, is that the
Decolonization Committee lacks jurisdiction, that the matter is
one for the United States and Puerto Rico to resolve, and that
Puerto Rico has not sought a new status.
Puerto Rico's economy experienced steady and impressive
growth beginning with the Roosevelt Administration policies in
the 1940s and continuing through the mid-1970s, which resulted
in the Island closing the income gap with the United States.
Since the mid-1970's, however, the Puerto Rican economy has
stagnated and fallen well behind that of the nation as a whole.
In 1984, Hernandez Colon was re-elected as Governor on the
pledge to focus his attention on the economy rather than
status. The Committee was asked to conduct hearings on the
state of the Puerto Rican economy. These hearings made plain
that economic solutions on the Island are largely tied to
political solutions. Policies that are appropriate for a
prospective State may not be appropriate for a prospective
independent nation, and vice-versa. Accordingly, Puerto Rico's
lack of direction towards a permanent political status made it
difficult to devise federal policies towards the Island that
were sensible and informed.
Re-elected again in 1988, Governor Hernandez Colon proposed
that Congress sponsor a referendum among ``Commonwealth,''
statehood, and independence options, with a pledge from
Congress that it would implement the results of the referendum.
Governor Hernandez Colon was joined in his request by the
presidents of the NPP and the PIP, as well as by President
George H.W. Bush, who used the opportunity of his first address
to Congress to urge that body to enact this legislation.
Later, in 1989, the Senate Energy and Natural Resources
Committee reported legislation for a referendum on committee-
modified versions of statehood, independence and
``commonwealth'' bills proposed by Puerto Rico's political
parties, with the majority choice to be automatically
implemented. In the following year, the House passed a
different bill, H.R. 4765, which would have provided for a
referendum among Puerto Rican ``commonwealth,'' statehood, and
independence proposals (without defining those proposals);
Congressional consideration of the proposal that won, and a
Puerto Rican referendum on the proposal as passed by Congress.
In 1993, the pro-statehood government of Puerto Rico led by
Governor Pedro Rossello conducted a referendum among status
options proposed by Puerto Rico's political parties. The PDP
submitted a debatable proposal that obtained a slight plurality
over statehood, but not a majority. In 1994, the Clinton
Administration reacted by proposing that there be yet another
referendum with status options that were Puerto Rican proposals
as agreed to by the federal government and implementation of
the majority choice.
In 1996, the Committee on Resources and the Committee on
Rules reported legislation that provided for a two-question
referendum. The first question was between continuing
unincorporated territory status labeled ``Commonwealth'' and
seeking nationhood or statehood and the second question was
between nationhood and statehood. If continuing territory
status was chosen, the bill would have provided for periodic
referenda on the question. The legislation was not considered
by the House.
In 1997, Committee on Resources Chairman Don Young (R-AK)
introduced a similar measure, H.R. 856, which called for a
referendum where voters could choose between commonwealth,
separate sovereignty, or statehood. The legislation passed the
House in 1998 and the Senate Energy and Natural Resources
Committee held hearings but no further action was taken.
In December 1998, Puerto Rico held a referendum under the
authority of local law. The status options offered to voters
followed closely with the status options in legislation being
considered by Congress. However, a choice of ``None of the
Above'' was also included on the referendum ballot. In this
latest referendum, ``None of the Above'' received 50.2% of the
vote, ``Statehood'' 46.5%, ``Independence'' 2.5%, ``Free
Association'' .02%, and ``Commonwealth'' .01%.
A report, entitled The Results of the 1998 Puerto Rico
Plebiscite (106th Congress, Serial No. 106-A), issued by
Chairman Young and Ranking Member Miller in November 1999,
noted that advocates for an alternative commonwealth
definition, which did not appear on the 1998 ballot,
``contained principles rejected on a bipartisan basis by the
Committee on Resources during consideration of H.R. 856.'' The
report further stated that Congress has the responsibility to
provide a process for a Puerto Rican status choice among real
options.
In 2000, President Clinton took several steps to resolve
the status issue. The first was to host a summit with Puerto
Rican leaders and Congressional committee representatives. At
the summit, PIP President Berrios proposed that a Presidential
task force be formed to continue efforts on the issue into the
succeeding administration and that the Presidential candidates
be asked to continue the effort. The presidential candidates
pledged to do so. The President subsequently established the
Task Force with the dual mission of (1) answering Puerto
Ricans' questions about the options and the process for
determining Puerto Rico's status until an ultimate status was
implemented, one that provides for a representative form of
government at the national government level, and (2)
encouraging action on the issue, in consultation with Puerto
Rican and Congressional leaders.
The Clinton Administration also responded to a request from
this Committee and the Senate Energy and Natural Resources
Committee that it provide a report on the status proposals of
all three of Puerto Rico's political parties with an
accompanying constitutional analysis. The Clinton
Administration found that the proposals of the NPP and PIP were
generally acceptable, but that the PDP ``Development of the
Commonwealth' proposal violated the Constitution in several
respects.
These concerns by the Clinton Administration were expressed
to this Committee during a legislative hearing held in 2000 on
H.R. 4751, which would have implemented the ``Development of
the Commonwealth'' proposal. Testimony presented by the
Department of Justice stated that the ``mutual consent
provisions [of the Developed Commonwealth proposal] are
constitutionally unenforceable'' because ``one Congress cannot
bind a subsequent Congress.'' In addition, with respect to
making a ``Developed Commonwealth'' legally and
constitutionally its own nation, the State Department testified
that ``the exercise of a parallel and co-existing foreign
affairs authority by a subfederal unit of the United States
would not only be unconstitutional, but retrogressive and
impractical as well.''
In December 2005, the Task Force appointed by President
Bush, after considering extensive input from political parties
in Puerto Rico, as well as the Island's elected leaders,
finally reported its findings to Congress. It reiterated the
U.S. government's position that Puerto Rico remains an
unincorporated territory and rejected the ``Developed
Commonwealth'' proposal, agreeing with previous positions
expressed by earlier Administrations.
The Task Force's Report addressed other issues as well. For
example, it noted that the United States citizenship of Puerto
Ricans would have to be addressed in the event that Puerto Rico
was to become a nation. Although the general practice in
history has been that citizenship follows nationality, a
Department of Justice opinion attached to the report concluded
that the citizenship of individual Puerto Ricans probably could
not be taken away even in the event of independence.
The President's Task Force recommended that Congress
provide for the people of Puerto Rico to choose whether to
continue the status quo or seek a permanent non-territorial
status. If a majority of Puerto Ricans vote to continue
territory status, the Task Force recommended that additional
plebiscites be conducted on a periodic basis, so as to ensure
that Puerto Ricans continue to have a process to seek a
democratic status and have intervals between status votes. If
the Puerto Rican people, at some point, choose to seek an
alternative permanent status, the Task Force recommended that
Congress should then provide for a plebiscite with statehood,
independence, and, possibly, free association options. After a
status is chosen, Congress should begin the transition process.
One hundred and ten years after Puerto Rico was acquired
from Spain, its 3.9 million U.S. citizens still have an
unsettled political status. All peoples are entitled to a form
of government that provides for equal voting representation in
the making and implementation of their laws. Puerto Rico's
current status, as a form of government subject to
congressional authority under the Territory Clause, cannot be
considered permanent, even if called ``commonwealth.'' Although
Congress has the authority to manage the self-determination
process for Puerto Rico based on constitutionally-viable
options, a Congressionally-sponsored vote in Puerto Rico has
never taken place in more than a century under U.S.
sovereignty.
Recent legislative proposals introduced in the U.S. House of
Representatives
109th Congress
H.R. 4867 (Fortuno, R-PR)--Puerto Rico Democracy Act; would
have enacted the recommendations made in the Report by the
President's Task Force on Puerto Rico's Status. Would have
authorized a plebiscite to be held during the 110th Congress,
giving voters the option to vote for continued U.S. territorial
status (status quo) or for a path toward a constitutionally
viable permanent non-territorial status (statehood or
independence). Provided for subsequent action based on results.
H.R. 4963 (Duncan, R-TN)--Puerto Rico Self Determination
Act of 2006; authorized the calling of a constitutional
contention through the election of delegates for the purpose of
establishing a mechanism for self-determination. Political
status choices could have included new commonwealth, statehood,
and independence.
106th Congress
H.R. 4751 (Doolittle, R-CA) , Puerto Rico-United States
Bilateral Pact of Non-territorial Permanent Union and
Guaranteed Citizenship Act; would have recognized Puerto Rico
into a permanent union with the United States as a non-
territorial autonomous political body, which would retain all
powers not delegated to the U.S. with guaranteed irrevocable
U.S. citizenship. The text of this legislation is similar to
the proposal that the PDP approved as its definition for
commonwealth.
105th Congress
H.R. 856 (Young, R-AK)--United States-Puerto Rico Political
Status Act; authorized a process to determine the ultimate
status of Puerto Rico and defined options. While the NPP and
PIP supported the bill's statehood and independence options
respectively, the PDP opposed the language defining
commonwealth. The bill passed the House with no further action
by the Senate.
COMMITTEE ACTION
H.R. 900 was introduced on February 7, 2007, by
Representative Jose E. Serrano (D-NY). The bill was referred to
the Committee on Natural Resources, and within the Committee to
the Subcommittee on Insular Affairs. On March 22 and April 25,
2007, the Subcommittee convened legislative hearings on H.R.
900 and an alternative measure (H.R. 1230) sponsored by
Representative Nydia Velazquez (D-NY).
Over the course of the two legislative hearings, the
Subcommittee heard from 25 witnesses, including the Governor of
Puerto Rico, the presiding officers and principal minority
leaders of the Legislative Assembly of Puerto Rico, the
presidents of Puerto Rico's two other major political status-
based political parties, a representative of the President of
the United States, other officials of Puerto Rico,
representatives of other Puerto Rican political and non-
partisan organizations, constitutional experts, and the
Congressional Research Service.
On October 23, 2007, the Subcommittee was discharged from
further consideration of H.R. 900 by unanimous consent and the
full Natural Resources Committee met to consider the bill.
Chairman Nick J. Rahall, II (D-WV) offered an amendment in
the nature of a substitute (ANS). The Rahall ANS would provide
for a single plebiscite to be held no later than December 31,
2009, giving voters the option to vote to continue the current
U.S. territorial status (status quo) or for a constitutionally
viable permanent non-territorial status. The ANS did not
include any further plebiscites. Instead, if the non-
territorial status option were to receive a majority of votes
cast, then the results of the plebiscite would be submitted to
the President's Task Force on Puerto Rico's Status to develop
recommendations to the Congress.
Delegate Donna Christensen (D-VI) offered an amendment to
the Rahall ANS which would strike Section 2(b) of the Rahall
amendment, which called on the President's Task Force on Puerto
Rico, in consultation with leaders of Puerto Rico, to make
recommendations to Congress within six months of the plebiscite
required by Section 2(a) if a majority of validly cast ballots
favored a non-territorial status. Instead the Christensen
amendment provides for Congress to recognize the authority of
Puerto Rico to either convene a constitutional convention or
hold a subsequent plebiscite to determine the people's choice
for Puerto Rico's future political status and relationship with
the United States. The Christensen amendment was agreed to by
voice vote.
Delegate Eni Faleomavaega (D-AS) offered an amendment
(Faleomavaega .031) to the Rahall ANS which would have the
people of Puerto Rico choosing between three status options:
continuing the existing Commonwealth, admission as a State, or
a sovereign nation. If no status received a majority of votes
cast, then the two status options receiving the most votes
would be placed on the ballot in the next election. The
amendment was withdrawn, without objection.
Delegate Faleomavaega offered a second amendment
(Faleomavaega .032) to the Rahall ANS. Similar to the previous
amendment, Faleomavaega .032 would propose the same status
options; however, in the event that no status option received a
majority of the votes cast, separate referenda would be
required--no later than two years of each other--on the two
status options receiving the most votes. The amendment was not
agreed to by voice vote.
Delegate Faleomavaega offered a third amendment
(Faleomavaega .030) to the Rahall ANS. This amendment would
propose three separate referenda, one for each status option.
The result of each respective referendum would precipitate
further action by the U.S. Congress. The amendment was
withdrawn, without objection.
The Rahall amendment in the nature of a substitute, as
amended by the Christensen amendment, was adopted by voice
vote, and the bill was favorably reported, as amended, to the
House of Representatives by voice vote.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 provides that this Act may be referred to as the
``Puerto Rico Democracy Act of 2007.''
Section 2. Puerto Rican decision on present status
Section 2(a) would require the Puerto Rico State Elections
Commission to conduct a plebiscite not later than December 31,
2009 in which eligible voters (as defined in Section 3(c))
would select their preference, from among two options, as to
whether Puerto Rico should (1) continue its present form of
territorial status and relationship with the United States, or
(2) pursue a constitutionally viable permanent non-territorial
status.
Section 2(b) would recognize that, should a majority of
voters in the plebiscite express the preference for Option (2),
Puerto Rico has the authority to (1) call a constitutional
convention, in accordance with Puerto Rico's constitution and
local laws, that could propose a non-territorial status option
which, if approved by the Puerto Rican people in a referendum,
would be presented to the Congress, or (2) conduct a
plebiscite, administered by the Puerto Rico State Elections
Commission, to consider a non-territorial status option, with
the results of that plebiscite presented to the Congress. The
Committee believes that Section 2(b) recognizes mechanisms
which Puerto Rico already has the authority to undertake
pursuant to its local constitution. Furthermore, the Committee
emphasizes that Section 2(b) should not be read to limit or
preclude the Government of Puerto Rico from employing any
procedural mechanism for choosing a non-territorial status
option so long as that mechanism comports with Puerto Rico's
constitution and local laws.
It is the intent and expectation of the Committee that any
convention or plebiscite would be conducted only after the
plebiscite required by Section 2(a), and only if a majority of
voters in that plebiscite cast their ballots in favor of
pursuing a constitutionally viable permanent non-territorial
status (i.e., Option 2).
The Committee recognizes that if Option 2 were implemented,
such implementation would require legislative action to
relinquish Congress's authority over Puerto Rico under the
Territorial Clause of the U.S. Constitution.
A convention or a plebiscite on such a constitutionally
viable permanent non-territorial status option would choose one
of three status options: (1) independence, (2) nationhood in a
free (i.e., unilaterally terminable) association with the
United States, or (3) U.S. statehood. These choices represent
all of the possible non-territorial status options that are
currently viable under the U.S. Constitution and international
law. The Committee emphasizes its expectation, which is
consistent with the colloquy held between Chairman Rahall and
Resident Commissioner Fortuno during the Full Committee's
markup of H.R. 900, that a convention, plebiscite, or other
procedural mechanism should only consider non-territorial
status options that are compatible with the Constitution and
basic laws and policies of the United States. To best ensure
this criterion is met, the delegates to the convention or the
drafters of the options to be included in the plebiscite should
consult with federal authorities on issues of U.S. law and
policy.
The Committee agrees with the statement of then-Chairman
Don Young and Ranking Member George Miller in a report to the
Committee, dated November 19, 1999, that a new or modified
Commonwealth status proposal rests on ``principles rejected on
a bipartisan basis by the Committee.'' Such a proposal is not a
viable status option and cannot be accepted under any
circumstance because it is incompatible with the Constitution
and basic laws and policies of the United States. This
conclusion has been supported by:
the Clinton Administration, through statements
by the President's Interagency Group on Puerto Rico and the
Departments of Justice, State, and Labor during a hearing of
the Committee in 2000 and during a Justice Department report to
the Committee in 2001;
the Bush Administration, through the President's
Task Force on Puerto Rico's Status in its December 2005 and
2007 Reports, and in statements during the Committee's 2006
hearing on the report and in Administration statements during
the Committee's April 25, 2007 hearing on this legislation;
the Congressional Research Service at the March
22, 2007 hearing on this legislation; and
Committee Members from both political parties
during each of the above referenced hearings.
Section 3. Applicable laws and other requirements
Section 3(a) would make all federal laws that are
applicable to the election of the Resident Commissioner of
Puerto Rico in the United States Congress applicable to the
plebiscite mandated by Section 2(a) on the question of whether
voters want to continue Puerto Rico's current status or to seek
a constitutionally viable permanent status not subject to
Territorial Clause authority, unless application of those
federal laws would frustrate the purposes of this legislation.
Section 3(b) would vest in the federal courts exclusive
jurisdiction over any legal claims or controversies arising out
of the implementation of the plebiscite required by Section
2(a).
Section 3(c) would prescribe the eligibility requirements
for voting in the plebiscite required by Section 2(a).
Section 3(d) would require the Puerto Rico State Elections
Commission to certify the results of the plebiscite required by
Section 2(a) to the President of the United States and to the
Senate and House of Representatives of the United States.
Section 4. Funds
Section 4 would provide that the Secretary of the Treasury
may allocate to the Puerto Rico State Elections Commission for
the purposes of conducting the plebiscite required by Section
2(a) up to $5 million from the funds already required to be
provided to the Government of Puerto Rico for unspecified
purposes.
The Puerto Rico State Elections Commission may use such
funds for voter education materials--which the Committee
believes will be necessary given the confusion in Puerto Rico
with respect to the Island's current status and its non-
territorial status options--if the materials are certified by
the President's Task Force as not containing assertions that
are incompatible with the Constitution and basic laws and
policies of the United States. This provision was included
because misleading and factually incorrect contentions have
been made and non-viable proposals have been offered with
respect to Puerto Rico's current status and its alternative
status options in past status referenda in the Island.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 and Article IV, section 3 of the
Constitution of the United States grants Congress the authority
to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to provide for a federally sanctioned
self-determination process for the people of Puerto Rico.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 900--Puerto Rico Democracy Act of 2007
H.R. 900 would require Puerto Rico to conduct a plebiscite
(a direct vote where an electorate is asked to either accept or
reject a particular proposal) by the end of 2009 on whether the
island should retain its current relationship with the United
States or pursue a permanent nonterritorial status. If the vote
favors the ending of territorial status, the legislation would
recommend that Puerto Rico convene a constitutional convention
or conduct a second plebiscite with other self-determination
options (i.e., independence). In addition, H.R. 900 would allow
the Department of the Treasury to fund the first plebiscite
with up to $5 million from the excise tax on rum imported into
the United States that is currently paid to Puerto Rico (that
amount is known as the tax cover over).
CBO estimates that enacting this legislation would have no
significant impact on the federal budget because all excise
taxes collected on imported rum would be spent under current
law. Under the bill, up to $5 million of the excise tax
collections would be used to fund the plebiscite; thus, a
portion of that money would be spent differently than under
current law.
H.R. 900 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) because it would
require the Puerto Rico State Elections Commission to hold a
vote to determine whether Puerto Rico will remain a U.S.
territory or move toward permanent nonterritorial status. The
commission also would have to certify the result of that
election to the President and the Congress. Information
provided by the Puerto Rico State Elections Commission
indicates that the vote would be held during the regularly
scheduled election in 2008; therefore, CBO estimates that the
mandates would impose costs that would be well below the
threshold established in UMRA ($66 million in 2007, adjusted
annually for inflation). The bill would authorize the Secretary
of the Treasury to allocate up to $5 million of the excise tax
cover over that Puerto Rico receives under current law to
comply with the bill. CBO expects that amount would be
sufficient to cover the costs of holding the vote. H.R. 900
contains no private-sector mandates as defined in UMRA.
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs) and Elizabeth Cove (for the state
and local impact). This estimate was approved by Peter H.
Fontaine, Assistant Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill would require the Puerto Rico State Elections
Commission to hold a vote to determine whether Puerto Rico will
remain a U.S. Territory or move toward permanent non-
territorial status, which would be an intergovernmental
mandate, however the Congressional Budget Office estimates that
the costs of this mandate would be small and would not approach
the threshold established in the Unfunded Mandates Reform Act.
EARMARK STATEMENT
H.R. 900 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
ADDITIONAL VIEWS
While the amended version of H.R. 900 was passed by the
Committee on voice vote, I had at that time, and still have,
serious reservations about the bill in its current form. Should
the bill move forward for additional consideration, we will
need further opportunity to address concerns expressed during
both the Subcommittee hearings and the Committee mark up. While
I believe the amendment to the bill adopted by the Committee
improved the bill, I still feel that the bill, as reported, is
unfair and falls short of what this Congress is capable of
producing to help Puerto Ricans chart a better future for their
political status with the United States.
The amendment did however accomplish two important
objectives. First, the Task Force on Puerto Rico's Status will
not have any role in the process after the first vote in Puerto
Rico. The work of the Task Force was the subject of much
criticism in Puerto Rico and in the Congress and its continued
involvement in this process, as originally contemplated by H.R.
900, would not have been positive. Second, the amendment
recognizes the inherent authority of the people of Puerto Rico
to call a Constitutional Convention, or to conduct a
plebiscite, that will present self-determination options to the
voters in Puerto Rico and, if approved, to the Congress. As the
plain language of the amendment states, the Constitutional
Convention will be free to consider any self-determination
option. The language is clear, and should not be subject to any
other interpretation.
I believe it is necessary to reaffirm the intent of the
amendment that a Constitutional Convention may consider any
self determination option, both because it is the fair and
right thing to do, but also because the bill may be prone to
confusion and manipulation as a result of the way the first
vote is currently structured. That vote essentially asks
whether the people of Puerto Rico want to ``continue to have
its present form of territorial status and relationship with
the United States'' or ``pursue a constitutionally-viable
permanent non-territorial status.'' These are all terms that
are not easily defined, and the bill, as reported, does not
even attempt to define them.
It is clear that many of the terms in the bill, H.R. 900,
are offensive to Commonwealth supporters among others. The
language authorizing the initial vote presented to the people
of Puerto Rico under H.R. 900, as approved by the Committee on
Natural Resources, is confusing and susceptible to
manipulation. More seriously, however, it would seem to pit all
options against Commonwealth--the one option that has received
at least a plurality in all previous votes. In large part
because of the inherent confusion and unfairness of the vote
offered in H.R. 900, I believe it would be preferable to simply
let the people of Puerto Rico to begin the process of resolving
their political status by calling a Constitutional Convention
to draft a proposal for both the people of Puerto Rico and the
Congress to consider. The Constitutional Convention, however,
should not operate in a vacuum, and I would expect the
Convention to consult with the Committees of jurisdiction, as
well as with the Administration, in terms of whether any
particular proposal is feasible before submitting it to the
people of Puerto Rico and the Congress for further action.
I continue to believe we should have a free and fair
process, allowing the people of Puerto Rico to chose between
Commonwealth status, statehood, or independence, as in the
past. And the election should not be unfairly tilted toward any
one of these three choices.
John J. Duncan, Jr.