House Republicans could move as soon as next week to try to nullify the 2013 D.C. referendum that limits the role Congress plays in approving the city's annual budget, just as the D.C. Council is readying to cast a first vote on the city's 2017 budget.
The move comes after a hearing in the House Oversight Committee on Thursday where Rep. Mark Meadows (R-NC) and a trio of witnesses — including former D.C. Attorney General Irv Nathan — expressed doubts over the legality of the 2013 referendum, which was approved by 83 percent of voters. The referendum amended the 1973 Home Rule Charter to cut down on how long Congress has to review and make changes to the city's budget.
"The [referendum] is null and void and implementation of it may put D.C. officeholders and their actions in legal jeopardy," said Nathan, who served under Mayor Vincent Gray (D) and fought the referendum after it was approved by voters.
Nathan and Meadows argued that as part of a compromise that allowed the charter to pass in 1973, Congress opted to retain broad power over the city's budget. Under the charter, city officials submit a budget to Congress, which can make changes to it. The city's budget is then incorporated and voted on as part of the broader federal budget.
They also said that the provisions of the charter prohibit D.C. officials or voters from making any changes that would dilute Congress's power, which they said the referendum does.
But proponents of the referendum disagreed, arguing that a decade after the charter was passed a Supreme Court ruling gave the city a bigger opening to propose amendments to it. They also pointed to a March ruling from a D.C. judge upholding the referendum.
"What this means is that budget autonomy is, indisputably, the law of the District of Columbia," said Brian Netter, an attorney who represented the Council in its legal fight with Gray and Nathan over the referendum.
After the March ruling, D.C. legislators said they intended to follow the referendum in approving the local portion of the city's budget, which amounts $10 billion of the $13.4 billion budget. That means that after two votes in the Council, the budget will be sent to Capitol Hill for a 30-day review. Unless Congress explicitly rejects it, the budget would be considered enacted after the review period and take effect on Oct. 1.
Speaking on Thursday, Council Chairman Phil Mendelson said that budget autonomy improves the budget process and lets the city plan better.
"Among other things, local budget autonomy saves the District money, allows us to better forecast our budgets, and ensures local services are not interrupted by federal budget battles," he said.
But Meadows warned that if the Council moves ahead as planned, the city could run the risk of violating the federal Anti-Deficiency Act, a law that prohibits government agencies from spending money that hasn't explicitly been appropriated by Congress. Meadows is preparing a bill that would nullify the referendum and prohibit the Council from taking any further steps to claim budget autonomy.
It quickly drew a rebuke from D.C. Del. Eleanor Holmes Norton, who said that the March court ruling served as evidence that the referendum was legally sound and that city officials would not run the risk of violating the Anti-Deficiency Act.
"It is clear that our committee had planned to mark up a bill to repeal the [referendum], passed by D.C. voters and upheld in court, even before today’s hearing and regardless of what the witnesses explained," she said.
Nathan said that while he opposed the referendum as a means to achieve budget autonomy, he broadly believed the city should be freed from congressional interference in its annual budgeting process. To get there, he said, Congress would have to act.
"I think it's pretty clear ... that the officials in the District of Columbia are responsible stewards of the D.C. budget. The right solution to avoid this future litigation ... is for Congress to recognize the validity of what has been said here and pass budget autonomy," he said.
Meadows' bill isn't a foregone conclusion. It would have to pass in the House and the Senate, and then also get a presidential signature. But it's possible that Republicans could add the measure into a bigger piece of legislation and try to get it enacted that way.