Legal Happenings
Former Councilmember David Grosso Sees Long Battle Ahead in D.C.’s Pursuit of Autonomy
April 04, 2023
With the recent congressional blockage of the District of Columbia’s long-awaited criminal code reform, the
issue of home rule is as relevant as ever. At the 2023 Judicial & Bar Conference on April 28, the D.C. Bar and the D.C. Courts will gather several legal professionals who have confronted the challenges of the District’s limited ability to self-govern.
One panel session, “Without the Consent of the Governed: Dobbs, Drug Policies, and Other Hurdles in D.C.’s Pursuit of Local Autonomy,” features ArentFox Schiff partner David P. Grosso, who served two terms as an at-large D.C. councilmember and as chief counsel for Congresswoman Eleanor Holmes Norton.
The D.C. Bar recently spoke with Grosso about how his work put him at the center of conflicts between the expressed will of city residents and that of Congress, as well as his perspective on the past, present, and future of the District’s ongoing fight for full representation and autonomy.
What interferences with local autonomy did you encounter in your work on the Council and the Hill?
It’s interesting — the reality of interference by Congress is something that you grow up with in D.C., so it’s something that a lot of people are aware of, and I certainly became quite aware of it when I worked with Councilmember [Sharon] Ambrose as a staffer, and then with Congresswoman Norton up on the Hill.
When I was working with Congresswoman Norton, it was super-interesting because the Democrats were in a majority in both the House and the Senate, and also in the White House, for the first time in many years, so we had the good fortune, at the time, of getting several riders removed that were on the budget. It’s a major feat to get that accomplished. One was the ability to regulate medical marijuana, and the other was the needle exchange program.
The needle exchange program was one of the more consequential riders that Congress put on our budget, which basically prohibited us from establishing [the] program for many years. And when that was lifted by Representative José Serrano, we actually showed a decrease in HIV [by 70 percent] and Hep C transmission between intravenous drug users.
When I was a councilmember, I had several bills that were attacked by Congress. Certainly, the one that is most well known [concerned] the tax and regulation of cannabis, which I introduced in 2013. They put a bar on it starting in December of that year. That was [Maryland Representative] Andy Harris’s amendment, which has become synonymous with how Congress intervenes. It’s still there today. It hasn’t changed in all these years.
The other one that people don’t know as much about is the Reproductive Health Non-Discrimination Amendment Act of 2014, which I introduced, that would protect doctors who wanted to volunteer at reproductive health centers in their time off, but who work for medical institutions that don’t support [that]. It protected them from discrimination in their workplace based on their desire to help in a clinic or through some other volunteer service.
[Congress] did actually introduce a resolution of disapproval on that, but we were able to successfully defeat the resolution, unlike what happened to the Revised Criminal Code Act this year. It’s a long road. There’s been a lot of meddling, that’s for sure.
What tools does Congress use to prevent the D.C. government from enacting the will of its residents?
One way that I think a lot of people don’t discuss is how they wrote the Home Rule Act to begin with. [Congress] didn’t give us full voting representation. They gave us very limited home rule. They still have the power to review all of our laws and our budget.
They can meddle any way that they want to, and then, when they do meddle in our laws, the results are really twofold. One is that they do these budget riders. Our budget goes through the federal government and there is money that’s allocated to the District from the federal budget, [as with] every other state, and they put riders on a lot of that money. A rider actually prohibits the expenditure of local dollars on these issues, as with abortion and marijuana. It’s remarkable, if you think about it. It’s the federal government coming in and telling us how to spend our locally raised tax dollars.
In other areas, what they’ve done are these disapproval resolutions. It’s only been done, I think, four times in history. It’s a hard hurdle to overcome. You have to pass a resolution in the House and the Senate, and it has to be signed by the president. Unfortunately, that happened just recently with our criminal code reform act.
Another way they go about this is through affirmative bills. For example, [former Louisiana Senator] Mary Landrieu [introduced legislation] to impose on the District a requirement that every charter school receive equal funding as every D.C. public school. People often don’t know that, but that was something that was done to the District of Columbia by a senator when she was just a strong supporter of charter schools.
The other example of this is the whole bill that basically took D.C. out of bankruptcy in the late ’90s. They passed a reform to everything, from taking away the jail and sending our residents off to the Bureau of Prisons, and other things. In doing that they made other changes, including the School Reform Act, which imposed charter schools in the District of Columbia.
That was a compromise because [former Georgia Representative] Newt Gingrich actually wanted to make the whole District of Columbia school system private and voucher-based. Eleanor Holmes Norton and her staff were able to fight back against that and agreed to allow charters to come in. So, that’s how we have had a charter system for so long.
Has there been an increase in hostility toward D.C. autonomy? If so, what is its cause?
I think it ebbs and flows. It’s always been there when the Republicans have been in charge, which has not been that often, but it’s always been there. This has been a more inflammatory time in our world, right now.
It’s all those national talking points that end up translating into action by some members of Congress, who are very powerless at home or powerless in Congress to do anything, so they look at D.C. and they pick on us. Whether it’s a gun amendment or abortion or some other hot-button issue . . . they can score points back at home. They can do it in D.C. without any consequences at all.
These are the firebrand folks. You’ve seen them. In the last couple of years there have been people in Congress who introduced bills to take away home rule. It’s an outrageous concept. I don’t know who would take control. Three commissioners again? I just don’t see that happening.
Are we any closer to true autonomy today, or farther away than ever before?
I don’t think we are closer or farther away from it. I think we’re right where we’ve been for a long time, which is a place where we are still trying to convince the rest of the country that it matters. The problem is that not many people see participation in the government as something that matters, to begin with, much less that someone is denied that opportunity right here in the nation’s capital.
I’ve talked to a lot of people who have been in this fight for a long time, and I don’t know if I’ve ever heard them so down and so discouraged at this point after what happened with the criminal code reform bill.
[On the] positive side of things, [the criminal code reform] did get covered on MSNBC and all the channels all day long when that was happening. So, there probably is a little more awareness out there about it. I just think that it would be better to find other ways to get awareness than that . . . It’s just a shame that we got hit again.
It will be interesting to see what happens, whether they come after us in the next couple of years, whether Biden falls into line, or [whether] there are more issues like this. Remember, [former President] Barack Obama did the same thing. Not the exact same thing, but they were trying to get the Affordable Care Act through, and he’s quoted as saying to [former Ohio Representative] John Boehner, “I’ll give you D.C. abortion.” That was to take the rider on abortion care and continue to ban public funding for it.
This is D.C., and we’re going to have to fight this battle for a long time. I said to a friend the other day, I wonder if this entire democracy can withstand all the challenges to it, or if it will fall before we get home rule and have full representation in Congress. I’d be interested to know.
