DC's City Council voted 12-1 today (after Councilman Marion Barry -- yes, Marion Barry -- apparently screwed up and voted in favor, then realized he opposed it and voted against it on reconsideration) to legally recognize same sex marriages from other states. It's being hailed as a victory and a possible precursor to DC's own same sex marriage legalization.
But almost as soon as the issue emerged, opponents were already talking about the possibility of Congress intervening to overturn the law.
Can they do that? Yes they can. Will they do it? Unlikely.
The best run-down of the situation I've seen so far, not unexpectedly, comes from The Washington Blade:
Under the city’s limited Home Rule charter, Congress retains authority to overturn or change any laws passed by the City Council and signed by the mayor.
In drafting and approving the Home Rule charter in the early 1970s, Congress created a process for overturning city laws through a direct disapproval resolution. A disapproval resolution initially required a simple majority vote by either the House or Senate. A court ruling later forced Congress to change the process by requiring both the House and Senate to pass a disapproval resolution and for the president to sign it.
Capitol Hill observers note the disapproval resolution used to kill the bill that would have repealed the city’s sodomy law in 1981 may have been among the last times Congress used the process to overturn a D.C. law. Since that time, lawmakers opposed to a number of D.C. laws — including the city’s first domestic partnership law — have used the D.C. appropriations bill to address bills passed by the Council.
Throughout the last decade, Congress amended the D.C. appropriations bill to overturn city-approved bills to legalize medical-related use of marijuana and distribute syringes to intravenous drug users to curtail the spread of HIV, among other measures.
Gay rights and AIDS policy advocate Carl Schmid, who has worked on issues pending before Congress for more than 10 years, has said congressional opponents of proposed D.C. laws learned it’s easier to block bills through the appropriations process because Congress has to pass an appropriations bill each year to approve the city’s funding and budget.
But Capitol Hill observers note that passing a disapproval resolution is much more difficult in a Democratic-controlled Congress, when the Democratic chairs of key committees where a disapproval resolution would have to pass would likely block such a resolution.
Getting a free-standing resolution of disapproval through both houses would be a very tall order with Democrats in charge of the process. And that's who you'd have to count on, since Republican devotion to states' rights and local governance would almost certainly evaporate in the face of an opportunity to make an issue of same sex marriage.
Who handles such things? Well, any Member can of course introduce such a resolution or amendment. A free-standing resolution would fall under the jurisdiction of the House Oversight and Government Reform Committee, chaired by Rep. Edolphus Towns (D-NY-10), specifically the Subcommittee on the Federal Workforce, Postal Service, and the District of Columbia, chaired by Rep. Stephen Lynch (D-MA-09). In the Senate, it's the Homeland Security and Governmental Affairs Committee, chaired by everyone's favorite Independent Democrat, Sen. Joe Lieberman (ID-CT).
The more likely route of the appropriations bills would, of course, go through the Appropriations Committees, chaired in the House by Rep. David Obey (D-WI-07) -- the relevant subcommittee being chaired by Rep. Jose Serrano (D-NY-16) -- and in the Senate by Sen. Daniel Inouye (D-HI), Sen. Dick Durbin (D-IL) chairing the subcommittee. As it turns out, Sen. Susan Collins (R-ME) is ranking Republican member on both the Senate Appropriations Subcommittee and the Homeland Security Committee, so she'll be a key player no matter which route opponents take, which is not a bad draw at all.
But although the route to a free-standing resolution is a tough one, the amendment route presents a bigger problem. Although there are mostly friendly faces in charge of the process, that won't prevent the issue from coming up. And wherever the issue of same sex marriage comes up, there are wavering Democrats to be found.
The Appropriations Committees have no shortage of Republicans who might be considered likely to try to make trouble. In the Senate subcommittee, there's Kit Bond (R-MO). On the full committee, Thad Cochran (R-MS), Mitch McConnell (R-KY), Richard Shelby (R-AL), Kay Bailey Hutchison (R-TX), Sam Brownback (R-KS) and others. In the House, John Culberson (R-TX-07), Mark Kirk (R-IL-10) and Jo Ann Emerson (R-MO-08) on the subcommittee, and any number of meddlesome jerks on the full committee. They'll be looking to attach ridersto prohibit the use of any federal funds for enabling or enforcing the new law, or otherwise condition funding on its being overturned. And that's something they're likely to try doing in the subcommittee markup, the full committee markup, and maybe even again with amendments and/or motions to recommit on the floor. Republicans have had some "success" with such maneuvers with respect to DC's gun laws, and I expect they'll anticipate creating at least some difficult votes for Blue Dogs in the same fashion.
The likelihood that they'll win over enough Blue Dogs and other nervous Democrats, though, is probably pretty slim. They'll need just about every Blue Dog in the gang to jump ship in order to make this work, and not all of them are going to be willing to go along, as touchy as the issue may be in their districts.
In the Senate, attaching such a rider seems less likely to succeed in committee, and with some clever maneuvering, floor amendments on the issue can be tabled so that Senators don't even have to take a direct vote on the issue, which is often the preferred method for dispensing with things like this.
Depending on how potent a weapon the disconnected and backwards-looking GOP leadership really is, you may see a sustained effort on this front, but probably without much likelihood of success.
