In a reversal of fortunes for the proposal of the White House for another Puerto Rico status plebiscite, the language in the bill that funds the Department of Justice has survived the negotiations between Congressional Republicans and Democrats, and has been approved in the US House of Representatives. The proposal passed intact from what had been approved already by the US House of Representatives Committee on Appropriations, and was announced by Representative Hal Rogers (R-KY) and Senator Barbara Mikulski (D-MD) (pictured above).
The language included in HR 3547, originally the Space Launch Liability Indemnification Extension Act, but which was amended to be the Consolidated Appropriations Act of 2014 says:
“…$2,500,000 is for objective, nonpartisan voter education about, and a plebiscite on, options that would resolve Puerto Rico’s future political status, which shall be provided to the State Elections Commission of Puerto Rico…”
The language, although simple and concise, is specific in certain terms. Contrary to what some media sources have been reporting, the funds would go for both education and the plebiscite, not just the educational efforts. In addition the language is clear that the funds are for a plebiscite, addressing the questions of some who wondered what the Popular Democratic Party would do with the funds, another plebiscite, or a “status constitutional assembly.”
Mandate or offer?
An important issue with the proposal is whether anything will happen, given that the Popular Democratic Party is in control of the territorial government. Most pundits have assumed that it is up to the local legislature to determine whether it uses the funds or not, establishing the options available in the plebiscite. El Nuevo Dia has Governor Alejandro Garcia Padilla stating that he will pursue the process as it was approved, while keeping the promises made in during the campaign. In the campaign, the PDP said that if Congress did not act in 2013, they would pursue a “constitutional status assembly” to address the status issue.
However, after examining the actual language contained in the appropriations bill, and the explanation included in the committee report of the bill that originally contained the language, it seems to be that the assumptions made by many may be wrong.
The committee report states:
Puerto Rico plebiscite.–The recommendation includes $2,500,000 for objective, nonpartisan voter education about, and a plebiscite on, options that would resolve Puerto Rico’s future political status. The funds provided for the plebiscite shall not be obligated until 45 days after the Department notifies the Committees on Appropriations that it approves of an expenditure plan from the Puerto Rico State Elections Commission for voter education and plebiscite administration, including approval of the plebiscite ballot. This notification shall include a finding that the voter education materials, plebiscite ballot, and related materials are not incompatible with the Constitution and laws and policies of the United States.
Of note is that nowhere is it stated that the legislature will be the entity to define the ballot, education or related materials. Instead it stipulates that it would be the State Elections Commission who develops an expenditure plan, which must be approved by the Department of Justice.
The direct mention of the SEC can be interpreted as a direct order from Congress to draft a new plan for a new plebiscite to be funded with this appropriation. Contrary to the relation that states have with Congress, in this instance it is conceivable for Congress to be issuing mandates to a state level agency, since it retains supreme control over Puerto Rico, as it is an unincorporated territory of the United States.
This interpretation could face a roadblock in Puerto Rico’s law, except that the Electoral Code of Puerto Rico only says in Article 11 that any “referendum, consultation or plebiscite that is held in Puerto Rico will be governed by the special law that for said purpose is approved, and by the dispositions of this Law in everything necessary or pertinent for which the said special law does not avail.” The code does not specify that it is a state special law that governs plebiscite, which therefore allows for the possibility of federal laws mandating and governing the electoral event.
While the process being handled under this explanation is a long shot, expect this whole affair to end up in court.
The PPD’s strategy
The Popular Democratic Party has the ball on its court. With the measure expected to pass the Senate this week, becoming law, it has to determine how to proceed. While it cannot use the funds for anything other than a plebiscite, some suspect it will try to hold the constitutional assembly, although that will probably end in nothing. Those who favor the assembly demand that the United States express what form of status it is willing to give Puerto Rico, yet they ignore the fundamental aspects of how the federal government works.
Under a constitutional assembly, some are expecting to be able to negotiate with the United States, but who exactly will represent the nation? If it’s the President’s Task Force on Puerto Rico’s status, their compromises do not and cannot tie Congress. Even if congressional leaders are the ones negotiation, there is simply no guarantee that what they say will be approved in a divided Congress as divided as this one.
As a matter of fact, the closest leaders in Puerto Rico will get to an expression from Congress on the matter came weeks ago when the democrat and republicans leaders of the Senate Committee on Energy and Natural Resources sent a letter asking that the ‘enhanced commonwealth’ and commonwealth options not be included in future processes, because of their respective unconstitutionality and rejection by the voters.
That’s not an expression the PPD liked, so it will probably either push for another type of commitment, probably from the US Department of Justice, or ignore the issue altogether. This is where the legal issues are bound to arise, depending on what the PPD does, and what the DOJ approves for the plebiscite ballot.
In the meantime, do not expect swift action. The priority in San Juan right now is addressing the economic situation, and while you could point out that the status is the underlying reasons for the economic troubles, the administration does not share that view and is in the process of appeasing the rating agencies.
Still no updates on HR 2000.