What Congress Really Thinks About Puerto Rico

Latino Decisions has published a thoughtful blog post about Puerto Rico’s treatment by the U.S. Congress.  The Puerto Rico Report welcomes this addition to the longstanding debate on Puerto Rico’s status as a territory.  Yet we also question some of its conclusions.  

First, in the blog’s discussion of the 1967 and 1993 plebiscites in Puerto Rico, the authors write that the definition of “Commonwealth” used on the 1967 ballot was “namely affirming the Commonwealth status.”  The point the authors appear to be making here is that Puerto Rico had “Commonwealth” status at the time, and that the 1967 definition properly described it.  The blog then goes on to compare the level of support for the 1967 “Commonwealth” option (60.4%) with the voting percentage for the 1993 “Commonwealth” option (48.6%) – a comparison that only makes sense if the “Commonwealth” label was identical on the different ballots.

Neither assertion is true (although both are frequently made).  First, the “Commonwealth” definition on the 1967 ballot described more rights than Puerto Rico actually had at the time as a U.S. territory.  Second, the 1993 “Commonwealth” option included even more expansive rights for Puerto Rico – again, rights Puerto Rico did not, and does not, possess.  The nonpartisan Congressional Research Service (CRS) has explained:

“The votes in favor of the 1967 Commonwealth option arguably demonstrated support for an expanded form of self-government for Puerto Rico, in that the ballot proposition included text referring to the “inviolability” and “indissoluble link” of Puerto Rican citizenship and would have required approval of changes in the political status in a referendum.”

“The text of the ballot for the “Commonwealth” option in 1993 included provisions that arguably exceeded the relationship established in 1950, included “irrevocable U.S. citizenship,” “fiscal autonomy for Puerto Rico,” and “a legislative agenda to be considered by Congress.”

 

The “Commonwealth” definitions contained on both the 1967 and 1993 ballots do not represent possible status options for Puerto Rico.  The “indissoluble link” described in the 1967 ballot and the “permanent union” similarly included in the 1993 ballot – which generally fall under a broader category of “mutual consent” clauses – have been refuted by Congress and presidential administrations of both political parties many times over the years.  Most recently, the 2011 Report by the President’s Task Force on Puerto Rico’s Status conducted its own independent analysis of this “Commonwealth” component and concluded:

“[C]onsistent with the legal conclusions reached by prior Task Force reports, one aspect of some proposals for enhanced Commonwealth remains constitutionally problematic—proposals that would establish a relationship between Puerto Rico and the Federal Government that could not be altered except by mutual consent. This was a focus of past Task Force reports. The Obama Administration has taken a fresh look at the issue of such mutual consent provisions, and it has concluded that such provisions would not be enforceable because a future Congress could choose to alter that relationship unilaterally.”

 

The Latino Decisions blog then conducts a thorough examination of federal legislation introduced since 1952 and arrives at two conclusions: (1) lawmakers are unlikely to accept the outcome of a status plebiscite that was not authorized by Congress, and (2) a “growing lack of consensus among federal lawmakers, a lack of consensus that can be traced back to the late 1980’s, is likely to result in a failure to support a status option other than the traditional Commonwealth.”  We disagree on both counts.

First, while it is true that a Puerto Rican plebiscite held according to guidelines enacted by Congress would make the results more credible, Congress does not appear to be prepared to make those guidelines now and needs for Puerto Rico to take the first step.  The last time Congress considered Puerto Rico’s status as a territory was in 2010, when the House of Representatives passed the Puerto Rico Democracy Act (H.R. 2499/Pierluisi (D-PR)).  The bill eventually died in the Senate — due in no small part to the fact that Puerto Rico has no representation in the Senate.

If federal officials receive a new message from Puerto Ricans, they can be expected to listen.  In fact, the exercise could very well launch the next chapter in federal consideration of Puerto Rico’s status.  Despite the tremendous growth in the Puerto Rican population in the U.S. over the years, Members of Congress are preoccupied with a myriad of other issues – the country’s growing debt, health care reform, the war in Iraq and Afghanistan – on which they face pressing votes, and they simply do not spend the time to study the Puerto Rico status issue.  Instead, their stock response to the issue of Puerto Rico’s status when they are asked – which isn’t often – is that the people of Puerto Rico must first decide for themselves.

We also disagree that there is “a growing lack of consensus” among federal lawmakers with respect to Puerto Rico.   To the extent that Congress is focused on Puerto Rico’s status as a U.S. territory, there have been two basic trends since the 1990’s, and they both represent growing agreement in Congress.

First, Congress has generally come to recognize that expanding the current territorial status into some type of “Enhanced Commonwealth” – as described in the 1967 and 1993 plebiscite “Commonwealth” definitions – would be the unconstitutional  and simply not feasible as a practical matter.

The House of Representatives Committee on Resources held a hearing in 2000 essentially discrediting the idea of “Enhanced Commonwealth.”  Calling the proposal “unconstitutional” and “legislatively unattainable,” former Congressman Jim Saxton (R-NJ) explained:  “The enhanced commonwealth plan appears to be nothing more than an attempt to gain political advantage by misleading the people of Puerto Rico into believing that they can have all the rights, privileges, and benefits they want without the duties, responsibilities, and obligations that go along with them. Congress is given the authority under the Constitution to make the needful rules and regulations governing territories.”

There is a second sentiment that has become a part of the congressional debate on Puerto Rico – the notion that there is something inherently wrong with the world’s proudest democracy having possession over a territory, and that Puerto Ricans should have an opportunity to change that status if they so choose.  On this, all sides agree.

Most recently, the 2012 Democratic National Platform affirmed, “The political status of Puerto Rico remains an issue of overwhelming importance, but lack of resolution about status has held the island back. It is time for Puerto Rico to take the next step in the history of its status and its relationship to the rest of the United States.”  The 2012 Republican platform goes as far as to “support the right of the United States citizens of Puerto Rico to be admitted to the Union as a fully sovereign state if they freely so determine.”  Both parties appear to agree that Puerto Rico is not where it needs to be right now, and they are waiting to hear a clear direction from Puerto Ricans themselves.

The Latino Decisions blog concludes that Congress is likely to support only “the traditional Commonwealth” status option.  In light of the long history of misuse of the word “Commonwealth,” it is difficult to fully understand what the authors mean by “traditional commonwealth.”  The definitions in the 1967 and 1993 ballots – as well as other forms of enhanced commonwealth – have already been soundly rejected by Congress as an overreach under Puerto Rico’s status as a territory.  If “traditional commonwealth” is intended to mean the true, original territorial status of Puerto Rico, as left unchanged by the 1952 law, that doesn’t seem like such a popular option either.  If it were working, we wouldn’t be having this discussion.

 

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