A complicated scenario in Congress

Constitutionalists Cristina Ponsa Kraus and Rafael Cox Alomar support a new proposal: a federal referendum between statehood, independence, and free association

Sunday, October 31, 2021 - 11:33 a.m.

Washington - One year after the most recent referendum, efforts to engage Congress in a process on Puerto Rico’s political future are running up against divisions among Democrats and an atmosphere of rejection or little enthusiasm among Republicans.

Although the chairman of the House Committee on Natural Resources, Democrat Raúl Grijalva (Arizona), wants to bring the two bills before his committee to a vote before the end of 2021, there´s little information about his plans, at a time when no measure is expected to be passed into law.

“Without procedural consensus neither is going to get anywhere,” warned professor Cristina Ponsa Kraus, who supports statehood, in a forum last Wednesday at the University of Puerto Rico (UPR) Río Piedras Campus, where she spoke about an alternative proposal she has developed along with fellow constitutionalist Rafael Cox Alomar, who believes in free association, for Congress to regulate a referendum between statehood, independence, and free association.

On November 3, 2020, without the support of the other political parties, the New Progressive Party (PNP) government held a local “yes-or-no” statehood referendum. With a voter turnout of 54 percent, statehood got 52.5 percent of the votes.

It was the second consecutive local referendum in four years in which the PNP unilaterally promoted a status plebiscite and left halfway the attempt to have the endorsement of the U.S. Department of Justice, which through a 2014 federal law can certify the definitions of each alternative and the educational campaign of a referendum.

Last December, just before losing the legislative majority, the PNP government passed a law allowing an election to vote the six officials who since July have been lobbying -with limitations to access Congress- in favor of statehood.

But, 12 months after that event, the path of two bills shows the division among Democrats in Congress, the refusal to advance a pro-statehood bill in the Senate, and the decision of most Republican lawmakers not to even get close to this debate.

For Cox Alomar, a professor at the University of the District of Columbia Law School, in addition to division among the Democratic majority and the opposition of the Republican leadership, also the division among Puerto Ricans on the island and in the Diaspora represents a major factor in seeking to move the debate forward.

“There is a division in the Democratic caucus. If on top of all that we’re going to add another division, we’re not going to get anywhere,” Cox Alomar said.

In the House - considering that five of the representatives support the two bills before the Natural Resources Committee - 77 Democrats, including its authors, support House Bill 2070 by Nydia Velázquez and Alexandria Ocasio Cortez, both representing New York, seeking to bind Congress to a Status Convention and a referendum on territorial alternatives.

Meanwhile, 58 Democrats support House Bill 1522 by Darren Soto (Florida) and Washington Resident Commissioner Jenniffer González - who is a Republican – seeking a federal “yes-or-no” statehood referendum, which they want to tie to a process for Puerto Rico’s admission as a U.S. state.

But, only 17 Republicans - including González and American Samoa delegate Amata Coleman Radewagen - have supported Bill 1522 and none Bill 2070.

In the Senate, eight Democrats - including author Robert Menendez (N.J.) - and two Republicans support Bill 865 that is identical to House Bill 2070. Six Democratic senators support pro-statehood Bill 780 which is similar to House Bill 1522 and does not have the approval of a single Senate Republican. The author of the bill in the Senate is Democrat Martin Heinrich (New Mexico).

Before the November 2020 vote, Senate Republican leader Mitch McConnell (Kentucky) ruled out passing a pro-statehood bill. And a month after the vote, the new Democratic Senate Majority Leader, Charles Schumer (New York), warned, in an interview with El Nuevo Día, that the referendum on the island had reflected division, that he would not support a pro-statehood bill and that procedural consensus would be needed to move any legislation forward.

Then, even the PNP’s two main Republican allies in the Senate, Rick Scott and Marco Rubio said there was no atmosphere for statehood and called for focusing on the economy.

To further complicate the matter, the White House has taken distance from the discussion, even though, as a candidate, President Joe Biden promised to " work with representatives who support each of the status options in Puerto Rico to engage in a fair and binding process to determine their status” and personally supported statehood.

The White House Interagency Task Force on Puerto Rico that President Biden revived last July does not have the status debate on its agenda, as it considers that recovery and reconstruction are the priorities for the island.

At Grijalva’s request, however, the U.S. Department of Justice analyzed both bills and recommended significant amendments.

For example, the federal Justice Department determined that the language in Velázquez and Ocasio Cortez´s bill would be unconstitutional if it insisted on tying Congress to a Status Convention that extends beyond the current session of the federal legislature. It also insisted that a status alternatives process must include the current territorial status.

Regarding Bill 1522, the U.S. Department of Justice warned that it should be amended to avoid suggesting that a vote in favor of statehood would mean that the island’s admission would be “a fait accompli” and recommended specifying the transition process regarding the controversial tax issues.

However, Commissioner González is confident that Grijalva will call a voting session in November. And she assumes that Bill 1522 will get a majority vote in the commission. According to the Commissioner, the message given by the House Democratic leadership is that “it has to pass in the committee first,” before thinking about how to get the votes on the floor.

Consensus Measure

Ponsa Kraus - a law professor at Columbia University - testified at the two Natural Resources Committee hearings on status in favor of the pro-statehood bill. Cox Alomar was the main speaker at the second public hearing in support of Bill 2070.

Convinced that the measures filed cancel each other out, since October 1, they shared with the main authors of Bills 1522 and 2070 the draft legislation that includes their proposals, which suggests, as a consensus measure, a federal referendum with three alternatives: statehood; free association; and independence.

On one hand, it would be a plebiscite as Bill 1522 wants and would include decolonizing alternatives as Bill 2070 proposes. “Ponsa and I have had some meetings with that leadership,” said Cox Alomar, interviewed on El Nuevo Día’s “Desde Washington” podcast.

Ponsa Kraus and Cox Alomar’s proposal includes definitions of the status alternatives. If no formula obtains an absolute majority, there would be a runoff between the two with the most votes.

The draft legislation rules out territorial status. “Any commonwealth is territorial, current, or enhanced,” Ponsa Kraus said.

Faced with federal Justice Department requests that a plebiscite on status alternatives include the current territorial status, Cox Alomar said it is Congress that has “the constitutional responsibility” on the territories” and decolonize them.

The Ponsa Kraus and Cox Alomar´s initiative requires Congress to define the tax transition process to each status alternative, the language necessary to repeal PROMESA and recognizes that those who are now U.S. citizens would continue to be U.S. citizens under independence or free association.

It would be up to Congress to determine whether to allow those born in a free association status to also become U.S. citizens, the draft legislation states.

Although Grijalva may want to call a voting session in November, Cox Alomar said he would not be surprised “if nothing happens.”

Ponsa Kraus and Cox Alomar’s proposal also faces obstacles if Bills 1522 and 2070 do not move forward. For example, REpresentative Soto said that a referendum on status alternatives should include territorial status, and Commissioner González opposes separating free association from independence.

While the PPD Governing Board is committed to a territorial commonwealth, the Citizen Victory Movement and the Puerto Rican Independence Party, other sectors of the island and the diaspora support a status assembly.

However, Cox Alomar said that what is clear is that it makes no sense to move forward with a measure that has no chance of being signed into law.

For that reason, he is confident that “when the issues are not moving forward, there will be no choice but to sit down at the negotiating table” and examine the alternative plan they have presented.

Although statehood faces clear Republican opposition, Cox Alomar said there is a historic obligation for it to be an alternative, because of the support it has in Puerto Rico and to promote “a fair, transparent and inclusive process.”

Cox Alomar said, however, that it is natural that “if the Senate blocked statehood for (Washington D.C.), it will obviously do the same for Puerto Rico.”

As she had previously told El Nuevo Día, Ponsa Kraus reaffirmed at the UPR forum that Congress “owes Puerto Rico an offer of statehood”. But, she also thinks that many may feel excluded from a statehood yes or no referendum, so she supports the idea of seeking a consensus that recognizes independence and free association as separate alternatives. The important thing, she said, is that the alternatives are clearly defined.

“If Congress does not define beforehand, it cannot guarantee implementation and if Congress does not guarantee implementation then we would be voting beforehand for something that Congress can ignore,” Ponsa Kraus stressed.

And the six local referendums held since 1967, including the one that will be one year old this Wednesday, are a clear example of that.