|
Para ver este documento en español,
oprima aquí.
THE STATUS VOTE IN PUERTO RICO: CLARIFYING THE BALLOT CHOICES
By: Dick Thornburgh*
Since testifying in support of Puerto Rican self-determination before
Congress as Attorney General in 1991, I have favored creation of a federally
recognized process to end political limbo for the 3.8 million U.S. citizens
living in Puerto Rico. While the 105th Congress did not mandate a status
referendum, approval of H.R. 856 by the House and adoption of Senate Resolution
279 constitute historic recognition by the United States government that
further self-determination is required in Puerto Rico.
The people of Puerto Rico have used the tools of self-determination under
the local constitution to schedule a status vote for December 13 of this
year. While the legislative record created in the 105th Congress supports
and provides the legal context for the upcoming status vote, our fellow
U.S. citizens of Puerto Rico apparently were unwilling to wait indefinitely
for Congress to respond to their petitions.
A robust debate now ensues in Puerto Rico, and the supporters of each
status option are right to make their best case to the voters. However,
despite the clear record created in exhaustive Congressional hearings, certain
legally inaccurate definitions of the status options persist. As I told
Congress in 1991, the choices must be clearly and realistically defined
if there is to be informed self-determination in Puerto Rico.
For example, some argue that Congress "redefined" the current
status by failing to recognize that Puerto Rico has a separate national
identity apart from that of the United States. In fact, as a commonwealth
Puerto Rico is presently subject exclusively to the national sovereignty
of the United States, and has no separate nationality in any legal or constitutional
sense.
Without separating politically from U.S. national sovereignty, it is
quite understandable that Puerto Ricans seek to preserve a cultural sense
of identity. In this regard, it should be noted that under commonwealth
status Congress has greater discretion to regulate Puerto Rico's affairs
by federal law (e.g., current or additional English language requirements)
than if Puerto Rico was a state or independent nation. If U.S. national
sovereignty continues, only as a state would Puerto Rico have permanent
10th Amendment powers over its non-federal affairs, as well as voting power
in Congress.
Certain advocates also mislead by stating that the commonwealth model
for a political economy is based on "fiscal autonomy". This term
has no constitutional basis, and serves only to conceal the presumption
that American taxpayers will continue to subsidize Puerto Rico's current
tax haven status. Yet, no one can say how long Congress will continue to
spend $10 billion annually in Puerto Rico before phasing in federal taxation
and the IRS.
The bipartisan decision by Washington in 1996 to eliminate the Puerto
Rico corporate tax exemption -- a pillar of this so-called "fiscal
autonomy" -- demonstrated that Congress unilaterally can alter federal
tax policy affecting the commonwealth. Because commonwealth status is defined
by federal statutes rather than the constitution, any autonomy -- fiscal
or political -- is at the pleasure of Congress.
Finally, commonwealth supporters still assert that the current U.S. citizenship
in the territory is a "constitutional right" which Congress has
no power to terminate. Clarifying this emotional issue is difficult, but
essential to an informed vote.
First, the current citizenship of persons born in Puerto Rico is granted
by statute and is not fully protected by the U.S. Constitution itself in
contrast to the citizenship of people born in the states. That which Congress
granted by statute to some, it can withhold by statute from others in the
future.
While the statutory U.S. citizens of Puerto Rico enjoy some fundamental
federal legal rights (e.g., due process of law), other rights are denied
(e.g., equal voting rights). Conferral of citizenship by statute is a matter
of policy not a legally protected right, and Congress has the discretion
to alter or terminate any such statutory policy.
For example, should Puerto Ricans democratically express a clear desire
for a separate nationality Congress could end U.S. citizenship and define
a separate citizenship of the territory as part of the transition from the
current status. Indeed, Congress imposed such a separate territorial citizenship
in Puerto Rico from 1900 to 1917. Congress did the same in the Philippines
while it was still a U.S. commonwealth prior to its independence in 1946.
As long as Puerto Rico remains a commonwealth, Congress remains sovereign
over Puerto Rico and no policy is permanent because no Congress can bind
a future Congress. That is one reason statehood supporters seek full representation
in Congress and sovereignty under the 10th Amendment. Supporters of separate
national sovereignty argue that relations with the U.S. should be by treaty
between two separate sovereigns. Advocates of each of these two status options
seek to avoid the imposition of laws made by a Congress in which Puerto
Ricans have no voting representation.
The statehood and independence options each entail benefits and burdens
voters can compare to the status quo only if commonwealth is defined accurately.
Unfortunately, those who for years have touted the "nation-within-a-nation"
concept decry any realistic definition as "pro-statehood". They
define commonwealth as a mythical "super-status" with the benefits
of both statehood and independence, but the full burdens of neither.
That is one reason why it has been so important for Congress to help
define the choices, and why the up-coming status vote is based on the record
of the 105th Congress. Still, the December 13 vote will be just a first
step in the process and, no matter what the results are one thing will be
clear to Congress when it reconvenes next -- the problem of Puerto Rico's
uncertain and unresolved status will not go away.
*Dick Thornburgh, former Attorney General of the United States under
Presidents Reagan and Bush and two-term Governor of Pennsylvania, is now
an attorney with Kirkpatrick & Lockhart, L.L.P. in Washington, D.C.
| 
