United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2002
Decided September 19, 2002
Filed October 4, 2002
No. 02-5133
Marijuana Policy Project, et al.,
Appellees
v.
United States of America,
Appellant
District of Columbia Board of Elections and Ethics,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02595)
Michael S. Raab, Attorney, U.S. Department of Justice,
argued the cause for appellant. On the briefs were Roscoe C.
Howard, Jr., U.S. Attorney, Mark B. Stern and Alisa B.
Klein, Attorneys, U.S. Department of Justice.
Alexei M. Silverman argued the cause for appellees. With
him on the brief were Gregg H. Levy and James M. Garland.
Julie M. Carpenter was on the brief for amicus curiae
DKT Liberty Project in support of appellees.
Before: Tatel and Garland, Circuit Judges, and Williams,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Through a rider to the District of
Columbia appropriations act, Congress denied the District
authority to "enact ... any law" reducing penalties associated
with possession, use, or distribution of marijuana. The dis-
trict court declared the rider unconstitutional, finding that it
interfered with D.C. citizens' First Amendment rights to use
the city's ballot initiative process to enact medical marijuana
legislation. Because Article I of the Constitution gives Con-
gress "exclusive" power to define the District of Columbia's
legislative authority, and because the legislative act--in con-
trast to urging or opposing the enactment of legislation--
implicates no First Amendment concerns, we reverse.
I.
"Congress shall have Power ... [t]o exercise exclusive
Legislation in all Cases whatsoever, over ... the Seat of the
Government of the United States." U.S. Const. art. 1, s 8, cl.
17. Pursuant to this authority, Congress exercises "all police
and regulatory powers which a state legislature or municipal
government would have in legislating for state or local pur-
poses." Palmore v. United States, 411 U.S. 389, 397 (1973).
For most of the first 171 years following the District of
Columbia's 1802 incorporation, Congress exercised "exclu-
sive" authority over the District through direct legislation and
appointment of local governors with no input from residents.
Clarke v. United States, 886 F.2d 404, 406 (D.C. Cir. 1989),
vacated as moot, 915 F.2d 699 (D.C. Cir. 1990) (en banc).
Responding to calls for local self-government, Congress
enacted the District of Columbia Self-Government and Gov-
ernmental Reorganization Act in 1973, Pub. L. No. 93-198, 87
Stat. 774 (1973) (codified as amended at D.C. Code Ann.
s 1-201.01 et seq.), granting residents the right to elect a
mayor and a D.C. Council. This "Home Rule Act" delegates
to the D.C. Council "legislative power" over "all rightful
subjects of legislation." D.C. Code Ann. ss 1-203.02,
1-204.04. The Act then lists certain matters that are not
rightful subjects: The District may not impose a commuter
tax on non-residents' income; it may not regulate federal
courts, D.C. local courts, or the Commission on Mental
Health; and it may not permit the construction of buildings
taller than then-existing height restrictions. D.C. Code Ann.
s 1-206.02(a)(4)-(a)(8). Even with respect to rightful subjects
of legislation, D.C. Council enactments become law only if
Congress declines to pass a joint resolution of disapproval
within thirty days (or sixty days in the case of criminal laws).
D.C. Code Ann. s 1-206.02(c)(1)-(c)(2). Moreover, Congress
expressly reserves the right to enact legislation concerning
the District on any subject and to repeal D.C. Council enact-
ments at any time. D.C. Code Ann. s 1-206.01. Finally, the
Act prohibits District officers and employees from expending
any funds unless authorized to do so by Congress. D.C. Code
Ann. s 1-204.46.
In 1978, the D.C. Council established (and Congress did not
disapprove of) a ballot initiative process. Initiative, Referen-
dum, and Recall Charter Amendments Act of 1977, D.C. Code
Ann. s 1-204.101 et seq. An initiative proposal approved by a
majority of the electorate "shall be an act of the Council."
D.C. Code Ann. s 1-204.105. The initiative process is subject
to the same legislative restrictions as the D.C. Council, in-
cluding the congressional veto power and substantive limits
on taxing commuters, authorizing tall buildings, and regulat-
ing federal and local courts. See Convention Ctr. Referen-
dum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889,
897 (D.C. 1981) (en banc).
The D.C. Board of Elections and Ethics, the gatekeeper for
the initiative process, is charged with determining whether a
proposed measure constitutes a "proper subject" for an initia-
tive. D.C. Code Ann. s 1-1001.16(b)(1). The Board of Elec-
tions may not accept initiatives that conflict with powers
granted to the D.C. Council in the Home Rule Act, that
authorize discrimination prohibited by the D.C. Human
Rights Act, D.C. Code Ann. s 2-1401.01 et seq., or that negate
or limit budget acts of the D.C. Council. D.C. Code Ann.
s 1-1001.16(b)(1). Only after the Board accepts a proposal
under the "proper subject" standard may proponents
begin to gather signatures. D.C. Code Ann.
s 1-1001.16(c)(1)-.16(j). If five percent of registered voters
sign a petition supporting the proposed initiative, the Board
certifies it for inclusion on the ballot of the next election.
D.C. Code Ann. s 1-1001.16(i), 1-1001.16(p)(1).
Appellee, the Marijuana Policy Project ("MPP"), submitted
the Medical Marijuana Initiative of 2002 to the Board of
Elections for certification as a proper subject. According to
its summary statement, the Initiative would have permitted:
[P]atients suffering from cancer, AIDS, and other debili-
tating medical conditions to legally use marijuana for the
alleviation of their symptoms, provided they have the
approval of a licensed physician and adhere to the other
limitations and safeguards established by this measure.
This measure also protects from sanctions physicians
who recommend marijuana to patients who might other-
wise benefit from it.
The Board of Elections refused to certify the proposal,
citing the so-called Barr Amendment, a rider to the D.C.
appropriations act. Named for its sponsor, Congressman
Bob Barr, the Amendment states that: "None of the funds
contained in this Act may be used to enact or carry out any
law, rule, or regulation to legalize or otherwise reduce penal-
ties associated with the possession, use, or distribution of any
schedule I substance under the Controlled Substances Act
... or any tetrahydrocannabinols derivative." Pub. L. No.
107-96, s 127(a), 115 Stat. 923 (2001).
Arguing that the Barr Amendment violates the First
Amendment, the MPP filed suit in the United States District
Court for the District of Columbia. On cross motions for
summary judgment, the district court declared the Barr
Amendment unconstitutional, holding that it interferes with
"core political speech." Marijuana Policy Project v. D.C. Bd.
of Elections & Ethics, 191 F. Supp. 2d 196, 216 (D.D.C. 2002).
The court permanently enjoined the Board from refusing to
certify the Initiative, and the United States now appeals.
Our review is de novo. See Troy Corp. v. Browner, 120 F.3d
277, 281 (D.C. Cir. 1997) (summary judgment reviewed de
novo).
II.
We begin with some preliminary observations. First,
through the Home Rule Act, Congress delegated some, but
not all, of its Article I "exclusive" legislative authority over
the District of Columbia to the D.C. Council. For instance,
only Congress, not the D.C. Council, may impose a commuter
tax or permit buildings above a certain height. The Barr
Amendment's ban on expenditures "to enact ... any law ...
to ... reduce penalties associated with" marijuana adds
another item to this list of matters that, in the words of the
Home Rule Act, are not "rightful subjects of legislation."
The Amendment says only that Congress, not the D.C. Coun-
cil, may reduce marijuana penalties. Second, the Barr
Amendment's limitation on local legislative power extends not
only to the D.C. Council, but also to the ballot initiative
process--"a power of direct legislation by the electorate."
Convention Ctr. Referendum Comm., 441 A.2d at 897 (inter-
nal quotation marks and citation omitted); see D.C. Code Ann.
s 1-204.105; Biddulph v. Mortham, 89 F.3d 1491, 1497 (11th
Cir. 1996) ("[I]n the initiative process people do not seek to
make wishes known to government representatives but in-
stead to enact change by bypassing their representatives
altogether."). The Amendment thus denies D.C. voters any
authority to step into the D.C. Council's shoes and reduce
marijuana penalties themselves. Finally, as is evident from
the parties' fine briefs, this case involves not the pros and
cons of medical marijuana, but rather a straightforward con-
stitutional question: Does the First Amendment restrict Con-
gress's ability to withdraw the District's authority to reduce
marijuana penalties?
Urging us to answer this question affirmatively, the MPP
argues that the Barr Amendment proscribes "core political
speech," i.e., that it prevents the MPP from "conducting a
petition drive ..., speak[ing] at public Board hearings re-
garding the initiative ..., [and] signing a formal petition to
place the initiative on the ballot." Appellees' Brief at 12.
The Barr Amendment, however, restricts no speech; to the
contrary, medical marijuana advocates remain free to lobby,
petition, or engage in other First Amendment-protected activ-
ities to reduce marijuana penalties. The Barr Amendment
merely requires that, in order to have legal effect, their
efforts must be directed to Congress rather than to the D.C.
legislative process.
The MPP, moreover, cites no case, nor are we aware of
one, establishing that limits on legislative authority--as op-
posed to limits on legislative advocacy--violate the First
Amendment. This is not surprising, for although the First
Amendment protects public debate about legislation, it con-
fers no right to legislate on a particular subject. For exam-
ple, by enacting expressly preemptive statutes, Congress
limits state authority to legislate on the same subject. See,
e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383
(1992) (federal statute, providing that no state shall "enact[ ]
or enforc[e] any law, rule, regulation, standard, or other
provision" relating to certain airline services, preempts state
law); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91 (1983)
(Employee Retirement Income Security Act of 1974, provid-
ing that ERISA shall supersede "any and all State laws
insofar as they may now or hereafter relate to any employee
benefit plan," preempts state law); Jones v. Rath Packing
Co., 430 U.S. 519, 530 n.17 (1977) (federal statute, providing
that meat inspection requirements "in addition to, or different
than, those made under this Act may not be imposed by any
State or Territory or the District of Columbia," preempts
state law). Yet no one would argue that such limitations
violate the First Amendment rights of state voters who
supported the preempted legislation. If Congress can
preempt state legislation without running afoul of the First
Amendment, then, in view of Congress's "exclusive" Article I
authority over the District of Columbia, it can certainly limit
D.C. legislative authority without violating D.C. voters' First
Amendment rights.
The MPP argues that the Barr Amendment amounts to
unconstitutional "viewpoint discrimination" because by pro-
hibiting the District from reducing but not increasing mari-
juana penalties, it "silences one side of the medical marijuana
debate while allowing the other side full access to the Dis-
trict's ballot initiative process." Appellees' Br. at 19. We
disagree. For one thing, if the Constitution permits Con-
gress--as it surely does--to reserve for itself "exclusive"
authority to enact marijuana legislation, it certainly permits
Congress to retain for itself the more limited authority to
reduce marijuana penalties. Moreover, the Barr Amendment
silences no one; it merely shifts the focus of debate between
medical marijuana supporters and their opponents from the
D.C. legislative process--the D.C. Council or ballot initia-
tive--to Congress. To be sure, a ballot initiative could be
used to increase marijuana penalties, but opponents, including
the MPP, may utilize all of their First Amendment-protected
tools to resist such efforts. In other words, whatever the
issue and wherever the debate occurs, whether over reducing
marijuana penalties (in Congress) or increasing penalties (in
either Congress or the District), both sides may fully partici-
pate. Congress's decision as to where those debates must
occur does not implicate the First Amendment.
The MPP draws our attention to a line of cases holding that
certain limitations connected with ballot initiatives impermis-
sibly restrict private political speech. E.g., Buckley v. Ameri-
can Constitutional Law Foundation, Inc., 525 U.S. 182 (1999)
(overturning various registration requirements for petition
circulators); Meyer v. Grant, 486 U.S. 414 (1988) (overturn-
ing prohibition on professional petition circulators). In none
of these cases, however, did anyone question whether the
ballot initiative at issue addressed a proper subject. The
cases thus cast no light on the issue before us--whether a
legislature can withdraw a subject from the initiative process
altogether.
The only circuit court we know to have addressed this issue
has also concluded that the First Amendment imposes no
restriction on the withdrawal of subject matters from the
initiative process. In Skrzypczak v. Kauger, 92 F.3d 1050
(10th Cir. 1996), the Tenth Circuit held that a state supreme
court decision removing an abortion initiative from the ballot
did not violate a voter's First Amendment rights:
[R]emoving [the proposal] from the ballot ... has not
prevented [the voter] from speaking on any subject. She
is free to argue against legalized abortion, to contend
that pre-submission content review of initiative petitions
is unconstitutional, or to speak publicly on any other
issue.... Moreover, she cites no law, and we find none,
establishing a right to have a particular proposition on
the ballot.
Id. at 1053.
Nothing in public forum cases, including the limited public
forum cases relied on by the MPP, such as Good News Club
v. Milford Central School, 533 U.S. 98 (2001) (public schools
cannot deny after-school use of facilities to religious pro-
grams) and Rosenberger v. Rector & Visitors of University of
Virginia, 515 U.S. 819 (1995) (university-funded student pub-
lications cannot exclude religious viewpoints), requires a dif-
ferent result. The defining characteristic of traditional and
limited public fora, such as streets, parks, public school
facilities, and student newspapers, is that they are "devoted
to assembly and debate" or "opened for use by the public as a
place for expressive activity." Perry Educ. Ass'n v. Perry
Local Educators' Ass'n, 460 U.S. 37, 45 (1983). Although
places designated for the expression of views about legisla-
tion--the grounds of the U.S. Capitol, for example, Lederman
v. United States, 291 F.3d 36 (D.C. Cir. 2002)--share these
characteristics, the legislative act itself, i.e., the voting that
occurs inside the Capitol, does not. The same is true for the
ballot initiative process: That process certainly stimulates
First Amendment-protected debate and discussion, but no
case holds that the act of voting in a ballot initiative--a
legislative act--is itself a public forum.
The MPP relies on Legal Services Corp. v. Velazquez, 531
U.S. 533 (2001), which held that Congress could not bar
federally funded legal services lawyers from challenging the
constitutionality of state or federal welfare statutes. Ve-
lazquez, however, has nothing to do with this case not only
because the decision rests on limited public forum doctrine,
but also because of its unique concern with a "serious and
fundamental restriction on advocacy of attorneys and the
functioning of the judiciary." Id. at 544. In contrast, the
Barr Amendment does not prohibit "speech necessary to the
proper functioning" of the legislative process. Id. The
Amendment merely removes a subject from that process
altogether.
In sum, the Barr Amendment's limitation on District of
Columbia legislative authority restricts no First Amendment
right. Ruling otherwise would not only run counter to the
very nature of the legislative act, but would require Congress,
should it really want to deprive D.C. voters of authority to
enact marijuana legislation (as opposed to subsequently over-
turning their decision to do so), to repeal the initiative process
altogether or even the Home Rule Act itself. Mindful of the
Supreme Court's admonition against producing "less speech,
not more"--in this case, First Amendment-protected activity
surrounding the initiative process--by putting the govern-
ment to an "all-or-nothing choice," Ark. Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 680 (1998), we reverse the
district court's decision and vacate its injunction.
So ordered.