2012 Puerto Rican statehood referendum

If a majority of Puerto Rico voters in November cast their ballots in opposition to the current status, and in support of one of the alternatives, Puerto Rico's local officials can be expected to petition the federal government to act upon that choice. For example, if statehood obtains majority support, then Puerto Rico's single representative in the US Congress — known as the Resident Commissioner, a position I have held since January 2009 — will likely introduce legislation that would place Puerto Rico on the path to statehood, phasing in equal treatment for the island under federal law. As with other bills, this legislation would be subject to amendment and require the approval of Congress and the signature of the president.

In May 2009, HR 2499, the Puerto Rico Democracy Act, was introduced in the US House of Representatives. The bill would have provided for a federally-sponsored, two-step plebiscite process in Puerto Rico where voters would choose among the current status, statehood, independence and nationhood in free association with the US. Statehood and independence are widely understood. Under free association, Puerto Rico would become a sovereign nation, but would have a negotiated agreement with the US that sets forth the terms of the relationship between the two nations. As with any agreement between sovereign nations, the agreement could be unilaterally terminated by either party — as denoted by the "free" in free association. The US currently has compacts of free association with three nations that it formerly administered under the UN trusteeship system — the Republic of the Marshall Islands, the Federated States of Micronesia and the Republic of Palau. Under the compacts, these small Pacific-island countries receive assistance under a limited number of federal domestic programs. Residents of the freely associated states may enter the US without restriction, but they are not American citizens. There is a bloc of voters in Puerto Rico that advocates free association for the island, one that draws its support primarily from a faction within the Popular Democratic Party.

HR 2499 provided for the results of the plebiscite process to be certified to Congress, but — in contrast to Puerto Rico status bills that passed the House in 1990 and 1998 — did not itemize the steps to be taken by Congress in the event that a majority of island residents voted for a change in status. In April 2010, HR 2499 was approved by the House in a strong bipartisan vote. Although the Senate Committee on Energy and Natural Resources subsequently held a hearing on HR 2499, further action on the bill did not take place.

It is important to understand that, while Congress would need to act to change Puerto Rico's status, the island does not require Congress's prior approval to hold a plebiscite. The Puerto Rico government has already held three plebiscites authorized under local, as opposed to federal, law — in July 1967, November 1993 and December 1998. Why, then, did the Puerto Rico government first attempt to obtain congressional sponsorship for a plebiscite, rather than move immediately to enact local legislation to provide for a fourth plebiscite organized under Puerto Rico law — which is ultimately what came to pass with Law 283?

There were two primary reasons. First, some island residents are skeptical that Congress would consent to a change in the island's status if Puerto Rico sought one. When the House voted to approve HR 2499, it strongly reaffirmed that it will take seriously the results of any fair plebiscite held on the island. Accordingly, the November 2012 plebiscite authorized by Law 283 will not be a mere "beauty contest." To the contrary, it will be a meaningful vote with real implications for Puerto Rico's political future.

The second reason that Puerto Rico chose to pursue a "Washington-first" strategy is even more fundamental. It was essential for Congress to clarify — once and for all — the possible alternatives to the current territory status, since there was still uncertainty in Puerto Rico on this score. As alluded to above, this confusion stems from the fact that one political party in Puerto Rico has promoted a legally impossible and politically unrealistic status proposal — often called "Enhanced Commonwealth."

Under the "Enhanced Commonwealth" proposal, Puerto Rico would be treated as a nation, but in an association with the US. Unlike under free association, however, residents of Puerto Rico would be granted US citizenship in perpetuity and the island would continue to receive at least as much federal assistance as it does now. At the same time, Puerto Rico would have the power to nullify application of federal laws (except in certain cases) and to limit federal court jurisdiction (in most cases). In addition, Puerto Rico could join international organizations and enter into international agreements. Finally, the association would be "permanent" — meaning that the US could not withdraw from it or modify its terms without Puerto Rico's consent.

As the House Committee on Natural Resources observed in its October 2009 report on HR 2499, "proposals for such a governing arrangement have been consistently opposed by federal authorities in the executive and legislative branches ... on both constitutional and policy grounds." The committee report also noted that, as a result of these proposals, the three prior plebiscites in Puerto Rico had been "misinformed and inconclusive." The committee concluded that HR 2499 would "clarify the viable status options and thereby ensure that the self-determination process is well-informed and productive."

Through House passage of HR 2499, therefore, Congress confirmed that Puerto Rico has four — and only four — valid status options: the current territory status, statehood, independence and free association. Moreover, in the wake of the successful House vote, the Chairman and Ranking Republican Member of the Senate Committee on Energy and Natural Resources sent a letter to President Obama expressing their view that the status options set forth in HR 2499 are the only choices available to Puerto Rico. And, in March 2011, the President's Task Force on Puerto Rico's Status, created by executive order in 2000 and consisting of representatives from 18 federal agencies, issued a comprehensive report that reached the same conclusion. The report stated explicitly that the "Enhanced Commonwealth" proposal is not a viable status option, the same conclusion that had been reached by the Clinton administration in 2000 and 2001 and by the George W. Bush administration in 2005 and 2007 . While it is inevitable that some Puerto Rico politicians will continue to promote "Enhanced Commonwealth," it is clear to reasonable observers that this proposal has finally been dealt a knockout blow.

President Obama and the leading candidates for the Republican presidential nomination have all expressed strong support for Puerto Rico self-determination. President Obama traveled to the island in June 2011 and delivered a speech that stated: "When the people of Puerto Rico make a clear decision, my administration will stand by you." On the Republican side, former Massachusetts governor Mitt Romney, former House Speaker Newt Gingrich, and former US Senator Rick Santorum have all made similar commitments.

For over a century, resolution of Puerto Rico's status question has proven elusive. Not unreasonably, this has led to a degree of cynicism among island residents, who wonder whether, years from now, their grandchildren will be having the same impassioned, but seemingly fruitless, debates that were taking place 50 years ago. However, in the last two years, we have witnessed important progress on this issue, culminating in the enactment of Law 283. Unlike the three prior status votes in Puerto Rico, the ballot in this year's plebiscite, like the ballot called for in HR 2499, will include only those options identified as valid by the federal government. Genuine self-determination must be a choice among real options, not an exercise in wishful thinking.

Besides marking the first time that Puerto Rico voters will be given the chance to express their views among just the valid options, the two-step plebiscite also represents the first time that island residents will have the opportunity to answer "Yes" or "No" to the threshold question of whether they support the status they have enjoyed (or endured) since 1898. This question has intrinsic value in a democracy, where a government's legitimacy derives from the consent of the governed. If a majority of Puerto Rico voters expresses satisfaction with the current status, Puerto Rico's status would not change at this time. In that case, the answer to the second question, asking voters which of the three alternatives they prefer, will serve to inform officials in San Juan and Washington about where Puerto Rico may be headed in the future.

However, if a majority expresses a desire to change the current status, then the second question takes on greater significance. If none of the three non-territory options obtains a majority, voters have demonstrated that they are dissatisfied with the current status, but cannot yet agree on what should replace it. And if a majority votes against the current status, and then in favor of an alternative, federal action that honors this choice should begin.

Is the two-step process provided for in Law 283 the only possible way to structure the self-determination process? Of course not. But is it a fair, reasonable and historic process whose results will be taken seriously by the federal government? Absolutely.