JAPACS

Where is the Status Issue Headed?

In Citizenship Equality, Commentary and Analysis, Enemies of Equality, H.R. 2499, Puerto Rico, Puerto Rico Democracy Act, Puerto Rico Independence, Puerto Rico Statehood, Self-Determination, The Big Lie: The PPD's "Commonwealth" on June 25, 2011 at 8:40 PM
An abridged walk through Puerto Rico’s self-determination process 

Impossible to write the entire history of the 113-year-old sisterhood between the States and Puerto Rico, the ups and the many downs, but the status timeline can be surmised into a few superficial attempts to placate a people’s yearning for citizenship equality.

That the island’s American citizens consented in 1952 to the current relationship of “united but unequal” is an undisputed fact. While rhetorically different from “separate but equal,” the relationship remains institutionally the same. At that time, the people of Puerto Rico placed dependent security above sovereign rule and citizenship equality. In 1967, 1993, and 1998, Americans in Puerto Rico delivered inconclusive results in three status plebiscites, under political settings unique to each. The unequal status quo won by default. Today, the fourth plebiscite is in the final stages before implementation, but its birth was on the day Puerto Ricans elected Governor Luis Fortuño and Resident Commissioner Pedro Pierluisi. “Every vote for the PNP,” their campaign declared, “is a vote for statehood!”

Puerto Rico's governor-elect Luis Fortuño, left, and Resident Commissioner-elect Pedro Pierluisi, elected nonvoting delegate to U.S. Congress, celebrate during the victory rally in San Juan, Puerto Rico, Tuesday, Nov. 4, 2008. (AP Photo/Andres Leighton)

On May 19, 2009, Resident Commissioner Pedro Pierluisi introduced H.R. 2499 in the U.S. House of Representatives where it eventually passed with the Foxx Amendment poison pill. The Foxx Amendment introduced the non-permanent “Commonwealth” status quo into the column of permanent choices and made the self-determination mechanism within H.R. 2499 irrelevant. The beauty of H.R. 2499 was the simplicity of its solution. The foundational idea behind the Pierluisi bill is that the territorial “Commonwealth” status needs to change and that the only way it could be kept was through a majority vote. Even though such an approach lent some legitimacy to the status quo “Commonwealth” option, the bill restricted the potential extension of the status quo to a temporary period and only through majority-rule. Consisting of two votes, the Puerto Rico Democracy Act of 2009 (H.R. 2499) asked the Puerto Rican voters to first vote on whether they wished to maintain the current status or seek a permanent status through statehood or independence/free association. If Puerto Ricans chose to remain a “Commonwealth,” the bill would self-execute the entire process eight years later—until the Americans of Puerto Rico voted for a permanent, non-territorial status.

One year-to-the-date later, the U.S. Senate shelved the Puerto Rico Democracy Act, but not before it issued a sober note on the question of “enhanced Commonwealth.” The idea of “enhancement” became popular immediately after the adoption of the “Commonwealth,” and it was the then-omnipotent PPD’s way of holding on to power. Originally meant as a temporary status, “Commonwealth” built a following that now surpasses 700,000 supporters. The corner stone of “enhancement” is the PPD’s belief that the nature of the relationship between the States and Puerto Rico is not territorial in nature. Instead, the PPD believes, the nature of the relationship is one driven by a Compact (a Treaty), or a bilateral agreement between two sovereigns. From that belief emanates the idea of “enhancement” because it seeks to “improve” the so-called Compact. The PPD’s proposals for improvement have included (and are definitely not limited to): recognizing the governor internationally as a head of state, giving concurrent authority to the governor and the legislature to veto federal law, transferring federal lands to the government of Puerto Rico, guarantying the American citizenship of Puerto Ricans and their right of movement to the States in perpetuity, increasing the flow of federal dollars to parity with the States, and allowing Puerto Rico to conduct its own foreign policy and join international bodies. “The free beer and BBQ option,” as Sen. Jeff Bingaman called it. According to the U.S. Senate, it is not going to happen—it cannot happen!

The PPD’s coveted Compact is what the serious world refers to as Public Law 600, which amended the Jones Act of 1917 (the same act that granted American citizenship to Puerto Ricans). Altogether, this body of law is referred to as The Puerto Rico-Federal Relations Act. This law passed by Congress alone cannot (does not!) constitute a bilateral Compact. Congress never relinquished its plenary powers over the territory when it agreed to give it “local autonomy” through a local constitution–ironically, Congress amended that, too. Congress, in fact, made clear its intent when it wrote into the legislation:

[Pulic Law 600] would not change Puerto Rico’s fundamental political, social, and economic relationship to the United States. Those sections of the Organic Act of Puerto Rico concerning such matters as the applicability of United States laws, customs, internal revenue, Federal judicial jurisdiction in Puerto Rico, representation in the Congress of the United States by a Resident Commissioner, et cetera, would remain in force and effect. […] The sections of the Organic Act which [Public Law 600] would repeal are concerned primarily with the organization of the insular executive, legislative, and judicial branches of the government of Puerto Rico and other matters of purely local concern.

S. Rept. 81-1779, at 3-4. (almost verbatim on H. Rept. 81-2275, at 3.)

This series of laws concerning Puerto Rico is not showing us the statecraft of bilateral diplomacy but the depravity of colonial unilateral management.

Almost concurrently with the introduction of the Pierluisi bill in the House of Representatives, the White House put into motion the conclusion of the President’s Task Force on Puerto Rico’s Status—created by President Clinton, executed by President W. Bush, and expanded by President Obama. After three delays, the Task Force’s report emerged to almost universal praise.

In essence, much of the praise for the report seems to be the product of its substance and scope. President Obama’s Task Force, under the leadership of White House Office of Intergovernmental Affairs Director Cecilia Muñoz and Justice Department Associate Attorney General Thomas J. Perrelli, produced a comprehensive set of recommendations on various issues:

“This Report presents the Task Force’s recommendations to the President and Congress. The first section provides recommendations relating to the question of Puerto Rico’s status. Following the discussion of status, the Report is divided into three sections: (1) economic development overview and economic recommendations; (2) recommendations for building competitive industries; and (3) recommendations with respect to the island of Vieques. Each recommendation in these three sections sets out the specific issue, the recommendation designed to address that issue, and a realistic timeline for implementing the recommendation.”

President’s Task Force on Puerto Rico’s Status Report, Executive Summary, page 1

The release of the Task Force’s report culminated with a welcomed visit by President Barack Obama on June 14, 2011. The praise for the report, however, faded when placed under the equality microscope. It is true that the Obama report goes into much-needed detail in the issues affecting the island. Nevertheless, one cannot miss that these recommendations will be carried out under the territorial “Commonwealth” status—with all of its structural limitations intact. The fact is that none of the Task Force’s recommendations makes sense within the context of the status quo. These are exactly the right steps to take on behalf of Puerto Rico, but not before solving the status question; otherwise, it will mean more money thrown at the colonial beast.

For example, many of the “recommendations” are based on continued dialogue between the Government of Puerto Rico and the relevant federal department, agency, and/or bureau. Some of the recommendations are outright incongruent with plans already in motion. For example, the first of its “economic recommendations” suggests growing the size of the civil service in the island as a solution. “The Task Force proposes to con­sult with the Puerto Rico government to increase capacity in its civil service,” states this specific recommendation, “particularly in the areas of grant and program management [emphasis added].” The recommendation on page four of the full report continues, “Based on the results of the consultation, representatives of key Federal agencies should work with officials from Puerto Rico to identify an institution or training program that would provide the necessary skills to future professional civil servants.” In essence, the Task Force is recommending a new bureaucracy that would be dedicated to searching for federal grants, which would presumably fund some of the other initiatives recommended by the Task Force. Forget that the current governor was forced to layoff thousands of civil workers to meet the demands of an out-of-control budget deficit in the “Commonwealth.”

The funding formulas will not change. They cannot change until Puerto Rico is a state. This is nothing more than the old parity-without-equality game Washington is comfortable with. Therefore, the Americans of Puerto Rico will continue to fight a losing battle in which they are not represented at the budget pie-cutting, but continue to demand a fair and equal share of the pie. Most importantly, on the central question of the status (i.e. the mechanism and the options’ definitions) the White House did two things: 1) it did not endorse any specific mechanism, but lightly recommended a two-vote plebiscite based on citizenship; and 2) it endorsed “Commonwealth” as a valid option.

For the first time, an Administration decided to frame the issue of Puerto Rico’s status as one of allegiance and citizenship. On the first vote, the Task Force proposed the Americans of Puerto Rico vote on whether they “wish to be part of the United States or be independent.” On the second vote (limited by the first vote), Puerto Ricans would have a chance to vote for statehood or “Commonwealth” for permanent union, or vote for separation through independence (with or without a treaty of free association). This is a question of nationalism, allegiance, and citizenship, but the simultaneous endorsement of the territorial, “Commonwealth” status quo as an acceptable “permanent” option is anathema to the very patriotic spirit on which said principles are founded.

With all that said about the Task Force’s report, the governing party in Puerto Rico (the pro-statehood New Progressive Party, PNP) put the status campaign in motion when the party’s directorate unanimously approved a plebiscite roadmap. The PNP plan consists of a two-vote plebiscite. In the first vote (scheduled for November of 2012), citizens will be asked to choose a permanent option first (i.e. statehood, independence, or “free association”). The winner of the first vote would then face the territorial “Commonwealth” status on a heads-up match (presumably during the first half of 2013).

Although the PNP plebiscite diverges a bit from the Task Force’s tacitly recommended mechanism, the result is the same: a statehood-versus-“Commonwealth” face-off. The flaw continues to be, however, the inclusion of “Commonwealth” as a valid option of change when the dogma of “enhancement” cannot evolve. Puerto Ricans will continue to provide unclear results because they see through the inherent ambivalence in these “Commonwealth” solutions. Why offer them as a legitimate option the very option everybody agrees is the problem? How can this “Commonwealth” problem be its own “Commonwealth” solution?

Soon after the PNP put its plan on the table, the Popular Democratic Party (pro-“Commonwealth,” PPD) symbolically introduced a bill sponsoring the Task Force’s preferred mechanism and accused the PNP super-majority of going against the White House and Congress. With his party unanimously behind a plan, Governor Fortuño set up a tri-partite commission composed of a representative from each of the status parties (i.e. statehood, “Commonwealth,” and independence). The commission had a month to reach consensus on a path forward, but the deadline came and went without any substantial agreement. However, the PNP and the Puerto Rico Independence Party (PIP) came out of the talks with a plan that—if agreed to by the two parties—could revive the once-dead H.R. 2499 and its two-vote plebiscite mechanism. The final details are unknown, though. The PPD is furious over both the ostensible pact between its two rivals and the unilateral plan of the PNP. Why would that be? It is because the leaders of the PPD do not wish to go into a second plebiscite against a victorious statehood option. How would they campaign for the status quo when they themselves have proclaimed it inadequate?

The following is how one gets to the convoluted PPD reasoning on the status; it goes something like this (Pay attention!):

The current territorial status is NOT (they say) territorial. Puerto Rico has a bilateral Compact with the United States (i.e. we are equal partners). Said Compact can only be ended with the acquiescence of both PR and the USA. After that joke of a statement, the PPD will once again advocate for a change in the territorial status. Their preferred path to “solving” the status problem is enhancement. (Notice that “enhancement” does not allow room for the permanent options of statehood or independence; instead, the “enhancement” idea seeks to undercut the argument of change. Why change when you can build upon?) Technicalities to the PPD, though.

So, with these inconsistencies how does the PPD move forward? Easy: mix everything up. Ask that your convoluted status continue to be included in any and every plebiscite. When it is finally included, change your definition. When your new definition catches up to you as unacceptable to other stakeholders, change the subject from plebiscites to constituent assemblies. When the constituent assembly does not seem possible, change the subject once again from one round of voting to two rounds of voting. In addition, remember to misdefine statehood while simultaneously not bothering to consider your own status definition. Finally, should a schism over status preferences occur within your own party ranks, ignore it until one side is about to secede and then open a “statehood” block within your own anti-statehood party. Voila! Default Victory.

The PNP-PIP alliance against the PPD on the question of the option legitimacy is a natural alliance built on the idea that the former two offer permanent and recognized status solutions and the latter one nothing but constitutionally impossible pie in the sky. The PNP claims statehood is a possible status option, the PIP does likewise about independence, (both accepted universally as valid options), and the PPD continues to claim the current status is unacceptable while simultaneously pressing to include said “Commonwealth” status in any island plebiscite. Further, if the plebiscite includes the “Commonwealth” option, then the PPD wants a constituent assembly to solve the status and not said plebiscite. Plebiscite versus constituent assembly is another way for the PPD to obstruct the status process. After all, the members of the PPD cannot even define their own vision for a permanent, non-territorial status. They continue to fight over definitions: ELA versus Free Association versus Enhanced Commonwealth versus Permanent Union versus Sovereign Union versus Sovereign Association, etc., etc., etc.—but in their own words “not statehood or independence.”

Then what?

One-vote plebiscite versus two-vote plebiscite. Should the question be limited to the options that will end the territorial status? Should the “Commonwealth” territorial option be included? Why? How? H.R. 2499 was the first plan to establish a two-vote plebiscite. Basically, it asked the Americans of Puerto Rico to first vote on whether to keep the current “Commonwealth” status or to reject it. If rejected—and most voters would have—the second part of the plebiscite asked the Americans of the island territory to vote for a permanent, non-territorial option: statehood, independence, or “free association.”

Defining the possible options has become as controversial as the underlying status problem itself. The reason is that when local parties are allowed to define what their status options mean, some are honest and some are not. The PPD pretends to define a valid option when it speaks of “enhanced Commonwealth,” but the fact remains that enhancement of the current territorial status does not change the status. In fact, the so-called “Commonwealth” status (i.e. Puerto Rico Federal Relations Act) is an enhancement of the traditional American territorial status. Culminating with President H.W. Bush’s executive order instructing federal departments to “treat Puerto Rico as if it were a state,” the enhancement of the traditional American territorial model began a long time ago and included the granting of American citizenship, an elected executive- and legislative branch, a judicial branch, a locally written constitution, and the establishment of a quasi-autonomous local structure of governance. In fact, the sustenance of this enhancement has been the idea of parity pursued by both the PNP and the PPD over the past 60 years since the creation of the Estado Libre Asociado (Free Associated State, ELA, or “Commonwealth”). Though pursued by both major parties, “parity” was the same mean to get to two very different goals. For the PPD, “parity” is a vehicle of “enhancement.” For the PNP, “parity” is a vehicle for “equality.” The PPD plan protects the status quo. The PNP plan seeks to change it.

For their parts, the PNP and PIP continue to tell the people of Puerto Rico the truth about their options. Statehood in essence means equality in responsibilities and benefits under the American Constitution. Independence would liberate Puerto Rico of it colonial past, but it would also separate it from its American citizenship. “Enhanced Commonwealth” seeks to create the Independent Republic of the State of Puerto Rico—equivalent to Estado Libre Asociado on steroids! Under this “status,” Puerto Rico would have the power to veto federal legislation, continue to receive federal funds, retain American citizenship for all Puerto Ricans born in the island, participate in international bodies (beyond the Olympics), and not pay federal taxes.

In all likelihood, the next plebiscite will include the “Commonwealth” status as an option somewhere. The real question is, “where and under what terms?”

The only permanent, non-territorial options for Puerto Rico and its American inhabitants are statehood or independence (with or without a free association treaty). Even if the statehood option has to compete with two forms of independence on a ballot, it will prevail because 97 percent of Americans in Puerto Rico wish to keep their American citizenship in perpetuity for themselves, their children, grandchildren, and great-grandchildren! The status problem is one of citizenship. American union under statehood or “Commonwealth” versus Puerto Rican independence, with or without association. In the former options, Puerto Ricans secure their American citizenship, and in the latter two they renounce it. With statehood, Puerto Rico’s American citizenship would be elevated to equal footing with that of the other states; under “Commonwealth,” Puerto Rico’s American citizenship would continue to be second-class in nature and the status problem would remain conspicuously latent. Independence would see the American presence and citizenship in the island disappear.

The central element in the status problem is the PPD and what it can live with. Unfortunately, to the PPD the answer is “nothing but the status quo.” The PPD is not interested in solving the status problem. After all, the PPD is the status quo; it is a matter of political existence. Puerto Rico’s status problem seems to be complicated thanks to the shenanigans of the PPD. In reality, Puerto Rico’s status problem is a decision away from ending. The decision is about whether the Americans of Puerto Rico wish to continue to be Americans with all benefits and responsibilities or Puerto Ricans without American citizenship and/or association. The upcoming plebiscite will be crucial to answering this question, but the chosen mechanism has to be straightforward with the Americans of Puerto Rico. If it is not, then the status problem will continue to rage into the future and to the dire detriment of a people and their American Dream.

  1. […] One year-to-the-date later, the U.S. Senate shelved the Puerto Rico Democracy Act, but not before it issued a sober note on the question of “enhanced Commonwealth.” The idea of “enhancement” became popular immediately after the adoption of the “Commonwealth,” and it was the then-omnipotent PPD’s way of holding on to power. Originally meant as a temporary status, “Commonwealth” built a following that now surpasses 700,000 supporters. The corner stone of “enhancement” is the PPD’s belief that the nature of the relationship between the States and Puerto Rico is not territorial in nature. Instead, the PPD believes, the nature of the relationship is one driven by a Compact (a Treaty), or a bilateral agreement between two sovereigns. From that belief emanates the idea of “enhancement” because it seeks to “improve” the so-called Compact.  The PPD’s proposals for improvement have included (and are definitely not limited to): recognizing the governor internationally as a head of state, giving concurrent authority to the governor and the legislature to veto federal law, transferring federal lands to the government of Puerto Rico, guarantying the American citizenship of Puerto Ricans and their right of movement to the States in perpetuity, increasing the flow of federal dollars to parity with the States, and allowing Puerto Rico to conduct its own foreign policy and join international bodies. “The free beer and BBQ option,” as Sen. Jeff Bingaman called it. According to the U.S. Senate, it is not going to happen—it cannot happen! [CLICK TO READ MORE] […]

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