The 52-State Strategy: The Case for Puerto Rico
Thirty-seven times since the nation’s founding, we have added states to the union. The last time was in 1959, when two new states, Alaska and Hawaii, were admitted. There are a couple of reasons to think such a moment may be arriving again. The first is the scandalously poor response to last year’s hurricane in Puerto Rico. While Puerto Ricans are American citizens, the island, which for more than a century has been governed as a U.S. territory, has neither congressional representation nor Electoral College votes. As many have observed, this lack of representational clout goes a long way toward explaining why the federal government has felt free to slow-walk the hurricane recovery. Puerto Ricans’ lack of political power may have caused thousands of lives to be lost. The second factor pushing in favor of statehood is the Republican Party’s ongoing effort to use anti-democratic tactics—from voter ID laws to voter roll purges to racial gerrymanders—to tip the electoral scales to their advantage.
As a result, some on the left are saying that the time has come to right the balance by expanding democracy and granting statehood both to Puerto Rico and to another region that has been denied full representation for even longer, the District of Columbia. We sent out two reporters, Ben Paviour and Rebecca Pilar Buckwalter-Poza, to explore the opportunities and challenges that a push for fifty-two states would present. What follows is Buckwalter-Poza’s report. For Paviour’s dispatch from D.C., click here. -- Washington Monthly editors
The moral case in favor of Puerto Rican statehood is so obvious that it’s hard to believe the current situation continues, essentially ignored by U.S. mainlanders. Since 1898, the United States has ruled the island as a colonial power. Puerto Ricans—all 3.3 million of them—are nominally American citizens, but have no representation in the federal government nor full constitutional protections. Unlike Washingtonians, Puerto Rico residents don’t even get to vote for president. “The Island,” as residents call it, is a colony in all but name, the possession of a country proud to tout its commitment to equality under the law but reluctant to honor it.
The devastation of Hurricanes Irma and Maria made clear, for those not yet aware, that the problem is not merely philosophical; it is literally a matter of life and death. We’ll never know the exact toll, but a recent Harvard University study estimates that nearly 5,000 Puerto Ricans died either during Maria or as a direct result in the months after the storm. Many, perhaps most, of these deaths were preventable. The federal response to the storms was minimal. The Trump administration did less for Puerto Rico than the U.S. did for Haiti after its disastrous earthquake. With no political power, Puerto Ricans are left to rely on the goodwill of American leaders, often in short supply.
The moral case has never been enough, even now. But post-hurricane, moral and political imperatives are in rare alignment when it comes to Puerto Rico. As the Democratic Party dreams about retaking Congress and the White House in 2020, and considers what it should do with that power, it would be remiss to overlook statehood for Puerto Rico as an urgent, and ideologically consistent, priority. Puerto Ricans on the mainland lean strongly Democratic, and more than twice as many votes were cast on the island in the 2016 Democratic primary as in the Republican one. (Residents of U.S. territories get to vote in the primaries, even though they have no electoral votes.) Statehood could very possibly mean two more Democrats in the Senate, five more in the House, and seven more blue votes in the Electoral College. Democrats can correct the injustice of colonization, now more than a century running, and gain political traction at the same time.
Not that Democrats can take Puerto Ricans’ allegiance for granted. The island’s status is an organizing principle of Puerto Rican politics, complicating party identification and any attempt to overlay the Republican-Democratic divide. The GOP could fight for the prospective Puerto Rican vote by taking the lead on statehood. But today’s Republicans are so beholden to a nativist white base that it’s hard to imagine their marshaling a congressional majority, much less the president’s signature, to admit a predominately Latino, Spanish-speaking state. Democrats, however, can and should promote statehood, beginning now. Should they win unified control of government in 2021, the base will be primed and Democrats will be poised to both right a historic wrong and permanently change the political map.
The story of Puerto Rico’s political status is best understood as what Juan Torruella, the one federal appellate judge based in Puerto Rico, describes in a recent Harvard Law Review essay as four “experiments” in colonial governance. The first lasted from 1900 to 1917, as Puerto Rico weathered the effects of the Foraker Act of 1900, which installed a civil governor, an executive council, a house of representatives, and a judiciary.
The signing of the Jones Act in 1917 ushered in a second era of experimentation. The act, passed just a month before the U.S. entered World War I, granted Puerto Ricans statutory citizenship, a tenuous status that can, unlike birthright citizenship, be revoked. It gave the island greater control over its own affairs—but also allowed the federal government to draft 20,000 Puerto Ricans to fight in the war. In 1920, Congress passed the second Jones Act, also known as the Merchant Maritime Act of 1920. The law, still on the books, requires “all maritime cargo transported to and from the mainland to be carried on U.S.-built ships and manned by U.S. crews,” as Torruella puts it. This means that no foreign ship can stop in Puerto Rico and then continue on to the U.S. mainland. Not only did the law put Puerto Rico at a trade disadvantage and raise costs—U.S. vessels and crews are expensive—but it also set up the perfect opportunity for U.S. carriers to pursue an oligopoly for shipping between the mainland and Puerto Rico.
The third era of experimentation began in the 1950s. Public Law 600, passed in 1950, gave Puerto Ricans the right to organize their own government and pass a constitution. In 1952, Puerto Rico received commonwealth status: Congress approved a constitution and a republican government. That form of government remains intact during the fourth chapter of U.S. experimentation: the post–economic crisis period.
Contrary to myth, Puerto Rico’s residents make full tax contributions to Social Security and Medicare. Yet the U.S. federal government has long neglected Puerto Rico when it comes to federal programs. For instance, if Puerto Rico were a state, the federal government would provide funding for about 83 percent of Medicaid costs, which nearly half of the island relies on. But, because of its status, just 15 to 20 percent of Puerto Rico’s Medicaid costs are covered. The commonwealth is expected to make up the rest.
This arrangement was never tolerable, but it became fatal to Puerto Rico’s economy when a confluence of congressional acts stripped the island of its economic foundation. Beginning in 1976, Section 936 of the tax code extended a tax exemption to corporations that moved their operations to territories, including Puerto Rico. That perk for corporations was, as intended, a boon for Puerto Rico’s economy. The problem is that corporations got greedy. Companies including pharmaceutical heavyweights like Smith-Kline, Merck, and Bristol-Myers moved research and development arms to the island. In some years, the giants escaped billions of dollars in taxes. Those tax-dodging tactics drew increasing federal attention, peaking as budget deficit discussions heated up in Washington. In 1996, as part of a showdown between the Clinton administration and the newly Republican Congress, a deal was reached to repeal Section 936 under the theory that Puerto Rico–based corporations would begin paying taxes and help reduce the federal deficit. Of course, that’s not what happened. As Puerto Rican leaders warned at the time, eliminating the tax exemption simply drove those companies to international tax havens and Latin American countries with cheaper labor.
Stripped of its foundational economic incentive, and still hobbled by the Jones Act, Puerto Rico turned to bonds. Given the island’s underlying economic weakness and failure to establish new industry, municipal governments and utilities weren’t able to keep up. Tourism, one of the island’s major industries, does little to shore up Puerto Rico economically. The profits, as with other sectors, largely flow to Manhattan, not San Juan; nearly all hotels are owned by mainland investors. Moreover, even before the hurricanes, tourism had been stagnant for two decades.
Predatory investors pounced on the island’s debts, betting on Puerto Rico’s inability to pay. When the inevitable defaults came to pass, the banks launched legal challenges to force repayment. With no other recourse, Puerto Rico passed legislation in 2014 to permit public utilities to restructure debt, much as Detroit had done the year before. But the Supreme Court struck down the bankruptcy bill two years later. Their rationale was predicated on Congress’s foresight: Chapter 9 of the Bankruptcy Code, passed in the 1980s, specifically excludes Puerto Rico, prioritizing investors’ interests.
Congress could have solved the problem by simply repealing that discriminatory exclusion. Instead, it launched into the fourth era of experimentation with the cruelly titled Puerto Rico Oversight, Management, and Economic Stability Act, or PROMESA—Spanish for “promise.” Congress’s response to the economic crisis it precipitated in Puerto Rico was essentially to re-colonize the territory, creating an oversight board with the prerogative to override virtually any branch of Puerto Rico’s government.
In some ways it is this fourth era that is the most disheartening. “The perception here on the island has changed dramatically over the last few years,” said Pedro Rosselló, the former governor of Puerto Rico and one of the island’s shadow members of the U.S. House of Representatives. (His son, Ricardo, is the current governor.) Most Puerto Ricans used to share a popular conception that the island enjoyed “a type of autonomous government which had some inklings of sovereignty.” PROMESA put that notion to rest. Now, Rosselló said, “you will hardly find anyone in Puerto Rico who would argue that Puerto Rico is not a territory under the powers of Congress.”
The oversight board’s exact priorities are unknown—it has refused to comply with public records requests that might reveal conflicts of interest—but its sympathies appear to lie more with investors than with the citizens of Puerto Rico. The island is failing to provide its people with basic services, yet the board wants to pay down its debt by raiding teachers’ pensions.
Conditions foreign to most of the mainland are widely accepted in Puerto Rico, and the suffering is immense. In part because of insufficient federal support and in part because of the overarching debt, Puerto Rico was in the throes of a public health crisis even before the hurricanes struck. The island’s infrastructure was already in shambles, particularly its health care system, which lacked not only funding and equipment but also the human resources to keep up with pre-hurricane health needs. Most of the deaths linked to the hurricane occurred not because of the storm itself, but because of the island’s inability to handle what came after.
I experienced the inadequacies of the medical system firsthand when I lived in San Juan in 2015 and 2016, while serving as a law clerk to Juan Torruella—well before Maria. At one point, I had to be hospitalized for four days. The hospital was partially open to the air and lacked basic supplies like sheets, blankets, and even tampons. Still, a nurse told me how fortunate I was: another hospital was shutting down several units due to lack of funding.
So while you might think that the hurricanes are responsible for the devastation in Puerto Rico, they’re not; Congress is.
Like his father, the current Governor Rosselló is a member of the Partido Nuevo Progresista (PNP), or New Progressive Party. During his campaign, he made statehood a central issue. The shadow delegation to Congress—five “representatives” and two “senators”—was his brainchild, an updated version of a strategy modeled by Tennessee in the 1700s, before it became a state.
The next step toward statehood would be a popular vote by Puerto Ricans. Although a June 2017 referendum found 97 percent of Puerto Ricans in favor, opponents made a point of abstaining from the vote, rendering that number less than reliable. A methodologically sound, high-turnout vote on the island’s status is a prerequisite to federal action.
All pre-Maria indications were that a majority of Puerto Ricans favored statehood. If voters approved the move, the ball would be in Congress’s court: a simple congressional vote, plus a presidential signature, is all it takes to admit a territory as a new U.S. state.
It’s not likely that this will happen while Congress is controlled by a Republican Party whose support is built increasingly—and increasingly obviously—on white racial grievance, and while the executive branch’s policies reflect a barely disguised antipathy toward nonwhite people. But for Democrats, Puerto Rico could be a key part of an overarching democratic reform agenda, one based on political equality for all Americans and designed to counter the modern GOP’s anti-democratic tactics. An ideal electoral reform agenda would include campaign finance reform, automatic voter registration, same-day voter registration, universal vote by mail, and electoral security, among others, as well as a push to circumvent the Electoral College via interstate compact. Voter suppression laws must be attacked in the states and in federal courts. The National Voting Rights Act should be strengthened, the damage done by Shelby County v. Holderrepaired through legislation. Yet this mission to restore democratic values and achieve political equality will ring false if Democrats don’t include the fight for Puerto Ricans’ political rights.
What about the backlash? Would pursuing statehood be suicidal for Senate Democrats in conservative and battleground states? Doubtful. First, according to the most recent polling, nearly half of American adults favor
statehood—the highest level of support ever recorded—and just a third are opposed. Second, this thought experiment is predicated upon success in 2018 and 2020 that will put Democrats in the majority. That would probably require a scenario in which the party picks up Senate seats in at least one of the three challenger races this fall—those in Nevada, Arizona, and Tennessee—while reelecting most or all of its incumbents. This would mean, in turn, that today’s most precariously positioned Democrats—including Claire McCaskill of Missouri and Joes Manchin and Donnelly, of West Virginia and Indiana respectively—would not be facing reelection until 2024. Senators elected in 2020 will be safe until 2026.
Meanwhile, Republicans’ ability to attack Democrats for pushing statehood will be tightly constrained. The reason is simple: Florida. Five percent of the crucial swing state’s population is of Puerto Rican descent, an important bloc that could be dangerous to alienate. This helps explain why the 2016 Republican platform included support for Puerto Rican statehood, and why Representative Rob Bishop, chairman of the House Natural Resources Committee—the committee most deeply involved in Puerto Rican affairs—recently endorsed it. “I think it is a solution that is long overdue,” he said during a visit to the island in May.
Florida Republicans are visiting the island seeking to pick up Puerto Rican votes at home this November. Governor Rick Scott, now a Senate candidate, tiptoed toward endorsing statehood in May, telling the Associated Press that he favors “respect[ing] the will of the people of Puerto Rico.” He has visited the island six times since Maria and, as the Orlando Sentinel wryly noted, “rarely makes an appearance without a Puerto Rican dignitary in tow.” The New York Timesrecently ran an article with the headline “Must-Do for Florida’s Midterm Candidates:
A Stop in Puerto Rico. Or Three.”
Democrats need to catch up. Their 2016 platform didn’t endorse statehood, instead offering cautious language about how “the people of Puerto Rico should determine their ultimate political status from permanent options that do not conflict with the Constitution, laws, and policies of the United States.” Taking initiative is critical, however, because of the substantial first-mover advantage. Puerto Rico is fairly evenly divided between the PNP, a pro-statehood party whose members are affiliated with both Democrats and Republicans, and the Partido Popular Democrático, or Popular Democratic Party, which is more affiliated with Democrats but whose leadership favors maintaining commonwealth status. If Puerto Rico became a state, there could be a reshuffling. The island’s status would no longer be an organizing principle in politics. Rosselló, the former governor, predicts that local parties would disappear, their members redistributed among national parties.
“The party that took the initiative would be rewarded,” Rosselló said, “at least in the initial stages of the new Puerto Rico.” That means that the more Republicans on the mainland balk, the more Democrats will benefit. “If this becomes mostly a partisan process and the results can be seen clearly to be because of the action of one party, yes, that would significantly affect the subsequent party affiliation.” Rosselló governed the island; I just lived there. We agree, however, that Puerto Ricans will gravitate to the party responsible for the attainment of self-determination and economic recovery. If Democrats adopt a pro-statehood position now, if they lay the groundwork to act in 2021, they will claim both moral leadership and a singular opportunity to build a lasting relationship with Puerto Rico and its citizens.
Statehood would change everything from Medicaid funding to the nature of the citizenship Puerto Ricans enjoy. It would be the surest path to recovery for the island. It’s also necessary to comply with democratic values and meet the basic principles of human rights the United States has committed to uphold under international law. The possibility that bringing Puerto Rico into the union could also yield political gain is obvious but has mostly gone unexplored.
Granted, statehood is only the first, most meaningful step toward rectifying a century of inequality and the devastation Maria inflicted. To make it work, Democrats must devote resources to the task of considering what post-statehood measures would most effectively contribute to rebuilding Puerto Rico and its economy. The starting place would be removing the restrictions that have harmed the island for years, like the Jones Act.
Especially in the era of Trump, who lumps all Spanish-speaking peoples together, Latino voters on the mainland may also be especially likely to reward a party that pushes for statehood. From generation to language to national origin, Latinos are diverse; so, too, are our political views. But many of us empathize with one another, familiar with what it’s like to be discriminated against on the basis of our features or skin, national origin, or the language we speak. Immigrants who have come to the United States seeking a better life and equal treatment—my grandparents among them—have done so because they had faith that America wouldn’t engage in the type and scale of discrimination witnessed after Maria. Finally ensuring political equality for Puerto Rico and its citizens would bring us one step closer to making that aspiration come true.