The Democrats’ first order of business as they took control of the 116th Congress was introducing H.R. 1, the colossal “For the People Act.” This 571-page behemoth of a bill covering voting rights, campaign finance reform, ethics improvements, and more was a perfect reminder of just how much power the Constitution gives Congress to make elections better in this country and, sadly, of how partisan the question of election reform has become.
By beginning with election reform as “H.R. 1,” Democrats signaled their priorities as they took over control of the House of Representatives. The bill now has 221 co-sponsors, all Democrats, including almost every Democrat in the House. It’s disheartening that bipartisan movement on election reform is no longer possible and that few of the significant improvements in the bill stand a chance of becoming law until Democrats have control of the Senate and the presidency. Even then some of its provisions could be blocked by a conservative-leaning Supreme Court. But if and when Democrats ever do return to full power in Washington, H.R. 1 should remain the top priority. Though there is room for some improvements, the “For the People Act” would go an enormous way toward repairing our badly broken democracy.
There’s a lot packed into the introductory version of the bill, much of it a wish list for voting rights advocates and election reformers. The summary put out by the office of Rep. John Sarbanes, one of the lead proponents of the bill, goes on for 22 pages. Among the provisions affecting voting and voting rights are those requiring online voter registration, automatic voter registration, and same-day registration for voting in federal elections; a requirement to use independent redistricting commissions to draw congressional districts in each state; limitations on voter purges; an end to felon disenfranchisement for federal elections; protection against intimidation and false information surrounding elections; improved access to voting by persons with disabilities; a set of improved cybersecurity standards around voting and voting systems, including a requirement that all voting systems produce a paper trail for auditing and checking results; and a ban on a state’s chief election officer engaging in political activities connected to federal offices.
The provisions in H.R. 1 related to campaign finance would expand disclosure rules to cover ads on the internet, a step that is necessary to better track attempted foreign influence over elections; establish a small-donor multiple match public financing system for Congress and a similar fix to the now-moribund presidential public financing system; create a pilot program for the use of campaign finance vouchers in congressional elections, a move I have long supported; enact a new set of rules to make sure that super PACs do not coordinate with candidates; and reconfigure the Federal Election Commission, with an odd number of commissioners and a requirement that at least one of the commissioners not be a Democrat or Republican. The ethics provisions would require the Supreme Court to be bound by an ethics code, strengthen conflict of interest laws, and require presidential and vice presidential candidates to release 10 years of tax returns.
The bill also contains nods toward additional reforms. There’s a statement about the need to fix the parts of the Voting Rights Act the Supreme Court killed in the 2013 opinion in Shelby County v. Holder. (Rep. Terri Sewell, D-Alabama, is expected to introduce a stand-alone bill on this subject.) There is a portion declaring support for D.C. statehood and for a constitutional amendment to overturn Citizens United, the 2010 Supreme Court case freeing corporate money in elections.
There’s no question that H.R. 1, if it passes the House, will go nowhere in the upper chamber. Senate Majority Leader Mitch McConnell, an ardent opponent of laws regulating money in politics, told the New York Times that he believes much of the law is “probably” unconstitutional. I expect few, if any, Republicans to co-sponsor this legislation.
McConnell is certainly within his powers to refuse to take up the bill, and there’s no reason to expect that President Donald Trump would have any interest in pushing for or signing a bill that requires the release of his tax returns. But McConnell is wrong in seeing “much” of the law as unconstitutional.
The Constitution gives Congress, under the Elections Clause, broad powers to set the rules for the conduct of congressional elections even when states object, meaning key provisions including those on voter registration, voter purges, and the requirement of independent redistricting commissions are likely constitutional. Indeed, Congress also has the power to enforce equal protection guarantees in the 14th Amendment, and University of Chicago law professor Nick Stephanopoulos has argued that Congress could use this power to require the use of independent commissions for state districting as well. The Supreme Court has recognized that Congress also has broad power to require disclosure of money spent on elections and to set up public financing plans for federal office so long as they are voluntary.
That said, if H.R. 1 ever became law there are parts that would be unlikely to survive scrutiny before the Supreme Court. It is far from clear that Congress could end felon disenfranchisement in federal elections, given that the Constitution gives states the power to set voter qualifications. The court could find some of the rules on campaign coordination and spending to violate the First Amendment, even though Citizens United’s holding was premised on the idea that independent spending required strict rules barring coordination between candidates and outside groups. It may find that Congress’ imposition of an ethics code on the Supreme Court violates separation of powers principles and that Congress cannot compel presidential candidates to disclose their tax returns.
Still, in past decades, election and campaign reform were bipartisan issues. Major voting rights legislation such as the Voting Rights Act, the National Voter Registration Act of 1993, and the Help America Vote Act of 2002 passed with broad bipartisan majorities. Campaign finance and lobbying reform too passed with bipartisan support, including the key 1974 amendments to the Federal Election Campaign Act and the 2002 McCain-Feingold campaign finance law.
Unfortunately, however, one party seems to have lost its interest in improving democracy, even (or perhaps, particularly) when it comes to limiting foreign interference in American elections and assuring the voting rights of all eligible Americans. It may be, as I argued in October, that the only way that reforms like these will see the light of day is if Democrats nuke the filibuster for election reform legislation the next time they take full control in Washington.
But voting rights and election reform should not be partisan issues. They will only become bipartisan again when both parties see that expanding the electorate can actually help them gain seats, and that will require some fundamental changes in the platform and electoral strategies of the Republican Party. In the meantime, Democrats must do everything they can to ensure that some version of the “For the People Act” eventually becomes law.
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