Traditionally, individual American states are left to establish their own election and voting laws. However, a number of states have created policies which placed unconstitutional and unnecessary obstacles to voting. Southern states notoriously discriminated against people of color for decades before the Voting Rights Act of 1965 ended many of these practices. This legislation also required states with a history of discriminatory practices to seek preclearance from the federal government before changing election laws.
In 2013, the Supreme Court ruled in Shelby County v. Holder that the ‘preclearance’ requirement was no longer valid considering the Voting Rights Act was based on racial data several decades old. The decision allowed states latitude in creating election laws again. Numerous states have passed laws requiring photo identification to vote, which could be construed as a form of poll tax and an unnecessary obstacle for voting. States have revised legal codes to make it much easier to purge voter registrations if citizens do not vote often enough. In the last few months, several state legislatures have tightened restrictions on early and absentee voting for no discernible reason.
To address accessibility to voting and other election related issues, Democrats in the US House of Representatives created HR1, known as theFor The People Act. This bill is an all-encompassing reform of a large number of policies which have made the United States less democratic in terms of elections.
In terms of voting, the bill requires automatic voter registration in each state, and citizens can still opt out if they desire. The bill will also permit registration via internet, require states to allow same-day registration (on Election Day), and provide funds to states to promote additional registration drives and the importance of voting.
HR1 will also maintain that states provide more accessibility features in terms of voting for citizens with physical disabilities. States must also restore voting rights to felons who have served their criminal sentences. On Election Day, the ballots would be standardized for federal elections and provide more consistency nationwide.
Mail-in voting and absentee ballots would become easier to obtain and use and states would be required to establish contingency plans for voting in the event of natural disasters or a health related issue (you know … like a pandemic).
Representation issues in Congress
One of the more important features of this bill encourages and supports (but not require) that Washington, D.C. become a state, thereby guaranteeing them representation in the House and Senate. The bill points out that D.C. already has more population than a few other states and promotes the idea that citizens within the capital city deserve this.
Similarly, the bill also encourages and supports federal voting rights (but not statehood) for Guam, Puerto Rico, American Samoa, the US Virgin Islands, and the Northern Mariana Islands. For those keeping score at home, these are all American territories, but they do not receive the same rights and privileges as states within the union.
In what may be the most important aspect of this bill, states would be obligated to establish an independent commission which would draw borders for Congressional districts within a state after the census numbers determine population gains or losses. This would take authority away from state legislatures to gerrymander districts to help or hurt parties, races, or particular candidates.
This section of the bill also would end the practice of ‘voter purges’ where states often delete citizens from the registration database if they have not recently participated in an election.
Campaign Finance Restrictions
Non-citizens would be prohibited from participating in any type fo electioneering activities, expanding a current ban on foreigners not being permitted to donate to campaigns. Additionally, the new law would ban the practice of creating corporations for the purpose of funneling foreign money through those corporations for use in election related activities.
Online ads would become more transparent in who funded them, including requirements for disclosure of top donors to a particular group. “Deepfake” videos would be banned from political ads, and publicly traded corporations would have to disclose financial information (including donor lists) to shareholders.
Campaign Finance Empowerment
The federal government would launch a pilot program in three states which would provide every eligible voter with a $25 voucher for a donation to a candidate. These citizens could then take the voucher and give it to the candidate of their choosing. The idea behind this program would be to allow for more Americans to express their voice through donating funds to a candidate that they might not otherwise donate due to a lack of finances.
Candidates for federal office would be eligible for ‘matching funds’ when they receive smaller contributions (under $200). Those contributions would be matched up to six times the value to amplify the voice of small donors. (To receive the matching funds, federal candidates would have to meet certain eligibility requirements. )
Small contributions would also benefit political action committees (PACs). Under HR1, any contribution under $200 to a PAC could be placed in a special account where a contribution of up to $10,000 could be made to any one candidate (as opposed to the usual limit of $5,000).
Strengthening the Federal Election Commission
Currently, the Federal Election Commission (FEC) has a six person team to make decisions about campaign finance enforcement and the even number sometimes inhibits the ability to act. This bill would reduce the size to five members, chosen by the president on staggered terms, to enforce campaign finance law.
The FEC would have the ability to more effectively monitor Super PACs by an expanded definition about what types of coordination these entities could have with candidates or their campaigns.
Congressional and Presidential Ethics Requirements
Some other requirements which affect those running for and holding federal office:
- The president would have the option of either divesting any stocks or financial holdings which might cause a conflict of interest or place his accounts into a blind trust. The president would also be prevented from having any government contracts through any of his or her business holdings.
- Presidential appointees would be required to disclose political donations.
- Congressional members and their staff cannot advance any legislation that financially benefits themselves or members of their immediate family.
- House members would be banned from serving on the board of any for-profit companies. (Apparently, the Senate already has rules in place for this.)
- Staff members of a Congressional office must disclose outside compensation and reports will be available about this information.
- Presidential and vice presidential candidates must disclose income tax returns and any returns on personally owned businesses for the previous 10 years.
What are the pros of HR1?
I believe democracy deserves free and fair elections where voting should be as easy as humanly possible. I cannot understand why automatic voter registration hasn’t been part of the American way. Other democracies have been doing this for years. Standardized ballots, early voting, mail-in voting, no more ‘purges’ of legitimate voters — these all make sense. Having a more uniform system of voting is one aspect of a democracy where a nationwide policy is better than 50 different entities have a wide variety of rules and regulations. When we have allowed this, marginalized groups, particularly racial groups, have been the victims of discrimination.
Changes from HR1 mitigate some of the effects from the Citizens United v. FEC decision, which gave rises to Super PACs and more ‘dark money.’ Requiring more disclosure of funding sources and how campaign finances are spent lets citizens know who funds the candidates and to what extent. This can only help democracy, not hinder it.
The experimental voucher program and matching funds program could considerably alter elections for the foreseeable future. Candidates who have widespread appeal among citizens who do not have monetary resources would now possess the ability to financially express support for candidates. Currently, most Americans do not contribute money to campaigns or candidates. This would be an entry point for many Americans to consider donating to a candidate.
HR1 might effectively end the ridiculous practice of gerrymandering, where state legislatures have the ability to draw congressional district lines to the benefit of their preferred candidates or political party. This practice, by both Democrats and Republicans, establishes districts where no real competition exists. As a result, members of the House of Representatives often do not fear losing their seat because they never have to make difficult decisions on legislation.
And the cons … ?
The most significant problem with this bill might be the same problem most bills present: the cost. Added expenses to the federal government for the necessary standardization of voting equipment, ballots, and other devices would only increase an ever expanding budget. Neither Democrats nor Republicans seem to possess any motivation to reduce government spending, and this issue already existed prior to the COVID pandemic.
HR1 also adds more layers to an extremely large federal bureaucracy. Who will monitor the expanded regulations? The FEC will most likely need more employees and states will need additional resources to comply with a number of the requirements this law would demand.
The bill is a monster of nearly 800 pages and it would change quite a bit of policy in one fell swoop. Congress might be more pliable in changing election laws in a more piecemeal approach, where one bad provision doesn’t sink a bill full of good changes.
Statehood for Washington D.C. and federal voting rights for territories would not be required by HR1, but the bill would create a commission to study changes for federal territories and encourages statehood for D.C. This is most likely to be construed as a power grab by Democrats. If territories were granted electoral votes in the presidential elections (similar to D.C. in the 23rd Amendment), these areas would likely vote in a more liberal fashion, handing any Democrat an easier path to the presidency. The possibility of statehood for D.C. or any of the territories would also receive a healthy dose of skepticism because it would likely mean more Democrats serving in Congress. The United States has an obligation to do more for its territories, but we should be asking why Democrats appear so concerned about this now?
This bill would weaken state sovereignty. In our federalist system, the line of demarcation between the national government and state governments will become more blurred. States generally make their own policies about elections and this bill will take one more power and place it under the vast umbrella of the federal government.
A compelling argument exists for the uniformity of elections nationwide. Southern states, in particular, have repeatedly demonstrated their willingness to enact discriminatory practices in elections which either prevent voting or establish unnecessary obstacles to participate in the most important form of political participation. Moreover, the federal government does maintain an obligation to promote the general welfare and secure the blessings of Liberty for the American people.
Will this bill pass?
HR1 has already passed through the House of Representatives by a 220-210 vote, almost entirely along party lines (one Democrat voted against, two Republicans did not vote, and two other seats were vacant at the time of the vote). The Senate will advance the bill since Democrats are in the majority, but the road will be long for the bill to become law. Why do Republicans not like the bill?
The simplest explanation is that the passage of this bill translates to a strategic loss for Republicans. If this bill passes, they will lose more elections. The makeup of Americans in terms of Democrats and Republicans in modern history has leaned towards Democrats. To offset a numerical disadvantage, Republicans have utilized vast financial resources and gerrymandering to win elections. (Both parties gerrymander districts when they think they can get away with it, but the Republicans just happen to be better at it.)
Passing this bill would mean independent commissions with members of both major parties would work together in creating fair boundary lines. If they cannot agree on a redistricting plan, a panel of federal circuit court judges in that state would take over the task. This would diminish the ability of Republican controlled state legislatures to establish districts that maximize their representation in the House.
Republicans would also lose ground in the financial arms race of elections. Money does not guarantee a win in an election, but candidates don’t win without it. Allowing matching funds for small donations helps individuals who do not have access to significant wealth. These contributions and the experimental voucher programs would benefit people more likely to identify as Democrats rather than Republicans. Furthermore, the requirements of disclosures of top donor lists from Super PACs would demonstrate who funds the groups with some of the most ridiculous and dishonest attack ads. These individuals who fund and operate Super PACs would also face more limitations in terms of what types of interactions they can have with those candidates.
Republicans do not want this bill to pass and they currently have 50 votes in the Senate. Since HR1 is not a budget related bill, debate is not limited and the GOP members would filibuster this bill if necessary. Breaking a filibuster and ending debate would require 60 votes and obviously, it’s a difficult hurdle to overcome. But, Democrats can pass this bill based on what transpires in the next few months.
President Joe Biden and his team can move this bill across the finish line, but it will depend on a few factors:
- Can this administration deliver on its promises of vaccination availability for Americans? Biden promises 100 million shots in his first 100 days in office and the administration says it is on track to meet that goal. The more this administration delivers on promises and meets objectives like this, Senate Republicans will face more pressure to vote for legislation supported by Biden.
- What will happen with the Biden team’s infrastructure bill in Congress? The success or failure of this legislation will help to determine the fate of other legislation in the future. The more momentum Democrats build now in not only passing legislation, but efficiently carrying out those policies will make it increasingly difficult for Senate Republicans to vote no on HR1 (or any other legislation).
- Can the administration tamp down distractions? In any given moment in the United States, issues manifest themselves and government must response. Gun violence has already returned and the pandemic is still an ongoing reality. Jobs reports, GDP, market activity, and international crises will also take attention away from other legislative priorities.
I want to see this bill pass, but the odds are against it at this point. Democrats need all the stars to align to sufficiently pressure Senate Republicans into passing this bill. The odds seem to be against these things coming to pass, particularly since the Biden team prioritizes the infrastructure above election law. I put the odds of it passing as low, but it would be instrumental in making the United States a more democratic nation.