A bill for the 'People' but also for the Republic.
America has a democratic problem. The system established in 1787 and amended over the ensuing two and a half centuries has proved durable, but all things durable eventually break if not maintained.
Currently, American democracy is at the whims of two parties. That’s generally been the case for all of our constitutional history. Regardless of the founder’s disdain for parties and their desire that they not have a roll in the new republic, they almost immediately established their own parties and began the partisan angling we think of as critical to politics today. The parties have generally maintained enough heterogeneity to make bipartisanship common.
The danger in a two party system is that inter-party competition becomes so cantankerous and adversarial that parties attempt to shape the system to their individual advantage. Or, the two parties are unable to adequately distinguish themselves among the voters and neither party is ever able to command enough power to enact changes which may allow voters to decide whether they like that party in control or not.
America’s two party system has encountered both faults of such a system. Neither party is capable of getting enough electoral support to truly implement their vision and platform. This is due to America’s deeply conservative law making procedure. No other Western democracy even has half as many veto points as the American democracy. Francis Fukuyama has dubbed this phenomenon ‘vetocracy,’ wherein government action is stifled by the ability of small groupings to thwart majority desires. Not only must a party control the House, the Senate, and the Presidency, but they must also maintain a super majority in the Senate and be able to maintain absolute cohesiveness within that caucus in order to pass any legislation.
Additionally, the Republican party has become increasingly anti-democratic in the process of maintaining their anti-Democratic position. Attempts to make voting more difficult have been a part of the party platform since the turn of the millennium. These moves have generally been made under the auspices of preventing voter fraud and ensuring the sanctity of elections. Of course the reality is that incidents of voter fraud are exceptionally rare. But lately, Republicans have begun dropping the pretense. Senator Mike Lee (UT) took to Twitter in late 2020 to declare that “rank democracy” was putting America at risk and, in response to criticism, doubled down with the false assertion that American is not a democracy. A state lawmaker in Arizona justified his states' attempt to make voting more difficult by arguing that the “quality” of votes matters more than quantity.
Furthermore, many of the attempts to restrict voting access by Republicans following the 2020 election are grounded in restoring American’s faith in elections. This is of course after former President Trump spent months spreading the lie that he had lost the election due to fraud. So Republicans have decided that in order to restore faith in elections for their voters they should change the laws, as opposed to telling their voters the truth: they lost the election fair and square.
American institutions were built for competition between states and branches, unfortunately we have found ourselves in a situation where the competition between the two parties has superseded all other considerations. The answers to fixing the problem are varied and difficult. We could make some amendments to the constitution which better reflect the nature of present political competition. We could scrap the constitution entirely and write a new one as the founders did when they deliberately circumvented the rules established in the Articles of Confederation, our previous foundational document. But both of these solutions run into similar problems we face in regular governance: there simply isn’t the super majority necessarily to either make amendments or to give a new constitutional convention the legitimacy it would need to rewrite our system.
So where does that leave us? Outside of major institutional changes, I think the onus needs to be on combating the worst urges of the Republican party. How can we do that? One potential avenue would be to make American democracy more competitive and more representative of actual majorities. The recently passed H.R. 1 goes towards the latter route of fixing the holes in America's electoral systems and preventing state legislatures from creating restrictive rules to select their electorates.
Democratizing broadly
H.R. 1 or the ‘For the People Act’ is a giant bill that aims to address a wide range of problems with American democracy. Much of the bill is also clearly in response to the norm breaking of the previous President.
I’ve detailed the provision by provision changes to law that the bill introduces in a previous article, but I think several of the major changes are worth highlighting. Most significant in my eyes are the attempts to increase voter participation. H.R. 1 would include automatic voter registration, every eligible voter will be sent absentee voter registration information, a minimum of 14 days of early voting, allow 16 and 17 year-olds to register so they are prepared to vote as soon as they turn 18, ensure every university has adequate polling locations and has distributed voting information to their students, limit line-waiting to under a half hour by investing in dense urban areas, increase polling locations in rural areas, force polling places to remain open outside of standard working hours on election day, and make election day a federal holiday.
These are clear, necessary steps to raise our abysmal record on voter turnout. The 2020 election set a 120 year record with 66% turnout among the voting age population. That’s cause for some celebration but also far lower than other advanced democracies. Democracy is flawed when participation is low. While this bill doesn’t mandate voting like in other countries (e.g. Australia) it does attempt to break some of the cost of entry barriers that have dissuaded voters from participating.
The bill also attempts to address Republican attempts at voter disenfranchisement or to make voting more difficult. ‘Voter caging,’ the practice by which state officials throw out voter registrations based on either lack of participation in subsequent elections or from being unable to deliver mail to a registered address are made illegal in this bill. Also, voters must be notified if their registration is revoked for any reason and states must pass a higher bar when they attempt to clean the rolls of residents who have died or moved to a different state.
The most significant change proposed in the bill is the overhaul of the current redistricting process. Every ten years, following the census, states must reorient their congressional seats to either accommodate increased, or decreased memberships to their congressional delegation. This process is currently left to state legislatures which has resulted in a raft of disparate techniques. After the 2010 election, mostly Republican led legislatures (and a handful of Democratically led chambers) used the most advanced cartographic software available to extract maximum political advantage for their party. This results in outcomes like North Carolina where in 2018 Democrats received around 49% of the vote yet won only 3 of North Carolina’s 13 districts, or about 23% of the representation. This sort of electoral system is obviously deeply flawed in a representative democracy but is also difficult to solve. The Supreme Court has received several cases on partisan gerrymandering over the last decade and decided they are powerless to do anything to regulate it.
H.R. 1 would establish state by state redistricting committees which would be necessarily bi-partisan and would be given a clear mandate to avoid splitting communities of interest or from engaging in partisan gerrymandering. If a state was unable to assemble a commission in time for the current round of redistricting, they would have to appoint a three-judge panel to act in lieu of the committee.
Democrats have enacted similar policies in states controlled by Democratic state legislatures but this bill would level the playing field and require all states to redistrict themselves to the most equitable and representative structure possible in a district based first-past-the-post system.
Outside of overhauling the redistricting process countrywide and removing barriers to voter participation, the bill also includes new regulations on election security and campaign financing. H.R. 1 would mandate the creation of a new election security strategy, provide money to states to combat foreign and cyber election interference, require online political ads to disclose who payed for the ads, bar foreign actors from paying for any political communication, bar campaigns from sharing information with foreign actors, mandate the use of paper ballots, require organizations making over $10,000 in campaign contributions to disclose those donations as well as their top donors, require online platforms to collect and maintain information about all political ads on their platforms, provide the IRS with greater ability to scrutinize political contributions from tax-exempt organizations, force corporations to seek shareholder approval before making political contributions, and force campaigns to dispense money back to individual donors if the six years removed from any election in which the candidate ran.
The bill also attempts to open more opportunities for average Americans to both contribute to, and run in political campaigns and elections. The bill would create a voucher system that would grant applying voters $25 to spread among their preferred candidates. H.R. 1 would also incentivize donations under $200 by matching all small dollar donations at 600% for congressional and presidential races. Candidates would also be able to use campaign funds to provide themselves with child, elder, and healthcare. Presidential candidates would also be barred from raising more than $50,000 in familial capital for their campaigns.
These actions serve to not only incentivize voter participation in the campaign financing system, but also remove a barrier from lower and middle income citizens from seeking public office. The median net worth of the 116th Congress (2019-2021) was just over $1 million while the median net worth of Amerians is only $97,300. This is obviously deeply unrepresentative, and in a world where we are told all politics is economic it goes to show that most lawmakers have very little idea what it is like to live like an average American. While I don’t think allowing some necessary costs to be covered by campaign finances will magically fix the socio-economic representation gap in Congress, I do think it is a step towards acknowledging the problem.
The final class of proposals in the bill mostly pertain to reigning in the excesses of the Trump years and attempting to regulate the previous norms that governed Presidential behavior. Under the bill presidential appointees would be compelled to recuse themselves from all matters related to the President who appointed them. Presidents, Vice-Presidents, and their spouses would be required to divest from their businesses by either placing them in a blind trust or selling them off. Presidents, Vice-Presidents, and executive appointees would be limited in the amount of gifts they can receive. Senior executive employees would be required to take an ethics pledge. Private air-travel would be forbidden for all executive appointees. Transition teams would require greater financial scrutiny and disclosure. Ethics waivers in the executive branch would receive more scrutiny including those dispensed during the Trump Presidency, and all candidates for the Presidency or the Vice Presidency would be required to disclose their last ten years of tax returns in order to run.
Obviously, the Trump years were a jolt to the institutional norms underpinning not only the Executive branch but American government more broadly. These measures attempt to codify some of the non-written rules which were so casually displaced by the 45th President. On this front I’m less enthusiastic than I am for the rest of the bill. I think the executive branch deserves some of the same flexibility that other branches receive, but it's obvious that we can’t trust the holder of that position to necessarily behave within undefined social boundaries and this portion of the bill reflects that reality. I support the tax return requirement and rules on economic divestment for the same reasons as mentioned above: America’s politicians broadly represent a socio-economic sliver of the highest classes and Americans should be able to know the financial details of the people they are electing to the highest office.
Objections to action
Considering the scope and scale of changes proposed by H.R. 1, it’s no surprise that the bill has received significant pushback. In its passage through the House, the bill garnered zero votes from congressional Republicans and has assuredly no chance of winning over any Senate Republicans. The critiques against the bill have been levied in similar ways to other attempts to restrict voting access by state-level Republicans. They include concerns that the bill will encourage voter fraud and eliminate means of preventing it, that the bill will remove power from the states to regulate their own elections, that the bill will stifle and prevent free speech about elections, and, paradoxically, that the bill will hurt voter turnout.
Most of the Republican concerns border on a level of hyperbole. For one, the concerns about voter fraud have been shown repeatedly to be overblown and a matter of little genuine concern. The Heritage Foundation, a conservative think tank which has raised serious objections to H.R 1, lists incidents of voter fraud cases going back to the early 1980s in an attempt to sow concern about the safety of our elections but only list 1,317 cases over a 40 year period. The concern over free speech feels like a continuance of the culture war battle that Republicans see as a key to maintaining energy in their base. While the bill does limit campaign contributions and require greater disclosure of who is funding campaigns, most Americans do not agree with the conservative definition of free speech meaning the unfettered use of money in elections.
But it isn’t just conservatives complaining about the bill, the ACLU has also raised issue with particular elements. They cite concerns that greater transparency in the political campaigns and movements may put donors at risk from online and real harassment or even physical danger. These are issues that shouldn’t be taken lightly considering the current atmosphere of fear experienced by many politically inclined actors online. However, the bill as its written now only requires greater disclosure of large money donations, over $10,000. As much as I can appreciate the concerns over protecting individuals from harassment, I don’t think that is a great enough reason to continue to conceal large dollar contributors in our elections. If individuals have enough money to contribute $10,000 to a political cause they should be willing to accept the public scrutiny of that powerful contribution.
The ACLU also cites concerns about the restricting of political influence from foreign nations, rightly pointing out the ways in which DACA recipients, asylum seekers, and temporary-protected-status holders would be barred from political speech. This is the sort of concern I’d imagine senate Democrats would be keen to amend.
The federalist argument, that the bill will trample the rights of states, has some merit. It’s true that H.R. 1 would take away a fair bit of decision making and oversight from individual states, but we are past due to believe that uniformity in American democracy is more important than a state's ability to disenfranchise its citizens. This bill is in fact the outgrowth of the illiberal means of restricting democracy in individual states when it is viewed as politically advantageous to do so. And it is not the first time the federal government has stepped in to protect the ability to vote over the ability of the states to disenfranchise. The Voting Rights Act of 1965 placed the states of the former Confederacy under the eye of the Justice Department, requiring all changes of voting rights law to be approved by the executive agency. This law was upheld until 2013 when the Supreme Court decided to strike that provision calling it ‘outdated.’
Democracy as a founding principle
Whether the Supreme Court would declare portions of H.R. 1 unconstitutional (as the Heritage Foundation and former Vice President Mike Pence claim it to be) is not a reason to hold back support. Bold attempts to strengthen American democracy should be tried for the sake of the country. Ross Douthat wrote that Democrats and Republicans should essentially call a ceasefire on election laws. He points out that voting restrictions by state-level Republicans have little effect on actual voter turnout and that the expansion of early and mail-in voting in 2020 had little impact on voter turnout either. But Douthat misses the normative and valuative reasons for why H.R. 1 is necessary.
Fights over voting rights have been the most combative civil right in American political history. Our march towards a more perfect Union has marched through the ballot box, who has access, who doesn’t, and how do we fight for it. The goal of H.R. 1 is a declarative value statement about what America means when it describes itself as a democracy. Furthermore, it is an attempt to pull America away from the partisan brink and save the Republic from Republican extremism.
H.R. 1 would make American democracy stronger, more representative, and easier for all voting age Americans to participate. Voting should not be easier for some and harder for others, there is no ‘quality’ vote; there is only our votes. States and politicians should not be able to choose their voters; the voters choose their politicians. The size of your bank account should not increase the size of your political voice; all citizens deserve voice. Voting is a right, not a privilege.
Republicans can argue that the bill is a Democratic wish list aimed at cementing Democratic power, but in doing so they reveal the reality behind their state-level laws to restrict voting. They also reveal the broader reality that their party, if forced to play in fair elections, would never win power. Our best bet at a responsible Republican party is to force their hand in winning actual voters not creating systems which maintain their advantage. Should H.R. 1 fail to convince Democratic senators that filibuster reform is necessary, we will have lost one of the best opportunities at taking American politics away from the brink.
