For the People Act Brings Sweeping Election Changes

Washington DC Capitol
The U.S. House of Representatives in late September passed The SAFE Banking Act, which would give banks more regulatory room to lawfully serve marijuana businesses. / LAW WEEK FILE

A political battle over voting rights looms as an expansive bill moves to the U.S. Senate. The proposed For the People Act cleared the House of Representatives in a barely bipartisan vote on March 3. The bill, if passed, would be the largest voting reform enacted into law in more than 50 years.

The measure includes provisions targeting four components of the country’s election system: voting, redistricting, campaign finance regulation and ethics rules for public officials. H.R. 1 also includes provisions aimed at preventing foreign influence on American elections, moving the District of Columbia toward statehood and establishing the National Commission to Protect United States Democratic Institutions.

“This is a comprehensive bill,” said Adam Smith, strategic partnerships director at End Citizens United/Let America Vote. “It’s about voting rights, money and politics, and ethics, and all three of those work together. It’s important to make sure people can vote, that their voices are heard after Election Day, and that they can trust the politicians are working for them.”

Proponents believe that enactment of these new features of federal election law would be the “boldest democracy reform since Watergate,” according to Common Cause. Rep. Jason Crow, who represents the east and south Denver metro area in Congress, considers the bill to be “a solution to the most pressing challenges facing our democracy — corruption, dark money, voter suppression and gerrymandering.” His Congressional District 2 colleague, Joe Neguse, has also praised it. H.R. 1 would deliver “democratic reforms to the entire country, and ensure accountability and transparency in our government,” he said.

The proposed For the People Act is being considered against a backdrop of efforts in numerous states to further restrict access to the ballot. According to the Brennan Center for Justice at New York University School of Law, at least 43 state legislatures are considering measures that would make it more difficult to cast a vote. More than 250 bills aimed at producing that outcome have been introduced around the country, including several in Colorado.

During the current session of the General Assembly, Republican lawmakers have introduced six bills that would make it more difficult for the state’s electors to vote. “We make it more difficult than just about any other advanced democracy in the world to vote,” said Fritz Mayer, dean of the Josef Korbel School of International Relations at the University of Denver. “Over the long sweep of history, the movement in general has been towards greater inclusion. But, of course, at every moment it’s contested.”

The Opposition

Opponents see the bill as an assault on state prerogatives to control elections in any manner they see fit, reject efforts to provide for public financing of campaigns and insist that early voting and voting by mail invite fraud. Congressman Doug Lamborn, who represents a Colorado Springs-centered district, condemned the bill as one that “would federalize our election system, destroy our First Amendment rights and completely erode confidence in our election system.”

Concerns that rules limiting early voting and voting by mail are needed to prevent election fraud seem to run counter to evidence that election fraud is not a significant problem in the U.S. Indeed, voting by mail is considered to be a method that is particularly unlikely to be corrupted by deceptive activity, according to a June 2020 Brookings Institution report, and even the Trump administration, which set out to prove that voter fraud is a worrisome aspect of U.S. elections, could not find substantial evidence that it is.

Criticism of the redistricting provision on grounds that it intrudes on state authority would be merited only if it were to apply to state legislative races, according to Doug Spencer, a faculty fellow at the University of Colorado Law School’s Byron R. White Center for the Study of American Constitutional Law and a professor of law and public policy at the University of Connecticut. The text of the bill limits the redistricting commission mandate to congressional districts. “Congress has the authority to dictate how districts are drawn for the House of Representatives” under Article 1 of the Constitution, he said. Independent or bipartisan redistricting commissions with primary or advisory authority in the delineation of Congressional district boundaries are now in use in 14 states, according to the National Conference of State Legislatures.

Public financing mechanisms are not new to American elections. Taxpayer money has been made available to presidential candidates since the Federal Election Campaign Act of 1971 became law before the 1972 general election. The Supreme Court upheld the constitutionality of the practice, so long as candidates are not prevented from accessing private funds instead if they choose to do so, in a 1976 ruling.

“What the For the People Act is trying to do is make the presidential public financing and congressional public financing enticing enough that candidates won’t want to opt out,” Spencer said. “I think there will always be individuals who will think they can do better outside of the system a publicly-financed campaign also comes with additional regulation.” Governors and lieutenant governors in 12 states and legislators in four states may publicly finance their campaigns, according to the National Conference of State Legislatures. Spencer said the 6:1 match proposed in H.R. 1 is based on a similar model used in New York City’s municipal elections. “There is some early reporting that suggests the pool of people who contribute money has grown and become more diverse and representative as a result of the 6:1 match, which is why Congress is trying to replicate that on the federal level.”

The campaign finance disclosure rules, Spencer said, would be very likely to be approved by the Supreme Court. “Groups that are in the business of politics,” that exist “specifically to engage in politics,” such as political action committees and 527 committees, are already highly regulated, he said, because Congress has concluded that voters need to know who gives money to them. So-called “dark money” groups — organizations not now required to disclose donors — are a concern because their role in political spending has become significantly more prominent.

“If individual charities or other kinds of trade organizations are being set up to look like trade organizations, when in fact they’re actually political committees, that’s the big concern,” Spencer said. “The second concern is that, even among the groups that aren’t engaging in politics as their primary business, is there a need for us to understand the money that’s being spent on politics, even if it’s only 10 or 15% of their business, and somehow tie donors to those expenditures.” He explained that the Supreme Court, in the 2010 Citizens United v. Federal Election Commission decision, upheld disclosure requirements by an 8-1 vote. The court declared that the country has “strong interests in the public knowing who is funding their government,” Spencer said.

Federal statute does not currently restrict members of the House from service on corporate boards, so long as they are not paid for that service, while Senate rules do include a ban on such membership. The exception is intended to allow representatives to sit on the governing boards of nonprofit organizations, said Craig Holman, a government affairs representative at Public Citizen who advocates before Congress on government ethics matters, in an August 2018 CBS News interview. Status as a corporate director may allow members of Congress to gain access to financially beneficial information that is not available to the public.

The bill’s focus on reforming the Federal Election Commission may reflect a period of gridlock and inaction by that agency. Since 2008, the six-member panel evenly divided between Democratic and Republican members has been tied in about a quarter of its advisory opinion cases and enforcement of the law has also been stalled by partisan stalemate at the agency. Former commission chairwoman Ann Ravel said in a 2017 report that the percentage of enforcement cases in which the commission voted 3-3 increased from 4.2% in 2006 to 37.5% in 2016. The FEC has not updated its regulations relating to dark money since the Citizens United decision affecting its authority was released in 2010. “I really do think that doing a five-member commission with 2-2 and one independent and a chair that has a little more authority” will improve the agency’s functioning, Ravel said. “I think that if there is not some change with respect to the election system and the campaign finance system, it is going to be [a] serious” challenge to maintain confidence in the integrity of American politics and governance.

Spencer said that a mandate requiring presidential candidates to disclose income tax returns may run into some judicial skepticism. “In my mind, this is an open question,” he said. “The court, on the one hand, has said that the Constitution establishes the floor and the ceiling for qualifications for federal office. To be president, the Constitution says you have to be 35 years old, a citizen of the United States, naturally born here, and have been living here for, I think, 14 years. The Supreme Court said you can’t add anything to that list or take it away.” If the court sees the income tax return disclosure requirement as an added qualification, then Spencer said he thinks it would fall. On the other hand, Spencer explained, the Supreme Court has also given Congress latitude to establish rules that help to guarantee the “integrity” of elections. “If this is seen as a way to make sure that people [who] are running aren’t foreign adversaries, or beholden to foreign adversaries … then the court’s going to say it’s okay.”

The Path Forward

A 220-210 vote in the House on March 3 sent H.R. 1 to the Senate, where it was formally introduced March 17. Minnesota Democrat Amy Klobuchar, who chairs the chamber’s Committee on Rules and Administration, said the same day that she has scheduled a March 24 committee hearing on the measure. During the 116th Congress, then-Senate majority leader Mitch McConnell of Kentucky declined to bring the bill to the floor after the House had passed it early in 2019. Given that the Senate’s partisan makeup is divided equally between the parties, McConnell and his GOP colleagues could again prevent a vote by invoking the filibuster.
Most Senate Democrats have indicated a willingness either to eliminate or modify the filibuster. West Virginia’s Joe Manchin, one of two of the majority party’s moderates who have publicly announced a desire to retain the delaying tool, said during a March 14 interview that he would consider supporting a rule change that would require a “talking filibuster,” in which senators seeking to block a vote on a bill would have to actually debate on the Senate floor. That idea got a boost from President Joe Biden on March 16, as the long-time former senator said during a television interview that he agrees with suggestions that participants in an effort to prevent a vote on a bill or nomination should be required to continuously speak in order to prevent action on them.

Biden is expected to sign the For the People Act if it reaches his desk. The “landmark legislation,” he said in a March 4 statement released by the White House, is “urgently needed” to protect the right to vote, “ “safeguard the integrity of our elections, and to repair and strengthen our democracy.”

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