The indispensably public nature of voting and not professional narcissism is the prism through which conservatives should view voting reform.
It is a rule of legislation: the higher sounding the title, the lower the quality of its content and the motives of those proposing it. So it is for H.R. 1, the so-called “For the People Act,” already passed by the House Representatives and soon to be taken up by the Senate. The bill, which runs nearly 800 pages, proposes to transform federal elections in the United States. It also contains some of the most blatantly partisan, most obviously unconstitutional, and most unwise provisions ever passed by a chamber of Congress. This brief essay recounts some of the low points even if it lacks the space for a more comprehensive condemnation.
The most obviously partisan element of the bill is the decision to transform the Federal Election Commission from a bipartisan to a partisan commission. Currently, the FEC has six commissioners that are equally divided between the two major parties. That equal division is unusual among federal agencies and not infrequently leads to deadlocks. But no law is as subject to abuse as election law, particularly because abuse of election law can help entrench the abusing party in power. And the FEC is charged with regulating speech, one of our most precious liberties, underscoring the need for bipartisan agreement before curtailing political debate.
H.R. 1 would instead reduce the commission to five members with an effectively partisan majority. It is true that the fifth member would have to be an independent, but that would be no bar to giving free rein to partisanship. President Biden would be able to appoint an “independent” in the mold of Bernie Sanders who is aligned with the objectives of the Democratic Party and get a first-mover advantage to entrench Democrats in power for a generation.
The overall bill makes its partisan aims clear, including, for instance, a series of findings to support statehood for the District of Columbia, an idea Justice Departments of both parties have previously said is unconstitutional.
At least three of the important provisions of H.R. 1 are clearly unconstitutional while others are of dubious constitutionality. One provision would require candidates for President and Vice President to provide the past 10 years of their tax returns. But the Constitution already sets the simple qualifications for running for President. A President must be 35 years old and a natural-born citizen. Disclosing tax returns is not among the requirements. In U.S. Term Limits v. Thornton, the Supreme Court made clear that the Constitution sets a ceiling, not a floor, on qualifications for federal offices, striking down a term limit requirement for members of Congress. Even Justice Clarence Thomas in dissent suggested that it was only the states, not the federal government, that had authority to add qualifications.
It might be thought that this section is just an anti-Trump provision, but other wealthy men who ran for President, like Michael Bloomberg, would have also run afoul of it. Any person of substantial means has complicated taxes whose release would be the subject of both second-guessing and envy. In addition to its unconstitutionality, this provision favors career politicians at the expense of successful entrepreneurs in the race for our highest office, not a surprising development in a bill written mostly by career politicians.
The bill also imposes a huge variety of requirements on the states on how they are to conduct their election, including mail-in ballots, same-day registration, and at least two weeks of early voting. It also essentially bans voter identification laws. Congress arguably has authority to do this for congressional elections. Article I, section 4 provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Thus, so long as the requirements are imposed on the manner of election, Congress may well have the constitutional authority to impose them, although, as discussed below, some of these provisions are obviously unwise.
But the rules for deciding presidential electors are different. There, Congress’s power is limited to timing: “Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” In contrast, the legislature of each state is given plenary power over the “manner” of choosing the electors. Indeed, the legislature could constitutionally choose the electors themselves, as some did early in the republic.
The bill also imposes new restrictions on speech, some of which are also unconstitutional. Its overall enthusiasm for speech regulation is captured by its expansion of the concept of “electioneering communication” to mean any communication that that mentions a federal official. As a result, any organization that advertises in any way to urge an official to take a policy stance will be subject to new burdensome disclosure requirements. These provisions are unconstitutional in at least two respects. As even the ACLU recognizes, there is no substantial justification for requiring disclosure of contributors to messages about policy positions. Moreover, the most important political messages in American history—those of Publius in the Federalist Papers were in fact delivered anonymously. Anonymous policy speech is at the core of our political traditions from the Founding.
Second, the bill requires the CEO of the organization to say in the message itself that he or she approves of it. There is no justification for requiring a personal appearance during a policy message. It just eats up the time for the message and may subject the CEO to unwanted personal recognition.
The creation of new obstacles to and burdens on policy speech also has partisan objectives. Given that the left controls the mainstream media and the academy, paid policy messages are some of the few opportunities the right has to reach the American people. H.R. 1 is just the latest in a long list of campaign finance regulations that attempt to skew political discourse further leftward in the guise of advancing the public interest.
Beyond the unconstitutionality and obviously partisan nature of some of the provisions, many others undermine federalism and are profoundly unwise. Their folly is connected to the undermining of federalism, because the bill would make radical changes in the election laws of all 50 states without the testing and experimentation that comes from allowing states the primary responsibility for innovation in election law, as they have had since the beginning of the republic.
An important example is the transformation of redistricting by requiring each state to establish a citizens’ commission to draw district lines rather than state legislatures. (That provision may well be unconstitutional as well, because determining districts does not seem to be about the “manner” of an election, particularly since “manner” appears to have a narrow meaning, being joined in the Constitution with “time” and “place.”) The idea behind creating citizen commissions is to get politics out of the process. But that is easier said than done.
The mechanism the bill uses is highly complex, requiring a “nonpartisan agency” to choose equal numbers of citizen applicants who are registered Democrats, registered Republicans, and registered to no parties at all. These citizens will then choose others of their registration category to form the commission that will total 15 people—five from each category. The commission can then draw boundaries so long as it has the support of at least one member of each category.
The list of things that could go wrong with this scheme is as long as the imagination of campaign operatives who will focus on skewing the commission in their favor. Only time will tell whether the structure of an agency guarantees that it is truly nonpartisan. Moreover, citizens may identify with a party (or with none) for all sorts of social reasons, and yet in reality support the other party. The assenting votes of one member of each partisan category could easily come from such individuals.
Citizens also may not be very knowledgeable about the complexities of redistricting. The redistricting commissions will no doubt have knowledgeable staff but that knowledge gives them power. And bureaucrats everywhere tend to lean left. Certainly, nonpartisan “merit selection” for independent judicial appointments in the states has led to a more liberal bench because of the influence of lawyers.
Thus, there is a very substantial risk that such commissions in many states will not get politics of out redistricting but instead make the politics less accountable and skewed left because the citizen commission members (and the federal judges to whom the redistricting plans can be appealed) are themselves insulated from electoral challenge. I say this as someone who is not necessarily opposed to any new methods for redistricting. But such a momentous change should come, as it does today, from the states where different plans and ideas can be sifted and tested.
The bill also requires at least two weeks of early voting. Early voting may offer some advantages in getting people to turn out, but it has disadvantages in getting less informed voters. A campaign moves to a crescendo in its last weeks, with more coverage and late-breaking developments. Early voters lose the benefit of this. Early voting is particularly inappropriate in presidential primaries where candidates may have dropped out before Election Day. The bill is therefore unwise in applying a one-size-fits-all approach to different states, but also to different kinds of elections.
This essay can only touch on some of the worst provisions of this gargantuan bill. For instance, I have not even mentioned the massive amounts of government subsidies for politicians, including those who may have little chance of winning an election. But it is fair to say that the bill has few pages that do not encode provisions that are of partisan design, suspect constitutionality, or dubious policy wisdom.
House Democrats made much of the fact that this was the first substantive piece of legislation they passed in this Congress. And that symbolism is appropriate because this bill captures all that is worst about progressivism: a contempt for the Constitution, bare-knuckled partisanship hidden under a gauzy veil of high-minded rhetoric, and unearned confidence in substituting a single, centralized plan in place of the emergent order that comes from state practices passed by diverse political coalitions and debated over many years.