H.R. 1/S. 1’s Case for Primacy

Update 501 – H.R. 1/S. 1’s Case for Primacy:
Democracy Distorted, Thwarted is Denied

The gold standard in democracy is one person one vote and a legislature where 50 percent-plus rules. But recent outcomes in our elections have violated these principles with distorted consequences. 

In the most egregious case, House Democratic candidates won more than a million votes than GOP candidates but fell 33 seats short of a majority six years ago. In the Senate, the 50-50 split in power belies the fact that Democrats represent 40 million more people than GOP Senators. And the Electoral College, designed over 200 years ago, has overturned the will of the people twice in 20 years.

The road to repairing our democracy is long, but it starts with H.R. 1/S. 1, the For the People Act. Below, we explore the case for reform, the key provisions for the bill, and what may be needed to secure its passage.

Best,

Dana

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This month, House Democrats, led by Rep. John Sarbanes, introduced H.R. 1, the For the People Act of 2021, a major package of election and anti-corruption reforms. A nearly identical version of the bill passed the House in 2019 on a party-line vote. Though the entire Senate Democratic Caucus supported the bill, Mitch McConnell ultimately prevented it from receiving a hearing or vote in the Senate. Now, the bill will see the light of day there. Democratic leaders have assigned the bill the moniker of S. 1.

The filibuster will frustrate passage of the bill in its current form given Democrats’ slim majority in the Senate. With steadfast Republican opposition to the current version, the bill will test Democrats’ willingness to compromise or even eliminate the filibuster in order to pass the bill. 

The Urgent Need for Reform

American democracy is overdue for repair. Voter suppression, gerrymandering, and other violations of civil and political rights are only increasing in intensity, thanks in large part to ideological Supreme Court decisions and GOP dominance in statehouses. In 2014, voter turnout was lower than at any time in the past 72 years. In 2018, Republican-controlled states sought to keep it that way, enforcing draconian and politically-motivated voter identification laws and widespread voter roll purges — in effect stripping millions of their rights to participate in democracy. 

Gerrymandering ensures that even the most unpopular lawmakers never face a real challenge, except in primaries, which in turn increases political polarization and gridlock. It also has been used disproportionately by the GOP to limit Democratic representation, such as in Ohio, where Republicans hold 12 of the state’s 16 congressional districts despite having won less than 55 percent of the vote in the last two presidential elections. Loopholes in campaign finance laws empower big money donors while limiting the field of candidates to those with personal wealth and gifted fundraisers. Combine that with near-non existent ethics laws and what results are quid pro quo policymaking and a government unrepresentative and unresponsive. 

Key Elements of the For the People Act

The For the People Act offers solutions to these essential problems. If passed, the bill would represent the largest set of democracy reforms since the post-Watergate era. The bill can be broken into three key issue sections:

• Voting and Elections: The first section of the bill is a series of improvements to the voting system championed by the late Rep. John Lewis. This includes automatic voter registration, voting rights for previously incarcerated individuals who have served their time, greater access to absentee and early voting, and a prohibition on states purging voters from their rolls. It includes election security components such as funding for updated election infrastructure and support for the use of paper ballots. It also requires states to set up independent redistricting commissions to draw congressional districts. While some states currently have such commissions, in most states, the legislatures control the process. This significant measure would take the ability to gerrymander away from politicians who have incentives to maximize their power by picking their voters.

• Campaign Finance: H.R. 1/S. 1 contains important reforms to help get big money out of politics. Under the proposal, campaigns must report foreign contacts, and corporations must disclose political activity to shareholders. The bill expands reporting requirements for digital ad purchases, reduces the number of commissioners on the Federal Election Commission from six to five in order to break the gridlock, strengthens the prohibition on coordination between campaigns and super-PACs, and, importantly, requires 501(c)4s and super-PACs to disclose their dark money donors. At the center of these campaign finance reforms is the creation of a voluntary matching program for small-dollar contributions. This program would be funded by a surcharge on settlements by corporations violating federal law and wealthy tax evaders. Candidates for federal office would be eligible to receive a six-to-one match of all individual contributions under $200 — with the intention of freeing candidates from spending large amounts of time raising money from large-dollar donors.

• Ethics and Conflicts of Interest: The last group of reforms in the bill seek to impose stricter ethical standards in Washington. These include strengthened measures to avoid conflicts of interest by elected officials, expanded disclosure and divestment requirements, and tougher rules for lobbyist registration and government employees moving to the private sector.

Legislative Outlook

H.R. 1 received unanimous support from House Democrats last Congress and will likely be brought directly to the House floor for a vote in the coming weeks. 

The true crucible for the bill will be in the Senate. Senators Merkley and Klobuchar are S. 1’s primary sponsors, tasked with shepherding the bill through committee and rounding up support within the Senate. The bill is expected to be marked up in the Rules Committee, but with stimulus legislation, presidential nominations, and the impeachment trial occupying much of the Senate calendar, it may be weeks before hearings on the bill begin. 

As it stands today, there have been no signs of defections within the GOP in its opposition to the bill, which will hinder its chance of passage in the Senate as long as the filibuster remains in place. Minority Leader McConnell already made clear in 2019 that he views the bill as a Democratic power grab, and Republicans have vigorously pushed misleading messages about the small-donor matching system program.

The Path Ahead

The question for Democrats moving forward is: what version of the bill can secure sufficient Republican support for passage? Senate Republicans will likely object to the small-dollar matching program, redistricting reform, and expanded access to voting — which they view as a direct threat to their power. But enough may be amenable to the ethics provisions in the bill and might be able to reconcile the bill’s election security measures with their own talking points on voter fraud. A compromise bill with just these provisions might attract more votes. 

Ultimately, the bill’s fate in the Senate will likely be determined by the filibuster, which would force the bill to be watered down or deny its passage completely. The cruel irony should not be lost on us that the best hope for major democratic reform in a generation will be obstructed by using a practice inherently undemocratic and obstructive of a legislative remedy demanded by citizens of all stripes and states. Republicans’ use of the filibuster on this bill will only heighten further the urgent need for the bill’s reforms as well as the filibuster’s traditional role as a barricade against progressive policies.