Update 511 — House Passes Political Reform:
HR 1, Test Case for Senate Filibuster Review?
On Wednesday night, the House passed HR 1, the For the People Act, by a near-party line vote of 220-210. HR 1 is a comprehensive revision of the rules of engagement in American politics, nothing short of that; in fact, it is the farthest-reaching overhaul of its kind since at least 1974’s post-Watergate reforms. It rewrites the rules of American politics so fundamentally as to make bipartisan support unlikely. But, popular even among GOP voters, expect HR 1, two years old on Monday, to remain in the center ring until it is finally passed.
Below we examine recent developments that underscore the urgency of HR 1, the impact HR 1 would have on future elections, and the bill’s outlook in and implications for the Senate.
Good weekends all,
If enacted, HR 1 would expand access to voting, root out dark money, weaken big donors’ influence over politics, and establish new ethics rules to clean up government. Americans know this and are reasonably familiar with the bill’s contents, having seen it pass the House two years ago. The bill is widely popular with voters across the political spectrum, including a majority of Republicans.
In the Senate, the bill faces a challenging but not insurmountable path forward. Unlike last Congress, in which Majority Leader Mitch McConnell refused to allow consideration of the bill, HR 1 will get a hearing and a floor vote. But the filibuster remains the most significant obstacle.
State Legislation Reinforces HR 1’s Necessity
HR 1’s passage in the House comes just as Republicans in state houses around the country are ramping up efforts to restrict access to the ballot box. In Georgia, for example, Republicans in the state legislature are advancing bills that would enact new voting restrictions, including eliminating automatic registration, limiting weekend early voting, and curtailing absentee voting — which would disproportionately affect black voters. This cynical effort shows the eagerness of Republicans to change the rules of the game after Democrats’ presidential and Senate victories in the last election.
This is being replicated around the country. Over 250 bills in 43 states restricting access to voting have been introduced so far in 2021, per the Brennan Center at NYU Law School. Meanwhile, the Supreme Court heard arguments earlier this week in a case challenging two restrictive voting laws in Arizona. A GOP lawyer defended these laws by saying repeal “puts us at a competitive disadvantage relative to Democrats… It’s the difference between winning an election 50-49 and losing.” Yet the conservative-dominated Court seems poised to rule in the state’s favor. Court-watchers say this could have the effect of limiting the federal government’s power in the future to challenge discriminatory voting laws.
As it did in 2019, HR 1 passed the House within a week of the anniversary of Bloody Sunday in Selma, Alabama, an event that helped spur passage of the Voting Rights Act in 1965. The late Rep. John Lewis authored Title I of the bill, which includes its voting access provisions. With voting rights under threat around the country, the future health of our democracy requires passage of HR 1.
Implications for Future Elections under HR 1
Representing the most significant package of democracy reforms in decades, HR 1 would make the following improvements to our election system:
- Empowering Small Donors: HR 1 would create a voluntary matching program for small-dollar contributions. Candidates for federal office would be eligible to receive a six-to-one match of all individual contributions under $200. This provision would allow candidates to run for office without needing to rely on the ultra-wealthy to cut campaign checks. Studies show that small-dollar matching funds help bolster racial and economic diversity of candidates who run for office. HR 1 creates a pilot program to allow states to experiment with another form of small-dollar public financing, democracy vouchers. Since 2017, democracy vouchers in Seattle brought more donors and candidates of color into the city’s elections.
- Fair Districts: With the 2020 Census, states will draw new congressional maps. Republicans will have direct control over the process for 188 House districts, and Democrats will oversee 73 districts, with the remaining 174 districts being determined by split state governments, independent commissions, or are at-large seats. Rather than having politicians draw their own districts, HR 1 would require every state to create its own independent redistricting commission that follows a uniform set of guidelines to prevent partisan gerrymandering and protect minority representation. This would result in congressional elections being more competitive and could help reduce partisanship in Congress.
- Protecting the Right to Vote: As witnessed during the 2020 election, our nation’s dysfunctional patchwork of election laws is in serious need of reform. HR 1 would create a uniform standard for voting, ensuring that every eligible citizen has access to a ballot and certainty that their vote will be counted. This includes automatic voter registration, voting rights for ex-incarcerated individuals, greater availability of absentee and early voting, and prohibition on states purging voter rolls. The bill would have the effect of undoing Republicans’ restrictive voting laws in the states.
Outlook in the Senate
Co-sponsored by Sens. Amy Klobuchar and Jeff Merkley, the companion bill in the Senate, designated S.1, will likely receive the support of all 50 Democrats. But Republican senators remain steadfastly opposed to the bill. Under current rules, the bill will be subject to the filibuster and the 60-vote threshold for cloture, which is unattainable given the lack of Republican support. This leaves Democrats with limited options moving forward.
- The bill could be broken up to get Republican votes to pass some of its provisions, but this is inadvisable. The bill’s most critical elements on election and campaign finance reform are strongly opposed by Republican politicians and are unlikely to get enough Republican votes in the Senate either way.
- Democrats could move the bill forward under regular order and force Republican senators to filibuster and vote against cloture on a popular piece of legislation. This would lead to the bill’s defeat but put a public spotlight on Republicans killing a popular and much-needed bill.
- The Democratic majority could remove the filibuster as an obstacle to the bill, either by eliminating the filibuster or creating an exception to the rule. Sen. Merkley and others have suggested creating a carve-out to the filibuster rule for voting rights or democracy reform legislation. This option could be the bill’s best chance for passage in the Senate, although it remains unclear whether an effort to do so will garner the unanimous support among the Democratic caucus.
Yesterday, Klobuchar announced that the Senate Rules Committee, which she chairs, will hold a hearing on the bill on March 24. Klobuchar recently said she unequivocally favors eliminating the filibuster to pass the bill. While a timeline for considering the bill has yet to be determined, Majority Leader Chuck Schumer’s decision to give the bill the moniker of S.1 indicates that Senate leadership views the bill as a priority.
HR 1 and the Filibuster
Senate Democrats will likely face a critical legislative decision. Some say that the filibuster defines the Senate’s uniqueness as a deliberative legislative body, with prerogatives for the minority. Yet in recent decades, it has frustrated the popular will. Molly Reynolds of the Brookings Institution found 161 provisions adopted between 1969-2014 prevent certain kinds of legislation from being filibustered in a range of policy areas such as budget reconciliation, trade authority, closing military bases, and review of regulations.
With existing precedent for bypassing the filibuster, HR 1 offers a test case for Democrats to establish a new exception. The stakes are clear, given the necessity of the reforms HR 1 provides. Almost fittingly, the biggest remaining obstacle to much-needed democracy reform is itself likely to come under scrutiny and pressure for some “sub-nuclear” or “must-pass” carve-out reform a la Harry Reid’s precedent on judicial nominations to enable its passage.