by Steven Rosenfeld January 4, 2019
Democrats in Congress Unveil Ambitious Plan to Fix Our Election System
HR 1 aims to counter the systemic corruption of the electoral system that blocks some citizens—but not others—from voting, allows large donors to hide their identity and enables current or former top officeholders to personally profit from serving
On the second day of the 116th Congress, the new House Democratic majority will introduce H.R. 1, the most comprehensive democracy reform legislation seen this century. It addresses voting rights and electoral procedures, campaign finance rules and loopholes, and seeks to institute higher ethical standards for federal officeholders and more.
One can look at the For The People Act as a wish list of inclusive, transparent and publicly accountable solutions and best practices that seek to come to grips with today’s world of voting, election advocacy and voter engagement—or suppression. Or one can look at its dozens of focal points as a catalog of everything that has broken down in a system that vainly labels itself the world’s greatest democracy.
“When they trust you on this issue, they trust you on other issues as well,” said Rep. John Sarbanes, D-MD, chair of the House Democrats’ Democracy Reform Task Force and a longtime public financing advocate, describing H.R. 1. “That confidence is what democracy is all about.”
The bill’s overall framing is to counter systemic corruption that blocks some citizens—but not others—from voting; or allows large donors to hide their identity while funding attacks they wouldn’t publicly want to be associated with; or enables current and recent officeholders to personally profit from serving in the highest levels of the federal government.
“The anti-corruption stuff isn’t new,” said Miles Rapoport, Senior Practice Fellow in American Democracy at Harvard Kennedy School, who previously led the government reform groups Common Cause and Demos. “People always say it’s rigged. It’s corrupt, etc. I think what’s new now is people say our democracy itself, our elections themselves, are screwed up, rigged, incompetently run—one thing or another.”
“What I am excited about is these things [specific anti-democratic facets and remedies] are having real resonance,” Rapoport continued. “It’s not just ‘Drain the Swamp,’ which everyone can say, right and left, and means different things to different people.”
The bill is a compendium of 22 previously introduced political reform bills and some new provisions. Most of the reforms have been proposed by Democratic lawmakers to counter abuses pioneered or deployed this century by Republicans—whether extreme gerrymanders, voter suppression, or stealth financing—or rulings from the conservative majority on the U.S. Supreme Court that have deregulated campaigning.
“Throughout the last two years, we have heard people say they didn’t just want to be part of a resistance, they wanted to insist on a set of values,” Rep. Ilhan Omar, D-MN, one of the newly elected freshmen from 2018’s blue wave, in a press conference about the bill late last year. “I think, for us, it’s really important to remember that accessibility, transparency and the trust of the public is the cornerstone of our democracy… They didn’t want to send us here to resist [President Trump] and only work on oversight. They want to make sure we are insisting on furthering a set of values.”
The Reform Agenda
Broadly speaking, H.R. 1 has three main sections: voting, campaign finance and ethics. Many of these reforms are to counter barriers erected by the GOP in recent years following the Supreme Court’s 2013 gutting of the federal Voting Rights Act.
The voting section seeks to remove barriers to participation by:
- Requiring every state to offer online voter registration;
- Requiring all states to automatically register every eligible voter;
- Allowing voter registration at more state and federal government offices;
- Allowing same-day registration during early voting and on Election Day;
- Preventing states from using sloppy data mining to purge voters from rolls;
- Preventing states from using returned mail as the basis to purge voters;
- Limiting who can challenge a voter’s credentials at polling places;
- Outlawing distributing deceptive information about the process;
- Restoring voting rights to felons after serving their sentences.
It seeks to fortify the integrity of the voting and counting process by:
- Requiring all states use paper ballots where votes are counted by hand or scanners;
- Requiring provisional ballots will be counted—no matter where they are turned in;
- Requiring at least 15 consecutive days of early voting for federal elections;
- Requiring early voting locations be near public transportation;
- Preventing states from imposing restrictions on voting by mail;
- Making colleges and universities voter registration centers;
- Requiring the Post Office deliver mail-in ballots for free;
- Making Election Day a federal holiday;
- Paying for modernized voting systems.
It seeks to restore federal oversight of voting rights by:
- Affirming Congress’s right to restore the Voting Rights Act of 1965, which granted the Justice Department veto power over jurisdictions with histories of voting discrimination;
- Affirming the federal government’s power to protect Native American voting;
- Declaring that being an infrequent voter is insufficient ground to be purged.
The bill would also counter extreme partisan gerrymanders—which the U.S. Supreme Court refused to do in several recent major cases—by requiring states to use independent redistricting commissions to draw congressional districts after the 2021 Census. Last fall, a handful of states passed ballot measures to create such commissions after seeing the GOP’s domination of that process in 2011.
The bill’s campaign finance reform sections are a mix of new disclosure requirements and procedural improvements to revive the presidential public financing system and expand public financing as an option in the states. Those provisions, which are designed to close current loopholes, include:
- Banning the use of shell companies that funnel foreign money into U.S. campaigns;
- Banning campaign contributions from corporations with significant foreign ownership;
- Requiring super PACs and other vehicles to disclose donors giving more than $10,000;
- Requiring large digital platforms to maintain a public archive of all political ads, and prevent foreigners from directly or indirectly buying ads;
- Calling for the IRS to create new rules for non-profit political spending;
- Requiring government contractors disclose their political spending;
- Requiring presidential inaugural committees disclose their spending.
The bill also seeks to restore and expand public financing of campaigns, where small donations are matched by public funds—a means of lessening the reliance on larger donations and special interests. It does this by:
- Asserting Citizens United was wrongly decided by the Supreme Court and Congress has authority to regulate campaign contributions and expenditures;
- Creating a six-to-one match for donations up to $200 to congressional and presidential candidates;
- Allowing lower-income candidates to use campaign funds for expenses like rent, childcare and elder services;
- Defining what is and isn’t a “coordinated” expense among political allies.
The bill’s ethics section calls for a “code of ethics” for the U.S. Supreme Court, spends additional money on policing activities by foreign agents in domestic campaigns, and expands who is required to register as a lobbyist. It seeks to prevent conflicts of interest by requiring presidential appointees to recuse themselves in issues where the executive branch or their spouses have a stake in the outcome.
There are other provisions targeting the executive branch, including:
- Barring payments from corporations to people entering government service;
- Barring former employees from being a federal contractor for two years;
- Barring ex-executive branch employees from lobbying former colleagues;
- Requiring the president and vice-president file financial disclosure reports;
- Reviving the oversight powers of the branch’s Office of Government Ethics;
- Instituting rules barring personal enrichment or gifts to executive branch employees;
- Requiring the president and vice-president release their income tax returns.
A To-Do List or Catalog of Broken Government?
Longtime democracy reformers like Public Citizen’s Craig Holman note that each of these focal points is itself a microcosm needing checks and balances.
“Some of the more significant reforms, to me, are elements that I helped write,” he said Thursday. “For example, we would apply the conflict of interest code, 18 USC 208, to the White House, to the president in particular. And then enforce it by changing the Office of Government Ethics, which is the executive branch ethics agency, and make it the actual ethics cop. Currently, it’s just an advisory body. It can’t do anything. It can’t make anyone do anything they don’t want to. We’ve seen Trump just refuse to abide by the ethics rules, because OGE has no authority to make him do so. So we’d change OGE from an advisory agency to an actual ethics cop with the enforcement authority over the White House.”
Holman points to other conflicts of interest that are as serious as they are unresolved.
“There’s a provision that would require full disclosure and no personal use of funds that have been raised for the inauguration,” he said. “As you may know, Trump is now under investigation for some $50 million missing from his inaugural financing.”
Erin Chlopak, director of campaign finance strategy at the Campaign Legal Center, said H.R. 1 “on the campaign finance side really addresses a number of different issues in our current system. They include trying to bring in more people into the process through public financing programs, both at the congressional and presidential levels.”
“It’s addressing some of the disclosure loopholes that exist with our current system,” she continued. “The current laws really don’t address all of the advertising that’s happening in the online space. The current regime was really created when most of the advertising was taking place on radio and TV. So this would incorporate the Honest Ads Act-type provisions to extend the requirements that exist for those other media to the digital space, and also require a public database for ads purchased on those platforms. So even when the ads become ephemeral and disappear, there would still be a place to locate them.”
Chlopak also said the bill would outlaw the current game of hide-and-seek that many big donors play—anonymously funding campaigns but not lending their names to the effort.
“It would address the lack of disclosure issue created using super PACs and C4 and LLCs and other ways to essentially hide their identity by transferring money from one entity to another to avoid being disclosed as the original source of financing of a particular campaign activity,” she said. “Another way this addresses current problems is post-Citizens United and other cases that led to the emergence of super PACs, the FEC has failed to clarify or to create any rules defining what it means to coordinate with a super PAC. So now we have these ostensibly independent organizations that exist solely to promote a single candidate. The new legislation would define what sorts of activities amount to coordination between a campaign and a super PAC.”
Republican Resistance Expected
In short, H.R. 1 is designed to rebalance the rules governing the current world of election advocacy and voting. While it can be seen as a statement of best practices, or even a pro-democracy political platform, it attests to the depth of intentional dysfunctions that are imposed on the political system, culture of campaigns, and voting process by those who stand to gain money, power or influence by tilting the process.
None of the experts interviewed Thursday thought Senate Republicans, led by Mitch McConnell, would take up the House’s massive political reform agenda. But they also expressed some optimism that the public was seeing the depths of the distortions undermining American democracy and a need for serious systemic remedies.
“Adopting all of these things addresses distinct problems,” Chlopak said. “They work in tandem with each other to address flaws in the system. Broadly speaking, we think any of them independently would certainly be an improvement on what we currently have. But none of them [the various planks] independently address all of the problems that we are currently dealing with. We think that they are all important.”
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