The United States’ system of federal elections, which dictates the balance of power in Washington D.C., has, over the last decade, revealed its vulnerabilities. Trust in the outcome of the elections has been deeply damaged among voters on both sides, many of whom only believe the outcome is fair if their party is victorious. According to Politico, 65% of Republican voters believed the election would be free and fair, while only 52% of Democratic voters believed the same. However, soon after Biden was declared the winner, these figures changed. Trust in the election decreased among GOP voters to 30 %. The opposite happened among Democratic voters, where 90% said that the election had been free and fair. On top of this trend in election trust, the current Covid-19 pandemic painfully showcased massive problems within state governments’ ability to smoothly and quickly make the required updates to ensure the safety of voters. Clearly, the system is in need of an update, and close to 77% of Americans want to see voting reforms before the 2022 midterm elections. Given both its need and its support, it is too bad that H.R. 1 is nothing more than a partisan uprooting of every piece of U.S. campaign, election, and government ethics law. The “For the People” bill can be more appropriately called the “For the Politicians” act, fundamentally altering election law and the regulation of political speech from a bipartisan structure to a partisan system.
According to Rasmussen, voters currently hold great distrust in the current election process. A meager 26% of those who cast their ballots during the last two presidential elections believe that both were awarded to the proper winner. The people of the United States want to make sure the election results can be counted on and that everybody who wants to vote has the opportunity to do so. This sentiment is reflected in the broad support for measures such as making election day a federal holiday and allowing early voting, the latter already being the case in many states. Both parties favor election reform; the problem lies in that they differ on what this reform should look like. The Democratic-controlled House of Representatives passed their election bill H.R. 1 by a party-line vote of 220 to 210, with one Democratic member joining the Republicans. Its criticism, however, is not just coming from politicians from the opposite party. Since February, nine former Federal Election Commission (FEC) commissioners—with a combined six decades of experience—have come out fiercely against the bill. According to them, the 800 pages long “For the People Act” would mushroom regulation of speech about elections, government, and public policy, while also destroying the FEC’s bipartisan structure and its credibility.
Regarding the Federal Election Committee, the bill would transform the current bi-partisan 6-member agency into a partisan 5-member agency, directly controlled by the president. It would give the committee’s chairman—who would be appointed by the president—the sole power to appoint/remove the Commission’s Staff Director, prepare the commission’s budget, and compel testimony under oath. Additionally, H.R. 1 creates a new standard of judicial review that weakens the rights of the respondents when dealing with the commission. In effect, if a respondent under these new rules challenges the FEC in court, the judiciary is bound to defer to any reasonable interpretation the agency gives to a statute, while if a respondent wins at the FEC, the court must pay no deference to the FEC’s decision.
This, if implemented, creates a “heads I win, tails you lose” approach towards respondents and biases the court against speakers. Although bipartisanship in a commission has never been easy—requiring that both sides recognize they will not always get their way—for 40 years, both Democrats and Republicans managed to do it. Now, however, Congress is attempting to undo the current method of selecting Commission members and allow a president to install a partisan majority that could abuse campaign regulations to weaponize them against their opponent. In the words of Senator Alan Cranston (D-CA) during the debate on the legislation which created the agency: “We must not allow the FEC to become a tool for harassment by future imperial Presidents who may seek to repeat the abuses of Watergate. I understand and share the great concern expressed by some of our colleagues that the FEC has such a potential for abuse in our democratic society that the president should not be given power over the commission.”
The bill would also, under the guise of stopping super PAC-candidate coordination, target speech by all groups who are engaged in the public debate. Currently, under the existing law, if any kind of civic group, trade association, union, or any other type of organization wants to spend money to discuss candidates and issues, it is regulated as a coordinated expenditure if it meets both “content” and “conduct” standards. The “content” standards are intended to allow groups to communicate with the public about their concerns without fear of a federal investigation, while the “conduct” standards ensure that these groups cannot be held liable for any expenditures after having had conversations with candidates about their legislative priorities. H.R. 1 attacks both these provisions.
The bill would also define groups as coordinated spenders, even if they did not coordinate but instead independently spoke on the same topic of interest. This provision itself goes against the Supreme Court precedent—set in Colorado Republican Federal Campaign Committee vs. FEC—where the court held that coordination had to be proven and cannot simply be assumed. H.R. 1’s title VI, subtitle B, also imposes overly broad and vague descriptions about what kind of campaign speech government can forbid. The PASO—promote, attack, support, oppose—standard as described in this bill fails the Supreme Court’s test, which states that such speech, in order to be regulated, must “be susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly defined federal candidate.” Suppose a union bought an ad during the 2018 government shutdown, in which they state that their employees “ought not to be held hostage to a border wall. End this shutdown.” Under H.R. 1, if this statement is seen as attacking President Trump, it would meet the content standard under this new bill, and the union would be banned from making such a speech.
The “For the People Act,” as passed by the House of Representatives, also forces taxpayers to finance political campaigns. Under the provision, H.R. 1 would require the government to match contributions to politicians’ campaigns; for every dollar donated to a candidate, they will receive an additional 6 dollars in federal funding. This matching system, for any given donator, will continue until they reach the $200 threshold. Candidates with close ties to groups with canvassing operations will benefit enormously. Besides, there ought to be a moral outrage against such a provision. The government will actively dedicate taxpayer funds to campaigns of politicians with whom individual taxpayers disagree. Those in favor believe that this new system of taxpayer-financed campaigns would prevent corruption. Such a matching system is already in place in New York City, and studies have found that between 2001 to 2013, $19.2 million of public funds went to campaigns that were later investigated and convicted for abuse, fraud, and other forms of public corruption.
Due to it potentially becoming federal law, it would usurp any state election law that is contrary to it. It requires that universal absentee voting—voting by mail without any conditions or requirements attached—be adopted by every state. All types of voter-ID laws will be sidelined due to H.R. 1’s requirement that any voter who cannot show an ID will be allowed to sign a sworn written statement attesting to their eligibility. This proposal is vastly unpopular among voters, with 70% rejecting legislation that would ban requiring a voter ID. Ballot harvesting—the process in which political operatives collect ballots from voter’s homes and drop them off at the polling place—will be a legal process in all 50 states, whether those states want it or not.
While there are many additional problematic provisions—dealing with redistricting, lobbying, and more—it is clear that the current version of the 800-page omnibus bill will not do what it says it intends to: restoring faith in elections. Most notably, the piece of legislation is a threat to the First Amendment, with the ACLU even directly asking lawmakers to amend the bill to “avoid unconstitutionally burdening political speech.” What might be even more frightening is that sponsors of H.R. 1 refuse to even drop the parts of the bill that the courts have found to be unconstitutional in other legislation. Election reform should never be done on a party-line basis. Hopefully, now that the provision is in the Senate, this can still be fixed. Senator Manchin (D-WV) has already come out that he will not be supporting H.R. 1 in its current form. Let us hope that instead of not judging a book by its cover, lawmakers do not judge a bill by its name; the “For the People Act” is anything but for the people.