As the discontented winter of 2021 turned into spring, the For the People Act of 2021 (H.R.1) passed in the House of Representatives and went to the Senate floor, with a brand-new title: S.1. While House Democrats were elated over the narrow party line win, Senate Democrats currently face a scorching legislative heatwave this summer, with no rest for the weary, and few options to muscle S.1 through that do not involve genteel political blackmail or a complete nuke of the filibuster.
In “H.R.1: The Good, The Bad, And the WTF”, I warned readers about why a potential Senate stall out glowered ominously on the horizon. Surprisingly, journalists from outlets as diverse as the Washington Post, The New York Times, Wall Street Journal, POLITICO, RedState, Reason, The Spectator, Forbes, The Daily Beast, and Huffington Post came to the same conclusion I did: S.1. needs to be split up into smaller bills that might garner more bipartisan support, and the campaign finance parts of the bill are problematic and should be killed with fire. The ACLU and the Heritage Foundation have also expressed similar concerns.
While the efforts of Senator Amy Klobuchar and The Brennan Center have improved many of the election administration sections of the bill, it’s worth asking why other areas of the bill have remained largely the same despite harsh criticism. Why are the Democrats clinging to a bill that cannot pass? Is S.1. worth ending the filibuster that has largely benefitted Democrats in past administrations. And perhaps of most interest, what are the motivations behind this bill? (Hint: it involves a longtime lobbyist with axes to grind).
What is the Current Situation on the Senate Floor?
As of June 10, 48 Democratic and Independent Senators support passing S1. 48 Republican Senators oppose the bill. The holdouts, Senator Kristen Sinema (D-AZ) and Senator Joe Manchin (D-WV), have incurred the wrath of most Congressional Democrats and a fair percentage of the media and general public. Threats to end the filibuster are more vehement than ever, yet Manchin and Sinema have dug in their heels. This has not been lost on President Biden, who went on the record referring to both as “the two Democrats who vote with the Republicans”.
Is this assessment fair? So far, Manchin and Sinema have voted with their party on just about everything else. And both voted with the Democrats when the For the People Act of 2019 was on the Senate floor as S.949. Clearly, they recognize one of two possible scenarios: something in S.1. will come back to haunt Democrats in years to come, or that S.1. is not worth jeopardizing the shred of future power by filibuster that the Democrats will need when the political pendulum swings back to the GOP.
S.1. and the Amy Klobuchar Edit
To the credit of the Senate Rules Committee, Senator Amy Klobuchar, and the incredibly hard-working folks at The Brennan Center, there was a concentrated effort to listen to election administrators and election policy experts and fix the parts of S.1. that covered election administration and voter services. Very few legislators make that kind of an effort on behalf of the people who are tasked with the day-to-day administration of elections, and I would like to personally thank Senator Klobuchar for doing so.
Unfortunately, those were not the parts of the bill that stirred up the most drama. The DISCLOSE Act, and just about every subsection that had to do with the FEC, campaign finance reform, political communication, and public financing of candidates were virtually unchanged, even as the bill ballooned to over 900 pages.
By comparison, Homer’s epics The Iliad and The Odyssey are around 1000 pages combined, and that is in their original Homeric Greek. I think there have been enough election-related epics and tragedies lately.
Is “For the People” Really an Act?
Much to the fury of many of my Twitter followers, I made a passing comment about the luxury that Representative John Sarbanes (D-MD03) had in sponsoring this bill, due to his safe seat in a heavily gerrymandered. Safe Democratic Maryland Congressional District, which enables him to refuse money from large corporate PACs. This is not a judgement about the quality of his leadership or his dedication to his constituents. By almost all accounts, he takes good care of the residents of Maryland’s 3rd congressional district, and I commend him for his dedication to voting and election reform.
Not every member of Congress enjoys that level of job security and ignoring that will not cure the For the People Act of multiple fatal flaws. The Help America Vote Act was passed during a Republican majority House and Senate back in 2002. More recently, the nonpartisan For The People Act of 2019 was sponsored by Representative Bryan Fitzpatrick (R-PA01). Sadly, the bill died in committee. Overall, it was a better bill than currently exists in S.1. and it might be worth asking why there was not much of an effort to get it off the ground before the onslaught that was the 2020 election season. Was the bill ignored because rival 2019 bill H.R.1. was so much better? Or did it languish because both parties only care about election reform when they derive a benefit from a change in the rules?
The Lobbyist and the Legislator
There has been a considerable lack of transparency when it comes to finding out who actually wrote any of the versions of the For the People Act. Representative Sarbanes had a hand in authoring some of the bill, but not all of it. As it turns out, the For the People Act, in all its incarnations, was predominantly written by a longtime DC lobbyist. Anyone who follows campaign finance reform over the past 45 years is probably familiar with legendary DC lobbyist and campaign finance reform juggernaut Fred Wertheimer. Wertheimer was instrumental in getting the Federal Election Campaign Act of 1974 passed, as well as the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002. He is not shy about his disdain for the current FEC setup or his enthusiasm for political campaigns financed by the American public.
Interestingly, Wertheimer’s involvement in drafting S.1. appears to be unknown by much of the public, who have been bombarded with messaging that insists that S.1. is merely a voting rights bill. Reading between the lines, it becomes increasingly clear that S.1. is less about voting rights and more about a complete overhaul of the Federal Elections Commission, regulations on campaign finance, and public campaign financing. In 2019, Wertheimer testified as much during a Congressional hearing. There is more discussion from Wertheimer about whether H.R.1. would affect any future Supreme Court action involving the Citizens United decision than the closing of polling places or automatic voter registration. Ironic that a bill that purports to be against the influence of special interest groups and lobbyists was drafted by a lobbyist from a special interest group. Is his intention noble? Probably. On the other hand, why is his involvement only known to a relatively small group of political insiders? Because that would get in the way of a perfectly crafted narrative.
Alternative Solutions That Make Nobody Happy
Obviously, the Democrats are not going to compromise on S.1. Neither are the Republicans. S.1. cannot go through by the reconciliation process because it is not directly tied to legislative budgets and funding. Going nuclear on the filibuster is a move that the Democrats may wind up regretting when they inevitably become the minority party someday in the future, and even if the filibuster ends, there are several parts of S.1. that are certain to have unintended consequences and are not worth losing a bargaining chip over.
Senator Manchin is cognizant of the need for bipartisan support when it comes to election reform, and offered a solution, albeit an imperfect one. Get the John Lewis Voting Rights Act (H.R.4.) passed and increase the preclearance requirements. While there is no guarantee it will pass by 60 vote majority, it has more bipartisan support than S.1. currently does. In her article in The Daily Beast, journalist Jessica Huseman offers an even better solution: include election funding in President Biden’s mammoth infrastructure bill.
I agree with Ms. Huseman’s take, and would like to add one of my own unorthodox solutions that might bring the right and the left together when it comes to ensuring American elections remain free, fair, and secure. In conjunction with the Election Assistance Commission, appoint a multipartisan panel of election administrators, election security and auditing experts and accounting professionals to develop a national set of standards and procedures for pre and post-election audits that the public can bear witness to and aren’t an undue cost or personnel burden for the largest or smallest election jurisdictions.
Currently, election audits are a patchwork of state laws and random reasons for the audits. Risk limiting audits are the most recent gold standard, but many states and counties have yet to adopt them, for any number of reasons. In 2018, I was fortunate enough to witness Colorado’s first statewide risk limiting audit, and my biggest regret is that most voters are unaware of the process behind them. Can near perfection be improved upon? Recently, a new form of post-election auditing called SOBA has the election world abuzz, and the creators have been working overtime to garner support from both Republicans and Democrats. Stay tuned for my future series covering election audits and the people obsessed with them!