House Democrats’ new election-reform plan, the so-called For the People Act, is an unconstitutional abomination.
House Resolution 1, also known as the For the People Act, is House Democrats’ latest effort to further federalize and micromanage our governance. The enormous 571-page bill is a progressive wish list of new rules and regulations that would undermine the legitimacy and functionality of our entire electoral system. And it’s now set for a vote on the House floor.
The Constitution deliberately decentralizes power over elections as it does over most other areas of law, leaving states and localities to determine rules for when, where, and how to cast a vote. We have laws in place to stop racial discrimination and the like, but short of that, decentralization ensures that no single entity exerts too much influence over elections. Indeed, the reason it’s very hard to “hack” a presidential election is because it’s not a “national” election but 50 state ones.
H.R. 1 would strip states of their longstanding responsibilities as electoral gatekeepers by imposing one-size-fits-all rules. A key provision of the bill would require states to use independent commissions to design congressional districts. But the constitutional authority to draw districts rests with state legislatures, so the federal government can’t force states to use commissions. That would surely invite legal challenge as a violation of the anti-commandeering doctrine established by the Supreme Court in New York v. United States (1992) and reiterated just last year in Murphy v. NCAA (2018), which prohibits the federal government from conscripting state officials into carrying out preferred policies.
One of the most worrisome “reforms” is tucked away in the bill’s Federal Election Commission provisions. After Watergate, Congress created the FEC as a six-member, politically independent body so that neither party could use its regulatory power to punish political opponents. H.R. 1 abandons this longstanding structure, refashioning the FEC into a five-member commission that allows a simple majority to investigate and prosecute. The bill does state that no more than two members can be from the same political party, but this wouldn’t stop obvious partisans like, say, Bernie Sanders (who’s technically an “independent”) from being appointed. Adopting these changes would subject the FEC — our election monitor — to partisan control.
The partisan implications of this change are clear. If this bill were to become law under a Democratic president in 2021, he or she would get to appoint all five FEC commissioners. Two commissioners would be appointed for three-year terms, and the other three for six years. All terms thereafter would be for six years. So a Democratic president could, in theory, appoint two Republican members to three-year terms expiring in December 2024, and then again in December 2030, and so on. This would essentially guarantee Democratic control of the FEC for at least six years.
On the campaign-finance front, H.R. 1 represents a blatant assault on the First Amendment. Even the American Civil Liberties Union has said that the bill goes too far by trying to silence necessary voices that would otherwise speak out on public issues. In a recent letter to the House Rules Committee, the ACLU pointed to numerous provisions that would impinge on individuals’ and public-interest organizations’ freedom of speech.
For one thing, certain politically active organizations, including tax-exempt 501(c)(4) charitable groups and unions, would be compelled to disclose donors who have contributed more than a certain amount. Digital-ad companies, like Facebook, would be required to create an online database disclosing all political-ad purchases totaling more than $500. These provisions would impose considerable compliance costs and chill political speech — which is, of course, the goal of most campaign-finance “reformers.”
H.R. 1 also asks taxpayers to subsidize congressional campaigns. The bill’s “small-dollar financing” program provides a six-to-one match for private contributions up to $200. In practice, a $200 private donation would trigger a $1200 taxpayer donation, which could have up to a $9.6 billion price tag in the 2020 election alone. Under the guise of public financing, Americans of all political stripes would be forced to financially support candidates whose views they abhor.
In the end, H.R. 1 will be dead on arrival in the Republican-controlled Senate, but we should be wary of such omnibus centralization of our electoral mechanism in the name of “good government” all the same. The bill offers little in the way of real policy reform, proposes numerous provisions that are clearly unconstitutional, and undermines basic principles of federalism. If ever adopted, it would give power to one slice of Washington’s elite at the expense of American democracy’s carefully crafted checks and balances.
Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. Nathan Harvey is a legal associate at Cato.