Representative democracy in America is in a precarious state. Our democracy derives its authority and credibility from its accommodation of diverse interests, execution of frequent and fair elections, and, perhaps most crucially, capacity to produce representative government. Few would claim that a government in which the president, members of Congress, and state officials routinely pursued policies that conflicted with public preferences would, in any conventional sense, qualify as democratic. Put differently, American democracy depends on substantial correspondence between public preferences and policy outcomes. And yet, a well-coordinated effort is underway in states across the country to make it harder to vote.
H.R. 1, the For the People Act, and its Senate counterpart, S. 1, one of the most ambitious democracy-reform efforts in American history, seeks to protect the right to vote and fortify the correspondence between public preferences and policy outcomes in this fraught period of democratic decline. H.R. 1 was narrowly approved by the House of Representatives in March, and a key Senate committee just considered the bill. All attention is now focused on whether the full Senate will approve S. 1 later this year.
Attacks on the Will of the People
The current threats to American democracy are considerable. A sizable number of Americans, though far less than a majority, believe that the 2020 Presidential Election was marred by fraud. These unfounded beliefs—enabled and supported by partisan operatives dissatisfied with the election’s results—have fueled the introduction by state legislatures of hundreds of bills that, if enacted and enforced, will undermine the right to vote. Many of the bills make absentee voting more difficult, introduce or bolster needless voter identification requirements, and invite the removal of voters from the voter rolls—a practice known as “voter purging”—on dubious bases. Other bills troublingly strip local election officials of their authority to supervise elections and facilitate broader voter participation. The uptick in this type of restriction, what I have referred to as “structural preemption,” is a reactionary response to local election officials safeguarding the voting process last year.
In addition, the decennial redistricting process, in which congressional and state legislative district maps are designed, is underway, and occurs against the backdrop of extreme levels of partisan fervor. Partisan animosity raises the prospect that the resulting maps will be drastically unrepresentative of actual voter support. The danger of such partisan gerrymandering is heightened by the Supreme Court’s 2019 opinion in Rucho v. Common Cause, which held that partisan gerrymandering lawsuits are consigned to state courts; such lawsuits are now nonjusticiable in federal courts. While some state courts have invalidated partisan overreach in redistricting, there is no guarantee that other state courts will rule similarly, and Rucho, regrettably, foreclosed the possibility of a national, uniform metric to evaluate alleged abuses.
The corrosive effects of money in politics further endangers American democracy. As recently documented by the political reform group Issue One, just “12 megadonors and their spouses—a total of 19 individuals—accounted for about $1 of every $13 in federal politics between January 2009 and December 2020.” These staggering findings confirm what many Americans suspect: that the ultra-wealthy wield immense influence in national politics. And this influence, as political science has confirmed, often results in policy favoritism.
While the foregoing threats are multiplying across the country, the media has focused its attention on recent developments in a handful of key states. Events in two of those states, Georgia and Arizona, are instructive. Georgia officials passed a bill that, among other things, reduces the availability of absentee voting and requires those utilizing it to provide additional confirmation of their identities, reduces the number of drop boxes where ballots may be submitted, and empowers the state legislature to suspend county election officials. Arizona officials are likewise attempting to add identification requirements for those voting by mail, purge inactive voters, prevent local election officials from registering voters at community events, and, despite the fact that the state does not currently grant it, prohibit automatic voter registration. In short, as events in Georgia and Arizona illustrate, representative democracy is under attack on multiple fronts.
What the For the People Act Would Do
The For the People Act is desperately needed to remedy these attacks on our democracy. Regarding voting rights, the Act would mandate automatic voter registration for every prospective voter who interacts with select government agencies, require states to provide online and same-day voter registration, and assure voters of a two-week early voting period. It further would guarantee easy absentee voting, obligate counties to provide drop boxes, and permit voters to present a sworn written statement confirming their eligibility to vote as an alternative to presenting a qualifying form of voter identification.
Preserve an Inclusive, Representative Democracy
Elections are intended to reveal, in a phrase, the will of the people. The For the People Act’s voting provisions are designed to secure electoral outcomes that reflect that will; that is, the will of, at a minimum, a representative cross-section of our communities. Exclusionary measures such as those introduced in Georgia and Arizona—based as they are on fallacious beliefs about fraud—are unsupported by any legitimate government need and, insofar as they limit the size of the electorate, undermine the goal of representative government. In this regard, they contravene the spirit, if not the letter, of our Constitution’s commitment to voting rights. The Fifteenth Amendment prohibits denying or abridging the right to vote on account of race. The Nineteenth Amendment prohibits the same on account of sex, as does the Twenty-Sixth Amendment on account of age for those eighteen or older. Americans justly celebrate the expansion of the electorate facilitated by these amendments, not only because a more inclusive democracy is a more equitable democracy, but also because an expanded electorate fosters effective, accountable representation.
Protect Redistricting from Gerrymandering
Regarding partisan gerrymandering, the For the People Act most notably would require the creation of independent redistricting commissions for congressional redistricting. Though Congress lacks the power to regulate state legislative redistricting in the same way, it is assumed that, once established, commissions would be authorized to design state electoral districts as well. The absence of federal oversight of partisan gerrymandering has resulted in the underrepresentation of millions of voters. A 2019 report issued by the Center for American Progress found that, from 2012 to 2016, an average of fifty-nine congressional seats per election were shifted due to partisan gerrymandering. Practically, this results in tens of millions of votes effectively being disregarded. The primary explanation for this disregard is the control that state legislatures have over the redistricting process. Almost invariably, the political party that controls the state legislature designs electoral districts to its benefit, even when the resulting maps do not reflect voters’ preferences. Given this tendency, the For the People Act sensibly would shift redistricting authority to independent redistricting commissions.
Beyond simply requiring the creation of independent redistricting commissions, though, the For the People Act specifies the criteria that the commissions must use. The criteria include a prohibition on redistricting plans that “unduly favor or disfavor any political party.” By the bill’s terms, the inquiry into partisan favoritism focuses on “whether the plan results in durable partisan bias as determined by scientifically accepted measures of partisan fairness.” Such compelled reliance on quantitative measures of bias assures that voters retain their sovereign authority to choose their political representatives.
Reform Campaign Finance
Regarding campaign finance, the For the People Act would create a system of small-donor public financing that is designed to enhance the influence of average Americans and, accordingly, relieve political candidates from their reliance on wealthy donors. Public financing has proven effective at incentivizing nontraditional candidates—often women and minorities—to enter political races, and at incentivizing candidates to appeal to a wider and more representative pool of prospective donors. In addition, it affords members of Congress more time to legislate and perform constituent service, rather than having to devote hours of each day hunting large donations.
The For the People Act’s proposed public financing system rewards House and Senate candidates who agree to accept maximum donations of $1,000 by matching any donations between $1–$200 at a six-to-one rate. For instance, a qualifying candidate receiving a donation of $50 would be given $600 in federal matching money. A similar program in New York City was shown to be “a statistically significant driver of far greater engagement by candidates of constituents.” In this era of stark economic inequality, one in which economic power translates into political power, such engagement is essential.
The Bill’s Prospects
Critics of the For the People Act raise various objections. Some claim that its central provisions are unconstitutional. Others critique it as a pro-Democratic Party bill that is being insincerely sold as a pro-democracy bill. Others support its content, yet believe its size and scope compromise its political feasibility. In addition to the bill’s components described above, it addresses dozens of additional topics, including election security, polling place wait times, and congressional ethics reforms. This breadth, some analysts surmise, impedes the prospect of bipartisanship. The desire for bipartisanship aside, the bill’s passage will likely require all fifty Democratic senators to support limits on the filibuster.
Yet critics’ calls for reticence are unconvincing. Firmly established precedents make clear that Congress’s power under the Elections Clause of the Constitution is broad and includes the ability to supplant a wide range of state electoral regulations. Opposition to the bill based on its supposed benefits to the Democratic Party also rings hollow. As demonstrated last fall, increased voter turnout does not benefit either political party in any predictable fashion. Thus, increasing opportunities to vote, whether through absentee voting or the use of drop boxes, as the bill requires, would merely benefit voters, not parties. Independent redistricting commissions, as noted above, similarly place voters’ preferences over parties’ desires to gerrymander. And small-donor public financing incentivizes candidates from both parties to reject donations from the wealthy in favor of funds from more diverse donors. At present, both parties rely on large donations to the detriment of the voting public. Simply put, the bill’s coherence is obvious, once it is evaluated through the frame of representative government. As recently stated by Senator Jeff Merkley (D-OR), “The reason the For the People Act was crafted as a singular package is because each of these interlocking parts works together to return power to the people.”
Under the current filibuster rules, sixty votes are needed to move legislation forward, which means the bill’s passage will require Democratic and Republican senators to find common ground on protecting America’s representative democracy There is, however, no indication that such collaboration is likely. In the current climate, it is inconceivable that ten Republican senators will support the bill; revealingly, it seems none are even participating in negotiations. By contrast, consider the $568 billion infrastructure proposal recently put forth by Republican senators in response to President Biden’s $2 trillion infrastructure plan. Or consider the ongoing discussions between the White House, congressional Democrats, and Republican senators over the child tax credit. There are no comparable exchanges occurring about the For the People Act. And so, the bill is unlikely to pass without some movement on the filibuster.
The fallacy of opposing filibuster reform in pursuit of bipartisanship in the Senate is that, without the For the People Act’s passage, the prospects of bipartisanship elsewhere are dim. The rash of state legislation undermining voting rights is antithetical to bipartisanship. And partisan gerrymandering is an obvious inversion of bipartisanship.
Passage of the For the People Act is imperative if we aspire to decelerate our nation’s democratic backsliding and preserve the fundamental attributes of our representative democracy.
header image: Sen. Jeff Merkley (C) (D-OR), Senate Majority Leader Chuck Schumer (R) (D-NY), and Sen. Amy Klobuchar (L) (D-MN) announce the introduction of S.1., the ‘For the People’ Act, outside the U.S. Capitol in Washington, DC. Source: Win McNamee/Getty Images