More on H.R.1/S.1: The Good, the Bad, and the Ugly

Photograph Source: Senate Democrats – CC BY 2.0

The “For the People Act” (H.R.1/S.1) passed the House on March 3 and is now under consideration by the Senate. The bill was also adopted by the House in 2019 but had no chance of passage in the Senate with the Republicans in control. But now that this voting and elections reform bill has become a real possibility with Democratic control, it is receiving closer scrutiny from movement progressives, if not yet congressional progressives. As I discussed in a previous article in CounterPunch, the progressive critique is that the bill’s matching funds program effectively excludes third party candidates and makes it even easier for the super-rich to buy elections. Many progressives and the Green Party in particular are calling for its matching funds program to be cut from bill before passing it.

The Good

The good in the bill are the many voting rights and election integrity standards that will federally pre-empt the Republicans’ state-level onslaught of racist voter suppression legislation. Now totaling at least 253 bills in 43 states, this Republican offensive is the biggest assault on voting rights since the Jim Crow era.

The 791-page bill incorporates 60 pieces of legislation. It would expand early voting and no-excuse absentee voting, establish automatic and same-day voter registration, end partisan gerrymandering, protect against voter roll purges, require voter-verified paper ballots, restore voting rights for felons after completing their sentences, require presidential candidates to disclose their tax returns, and many more progressive reforms.

If the federal voting rights provisions of H.R.1/S.1 are not enacted, state-level Republican legislation will suppress Democratic votes – particularly Black, Latino, Indigenous, and Asian voters but also other Democratic majority groups like young voters. Failure to enact H.R.1/S.1 will also enable Republicans to overrepresent themselves in the House and state legislatures through partisan gerrymandering. The Republicans now control 30 state legislatures. For example, as a result of partisan gerrymandering by Republicans after the last census, in 2020 in Wisconsin Democrats won 54% of the statewide popular vote in assembly races but only 36% of the seats. The 46% minority vote for Republicans won them 64% of the seats thanks to gerrymandering.

With partisan gerrymandering, Republicans will likely regain the majority in the House in the 2022 mid-terms despite representing a minority of the nation. Voter suppression laws will help Republicans take back the U.S. Senate as well, where the parties’ seats are split 50-50 even though the Democrats represent more people in their states than Republicans by a 57%-43% margin. A GOP lawyer bluntly told the U.S. Supreme Court on March 2 in an Arizona voting rights case when asked why the Republican Party opposed removing a voting restriction, “Because it puts us at a competitive disadvantage relative to Democrats.” The right-wing majority on the U.S. Supreme Court is unlikely to overturn these voter suppression laws and gerrymandered districts when they are challenged.

Progressives must push for passage of the voting rights provisions of H.R.1/S.1 in order to prevent the another decade of minority rule by Republicans through voter suppression, partisan gerrymandering, and the built-in advantages for Republicans in the structures of the Electoral College and the U.S. Senate.

The Bad

In my earlier CounterPunch article, I discussed a number of problems with the matching funds program in H.R1/S.1, including:

* It effectively excludes third parties like the Green Party from public funding in presidential elections by increasing the qualifying threshold of small donations by five times to $500,000. It puts the new congressional matching funds program out of reach for third party candidates by requiring $50,000 in small donations.

* It increases the disparities among publicly-funded candidates by seven times with its 6:1 match for small donations.

* It eliminates the cap on private spending by publicly-funded candidates that exists in the current presidential campaign public funding programs.

* It increases the role of big donors by raising from $5,000 to $100 million the amount national party committees can contribute to the presidential candidates. Big donors can give over $100,000 per year to the national parties’ three committees: their national committees and their House and Senate campaign committees.

* It does nothing to limit the hundreds of thousands of dollars that big donors can contribute to Victory Funds, which are joint fundraising committees of candidate committees and national and state party committees.

* It does nothing to stem the unlimited donations that can be made to SuperPACs for independent expenditures.

I missed one measure in H.R.1/S.1 that makes one statement in my previous presentation wrong, which is that the bill had no restrictions on dark money laundered to SuperPACs through 501c4 nonprofits. In fact, in another section of the bill separate from the matching funds program is a disclosure provision that requires independent expenditure organizations like SuperPACs that spend $10,000 or more on an election to disclose their donors who give $10,000 or more. This provision would bring most dark money out of the shadows.

But the reality still remains that the matching funds program merely adds some public money that is easily accessible by major party but not minor party candidates to a campaign finance system in which rich private donors dominate and get what they pay for.

The level of public funding will be no match for the mountains of private funding flowing into federal elections. The source of matching funds is to be a Freedom From Influence Fund, which will be funded by a small surcharge on settlements with corporate law breakers and high-income tax cheats. The Congressional Budget Office (CBO) estimated the 10-year revenues for the fund at $3.5 billion.

Compare the available public funding projected by the CBO to the actual private funding of federal elections in 2020. House candidates raised $1.9 billion and Senate candidates raised $2.1 billion, for a total of $4 billion for their candidate committees. An additional $4.7 billion was spent on congressional elections by independent expenditure organizations like SuperPACS, for a total of $8.7 billion on congressional elections. The presidential candidates spent $4 billion through their candidate committees, plus an additional $1.7 billion in independent expenditures on their behalf for a total of $5.7 billion. The grand total for congressional and presidential candidates in 2020 for spending by their own candidate committees and by independent expenditures on their behalf was $14.4 billion.

Even very conservatively assuming that campaign costs remain constant (they doubled from 2016 to 2020), and also assuming an average of $700 million will be available per 2-year election cycle over the next decade per the CBO score, $700 million for public matching funds is just 5% of the $14.4 billion in private financing spent in 2020. It is clear that this partial public funding program, which allows unlimited private spending alongside it, will do nothing to reduce the influence of big private money on elections. It is a token gesture, not a real reform.

Moreover, H.R.1/S.1 does not require the federal government to fully fund the Freedom From Influence Fund if the corporate crime fines are insufficient. If those revenues are not enough to fully pay for the matching funds candidates have qualified for, the public funding will be reduced proportionally to the funding shortfall.

The average cost in 2020 of a winning congressional campaign was over $2 million dollars for the House and $17 million for the Senate. To raise $2 million through the matching funds program, a candidate would need 1,430 donors contributing the maximum matchable donation of $200, or 10,582 contributing the Bernie Sanders average of $27. Multiply those numbers by 8.5 for Senate candidates. Upstart third party candidates, and many upstart major party primary challengers, don’t have donor bases at that scale. The matching funds program in H.R.1/S.1 will not give upstarts access to public funding they could use to build up a donor base. Think of a major-party upstart like Shirley Chisholm from the high-poverty Bedford-Stuyvesant section of Brooklyn in the late 1960s and 1970s. A candidate like her today would have great difficulty raising $50,000 for her congressional races or $500,000 for a presidential run like Chisholm’s in 1972. Third party candidates also need that public funding to pay petitioners to overcome the onerous signature requirements to just get on the ballot. Even if they manage to qualify for matching funds, the 6:1 match will increase by seven times the gap between candidates with lower and higher amounts of qualifying small donations.

With the advent of online donations making donations easier and today’s high political polarization motivating more people to donate, the portion of total campaign money raised by federal candidates from small donors ($200 or less) has increased from 18% in 2012, to 21% in 2016, to 27% in 2020. The same cannot be said for state elections where small donors have continued to account for much smaller portions of total donations. While congressional candidates with high national profiles like Democrats Bernie Sanders and Alexandria Ocasio-Cortez and Republicans Jim Jordan and Kevin McCarthy raise high proportions of their campaign funds from small donors, 90% of candidates in 2020 raised less than the small donor average of 27% of total donations. Of the 537 congressional candidates in 2020, only 12 got more than half of their campaign funds from small donors, while 485 got more than 80% of the their funds from big donors.

Another way to see how much big private donors and corporate special interests dominate campaign financing is to see how little unions spent on the 2020 elections by comparison. Labor unions accounted for $70.8 million of the total of $8 billion in contributions to federal candidates, or only 0.9% of all contributions. Independent expenditures by unions on behalf of federal candidates were $166.6 million, or only 2.6% of the $6.4 billion in total independent expenditures.

In short, what’s bad about the matching funds program is that it will provide some public money to major party candidates already well-funded by private money without curtailing the dominance of big private donors while effectively excluding most third-party and major-party primary challengers from public funding.

The Ugly

None of the good or the bad in H.R.1/S.1 will happen if Senate Democrats don’t defeat the ugly: the Senate’s filibuster rule.

It is inconceivable that ten Republicans will vote for cloture on S.1 to end the inevitable Republican filibuster. To pass the bill, the Democrats will have to kill the filibuster, or require a return to the talking filibuster where Senators have to be speaking on the floor of the Senate to sustain the filibuster, or eliminate it only for voting rights and democracy reform bills, as some Democratic Senators have proposed in hopes winning over pro-filibuster Democratic Senators like Joe Manchin of West Virginia, Kyrsten Sinema of Arizona, and Diane Feinstein of California. Or the Senate may restore earmarks and find a way to meet these anti-filibuster Senators’ prices to get S.1 passed. If Democratic leaders can’t win these Senators’ votes for S.1 one way or the other, they are not going to be able to enact much legislation of any kind with the filibuster remaining in place.

Two other key pro-democracy bills are on Democrats’ legislative agenda. One is D.C. statehood (H.R.51). It will not pass if the Republicans can filibuster it. The other is the John Lewis Voting Rights Act, which would restore the preclearance provision of the 1965 Voting Rights Act that the U.S. Supreme Court gutted in 2013 in Shelby v. Holder. The preclearance provision required jurisdictions with a proven history of voter discrimination and suppression toward Black, Latino, Indigenous, and/or Asian voters to gain certification from the U.S. Department of Justice that a proposed change to election procedures was not discriminatory. Within hours of the Shelby ruling, Republicans in states and local jurisdictions previously covered by the preclearance provision began implementing discriminatory practices by executive orders and legislative initiatives, including onerous photo ID requirements, citizenship documentation, voter roll purges, and cuts to voting sites and equipment in minority communities.

If the Senate Democrats do not end the filibuster, the rest of Biden’s first term is going to be ugly. The defeat of pending democracy reforms will hand power over to the Republicans at the state and federal levels. It is for his “Build Back Better” infrastructure cum climate plan that Biden seems likely to use his last opportunity to employ the budget reconciliation process to bypass the filibuster and pass the bill by a majority vote. As modest, inadequate, and often counter-productive as his proposals are from a progressive point of view, the rest of Biden’s legislative agenda concerning such high profile items as democracy reforms, immigration, criminal justice, the minimum wage, and labor law reform is dead if the filibuster is not eliminated. The Republicans will run against a do-nothing Congress to take back the House and Senate in 2022.

The Alternatives

H.R.1/S.1 should be adopted without the matching funds program. The question of campaign finance reform should be addressed in separate legislation.

Progressives should demand a program of full public campaign finance program on the Clean Money Clean Elections (CMCE) model, in contrast to partial public funding on the matching funds model. With CMCE, each qualified candidate receives an equal public campaign grant and then spends no private money on their campaign. This program is currently in effect for general election funding for presidential candidates and for state elections in Arizona, Connecticut, and Maine. CMCE is what progressives campaigned for in the 1990s and early 2000s. Even Senator Joe Biden felt compelled to join Paul Wellstone and others in co-sponsoring a CMCE bill for congressional elections in 1997. A CMCE bill should require publicly-funded candidates to participate in publicly-sponsored debates and require free and equal time for candidates on federally-licensed broadcasters.

Progressives should campaign for the proposed We The People Amendment to the U.S. Constitution. This amendment would overturn the Supreme Court rulings in Buckley v. Valeo (1976), Citizens United v. FEC (2010), McCutcheon v. FEC (2014), and other decisions that have held that artificial corporations have the same constitutional rights as natural persons and that money is speech, not property. The amendment would enable the public to fully regulate campaign finance, including enacting a CMCE system of full public campaign funding.

Progressive should also push for ranked choice voting because it will open up the political system for the left. Under our plurality system, most progressive voters feel they can’t afford to vote for the Greens on the left and settle for centrist Democrats in order to stop far-right Republicans. The enduring power of this lesser evil dynamic is shown by the fact that in the 46 presidential elections over 180 years since the abolitionist Liberty Party challenged to pro-slavery Democrats and Whigs in 1840, independent left presidential challengers have won over 4% of the vote only five times. When the left did exceed 4% – with 10% in 1848 for Martin Van Buren and 5% in 1852 for John Parker Hale as the Free Soil Party candidates, 9% for James Weaver of the 1892 People’s Party, 6% for Eugene Debs of the 1912 Socialist Party, and 17% for Robert LaFollette of the 1924 Progressive Party – the left still finished a distant third, or fourth in 1912.

With ranked choice voting, a progressive voter can rank the Green first and the Democrat second and not worry that their vote for the Green will split the left and center resulting in a victory for the Republican. While there is legislation to replace the Electoral College with a national popular vote for president, no progressive in Congress has yet introduced a bill to replace the Electoral College with a ranked choice national popular vote. That is a bill movement progressives should push congressional progressives to introduce.

Ranked choice voting should also be used for multi-seat districts, which results in proportional representation of all the political parties and perspectives in the district. It also renders gerrymandering impossible because the doctoring of district lines for partisan gain only works effectively for single-seat districts. In this case, there is a bill for proportional representation through multi-seat ranked choice voting for congressional elections called the Fair Representation Act.

The good news is that ranked choice voting is gaining momentum. In the 2020 elections, five more cities and the state of Alaska adopted rank choice voting, bringing the total to 35 local governments and two states. On Vermont’s March 2 Town Meeting Day this year, Burlington adopted ranked choice voting in a referendum by 64%-36%. Growing campaigns for RCV exist in nearly all of the states. RCV, particularly multi-seat RCV for legislative bodies, is a game changing pro-democracy reform that progressives can win at the local and state level today and, on that foundation, at the federal level soon.

Howie Hawkins was the 2020 Green Party candidate for President.