With the latest COVID relief package passed, H.R. 1—the For the People Act—becomes the most salient pending piece of legislation. Our democracy is on borrowed time: Just two months ago America weathered a violent attempt to overthrow a free and fair election. One of our two major political parties is now explicitly seeking to lower the number of votes cast in future elections. And if we don’t take decisive action now to preserve our democracy, we’ll lose it. H.R. 1 is supposed to be a bulwark against these anti-democratic threats. It has taken on a partisan tinge, but it’s neither a progressive nor partisan bill—it’s a pro-democracy bill that should appeal to Americans of all political backgrounds.
So before the next stage of the debate begins in earnest, let’s open the hood and take a look at what’s actually in the bill.
Broadly speaking, H.R. 1 covers three major areas: voting and elections, campaign finance, and ethics.
First, it would:
- reduce barriers that keep eligible citizens from registering to vote and then casting their vote;
- set minimum, uniform standards for elections; and
- provide funding to increase the security of our elections.
These reforms have a long record of bipartisan support and have already been implemented across many states.
Second, H.R. 1 would increase the transparency of spending on elections and campaign ads and strengthen protections against foreign interference in our campaigns.
Third is ethics: Requiring increased disclosure of lobbying activities, and putting into law ethical guidelines preventing conflicts of interest by staff, appointees, members of Congress, and even presidents.
So those are the broad strokes of what the bill aims to do. Here’s a bit more detail on the mechanisms it proposes.
Preventing Voter Suppression and Protecting Elections (Titles I–III)
Currently, each state sets its own procedures for how its residents register and cast their vote. The For the People Act creates minimum standards that will apply to each state, for how voters register and cast their ballots, while still empowering states to run their own elections.
Consider voter registration. H.R. 1 takes voter registration reforms that have proven successful across dozens of states over multiple election cycles, and mandates them nationally: It requires states to allow online and same-day voter registration and strengthens protections against efforts to hinder, deceive, or intimidate voters from registering or casting their ballots.
As another example, H.R. 1 restores the right to vote for all felons who have served their sentences and been released from prison. These 5 million currently disenfranchised voters are disproportionately people of color.
There’s historic precedent at work here: kicking blacks off the voter rolls for a criminal conviction was such an effective tool of the Jim Crow South that when the Reconstruction Congress readmitted Confederate states to the Union, it limited which felonies could be used to suspend a person’s ability to vote—a limitation which has gone tragically unenforced. A century later, states such as Alabama, Mississippi, and Tennessee have used this same principle to disenfranchise more than 8 percent of their voting-age populations. The For the People Act would end the seesaws of these state-by-state laws and impose a fair minimum standard.
The For the People Act would also standardize how a voter can be removed from the rolls. Some states remove voters because they skipped voting in an election a while back or failed to return a piece of mail. And some campaigns abuse these rules to intentionally push voters (namely, ones likely to vote for their opponents) off the rolls.
While existing law places some limits on the use of racially discriminatory voter purges, enforcement of these protections is inconsistent (at best). The act would prohibit the use of non-forwardable mail that has been returned as a basis for kicking someone off the voting rolls. It also prevents voters from being kicked off the rolls if they fail to vote in an election, and requires people who are not election officials to swear that they have a good faith factual basis if they decide to challenge a citizen’s voter registration.
In terms of casting the ballot after a voter is registered, H.R. 1 would expand procedures that make it easier to vote. It expands vote-by-mail—which, contrary to many partisan arguments, does not overall boost turnout of one party over another. The bill would also allow curbside voting (so that older people and people with disabilities can vote from their vehicle) and pre-paying the postage on mail-in ballots so a citizen doesn’t miss out on casting their vote just because they could not afford a stamp.
The act also seeks to reduce wait times at the polls. Long wait times can impose undue hardships on voters—making voting physically hard on the elderly, for instance, or economically hard for hourly workers without childcare. A bipartisan commission recommends a 30-minute maximum wait time. But in the United States, not only do many voters wait longer than an hour and a half, lines are longer at polling places in predominantly black neighborhoods—regardless of whether that neighborhood is in a Democratic- or Republican-controlled state.
The For the People Act includes several provisions that would reduce wait times, including setting minimum hours and days for early voting availability, and funding states’ recruitment and training of more poll workers so that they can open more polling locations.
H.R. 1 also standardizes vote-by-mail procedures to reduce confusion that results in uncounted ballots. In 2020, many voters were left waiting for absentee ballots that either came too late or never arrived at all. Those who did get their ballots were often worried about their ballot arriving back at the board of elections in time to be counted. The act requires states to track and confirm the receipt of absentee ballots and make it easier for people to return ballots through secure dropboxes.
H.R. 1 also forbids any official from overseeing an election in which they, or a family member, are a candidate. For example: In November 2018, Brian Kemp campaigned to become governor of Georgia at the same time that he was overseeing the election as Georgia’s secretary of state. He resigned in response to a lawsuit (disclaimer: our organization filed it) arguing that that refereeing and running in the same election violates the basic constitutional principle that a person may not be a judge in their own case. H.R. 1 would formalize this rule.
Perhaps most critically, H.R. 1 would also end the political parties’ control over drawing congressional districts—a process which is abused across the country, by both Democrats and Republicans, and which herds tens of millions of Americans into bizarre geographic constructions for the sole purpose of being able to win more races with same number of votes.
Instead, H.R. 1 requires states to use non-partisan redistricting commissions to draw these lines. In the face of the Supreme Court’s decision in 2019 not to stand in the way of extreme partisan redistricting, this provision would help make a state’s representation more proportional to the actual outcome of elections.
The For the People Act also includes numerous provisions to increase election security and, just as importantly, bolster public confidence in this security. It creates minimum standards for election equipment vendors (including requiring that they are made in the USA); requires paper ballot receipts to enable audits; directs states to prevent and deter cybersecurity risks; and funds research into improving the security of our election infrastructure.
It would also require federal intelligence agencies to help states share information about potential security threats and to test voting machines for vulnerabilities. The Act doesn’t leave states footing the bill: it provides over $1 billion in funding to help states take these steps to better secure our elections.
All of these actions are well within Congress’s authority to manage elections in which a candidate for federal office is on the ballot. In fact, Congress’s power here to regulate elections is broad and explicitly authorized by multiple constitutional provisions.
First and foremost, Article I’s Elections Clause explicitly empowers Congress to regulate the “times, places and manner” of federal elections. The Supreme Court has explained that this includes the power to “provide a complete code for congressional elections.” Indeed, Congress’s power here is “paramount, and may be exercised at any time, and to any extent which it deems expedient.”
This is in addition to Congress’s inherent Article I power to “preserve the purity of presidential and vice-presidential elections.”
Moreover, Congress has the power under the Enforcement Clause of the Fourteenth Amendment to enforce the Fourteenth Amendment’s guarantee against racial discrimination in voting. The Republican Guarantee Clause, which states “The United States shall guarantee to every State in this Union a Republican Form of Government,” is another source of Congress’s authority to regulate elections. While the contours of each specific authority can be complicated, the overall conclusion is not: Congress has broad authority to regulate the conduct of elections in which federal officials appear on the ballot.
Transparency, Campaign Finance, and Foreign Interference (Titles IV–VI)
H.R. 1 includes a set of reforms designed to create more transparency around election-related spending and limit foreign interference in elections.
There is limited space for Congress to reform campaign finance, following the Supreme Court’s decision in Citizens United. But within this framework, Congress has significant authority to require more transparency—which is the thrust of the campaign finance reforms in H.R. 1. The act requires more disclosure of who funds online ads, disclosure of spending by government contractors, and creates a shareholder right to know about a corporation’s political expenditures.
It also strengthens protections against foreign interference in elections. It requires campaigns to report attempts by foreign nationals to unlawfully interfere with elections, tighter limits on campaign donations by foreign nationals, and the requirements for transparency in “dark money” groups and ads will bring to light an avenue by which foreign funds influence U.S. elections.
Some of these provisions have been the subject of thoughtful critique by the ACLU. But overall, this is a set of reforms designed to shore up the integrity and stability of the U.S. elections system by increasing transparency and limiting foreign interference, while remaining consistent with the limitations of Citizens United.
The act also provides matching funds for small-donor contributions to candidates, with strict limitations to ensure that no taxpayer dollars go to these matching funds. While there is some evidence that small donors can fuel politicians with more extreme views, in a world where Congress can’t restrict campaign funding, this approach is designed as a hedge against the magnified influence of large donors.
Ethics Reform Across the Entire Federal Government (Titles VII–X)
H.R. 1 contains numerous ethics provisions that move beyond elections, and apply to all three branches of the federal government. Some apply to presidential candidates as well. Taken together they amount to basic steps in reducing corruption and self-dealing throughout the government.
The act would require the judiciary to create a code of ethics that applies to all federal judges. (Currently, Supreme Court justices are the only federal judges not subject to any written code of conduct.) It would also strengthen the registration requirements for agents of foreign governments, strengthen lobbying disclosures, and make all of these registrations and disclosures more easily available to the public.
And it would significantly strengthen ethics requirements across the executive branch. Examples:
- bolstering recusal requirements for current federal officials;
- preventing federal funds from being spent at businesses owned by the president or cabinet members; and
- requiring presidential appointees to recuse themselves from matters in which the president or their spouse is a party.
H.R. 1 would also close loopholes that prevent standard federal conflict-of-interest rules from applying to all officials, by extending relevant requirements to the president and vice president and requiring presidents-elect adopt and enforce ethics rules for their transition teams.
It would strengthen the Office of Government Ethics’s independence and investigatory authority and require the sitting president, vice presidents, and major-party presidential candidates to release their tax returns for the prior 10 years, so the people can understand any financial interests their candidates and elected officials might have.
Finally, H.R. 1 imposes stronger ethics requirements on Congress. It would require members of Congress to reimburse taxpayers for employment discrimination claims against those members who have been paid by the Treasury. It would extend some basic conflict-of-interest rules to members of the House and Senate, including barring them from working to advance legislation that is primarily to further their, or their families’, financial interests. It also requires that the many reports that agencies submit to Congress be made available and searchable online. And it would limit those agencies’ ability to alter or remove final reports.
Reasonable people might quibble with the wisdom of this or that provision in H.R. 1. It’s a big bill. But there is no reasonable way to view it as a partisan power grab or federal takeover of our democracy.
And taken as a whole, we believe it upholds the essential components of democracy:
- That eligible voters can participate freely in our elections to choose their representatives.
- That those elections are secure and protected against undue influence and interference.
- And that public officials across the federal government must then abide by some basic ethical codes.
H.R. 1 might not be sufficient to stop the anti-democratic forces now loose in our politics. The Voting Rights Act needs to be reauthorized in light of the Supreme Court’s Shelby County decision and the Protecting Our Democracy Act is needed to restore guardrails on executive power.
But H.R. 1 is a necessary step in protecting our political order because it reflects that the key tension is no longer left versus right, but democratic versus anti-democratic.