House Democrats, on Thursday, are introducing their top legislative priority, a set of “democracy reforms” intended to expand voting rights, clean up campaign finance and tighten government ethics. Senate Republicans are firmly opposed. And that means this bill, known as H.R. 1, is unlikely to be signed into law by this Congress.
But even if Democrats recapture the Senate and the White House in 2020 and turn their proposals into law, a Republican-dominated Supreme Court would probably upend Democrats’ plans.
1. The Roberts court has already sunk the 1965 Voting Rights Act
Called the For the People Act” H.R. 1 seeks to restore and strengthen the 1965 Voting Rights Act. In particular, Democrats want to reimpose a process known as “preclearance”: the requirement that jurisdictions with a documented history of racially discriminatory voting rules must get federal approval before making any changes to their election laws. Democrats aim to prevent states from adopting rules that might sound neutral but disproportionately harm the voting rights of racial minorities.
But the Supreme Court has already weighed against “preclearance,” holding in Shelby County v. Holder (2013) that the federal government may not insult the “dignity” of state governments by vetoing their election laws.
2. The court seems unlikely to allow a congressional ban on partisan gerrymandering
H.R. 1 transfers state legislatures’ authority to draw congressional districts to independent redistricting commissions. Some states have already created such commissions — most recently Colorado, Michigan, Missouri and Utah. But in much of the country, state legislatures still hold this power.
And they often use that power in partisan ways. In Wisconsin, for example, the Republican-controlled legislature drew congressional districts so effectively in 2011 that they have continued to win a majority of seats even when Democrats win the statewide vote. That’s what happened in 2018, when Democrats won more than 50 percent of the vote — but took only three out of the state’s eight congressional seats.
Removing partisanship from redistricting has broad public support. But the court could stand in the way. Just four years ago, the Supreme Court upheld an Arizona voter initiative that sought to end partisan gerrymandering by transferring redistricting authority from the state legislature to a nonpartisan commission. However, the court’s vote was 5 to 4, and Justice Anthony M. Kennedy — who retired from the bench last year — voted with the majority. Chief Justice John G. Roberts Jr. dissented, relying on a strict literal reading of the Constitution to hold that a state’s voters could not take away district line-drawing authority from the state legislature.
Granted, a ballot initiative — not an act of Congress — took away redistricting authority from the Arizona state legislature. And the constitutional provision on which Roberts relied (the elections clause of Article 1, Section 4) expressly authorizes Congress to override state laws regarding congressional elections.
But Roberts noted that while Congress may alter election regulations prescribed by the state legislature, it may not authorize an entity other than the state legislature to write such regulations. Justices Samuel A. Alito Jr. and Clarence Thomas joined Roberts’s dissent. That position seems likely to appeal to Trump-appointed Justices Neil M. Gorsuch and Brett M. Kavanaugh as well.
If so, the court has a majority to strike down gerrymandering reform.
3. The Court has probably moved rightward on campaign finance regulation
In Citizens United v. FEC (2010), the Court held that corporations have a First Amendment right to spend money on elections. However, it noted that Congress remained free to mandate that the sources of that funding must be publicly disclosed. H.R. 1 takes up that offer, adding new disclosure requirements for large donors. But the court’s position may have shifted.
That’s because Kennedy wrote the court’s opinion in Citizens United. Thomas specifically dissented from the holding about disclosure requirements. Thomas argued that corporations have a constitutional right to spend as much money as they want on campaign ads, without disclosing the source of the spending.
Alito did not join Thomas’s dissent, but he made a virtually identical argument in another case decided just a few months later. Sen. Mitch McConnell echoed this argument in The Washington Post in January. If Gorsuch and Kavanaugh agree, H.R. 1’s disclosure requirements would need Roberts’s vote to survive.
4. Nor is the court a fan of public campaign financing
H.R. 1’s provisions regarding small-donor matching funds seem even more vulnerable. The bill proposes that all donations up to $200 to a House candidate or presidential campaign would receive a 6-to-1 matching grant from the federal government.
But in 2011, the court invalidated the Arizona Citizens Clean Elections Act by a 5-to-4 vote, with Roberts writing the majority opinion. Enacted by Arizona voters in 1998, the law set up voluntary public campaign funding for candidates for state office. Candidates who reached a specified number of small-dollar contributions from Arizona voters could receive state funding — so long as they agreed to strict limits on further private fundraising.
The system was voluntary, and it included catch-up funds to level the playing field if one candidate for an office accepted public funding while another candidate did not. Roberts held that wealthy candidates have a First Amendment right to spend as much of their own money on their campaigns as they like, and that the government may not discourage such spending by granting additional funds to their opponents.
Justice Elena Kagan took apart this conservative reading of the First Amendment in dissent, but Roberts had the votes — as he probably would next time around.
5. Democrats might have to play constitutional hardball
When one party captures firm control of the courts, it often relies on those courts to advance its own interests. Congressional Republicans think H.R. 1 would harm their electoral prospects. Odds are that their judicial allies would agree.
What, then, could reform advocates do? If the court strikes down key parts of the law, reformers could either change the court or change the Constitution.
The first option is for Democrats to pack the court to bring it back into partisan balance.
The second is to put their democracy-reform policies into the Constitution itself. Opponents of Citizens United have been calling for a constitutional amendment to allow Congress to regulate election spending. If Democrats want universal adult voter registration, nonpartisan electoral districting and mandatory disclosure of election-related spending, they would probably have to embed those requirements in the Constitution as well.