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H.R. 1, the For the People Act, along with its sister bill, the John Lewis Voting Rights Act, signals Democrats’ commitment to voting rights and democracy reform.
In 2008, Barack Obama became the first major candidate to opt out of the public-financing system set up to fund presidential campaigns, gambling that he would be able to raise more money outside of it. His opponent, John McCain, was a big proponent of campaign finance reform, having written the “McCain-Feingold” law that banned soft-money donations from national political parties to candidates. McCain kept to public-financing limits, spending only $84 million, while Obama was limited only by how much money he could raise. McCain was vastly outraised and outspent, aiding Obama’s landmark victory.
Supporters of Obama’s choice said that it helped “democratize” spending, enabling more small-dollar donors to support his candidacy. McCain, meanwhile, faced blowback for his decision from his own party. In a campaign postmortem, Karl Rove wrote for The Wall Street Journal editorial pages that “Mr. Obama’s victory marks the death of the campaign finance system … No presidential candidate will ever take public financing in the general election again and risk being outspent as badly as Mr. McCain was this year.”
The public-financing system, created by Democrats after the Watergate scandals in 1976, was set up to restore public trust in federal campaigns and limit the kind of shady dealings that went on during the Nixon years. Obama’s choice signaled a major shift away from public funding, and two years later, the Supreme Court upended everything.
Citizens United v. FEC (2010) held that the First Amendment prohibits limits on spending on political campaigns by corporations, nonprofits, and labor unions. The ruling dramatically shifted the landscape of political spending, culminating in two Senate special elections this year in Georgia that cost nearly a billion dollars combined.
But critically, Citizens United does not prohibit new laws that would require more transparency, laws that formalize requirements for independent spending, nor laws that might bolster small-dollar donors. In short, it does not prohibit laws that would set up mitigation efforts to counter the Citizens United effect, through provisions such as a public-financing system for small-dollar donors. Democracy reform advocates and their allies in Congress have made the first piece of legislation introduced in the last Congress and the current Congress about just this.
H.R. 1, the For the People Act, along with its sister bill, the John Lewis Voting Rights Act, signals Democrats’ commitment to voting rights and democracy reform. (The Supreme Court heard arguments Tuesday in another challenge that could further eviscerate the Voting Rights Act unless Congress takes action.) H.R. 1, which the House introduced for debate on Tuesday, includes provisions for automatic voter registration, and empowers small donors through a public-financing system. It would end partisan gerrymandering and overhaul federal ethics rules, including a code of ethics for Supreme Court justices. It will get a final vote in the House this week.
It is highly unlikely Republicans will support H.R. 1, given Mitch McConnell’s antipathy to campaign finance reform. In other words, it will take legislative reform—Democrats eliminating the filibuster—to advance democracy reform.
“H.R. 1 takes a ‘whole of democracy’ approach,” explained Stephen Spaulding, senior counsel at Common Cause. He cited three pillars in the legislation: “Expanding access to the ballot box; pillar two is reducing the undue influence of money in politics, breaking the grip that big money has on the political system; and pillar three is ensuring clean and ethical government.”
Advocates say that the bills would make America a true democracy, by rolling back the stranglehold that big-money donors have on the political system. “It’s the boldest pro-democracy reform package introduced in Congress since the Watergate era,” wrote Sylvia Albert, director of voting and elections at Common Cause, for Roll Call.
But the bill also points a path forward to how to react to conservative judicial rulings, a priority for democracy and voting rights advocates now that the Supreme Court has a 6-3 conservative split. “There are a number of provisions in the bill that are responsive to the Supreme Court’s decisions over the past ten years … whereby they gradually deregulated the campaign finance system and really greenlit suppressive voting laws,” Spaulding explained.
H.R. 1 accomplishes this in a couple of different ways. It includes some “statutory overrides,” which overturn Supreme Court decisions based on congressional intent. For example, H.R. 1 would override the statutory decision in Husted v. Randolph Institute (2018), which provided that Ohio’s voter purges were allowed. Statutory overrides, as my colleague Rachel Cohen and I wrote about extensively last fall, are a key tool for Congress to take back its power as a coequal branch of government.
Advocates say that the bills would make America a true democracy, by rolling back the stranglehold that big-money donors have on the political system.
“There’s lots of examples where Congress responds to interpretation of the statute. That’s the Lilly Ledbetter model,” said Paul Smith, vice president of the Campaign Legal Center, referring to the Lilly Ledbetter Fair Pay Act, which overturned a Supreme Court decision. There’s also the Civil Rights Restoration Act of 1987, which overturned a 1984 Supreme Court decision, Grove City College v. Bell, and restored provisions of Title IX of the Education Amendments of 1972 to include private colleges and schools, not just schools that received some federal funding. President Reagan ultimately vetoed the bill.
But the Citizens United decision itself was a constitutional ruling. To address this, the For the People Act does something similar to a statutory override, only it attacks a constitutional decision not so easily overturned. The bill counters the influence of corporate spending by empowering small-dollar donors as a countervailing force, and by requiring greater transparency and independence of the big donors in political spending.
An entire section of the bill is devoted to the Citizens United decision. That ruling, the bill states, “erroneously invalidated even-handed rules about the spending of money in local, State, and Federal elections.” The bill continues: “The Supreme Court’s misinterpretation of the Constitution to empower monied interests at the expense of the American people in elections has seriously eroded over 100 years of congressional action to promote fairness and protect elections from the toxic influence of money.”
In this way, the legislation is somewhat unusual. If Congress passes the For the People Act, it would be curtailing or constraining the First Amendment rights the Court provided for corporations. Typically, it’s the Court that is constraining constitutional rights, and Congress—the People’s House—trying to expand them. The roles here are flipped. “It’s hard to imagine a constitutional right that Congress doesn’t like,” Smith said. “It’s usually the other way around.”
The Citizens United decision, among other decisions of the Roberts Court, helped create problems in the campaign finance space that now must be addressed through legislation. Experts explained that even the justices didn’t quite realize what floodgates they were opening. In Citizens United, the court erroneously assumed that existing independence requirements for political spending would extend to corporate spending, but in practice, corporations spent unlimited sums so long as they weren’t formally “coordinating” with a candidate. Justice Anthony Kennedy wrote the majority opinion, but in a speech at Harvard Law School, he appeared to back away from it, saying, “What happens with money in politics is not good.”
Adav Noti, senior director for trial litigation of the Campaign Legal Center, thought this was a “pretty honest admission … The Court’s sense of how politics works is not in fact better than Congress’s is.” Thus far, Noti explained, “Congress has done very little to reassert itself as a prime decision-maker … hopefully this will change with H.R. 1.”
Advocates are hopeful that the evidence of a need for reform speaks for itself. From 2008 to 2020, campaign spending increased more than 700 percent. The 2020 election cost roughly $14 billion, a number that puts Obama’s 2008 fundraising largesse to shame.
Restoring the integrity of elections is also a worry, and the bill would ensure a paper-ballot trail as well as creating more universal standards. “There’s 51 different sets of rules for electing the president of the United States,” Spalding said, “so there’s a genuine need, and I think the voters have now seen it play out as to why we need clear fair national standards.”
Ultimately, Noti sees the bill not so much as a counterweight but as a mitigation effort, as Congress can’t easily overturn constitutional decisions. “The Court has unleashed this problem on the nation, and ultimately the Court is going to need to be the one to fix it,” he said. “A future Supreme Court is going to need to look at Citizens United and recognize it was wrong.”
