Is H.R. 1 a “Voting Rights Bill”?

Walter Olson

H.R. 1, dubbed by its backers the For the People Act, passed the House Wednesday on a near‐​party‐​line vote, with not a single Republican in favor and only one Democrat voting against. Both the Washington Post and New York Times in recent days have seen fit to describe it as a “voting‐​rights bill.”

In fact H.R. 1 is a sprawling omnibus measure that would assert federal control over a broad array of areas of American life related not just to elections and campaigns but to the dissemination of opinion about politics and policy, as well as a range of matters yet further afield:

• Seeking to strike back against the Supreme Court’s Citizens United decision, the bill would require disclosure of the names of many persons who donate to organizations that engage in policy‐​oriented speech that falls far short of electioneering. Per a critical account by two ACLU lawyers, that would menace the confidentiality of a nonprofit that bought an ad “criticizing House Speaker Nancy Pelosi (D‐​Calif.) for supporting immigration reform or criticizing Sen. Ted Cruz (R‐​Tex.) for opposing the Equality Act.” That “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.” (More about the speech implications here.) Whether that’s a good idea or a bad one, it’s not a voting rights issue.
• The bill would create a new public fund to finance congressional campaigns. Good idea or bad, that’s not a voting rights issue.
• The bill would tag more persons as lobbyists and create a new obligation for various persons connected with foreign states to say so before weighing in on social media discussions of American politics. Not a voting rights issue.
• Notwithstanding the status of the Article III judiciary as a separate and independent branch of government, the bill presumes to order the drawing up of a Supreme Court ethics code. Not a voting rights issue.
• Various provisions of the bill that do relate to voting procedure would require states to do things like adopt early in‐​person voting, liberally permit so‐​called ballot harvesting, and create independent redistricting commissions. Election Day would be made a public holiday. Whether good ideas or bad, these venture into areas of electoral reform that until recently were distinguished from voting rights as such, as well as being left to local option under our system of federalism. (Some are also very likely to be struck down as unconstitutional, whether because they repudiate the local control of elections envisaged in our constitutional design, because they “commandeer” state resources, or both.)

You can see why promoters of a grab‐​every‐​power‐​in‐​sight piece of omnibus legislation might wish to name the whole 100‐​car freight train after whichever segment of it is deemed most politically appealing. For one thing, it puts opponents in the corner as being “against the voting rights bill.” It’s not clear why others should agree to that terminology.