H.R.1, also known as the “For the People Act,” is a sweeping reform bill that aims to make voting easier, gerrymandering harder, and generally rein in the out-of-control minoritarianism that has come to characterize American democracy. Does it have a chance of becoming law? Rep. John Sarbanes, political scientist Jacob Hacker, and The Intercept’s Jon Schwarz join Ryan Grim to discuss.
Ryan Grim: This is perhaps the most important episode of Deconstructed we’ve ever put out. I’m afraid it also might be one of the drier ones. But I hope the stakes keep you listening.
I’m Ryan Grim, and we’re going to be talking about voting rights, campaign finance, and the corruption of our politics by big money. We’ll be talking specifically about a piece of transformative legislation that looks to address all of that. It’s called the For the People Act, and it’s designated as H.R.1 in the House, and S.1 in the Senate, which signals that for each chamber, it’s supposed to be their top priority. Stopping it, meanwhile, is definitely Mitch McConnell’s top priority, and it has been ever since it became conceivable it might pass.
Senate Minority Leader Mitch McConnell: What it really seems to be is a package of urgent measures to rewrite the rules of American politics for the exclusive benefit of the Democratic Party. A Washington-based taxpayer subsidized clearing house or political campaign funding, a power grab that’s smelling more and more like exactly what it is.
RG: So the bill is actually a collection of dozens of pieces of legislation that Democrats have been working on for years. One piece of it would require political donors to disclose their identities, trying to put an end to dark money. Another element creates matching funds for candidates who agree not to accept big money. That’s the part McConnell was complaining about in the clip.
But this year’s version doesn’t use taxpayer dollars, but instead makes the matching payments out of a fund created by fines for financial crimes. For every dollar a candidate raises in small money, the fund matches six times over. Those matching funds would also be available to Democrats who challenge other Democrats in primary elections, which has led to a ton of consternation inside the Democratic caucus, as you can imagine. “Why should we help fund our primary challengers?” many have asked. But those objections have largely been beaten back, as the stakes of the fight have come into focus.
The immediate stakes are these: Democrats currently hold 223 seats in the House of Representatives. They need 218 for a majority. When all the vacancies are filled, they’re likely to have a cushion of six or seven seats, not much to sit on comfortably. Once the census is released, House seats will be reapportioned. Partly because of the way the American population is flowing, and partly because the Trump administration deliberately rigged the census, Democrats are going to get pounded. These nine states are set to lose a congressional district: California, Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, Rhode Island, and West Virginia. And depending on how the census comes out, New York might actually lose two seats. Now, those 10 seats are getting spread around: three of them will go to Texas, which is exploding in population, two will go to Florida, and one each will go to Arizona, Colorado, Montana, North Carolina, and Oregon. Broadly speaking, you’ll recognize the pattern: blue states are losing seats, and red states are gaining seats.
That shift alone could easily wipe out the party’s majority, especially when you add in gerrymandering. Republicans control the redistricting process in nearly all the states that’ll be getting new congressional seats — Texas, Arizona, North Carolina, Montana, and Florida — meaning they can redraw the lines not just to make sure they pick up the new seats the census is giving them, but win back a few extra that Democrats picked up in 2018. Out of all the states gaining a seat, Democrats can gerrymander only in Oregon.
Across the whole country, the imbalance is equally stark. In 20 states, Republicans will have the full ability to gerrymander; that’s only true of nine Democratic states, and in most of those there aren’t many gains left to be made. The rest either have independent commissions or control of the state is split. Forgetting the census process, Republicans would only have to successfully gerrymander one seat for every two states they control to win back the House. That’s incredibly easy to do given today’s mapping technology. Take Georgia, where Democrats just won two Senate seats. Republicans hold eight House seats there and Democrats control six. But it’s not hard to look at how a map could pack a lot more Democrats into a few seats in and around Atlanta, and leave Republicans with 10 and Democrats with four. And that’s just one state.
If Republicans take the House in 2022, Biden’s legislative agenda is done. That likely means a stalled economy and more dysfunction in Washington, which then puts Republicans in a strong position to take the White House in 2024, at which point Democrats could be relegated to near-permanent minority status despite a national numerical advantage. It’s hard to see how functioning Democratic institutions survive such a structural imbalance.
That means H.R.1 and S.1 one are effectively the party’s last stand before a new era of minority-rule politics sets in. The bill ends gerrymandering, and also includes voting rights reforms — most importantly, automatic voter registration and same-day registration — that would bring millions of people off the sidelines and into the ballot box, or into the mail.
If Republicans get their way, as they’re doing now in Georgia, they’ll do everything they can to make mail-in voting impossible — which they blame for their 2020 loss of the White House and Senate, and are vowing not to let happen again.
Unlike Democrats, Republicans over the past 50 years have done everything in their power to create political structures that advantage them: They gutted campaign finance reform with Citizens United. They destroyed ACORN, a community organizing group that registered millions of voters a year. They took gerrymandering to a level of science in order to disenfranchise black voters. They created a fake scandal around the IRS to protect and expand their dark money operations. They overturned key portions of the Voting Rights Act. They introduced voter ID rules, shut down polling locations, and threw up all manner of obstacles to make it harder for struggling people to vote. The change to voting that has most benefited Democrats, meanwhile, has been the turn to mail. The ease with which small donors can now give to candidates has also been a boon to Democrats, foreshadowing the possibility of a party completely financed by regular people who can easily vote.
Now look, the rich and powerful would not be shut out of politics in a post-H.R.1 world. They’d still own most of the media, think tanks, and other pieces of the political economy that structure our politics; they can still fund endless super PACs and give big checks to members of Congress who agree to take them. They can still hire armies of lobbyists. But it would be a more democratic world than the one we have now, and it’s actually within reach — though Republican opposition in the Senate means it can only become law if the filibuster is reformed to, at minimum, create an exception for voting rights and other democracy reform.
Joining me today is the lead sponsor of H.R.1, Maryland Rep. John Sarbanes. I also talk to Jacob Hacker, author of “Let Them Eat Tweets” and one of the leading academics on the question of voting rights and campaign finance. But first, let’s bring in Intercept reporter Jon Schwarz, who’s been covering this fight for decades, to help set the historical stage.
Jon, welcome back to Deconstructed.
Jon Schwarz: Well, thanks very much. This is an important day. This is an important bill, and I’m excited to talk about it.
RG: I actually call this one of the most important bills, maybe the most important bill, because like, the way I look at it is that if you care about civil rights, if you care about climate change, if you care about health care reform, whatever issue it is that you’re organizing around, it’s not a sufficient condition to get H.R.1 one into law, but it’s necessary. You know what I mean?
JS: Yeah, I think that’s exactly right. And the fact that the Democrats are so focused on this is sort of a shock and it’s a surprise to people who follow politics from a progressive perspective, because, as we know, what Democrats usually do is, there’s an enormous problem facing America, and the Democrats come up with a solution that addresses it, perhaps up to 20 percent of what is necessary.
JS: And then the Republicans frown, and the Democrats are like, “I’m sorry, 20 percent, obviously, that’s too much. Let’s go with 10 percent.” And then they negotiate themselves down to 3 percent. And they passed that, and they’re like: OK, well, we’re done with that issue. We don’t have to do anything else for the next 20 years.
And this is the thing where the anti-democratic inclinations of the U.S. electoral system, accentuated by Republicans at every turn, is an extremely serious problem. And if you care about democracy, small-d democracy, in the United States, these things absolutely must be fixed, as you say, to address anything else. And this bill may not get every single aspect of that problem. It may not deal with everything, but it probably does deal with it, I would say like 80 percent or 90 percent. It would be a real structural change to the way politics works in America.
RG: So if they are actually taking it seriously, how do you explain the change in approach?
JS: It’s a puzzlement, you know. I think longtime observers of the Democratic Party, like yourself, know that they often refuse even to take steps that are in their own obvious self-interest. And I would say perhaps they have begun to understand that it’s good to try to get elected yourself, which, again, doesn’t seem like the Democratic Party we know, but maybe something’s changed.
RG: So what do you think are the most important parts of this?
JS: So, if you look at the bill, it’s an enormous bill, and what I would say is that it kind of looks at all of the measures that have been used to reduce the power of regular people in the democratic system by both Democrats and Republicans, but mostly Republicans, and wipes them away, and mandates measures that make just basic democratic participation possible.
And so this is basically three things, three categories: number one, it makes it easier to vote; number two, it makes everybody’s vote count more equally, particularly by reducing gerrymandering; and number three, it makes the ability of people without much money to affect elections, much greater. It amplifies the power of small donations. And so those three things would really change a lot.
RG: So let’s talk about the voting first. What’s the most important thing that this does to bring people actually out to the polls?
JS: Americans don’t realize, because we have two gigantic oceans on both sides of us and never go anywhere else, just how freakishly weird our political system is, in basic terms, in terms of voting. Only two-thirds of the people in the United States are registered to vote, something like that. In most other countries, they realize that this is preposterous. Why is there this extra step that’s required to vote? Why do you have to register to vote? It happens automatically, through a variety of ways in Europe and pretty much across the world at this point. And so the United States kind of stands alone in requiring that.
And so that is one main part of this bill. It doesn’t actually even go as far as most European countries; it doesn’t make it completely automatic that everybody is registered. But it includes lots and lots of steps that get close to being completely automatic. So it mandates things that already happen in some states, stuff like whenever you’re interacting with a government, like you go to the DMV to get a driver’s license, you are then registered to vote unless you specifically opt out. That’s very important. It also mandates same-day registration. So you know, you can show up to vote and register to vote while you’re there.
It has that kind of stuff. It makes it much harder to conduct the weird voter purges that Republicans have engaged in for quite a while at this point, like the cross-check system where they tried to solve a non-existent problem, the idea that people are registered to vote in multiple states, as though somebody like wakes up in Iowa and votes in the morning and is like, “Well, now I’m going to fly to Florida and vote again.” That’s not an actual problem. But they use this pretext to purge voter rolls. And it just so happened, one study found that African Americans were over represented by 45 percent in these purges, Latino voters are over represented by 24 percent.
RG: And then so the other point you mentioned is gerrymandering. And Trump has already manipulated the census to the point where it is likely to come out favorable to Republicans. Some of the trends were favorable to Republicans anyway: New York losing population, California losing population. Some of them are — West Virginia is going to lose a seat, and Republicans are going to take a hit there. Arizona is going to gain one, but the question is, because of gerrymandering, does that mean that Republicans are going to kind of get to draw all the boundaries. And if you only have a six- or seven-seat majority, the census alone can wipe that out with the reapportionment. But when you add in gerrymandering, where Democrats have only about nine states where they gerrymander and Republicans have about 20, that combined with the census almost puts the House out of reach, absent some kind of a blue wave, which is awfully unusual in the first midterm.
And so there’s this dynamic that you hinted at earlier, where Republicans use every tool in the toolbox, and even some tools that are not in the toolbox, in order to slant the playing field in their direction, whereas Democrats traditionally just don’t do that. And that’s why you have all of these independent redistricting commissions in blue states so it’s fair to Republicans, whereas in red states, you do not have these commissions, and so they draw out as many Democrats as they can to boot them out of office.
JS: Yeah. And you see really remarkable things where Democrats get 60 percent of the vote statewide, but only 40 percent of the seats.
RG: Right, or worse, in Pennsylvania.
JS: It’s so fundamentally anti-democratic, that you just can’t run a system like that without it exploding. And this would really help just make it possible for the United States to function.
RG: Do you think that Amy Coney Barrett’s going to come in and say: Nice try, but we we actually have been building towards minority rule, and we’re not going to let you just legislate us out of it?
JS: I think there’s a very good chance that that’s going to happen. I think the Supreme Court could very easily rule that any form of democracy in America is unconstitutional. Simply the election of Democrats is unconstitutional.
RG: [Chuckles.] Right.
JS: But you’ve got to try. And the Supreme Court is vulnerable to public pressure. It’s not like they exist in some kind of political vacuum. So if there is a big groundswell, and people like the system, and then it looks like the Supreme Court is going to try to get rid of it, they may think twice.
RG: And finally, the matching funds, this is the thing that Mitch McConnell has really been zeroing in on, but I don’t think necessarily because he thinks this is the worst part of it for him. I think the gerrymandering and the voting registration is probably a bigger deal for Mitch McConnell, but I think he felt like the Achilles heel of the bill was the idea that your taxpayer dollars would be going toward candidates that you don’t like and that those candidates might be drawing salaries and giving the money to overpaid consultants and buying boats and just trying to kind of scratch that that populist itch of “my money is being misused.”
This legislation has kind of tried to get ahead of that by saying: No, no, we’re creating a fund that has money being pumped into it basically by white collar criminals. People who have abused the system — people who’ve cheated democracy — are going to be the ones whose fines are going to be making up the matching funds for these candidates. The idea of matching funds is practically radical. You know, it has been kind of a progressive pipe dream for decades, the idea that on a federal level, if you raise $50, you get a 6:1 match, you get $300 from the government to fund your campaign, because now all of a sudden, you don’t need those max-out donors.
Did you ever think we’d be in a place where matching funds at a federal level were this close to happening?
JS: I’m genuinely surprised by this. The funny thing about Mitch McConnell, what he likes to say is like, we shouldn’t be putting politicians on welfare. If you think about that, what he’s actually saying is that he feels that politicians should go out and get jobs, meaning that they should be paid by their campaign contributors.
RG: [Laughs.] They should be working for their money!
RG: And the work — what work would they be doing, exactly?
JS: [Laughs.] Yeah, exactly. What job are you performing?
RG: Yeah, we know what job you’re performing. Yeah.
JS: A lot of people can afford $50; not a lot of people can afford $2,800 to give to a candidate. And the way it would work would be as you described: If a candidate signs up for this program, and in order to do that, they have to abide by certain limits, they have to voluntarily say we will not take more than $1,000 from any candidate, they have to demonstrate that they can raise a lot of money in small donations before they can even begin. And, under those conditions —
RG: $1,000 from any donor, you mean.
JS: Yeah. And I think it’s like $50,000 in small donations from at least 1000 individuals.
RG: Right, because you have to prove you’re serious.
JS: You have to prove you’re serious. It’s not like just anyone can get this money. And at that point, if someone gives you $50, then the government kicks in six times that amount — it’s up to $200, I believe is the limit. And what that means is that it changes the incentives for politicians tremendously, it changes the incentives for regular people tremendously. For regular people, sure, it feels good to vote, everybody should vote, I endorse voting. But people understand the role that money plays. And it will politicize people just be like, “Hey, listen, I really like this candidate. I only have $25 to give to them, but I’m going to do that and that is going to turn into $150 in government funds, they’re going to get $175 total. And I’m going to get like 30 of my friends together. And we’re all going to give $25 at a party.”
And then you’re talking like real money for the candidate. And you have then a significant voice. They are actually going to listen to you. They need you to continue getting that money. They’re incentivized to do that. And it would politicize people, I think in a very positive way. It would just make people think like it is worth getting involved in politics as a normal person.
John Sarbanes, who’s behind this bill — and as Marylanders know, is the son of Paul Sarbanes, he used to be a senator from Maryland, the kind of old-time powerful liberal who largely does not exist anymore — has said right now, you can’t spend the time as a politician to go to a house party where everybody’s kicking in $25. Like, it doesn’t make sense. You go to K Street. You can’t waste your time on that. But with the matching funds, it makes more sense. It would just be extremely positive for everyone, including grassroots Republicans, grassroots Republican candidates.
So this is, to me the most exciting and interesting part of the bill, it’s probably the least-known and we’ll see if it happens. And if it does, it really would change things.
RG: Well, John Schwarz, thank you so much for joining us here again on Deconstructed.
JS: Well, thank you. And hopefully this will pass and we’ll be able to talk about it more.
RG: That was Jon Schwarz.
Our next guest is the congressman from Maryland Jon mentioned, Rep. Sarbanes, who has been the leading voice in the House on money in politics since he was elected in the Demoratic wave year of 2006.
Congressman Sarbanes, welcome to Deconstructed.
Rep. John Sarbanes: Yeah, my pleasure to be with you.
RG: So how long have you been working on campaign finance, election reform, voting reform?
JS: Fourteen years, more or less. I really got started on it as soon as I got to Washington and to Congress, and I’ve been slogging away at it for the last decade or more, and now we’ve come to an opportunity, I think, where we can make some real meaningful change and perhaps begin to restore some faith and trust in a system of their own government on the part of the American people.
RG: So for a long time, people said, “Well, this is cute, this is good that you’re doing this. It’s needed, but there’s just no way it’s ever going to happen.” What changed? Like, why is this now something that at the highest levels of leadership, it’s finally being taken seriously?
JS: I think a number of things changed. One is with the arrival of super PACs and big dark money just pouring in to our elections over the last 10 years since the Citizens United case, it just offended people, and I think triggered this anger out there in the electorate, and among voters, and people across the country, where this idea that their democracy was being hijacked by a bunch of insiders and billionaires was so deeply offensive to folks that that became a motivator, and we started hearing more about that.
The people started connecting the dots here, and they started saying to us, to lawmakers, “you’ve got to decide whose side you are on.” So increasingly, lawmakers are understanding that they have to make really structural changes to the incentive system that operates in our politics, and address this undue influence of money.
At the same time, we’ve been hearing about people struggling to get to the ballot box in America, which is absurd. We should be making it easy to vote in America. And that produces frustration, as well. And so all the voting elements of the reform effort began to assemble there.
RG: And so the old approach to campaign-finance reform was to try to restrict corporate spending, restrict big money, and thereby level the playing field. The Supreme Court kind of blew that up. And so the initial response was, “Well, let’s amend the Constitution to fix Citizens United.” But your approach kind of comes from the opposite direction, in that it empowers small money, and it empowers regular people.
Can you talk a little bit about the way that candidates can more easily grow in a small-dollar army through H.R.1?
JS: So a core element of H.R.1, the For the People Act, which is where we have assembled this broad set of transformational measures to try to strengthen our democracy, is establishing a small-donor matching system to find congressional campaigns. And we got to this because we understand that it costs a lot of money to run a campaign for Congress. In fact, I think the average cost of a winning congressional campaign is around $1.8 million dollars every two years.
I mean, that’s huge money. So the question becomes: Where do you get that money, if you’re a member of Congress?
JS: Well, to date, essentially, the place you go to get that money is you go to deep-pocketed donors, the high-end political donor class, PACs, lobbyists, and they’re going to have influence over you. It’s just human nature; you become dependent on them. And then when they come calling, because they have some priority that they want to put into a piece of legislation, or a bill, or what have you, you tend to give them more deference, they get more access to you. That’s just the way things work.
RG: Right. And often what they want is kind of relatively small in the scheme of things — a tax credit here, a little giveaway there.
JS: Yeah. But it accumulates. It accumulates. And what you find, then, is that the whole policymaking apparatus starts leaning in the direction of what the special interests and the privileged are interested in, and away from what the public would like to see.
The idea was: here, let’s build a completely different system. And on the theory that if you build it, they will come. If you build a system that allows candidates to raise sufficient dollars to be competitive, they will show up and start responding to that. And the system that is proposed in our reform legislation is based on what we’re seeing across the country at the state and local level where these systems of public financing have been set up, where if you collect a small donation as a candidate, you get matching funds that come in behind that by some multiplier.
In our bill, it’s a 6:1 match. What does this mean? This means that as a candidate running for Congress, I can go have a small-donor event with 30 people in somebody’s living room in my district. If each of them brings $50 to the event, and that gets multiplied six times, you can raise significant dollars there to be competitive.
The way we pay for this system is very innovative, it’s to put a small surcharge on government settlements with large corporate law breakers and high-end tax cheats. So for example, we’ll take less than a 5 percent surcharge on the settlement that Wells Fargo enters into with the government for billions of dollars because they were defrauding their customers, or the settlement that Facebook enters into because they’re violating privacy, or the Purdue Pharma enters into the government because they’re fueling addiction across the country. So the very corporate actors who have been behaving in a way that is eroding and undermining public trust and abusing the public trust, are the ones we’re saying, “Hey, you should be the ones to chip in and bear the cost of standing up a new system that can actually begin restoring people’s trust in the system.”
RG: And now candidates would have to opt into this, right? And agree to abide by certain limitations on how much money they can take?
JS: Correct. It’s a voluntary system. In order to qualify for it, you have to agree that you’re not going to take traditional PAC money, that you’re going to limit the number of high-donation amounts that you collect, etc. So we’re saying to candidates, “We’ve got this system for you that can make you competitive, and is based on small donors stepping up, but if you want access to it, you’ve got to agree to start behaving in a way that is pulling you away from or breaking your dependence on these special interest sources.”
RG: What about people who say, “Look, if you want a lot of small dollars, look at Alexandria Ocasio-Cortez, or look at Ilhan Omar. They raised tons of money without any help from public matching funds. Why can’t everybody just do that?”
JS: That’s true, they did. But those are fairly unusual cases. I mean, there are some candidates for one reason or another, they catch fire virally, these days over the internet They become sort of nationalized, marquee-type candidates. And yes, a lot of small donations can pour into their campaigns, and that can be sufficient for them to be competitive.
But if you look at the average kind of rank-and-file member of Congress, it’s not as easy to do that. They’re all getting better at raising small donations by deliberately reaching out to that audience. But if you don’t have a match come in behind that, it’s not gonna be enough for them to say, “Hey, I don’t need to rely on these deep pockets anymore.”
So if you want to fix the whole system, you can’t just look at these outlier cases.
RG: And I think you’re actually a good example of this. You and I did an interview about this maybe 10 years ago, when you were kind of launching an element of this. And you were, at the time, embarking on an effort to get as many small donors from your district as you possibly could, so that you could test out the case to see how doable this was.
No offense, you are not the flashiest, most nationalized Democrat in the House. And so how has it been to be, I don’t mean it in an insulting way, to say an average member of Congress. But how has it been to not have a national profile, but to try to raise small donors, small dollars, within your own district?
JS: Yeah, I mean, I’m very average when it comes to how I interact with raising dollars. And I didn’t like the fact that I was more dependent on large donors than on a broad, diverse group of smaller donors. So you’re right, about 10 years ago, when we talked, I set out to kind of make myself a guinea pig in this experiment. What happens if you change the incentives and the equation so that you’re motivated to go find small donors?
Now, I just constructed this out of whole cloth because it wasn’t a system that exists, but I collected some higher donations and basically put them off limits in my own campaign. And I pledged to those donors that I wouldn’t touch that money until I had raised a certain amount of small donations. So what it meant was I put myself in this incentive place, where in order to access the kind of dollars to be competitive, I needed to go find those small donors.
And overnight it changed my behavior. I meant I started putting together many more house parties because I wanted to find these small donors, I started thinking about how I could use online tools to reach small donors, I changed the kind of narrative and message that I was leading with as a result of all this. So when I saw what it did to me, the effect it had on my behavior, I thought, you know, this is exactly what setting a system up broadly would do in terms of candidates and lawmakers across the country. And that’s when I really leaned in the direction of the public policy side of this effort.
RG: The other big piece of this, arguably even more important, depending on which you put first, is on voting reform and election reform. What does this do to try to bring more voters to the polls? And can it do it in time for the midterms? Because Democrats are facing a potential loss of the House, given the likely gerrymandering you’re going to see in the regular kind of first midterm reaction that every president has. So what does it do and kind of get into place fast enough?
JS: Well, there’s so many things that it does. And many of those things, I must say, come from the vision and commitment over many, many congresses of John Lewis, who was the author of something called the Voter Empowerment Act, he introduced it back in the 112th Congress and in every Congress since then up to his death last year,
Rep. John Lewis: It is a good bill, a necessary bill, and a patriotic bill to protect our voting system.
JS: And that Voter Empowerment Act is Title One of H.R.1, the For the People Act that we’ve introduced as this broad package: automatic voter registration, same day registration, early voting requirements, efforts to push back and penalties for voter suppression and voter intimidation, all of these things that are designed, as Lewis understood it, to just make it easier for people to access the ballot box. The notion that you can get up in the morning, when it comes time for voting, and have confidence that you can get out there, cast your vote, it’s not going to take you all day, you’re not going to get hassled, you don’t have to get up in the morning worrying about, “Is there going to be some problem. Am I going to get pushed away? Am I going to get challenged for something that’s not legitimate?” These are all the obstacles that people face now, even in the 2020 election where they somehow managed to overcome a lot of those.
Now to the other part of your question, getting it done quickly is also key. And that’s why there’s an urgency to this reform. I think if we can get this done relatively quickly, in the early months here of 2021, then the experts in this arena on how elections work and everything else, say you could get a lot of these good structural reforms in place in time for the 2022 election.
RG: Mitch McConnell has already called this a power grab.
MM: H.R.1 would victimize every American taxpayer by pouring their money into expensive new subsidies that don’t even pass the laugh test. You’d be literally funding attack ads for the candidates you disagree with.
RG: And he’s taken to the pages of, I think, the Wall Street Journal. He doesn’t do that a lot. He seems to be trying to send a signal that he’s taking this almost more seriously than a lot of progressives are. He obviously could filibuster it. Do you think that there’s a chance that Democrats either create an exception to the filibuster for voting rights legislation, or that they push this up against the filibuster and do away with it as part of this?
JS: Yeah, I think there’s a real possibility. For starters, McConnell is going to marshal his troops against H.R.1/S.1 from day one. He’s made that clear. It’s not because it’s a Democratic power-grab. It’s because it’s a grab on the part of the American people to get back the democracy from the power structure that McConnell has built over the last three decades. That’s why he’s threatened by it. That’s why he’s leaning against it so hard, because it would undo the system of voter suppression of partisan gerrymandering of the use of big money to cow people and spread disinformation that he’s helped create over the last umpty-umpth years. So of course he’s gonna lean against it, because he doesn’t want to lose control of this power structure that he’s built.
If a party like I think the current Republican Party can circumscribe the boundaries of the political town square in a way that means they don’t have to be accountable to the broad, diverse majority electorate out there, it’s much easier for extreme elements and extreme voices to get traction inside of that. And I think that’s what we’ve seen over the last few years. So one could argue that the kind of reforms we’re putting forward are actually a path back to responsibility for the Republican Party, because they’ll have to be more accountable to a broader audience out there. They’ll have to go prove the value of their ideas, rather than relying on artificial structures that limit the audience, reduce the electorate. So I think this is reform that can benefit people across the board. And it’s certainly reform when we do polling that is supported across the political spectrum out there in the country. Over 70 percent of Americans support all of the various components of H.R.1/S.1
RG: Well, it might benefit Republicans long term, but I suspect they’re going to have to be dragged there kicking and screaming.
In the meantime, Congressman Sarbanes, thanks so much for joining me.
JS: I appreciate it very much. Thanks for your longtime interest in this. I remember now the interview we did about a decade ago. So hopefully, it won’t be another decade until we get this done. We’re looking into the next months to get it in place. And I think it’ll make a tremendous difference for people. So thanks again for your interest.
RG: Oh, you got it. We’ll have you back on in a few months.
JS: All right. Take care. Bye-bye.
RG: That was John Sarbanes.
Political scientists have been studying the influence of big money on democracy for a very long time. Yale University’s Jacob Hacker has been among those ringing the loudest alarm, warning that the unchecked influence of the rich on our politics could effectively destroy our democratic institutions. His new book, with John Piersen, is called “Let Them Eat Tweets: How The Right Rules In An Age Of Extreme Inequality,” and he joins us now.
Professor Hacker, welcome to Deconstructed.
Jacob Hacker: Thanks for having me.
RG: So can you talk to us a little bit about what a world would look like after H.R.1 & S.1 pass as they’re written? Let’s pretend there’s no horse-trading between now and the time that they pass the House, pass the Senate, get to Biden’s desk, he signs them into law. What kind of world do we have today versus the one that goes into effect if that law is actually implemented?
JH: Well, it’s a pretty remarkably different world than the one we’re in now. And I think it’s probably worth just emphasizing how tilted our democracy is in ways that are not just bad for Democrats, but bad for democratic practice. And so two things that I think would be addressed, really fundamental things that I think would be addressed right away, would be the fact that we have an election system in which one party in particular has been doing everything it can to make it hard for citizens to vote. And the degree to which H.R.1/S.1 would encourage easier access to the polls, make sure that those who have served their time, felons who served their time, can vote, and the degree to which it would sort of reduce the distortions of our electoral system that are caused by gerrymandering, that would just be a really huge, positive change in our politics.
And I would say the other thing that really stands out is that our politics today is heavily tilted in favor of moneyed interest. And it’s harder to address that given the current Supreme Court rules, but the legislation does a lot to try to make it harder to buy access, to make it harder to buy elections. And, you know, in general, to strengthen citizens as opposed to those who have outsized economic power.
RG: Have people modeled out what this could do to turnout?
JH: You know, we have a pretty good idea about what the various kinds of voter registration modernization provisions would do because we have a lot of experience across states and across countries — it shows that automatically registration in particular would just lead to a lot more voters. So the exact numbers are hard to come up with precisely, but I think it’s fair to say we’re talking about on the order of 50 million or more voters who can be brought in with automatic voter registration and same-day registration.
RG: Now, given the current trajectories, both in the Senate with the number of Senate seats that Republicans can hold relative to the population of those states, and in the House, where gerrymandering and increasing flow to cities also tilts the field towards Republicans, what is the trajectory for Democrats nationwide if they don’t do H.R.1?
JH: First of all, let’s just be very clear that the American political system has long been tilted towards rural voters. But it’s not always been tilted towards Republicans. And what’s happened over the last 25 years is that rural voters and non-urban voters have become much more likely to be Republican. And that’s meant that the rural bias in the Senate and the rural bias in a system tends to favor sparsely populated places in the House over urban centers, that those biases have become increasingly partisan biases in favor of Republicans. You add on top of that partisan gerrymandering, and Republicans both have greater opportunity to do that because they control more states. But also they have greater incentive to do it — and capacity to do it, because it’s just much easier to cram voters into urban districts. So the increasing association of rurality and Republicanism, those increasing associations are really freighted in our party system.
So I think the Republicans will be able to hold a near-majority in the Senate for quite a long time unless you’re gonna see changes. And the Senate is a harder nut to crack, right? So adding Puerto Rico and D.C. as states would go some way towards addressing the problem, but it wouldn’t address the fundamental issue, which is that the Senate is definitely stacked in favor of Republicans. And Democrats are gonna have to learn to succeed in less populated states over the long term to be able to have a realistic chance of holding the Senate.
But the House is actually a more tractable problem. And the House gerrymandering is worth a lot. Various estimates are that Democrats would have controlled the House in 2012, if there hadn’t been partisan gerrymandering, because that was after the big 2010 gerrymander by Republicans. They probably would have been very close after 2014. And they certainly would have done even better in 2018.
So we — meaning political scientists — are reluctant to provide precise numerical estimates of how much gerrymandering is worth. But one way to think about it is that there’s more than twice as many seats where Republicans can gerrymander to help themselves out, because the state is controlled by Republicans. So there’s a big edge there. It’s inherently very easy to gerrymander in favor of Republicans, because Republican voters are more broadly distributed, and Democrats are more likely to be clustered in urban areas. And finally that all the analyses we have of state-level gerrymanders suggests that they’re worth a lot. And this is not just districts for the House, but also gerrymanders for state legislatures, which matter a lot, because they’re the ones that are drawing these maps.
Looking forward, if you want something that looks kind of proportional, if you want the national popular vote balance in terms of House votes to be reflected in the seats in the House, you’re going to have to see serious gerrymandering reform. There’s going to have to be rules that states have to follow that ensure that they’re not drawing these incredibly tilted districts like the ones we’ve seen in, say, North Carolina or Wisconsin, that essentially turn either slim Republican majorities or even Republican minorities into a majority of seats for the state legislature and a majority of seats in the House?
RG: And so how do you do that? Because Mitch McConnell and Republicans say that what Democrats want to do is they want to federalize elections. And you know, this is indeed, of course, a federal law. It’s something that the U.S. Congress is being asked to pass. How does that pass Constitutional muster?
JH: The H.R.1/S.1 designers have been very careful not to sort of frontally run afoul of current Supreme Court jurisprudence. So, you know, to give an example, they focus on matching programs to encourage small donors, rather than going directly against the Supreme Court rulings that equate speech and the giving of money.
And with regard to election rules, federal election rules are absolutely an established Constitutional reality, right? I mean, the Supreme Court did trim back the voting rights act with the 2013 Shelby v. Holder decision, but in general, I think the Supreme Court and other courts below it have been very willing to differ on many of these issues of political reform and electoral design, and I don’t expect that core elements of the legislation are going to be particularly vulnerable.
RG: What’s your sense of how much willingness there is among Democrats to either end the filibuster in general or to create a kind of democracy exemption to the filibuster to get this through? How serious are they about this?
JH: Well, that is the question, I think. That’s the really big question. You know, the filibuster is the biggest barrier, not just to H.R.1, but to long-term governance by Democrats more broadly.
So before the 2020 election, there had been really extensive discussion of the filibuster. I mean, President Obama had even publicly come out and said that if Republicans stand in the way of voting reform using the filibuster, then we should get rid of the filibuster. And that’s a pretty remarkable development.
That said, I think everyone who is having that conversation was assuming, much too optimistically, that there would be a larger Democratic majority in the Senate. And so the challenge is not so much procedural, it’s political. I mean, procedurally, the filibuster is the rule of the Senate, it’s not in the Constitution, and a majority of senators can change it. Mitch McConnell, who’s now saying, “Don’t ever touch the filibuster,” of course, got rid of the filibuster for Supreme Court nominations back when Neil Gorsuch was being considered because he couldn’t have gotten that nomination through the Senate otherwise.
So the filibuster is a Senate rule, and it can be changed by Senate Majority. And I think it should be changed. I think the risk that Democrats will be on the losing end of this change in the future is real, but not worth leaving the filibuster in place — mostly, because I think Democrats are just much more likely to want to use government for positive ends, and thus much more hindered by the filibuster. But the filibuster change is going to require unity among Democrats that, at the moment, seems hard to envision.
Now, there is that question of whether they would create a carve-out exemption for voting reform or democratic reform. And I think that’s possible, but honestly, I’m not so sure why, unless that’s the only thing that Democratic leaders could do, why you would want to limit yourself that way.
I mean, ultimately, the filibuster is hugely advantageous to conservative interests. It’s advantageous because it allows things to be blocked; it’s advantageous because the Senate is so malapportioned that when you have a rule that requires that you have to get 60 votes, you’re essentially magnifying the bias of the Senate towards low population and right-leaning states.
And it’s pretty clearly a sort of a front to democratic accountability, because it’s not like those who wield the filibuster have to pay any price, right? Under the current rules, they basically just have to say, “We don’t want this to happen.” And voters don’t understand that this is going on.
So at the very minimum, I think you’ve got to make the filibuster a much more costly act, right? Because it’s just bad for democratic accountability when you can kill popular things, and not face any repercussions. Indeed, as we’ve learned, in 2010, for example, your party gets rewarded for making politics so ugly.
Mitch McConnell loves to filibuster. And that [laughs], in my view, is a pretty good argument for getting rid of it.
RG: [Laughs.] Great. Well, Jacob Hacker, thank you so much for joining us.
JH: Thanks so much for having me
[End credits music.]
RG: That was Jacob Hacker, and that’s our show.
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