How Will Manchin Triage H.R. 1?
Every so often I come across an article and I think: "I wish I had written this." Today was one of those days. I read an excellent Washington Post article this morning on the subject of the filibuster, Senator Joe Manchin, and H.R. 1 (the "For The People Act").
In a nutshell, the Post article castigates lazy journalists for asking Manchin the wrong question, over and over again: "Will you support reform/elimination of the filibuster?" In response, Manchin always waxes poetic about the rights of the minority, the bipartisan legislation which supposedly comes out of such an arrangement (which, the article points out, no longer actually exists), and the specialness of the United States Senate (even though the filibuster was not part of the original design of the Senate by the drafters of the Constitution).
Instead (the article urges), tie the question to a specific piece of legislation. Because: "If Republicans hold ranks and all of them vote against the H.R. 1 voting-rights bill the House passed, would you support allowing that to pass the Senate with a simple majority?" is a much better question to ask.
I could not agree more. Because, as the article points out, the conversation with Manchin could then move to: "What exactly is in the bill that you would like to see pass, and which parts of it cause you concern?" If Manchin is truly going to be the gatekeeper for legislative language allowed to pass the Senate (as he proved to be on the American Rescue Plan Act), then why not start the conversation with him now on H.R. 1, to see what his red lines are (both pro and con)?
The article then provides a rather truncated list of what the For The People Act would accomplish, to show the choices reporters really should be laying in front of Manchin. But this list isn't anywhere near complete. The full list is a lot more extensive and covers a lot of ethics reforms and campaign finance reforms and judicial reforms and executive branch reforms as well.
So today, I thought I would take a crack at triage -- dividing the bill into three groups. The first of these categories should all be seen as Democratic lines in the sand. These should be considered the absolute minimum acceptable, really. The second group contains the provisions that are certainly worth fighting for, and are within the realm of possibility to talk Manchin into supporting (going by nothing other than my own gut feeling and which items the GOP is now fearmongering about the most). The third group are those items I just don't think are going to make it into the final bill at all, for one reason or another. That's not to say that all of these ideas aren't good ones -- but just acknowledging that the bill may have to be narrowed down to not much more than just voting and election reforms, to have a chance of passing.
Let's take a look at my first list -- the things I think Democrats should fight to the bitter end to keep in the bill, as a rock-bottom minimum:
- Require all states to automatically register voters who have contact with state government (such as getting a driver's license or registering a car), unless the person opts out of being registered ("motor voter" law).
- Require all states to institute online voter registration.
- Require states to designate colleges and universities as voter registration agencies.
- Require all states to have 15 days of early voting, with sites located near public transportation.
- Require all states to use paper ballots, so that recounts will be possible.
- Require all states to count provisional ballots from people voting at the wrong precinct.
- Require all states to have postage-free (and excuse-free) absentee ballots.
- Require all states to re-enfranchise felons after they have completed their sentence.
- Require all states to ban "voter caging," purging voter rolls using non-forwardable mail, and purging voter rolls of people who have not voted in previous elections.
- Increase federal funding to update and secure election infrastructure.
- Require online campaign ads to disclose donors, just like broadcast ads.
- Ban coordination between super PACs and campaigns.
- Require presidential candidates to disclose 10 years of their tax returns.
- Require the president and vice president to follow executive branch's conflict-of-interest regulations.
- Require all presidential appointees to recuse themselves from any decisions involving the president or his family.
- Ban the president and vice president from contracting with the federal government.
- Give the Office of Government Ethics new enforcement powers.
- Require public disclosure of any waivers given by the O.G.E.
There simply is no potent political argument against enacting these reforms other than: "The people don't trust elections now because our party's leader lied about it so loudly and so long and we were so scared of his political power that now we all pretend to believe this lie to be true as well." That is not a winning argument, try as the Republicans might.
The first items on this list all make it easier for people to vote. They would set minimum standards for all states to follow. This is entirely constitutional, and the states would still be free to come up with their own ways of achieving these requirements. This would supersede and bring a halt to the Republicans' current efforts to suppress votes in as many states as possible.
The next two are campaign funding reforms that should be easy to get everyone (even Manchin) to vote for, because the need for these reforms is so obvious. All the rest are to close all the loopholes that Donald Trump drove a truck through. Presidents should be compelled to show us their taxes. The top of the executive branch should follow the same laws everyone else who works for the president has to follow. Presidents shouldn't treat their office as a moneymaking opportunity (at least "while they're in office"). Again, these laws were simply not necessary until now, because everyone else knew the traditions were well worth following. Not Trump, which is why we must prevent it from ever happening again.
Now let's take a look at the items which could make it into the final bill, depending mostly on whether Manchin can go along with them, but also depending on how much the Republicans will use them to demonize the entire bill (some things may be worth cutting just to avoid the political headache, in other words):
- Require all states to institute same-day voter registration.
- Require all states to create nonpartisan redistricting commissions for House redistricting, to end gerrymandering forever.
- Make Election Day a national federal holiday.
- Nonprofits and other groups must disclose donors if they contribute to election campaigns.
- Shrink the Federal Election Commission from six members to five, to avoid the constant deadlocks which are so common now.
- Require presidential inauguration committees to disclose expenditures and ban them from spending money on things not directly related to the inauguration.
- Require disclosure of donations to inauguration committees from corporations, nonprofits, and government contractors.
- Ban members of Congress from using taxpayer funds to settle employment discrimination cases.
- Ban members of Congress from serving on corporate boards.
The first item (same-day registration) was the only one from the elections reform part of H.R. 1 that I didn't include in the first group. Same-day registration is a lot more susceptible to demagoguery from the right as all the other agenda items, which means it may not make it into the final version.
The redistricting one may be a bridge too far for now. Democrats would desperately like to see this pass before the redistricting after the 2020 Census takes place, but Republicans are going to fight this one tooth and nail. They may eventually be forced to accept it, but my guess is they'll fight a lot less hard if they've already gotten one more 10-year gerrymandering spree under their belt.
Making Election Day a federal holiday is a great idea, but the matter of cost will come up. Also, many have proposed either getting rid of Columbus Day from the federal calendar or perhaps moving voting to Veterans Day, but doing the latter might require a constitutional amendment. If there is enough mail-in/absentee voting and early voting, making Election Day itself a federal holiday won't be as big a deal (that's my guess), since everyone will have plenty of ways to vote, to fit all sorts of work/lifestyle schedules.
Getting nonprofits and others to disclose donors is going to be a heavy lift, because Republicans love dark money so much. Making the F.E.C. a purely partisan body (whichever side has three to the other side's two will win all battles, in other words) is going to be a heavy ideological lift. Inauguration funding is not an issue that directly affects voters the way the other ones do, so my guess is that will fall by the wayside at some point, too.
And please don't get me wrong -- the last two are indeed excellent ideas, but regulating Congress itself can take place in other bills. Neither one of these items is critical to reform our elections, to put it another way, even if they are both great ideas.
Again, some of these items might actually make it into the final bill. I think all are worth fighting for, but I think all of them also are less critical than the first list and I wouldn't be heartbroken if they were bargained away.
Now here's my list of the things I don't think will make it into the final bill:
- Create a public financing system for House races that matches every dollar in small donations ($200 and under) with six dollars of public money. Participants in this system would be banned from raising money from large donors.
- Create small-donor matching system for presidential elections, as well (Senate elections would be addressed in a separate bill).
- Widen the definition of who must register as a lobbyist.
- Ban former government employees from cashing in (through "the revolving door") for two years after they leave their service.
- Require the Supreme Court to develop a code of ethics to deal with conflicts of interest and recusals.
Republicans are already attacking the public financing option, as they always do. If it's gotten this much heat already, what Democrat is going to tank the rest of the bill to insist on a new public financing system? The same for the small-donor match for president.
Reforming lobbying is another great idea, but not only the lobbyists are going to be against it, but the politicians as well. This one may be a deal-breaker for some other Democrats, in other words, not just Joe Manchin.
And the last one I expect will be the first one cut. Reforming the Supreme Court is a subject well worth debating, but it really has nothing to do with the rest of this bill (or voting rights). As the ideological outlier, I seriously doubt this will pass muster.
Again, that's just my own personal breakdown of how I think the negotiations will go. You may have a different opinion, because everyone's got their own priorities list for all these items. What's not a dealbreaker for you might be for me, to put it another way.
Of course, the real question has nothing to do with you or me -- the real question is how Joe Manchin (and, possibly Kyrsten Sinema) will feel about each of these individual sections of the bill. Which is why it would indeed be interesting to hear some intrepid reporters start actually asking him about all these details.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
It looks like a pretty good breakdown to me. What wasn't clear was how the intrepid reporter's question was supposed to be posed to Manchin (and perhaps other Democratic waverers in the Senate, even though practically every Democratic Representative has actually voted for all those things, twice, in two different sessions of Congress):
1) Is Manchin supposed to identify what he wants to cut from the bill, because he believes that doing so will attract the needed 10 Republican Senators along with his own consent? Is the question about what cuts will be needed to avoid getting rid of the filibuster, because he simply will not agree to getting rid of the filibuster?
2) Or is Manchin supposed to identify what he wants cut (and maybe others of the 50 Democratic senators) in order to allow him to vote to abolish the filibuster, or (as has been suggested a lot lately) abolish the filibuster just for legislation about voting rights? Is the question about what Joe and the other 49 Dems need to convince them to forget about signing up those ten Republicans?
And, since we're asking the gentleman from West Virginia these penetrating questions, does Joe Manchin or anyone else really believe that a single Republican Senator will vote for legislation containing just your first non-negotiable list, the Dems' die-on-our-feet-not-live-on-our-knees items, the ones that will cut the current Republican Party's throat for the better part of the coming decade?
They may eventually be forced to accept it [non-partisan redistricting,] but my guess is they'll fight a lot less hard if they've already gotten one more 10-year gerrymandering spree under their belt.
Don't fool yourself!
There's not a prayer that Repugs won't fight every last bit of H.R. 1, even if they get a last 10-year Gerrymandering binge.
Repugs know that the demographics are increasingly against them, especially after the Trump Fiasco.
Biden and the Dems have the momentum and to forget (for even ONE nanosecond) the hard lessons they learned 2009-2017...
Would be political malpractice!
[2]
Some good points. Do you [and CW, for that matter] have an opinion on "Ranked Choice" voting?
Speaking as an Army Vet, I'd like to see Election Day on Veteran's Day. Most of us Vets are especially patriotic, and the day the country recognizes the Vets who protect our freedoms outta be the same day America excercizes one of the most important of those freedoms.
[3]
The right question is to the alleged progressives as to why they are not working together to make Manchin's one vote pale in comparison to their votes to pressure the establishment Deathocrats to stop using Manchin as an excuse to dole out smaller crumbs.
I am an "alleged Progressive" so what (besides One Demand, please) would you recommend?
Recall that I'm a Bernie Bro & that Biden was waaaaay down my list during the Dem's primary. Yes, I'm warming to Joe -- "So far, so good," -- but action talks and bullshit walks.
More than likely Joe has to go through the motions of trying to:
1- reach out to Repugs in the spirit of bi-partisanship, and,
2- protect bleeping Manchin & Sinema regarding the filibuster at least in the beginning of this process. Sure, I'd like to just damn these two to hell. But you gotta go to war with the Congress you have.
Believe me I'm watching the Dems veeeery closely. Because the Progressive within me believes that UNTIL PROVEN OTHERWISE both Parties ultimately work for the rich. You know, Ralph Nader and stuff.
I think Joe really learned the business during his 47 years of politics. He's got to let the Repugs paint themselves into a very unpopular corner, at least appearing to try to work with the bastards to better America, blah blah blah. THENCE he'll get to throw up his hands in frustration and nuke the filibuster.
Again, action talks...
Listening to various interviews with Republicans regarding HR1, it seems like the main line of contention with them is that they don't think the Federal Government should be allowed to mandate all these things regarding elections when states are supposed to have control over how they administer their elections. While I do think this is just their excuse for opposing something that the Democrats support and that would hurt Republican chances at getting re-elected, perhaps a possible response would be to acknowledge this complaint and attempt to rectify it. Instead of straight up mandating various changes, maybe just provide massive incentives for the states to make such changes. You know, make them an offer they can't refuse. Put them in the corner of either making elections freer and fairer, or making life more difficult for their constituents. Not sure how such a plan could be implemented, but that's what the politicians are for.
Harris #9 --- Where i live we have had ranked choice voting for quite some time and it works pretty well. It removes some of the inequities of "run off" elections in which fewer people vote. It provides for a winner that day. It is confusing at first but by now everyone understands it and campaign strategies are designed to work with it. My experience has been that it makes it easier to challenge the establishment candidate.
You state: "Rank choice voting should only be considered if it includes rank choice counting that does not eliminate candidates." So please explain exact how that would work? It seem to me that eliminating candidates is the whole point of any election. No matter how you do it you still must eliminate the candidate with fewer votes, no? What would the Don Harris system look like?
Bleyd #11 --- If you did this you would end up with a a similar situation to the Medicaid expansion. The very states that needed the expansion refused to take it even though their citizens suffered greatly. Using the initiative citizens in some states forced their state to join. However, to this day some of the poorest states still do not have this. I believe voting rights would be the same, those very backward states that suppress the vote will continue to do so. Voting rights are rights, and it should not be possible for any state to deny them. The incentives you propose only work in a rational world. The folks running these red states see this as an existential issue and will do anything to prevent their loss of power, monetary incentives will not sway them.
@jmct[1],
good post; i had the same questions, then found you'd already written them, probably better than i could have.
one thing i'd add: reforming the filibuster isn't just about changing what types of bills it can (or can't) apply to, it's also about what procedures are required to maintain or to break a filibuster. therefore i think the question would have to be something like, "if the republicans absolutely refuse to allow any bill with this particular provision to go forward, what changes in the filibuster rules do you think might be appropriate to help resolve the impasse?"
JL
[14]
You have a good point. Not only would red State Repugs resist such financial coercion, as some continue to do re ACA despite the pandemic, but once Repugs retake control of Federal government they'd simply cancel this approach and that would be that.
Besides,Voting rights are rights, and it should not be possible for any state to deny them.
Harris-17
Other than yourself, I can’t find any source advocating something called “rank choice counting.” Please post one. How can more than candidate get a majority in the second round? Gibberish.
Bleyd on [11],
As you say, the Republicans opposing H.R. 1 "don't think the Federal Government should be allowed to mandate all these things regarding elections when states are supposed to have control over how they administer their elections."
I had thought the same thing initially, like, where do the Feds get the power to pass an overreaching law like this, when elections in the U.S. are famously (and notoriously) conducted locally? Then I read the Constitution, where in one of its more fine-print sections, it says:
"Article I, Section 4, Clause 1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
And that's before additional powers adhere to Congress to regulate elections so as to protect other constitutional rights such as equal justice under the law, etc.
In short, the Republicans are blowing smoke - the Feds have the right to regulate federal-level elections, and state-level as well when civil rights and equal access are challenged by local statutes.
Others have pointed out the folly of compromising over this by enticing the states to comply with rewards and punishments - the payoff to a minority party of limiting the franchise far outweighs any financial or voluntary sanctions, just as the need to preserve Jim Crow forced the Feds to pass national Civil Rights acts and Voting Acts regarding racial equality. The states most at fault are least likely to admit the fault or repair it, because to them it's not a fault but a feature.
I will be very interested to see how hard the Dems push H.R. 1 / S. 1 this year. As important as all of Biden's progressive legislative agenda is, this bill underlies the rest - no progressive legislators getting elected to represent progressive citizens means no progressive legislation far into the future, no matter what the majority of American citizens might want. It's not democracy, of course, but to the Republican Party democracy is a bug, not a feature.
Harris-21
What difference does it make? A lot. The labels have meaning. You are not describing Approval Voting.
Approval voting is a one shot deal...there is just one round. In an election with N candidates each voter can approve 0,1,2,3...or N candidates. Approving 0 or N candidates is equivalent to abstention. The candidate with greatest number of approval ratings wins the election.
Your scheme seems like a prescription for sustained deadlock.