During the Nixon administration’s Watergate unraveling, Henry Kissinger’s mordant jest was, “The illegal we do immediately, the unconstitutional takes a little longer.” But not long, say today’s congressional Democrats.
Their “For the People Act” (FTP) is 800-plus pages of provisions convenient for them and their party, some constitutionally dubious, others patently unconstitutional.
All laws regulating campaigns are enacted by people with conflicts of interest — interests in advantaging themselves and disadvantaging challengers.
FTP would dictate sweeping changes to all 50 states’ election laws, contravening the Constitution’s stipulation that the “times, places and manner” of congressional elections are to be determined by state legislatures.
Granted, the Constitution says Congress may “alter” such rules, but dictating, for example, how congressional districts are drawn does not pertain to the “manner” of elections. FTP reflects the perennial progressive desire to reduce the states to appendages of the federal government.
FTP sweeps beyond elections by expanding regulation of “electioneering communication” to include any communication that mentions a federal official, even if only to urge support for a policy, not influence an election.
Unsatisfied with their advantages in the mainstream media, Democrats aim to impede alternative forms of advocacy, especially by requiring disclosure of even small-dollar donors to organizations involved only in issue advocacy, not elections.
This is sinister, given the ferocious vindictiveness of today’s virtual mobs that hound people associated with controversial causes. Soon, the Supreme Court might issue a ruling strengthening its defense of the First Amendment right to speak anonymously. (In 2020, Joe Biden’s allies spent six times the amount of contributions from anonymous donors — what Democrats tendentiously call “dark money” — that Donald Trump’s campaign received.)
The parties should insist that presidential candidates make public 10 years of their tax returns. But by making this a legal requirement, FTP would add a new qualification for the presidential office. In 1995, the Supreme Court, striking down a state law imposing term limits on Arkansas’s national legislators, held that the Constitution sets the maximum, not a minimum, of qualifications. Neither Congress nor state legislatures can augment them.
FTP would compel states to count mail ballots received 10 days after the election, on the infantilizing assumption that voters cannot be expected to meet an Election Day deadline. Also, FTP would give voters 10 additional days to correct mistakes on mailed ballots, further prolonging possible uncertainty about elections outcomes.
Nationally, 73% of 2020 voters cast their ballots before Election Day. Almost 44% of Florida ballots were cast by mail, yet the state tabulation was completed on election night, which should be a national norm.
Although 43 states and the District of Columbia allow early voting for between four and 45 days, Democrats propose to give federal government employees, a significant component of their party’s base, paid Election Days off at an estimated cost of $800 million every two years.
Although New Hampshire has no mail-in voting, and requires voter IDs and in-person voter registration, it has been among the top five states in voter turnout in the five previous presidential elections.
Actually, a modicum of inconvenience is a civic benefit if, by drawing voters together in public places on a solemn day central to the national liturgy, election arrangements emphasize that more than just private considerations are at stake.
For generations, there has been judicial enforcement of constitutional and statutory protections of voting rights. And in 2020, the states rose to the challenge of conducting elections compatible with pandemic-related public health protocols. And as Democrats rightly insist, the voting, which shattered turnout records, was without significant malfeasance. So, why 800-plus pages of revisions to electoral procedures and political practices? See above — the first sentence of the second paragraph.
FTP reflects an appetite for constitutional vandalism that was displayed seven years ago when 54 members of the Democratic Senate caucus voted to amend the First Amendment to empower Congress to regulate the quantity, content and timing of campaign speech. They thereby implicitly acknowledged that the amendment (“Congress shall make no law . . . abridging the freedom of speech”) is, by its text, and Supreme Court rulings, incompatible with their desire to strictly control campaign spending, all of which directly or indirectly funds political advocacy.
Unable to alter the Constitution, Democrats now propose, with FTP, to ignore it. In the unlikely event that the For the People Act is passed, the Supreme Court will have multiple occasions for reacquainting its authors with what they ignored.Will is a columnist for The Washington Post Writers Group.