H.R. 1, the For the People Act, Explained

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, May 26, we discuss "H.R.1, the For the People Act, Explained." My name is Guy DeSanctis, and I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Bradley A. Smith, Chairman and Founder, Institute for Free Speech. Mr. Smith served as Chairman of The Federal Election Commission in 2004 and a commissioner from 2000 to 2005. After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

      With that, thank you for being with us today. Bradley, the floor is yours.

 

Bradley A. Smith:  Great. Well, thank you very much, and thank you all for listening in.  H.R.1, or as it is now in the Senate, S.1, the so-called For the People Act, is a massive bill. It's over 800 pages, and it combines what in the past have been several pieces of legislation together with a number of new and generally very bad ideas that constitute something of a progressive wish list for election administration and campaign speech regulation.

 

      When the bill was first introduced in 2019, it exceeded 500 pages. To give you a sense, again, this year's version checks in at over 800 pages. So the wish list is growing. The bill amounts to a sweeping federalization of American elections, mandating a number of dubious practices whose primary justification often appears to be nothing more than the fact that Democrats believe they would benefit electorally.

 

      The Democratic congressional leadership has called the bill the party's number one priority, but equally, Republicans have declared defeating it to be a number one priority.  A measure has already passed the House and has had hearings in the Senate. However, Senator Joe Manchin, the Democrat from West Virginia, has announced his opposition to the bill in its present form, and both he and Senator Kyrsten Sinema, a Democrat from Arizona, have held firm so far in opposing abolition of the filibuster.

 

      So the bill's prospects look relatively dim at this moment, but several news reports recently have noted that Democrats are looking for "a path forward" for the legislation, and that may include dividing it into different parts and trying to pass them individually.

 

      Breaking it down, in addition to being over 800 pages in length, S.1 -- and I'll refer to it generally as S.1 since, that's where the action now is on the Senate side, but H.R.1 again matches up from the House bill which has already passed.

 

      S.1 has three divisions which are broken into 10 titles, 77 subtitles, 36 separate parts, and 316 sections, not counting subsections. We're going to focus today on Divisions A and B, which deal respectively with voting and campaign finance. And we'll leave out of our discussion today Division C, which imposes a number of new rules on what are generally called "ethics." Please note that the Institute for Free Speech does not take any positions on Division A, voting, so my comments on Division A are mine and mine alone, as someone who has worked in the field and studied in the field of elections for a long time.

 

      And we're going to go ahead and start with Division A, and then we'll continue on to Division B, to campaign finance material, although I do hope that people will stick around because I think the campaign finance restrictions in the bill have not gotten nearly enough attention and are more onerous than people believe.

 

      So let's start with Division A, voting. Here are just a few, and we can't begin to cover everything in this Act, but here are some of the highlights of H.R.1 or S.1. First, on voter registration, S.1 mandates email and internet registration up to seven days before the election. Applications submitted must be accepted by the states if they are "substantially complete." It then requires most federal and state government agencies to register a voter any time the voter interacts with the agency. The voter will be registered unless the voter specifically and affirmatively declines to be registered.

 

      State agencies would include, for example, the Department of Motor Vehicles, Social Security, Unemployment Insurance, Medicaid, CHIP, any agency administering the Affordable Care Act, agencies regulating firearms, public schools, and parole boards. These are all specified in the Act. And federal agencies would include the Veterans' Administration, Social Security, the Department of Labor, Medicare, and the Defense Manpower Data Center. And these agencies are required to send information on to the state elections bureau that manages voter registration lists, and to do so every single time. So even if you are already registered, that information will continue to be transmitted over to that agency.

 

      It requires the registration of 16 and 17-year-olds who interact in any of these agencies. Note that there is the provision in there for secondary school officials to pass this information on for registration. And it includes the required registration of convicted felons, even if state law had previously placed limits on felon voting.

 

      These agencies will send this to the state agency responsible for maintaining voter registration. So presumably if somebody is already registered, they don't need to be registered again. But the reality is that we will probably see large numbers of duplicate registrations due to name variations, for example, I might be Brad Smith or Bradley Smith or Bradley A. Smith, different addresses, some people might use their P.O. Box for one thing, a street address for another. And sometimes, just multiple entries are going to make their way onto the list.

 

      The bill then makes it very hard to properly maintain registration lists. Registration list cross-checks, for example, to ensure that voters are not registered in other states must be completed six months before the election and are not permitted after that time. The bill prohibits removing voters from the registration list due to the voter's failure to vote over any period of time. So even if the voter doesn't vote over six or eight or ten-year period, they can't be removed from the registration list. And also, they can't be removed if they fail to return mail addressed to the voter or if a voter "fails to take any other action."

 

      Note that not much of this in the end is going to matter because H.R.1 then goes on to provide that states must allow same-day voter registration and election day correction to any person to any information that is already on the voter registration list. So, in other words, any person can show up on the polls on election day and announce, "I'm John Smith. I am eligible to vote," and be registered. And while such a statement has to be made under oath, officials are prohibited from asking for any form of identification, not just photo I.D., which has been a hot flash point in recent years, but any form of identification.

 

      Challenges to a voter's eligibility by anyone other than an election official must be in writing and cannot be made at all on election day unless the person challenged only registered within twenty days of the election.

 

      Now, I'm one who does not believe that American elections have a great deal of voter fraud, but I think these provisions, when put together, certainly open up the door to more voter fraud than we have had in the past. And there is some question as to how badly it is needed. They are based on what I believe to be a mistaken belief that the main reason people don't vote is that it's too hard to register or too hard to vote, too inconvenient, when I think the political science data shows pretty clearly that the main reason people don't vote is that they are not that interested in voting.

 

      As for voting itself, S.1 would mandate that states allow, as I mentioned, convicted felons to vote unless actually incarcerated, so even felons on parole would be eligible. Many states already do allow persons in that position to vote, but other states do not. And states that have chosen not to do that will have their state laws overridden by H.R.1 or S.1.

 

      The law would require a minimum of 15 days of early voting of at least 10 hours per day. It would mandate the use of drop boxes, one per 20,000 persons, beginning at least 45 days in advance of the election.

 

      It prohibits states from prohibiting curbside voting. So states could not do anything to limit curbside voting. That's where people can just pull up at the curb and have somebody take their ballot in or come out and get their ballot.

 

      It requires states to permit the practice of ballot harvesting. Ballot harvesting has long been recognized as one of the primary areas where you do get fraud. Again, I am not one who believes there is a great deal of fraud, but ballot harvesting has long been found as one of the areas where you get fraud.

 

      And what is ballot harvesting? It's the practice where other people can pick up a ballot and deliver it, an absentee ballot or some other type of early ballot. And under H.R.1/S.1, there will be no limit on the number of ballots that can be so handled. So some states which don't bar the practice completely limit it like you can't have more than two or three ballots, the idea being, okay, if you've got an invalid relative or friend, you can take that in, but you can't go around trying to collect hundreds of ballots.

 

      S.1 does away with any limit on the number of ballots, also on who can handle those ballots, including paid campaign staff. So paid campaign staff, including those who might be paid by the number of ballots they bring in, can go around and grab these ballots from people and bring them in to deliver.

 

      Of course, this is rife for fraud primarily because you don't have a good chain of custody of the ballot. You can't really know for certain if the actual voter is the one who completed it or if it was completed by someone else. There's opportunities for harassment and intimidation at the voting site. People can work senior citizen's homes, for example, and kind of sell, "Oh no, you want to fill it in for this person," and then take that ballot and take it in. If the person fills out the ballot wrong, it could be the harvester simply tossed that ballot aside. So lots of opportunities for shenanigans there. If you're going to have fraud, this is the area where you typically have in-person voting type fraud.

 

      S.1 requires the states to make absentee ballot applications available online and requires states to allow no-fault absentee voting with no I.D. and no witness statement for anyone. Now, remember, we did not have no-fault absentee balloting anywhere in this country prior to 1980. It's a pretty recent invention. But now, no state can limit absentee voting. All persons in the country will be allowed to vote absentee for any reason with, again, no I.D. and no witness statement.

 

      Now, states can still require a signature match, the signature on the ballot envelope, the absentee ballot envelope, match the file. But if it doesn't or if there is any other problem, any other information lacking or problems with the ballot, the voter has to be contacted and given a minimum of ten days to cure any issue with the ballot. And the restrictions on tossing a ballot due to unmatched signatures are so significant essentially to make the provisions almost meaningless.

 

      So  you're going to have a situation, again, where absentee ballots can be fairly rife for fraud, intimidation. One never knows who's standing over the voter at the table or cajoling the voter, pressuring a voter who is in ill health, perhaps, to vote in a particular way. And, of course, since absentee ballot applications can be made online without I.D., there may be large numbers of ballots floating around which then can be marked and returned without question.

 

      Again, up until about a year ago, it would have been uncontroversial to walk into any conference in the United States, academic conference, and note that absentee ballots were more prone to fraud than in-person voting. Not that, again, there is a lot of fraud, but more prone to fraud than in-person voting. And now, of course, this will be hyped up, ramped up, the amount of absentee voting.

 

      I personally also feel that absentee voting is detrimental to the general purpose of voting, one of which is that the purpose of voting is not to make it as convenient as possible for everybody to vote, but actually the main purpose of voting is for us to come together as a citizenry to think about governing ourselves, to think about what's going to be good not just for ourselves, but for our neighbors, to spend some time in reflection. And I think that this emphasis on pure convenience, in fact, leads to a sort of what we might call a narcissistic type of voting where people are not, perhaps, thinking as might be ideal when they go and cast a ballot. But that's a complex issue.

 

      Let's go on and get back to specifics of S.1. Ballots must be counted if they are postmarked by election day and received within ten days after election day. Now, many states do allow these postmarked ballots even if they're received after the election days. Other states have chosen to say ballots, absentee ballots, must be received by election day.

 

      I think the latter policy is better. Again, once you know how many votes you need, it is easier to start committing fraud. So after you get election day and you start to get tallies in, it might be easier for someone who does want to commit fraud to say, "Okay, here's how many votes we need" or "Here are the races we need them in." You're going to have large numbers of potentially, at least, of absentee ballot applications, absentee ballots floating about. Its not hard to postmark things, back-date. Many things are run through the postal machine long before they're completed and put in the mail.

 

      And even if everything is above board, the long lag time that this creates in announcing results tends to be one reason why voters tend to be suspicious of results. And this is one case where it's not a good thing that voters are suspicious of the vote tallies, suspicious that things might be being adjusted after the election. And for that reason alone, I think it's probably better for states to mandate that best practices would mandate that ballots be received by election day. But again, S.1 will mandate that they be accepted if they are received within ten days of election day.

 

      Finally on these fronts, the bill provides a number of other just awful little ideas. It will distribute financial support to colleges to distribute voter registration materials to students and specifically requires colleges to specifically contact their students urging them to register, to appoint a campus vote coordinator to oversee efforts to gin up student voting, to provide students with "credible non-partisan resources for voting" which will be "identified in consultation with the federal government, various government agencies." It provides grants to the secondary schools to encourage 16-year-olds to be involved in election activities, which I think we have seen in the past. These kinds of practices tend to be proposals to recipes for more progressive-driven student activism. So it's basically a large federal takeover of state processes for managing elections.

 

      Once all the voting is done or in addition to how all the voting is done, H.R.1 or S.1 will also dictate that states use non-partisan redistricting commissions to redistrict their congressional seats. This is a controversial issue that is to do away with gerrymandering. It's often been found, however, that these nonpartisan commissions tend to not really be much of improvements. Again, this is something that generally ought to be, and traditionally has been, for states to decide. If some states want to experiment with that, great. But it's not particularly wise, I don’t think, to have the federal government dictate nonpartisan commissions in all states.

 

      And there's actually some evidence, as well, that gerrymandered districts actually help to improve—and I won't to into the reasons why here—but they tend to improve voter confidence in election results. So that's the basic, some of the key provisions, anyway, of the Division A, the voting section of the bill.

 

      So let's move on to Division B, the campaign finance section of the bill. As I mentioned at the outset, I think some very important and very bad campaign finance provisions have gotten lost in the shuffle here.

 

      Let's start with the fact that the bill provides for a system of taxpayer funding of elections. One of the things that's ironic about this, and I think shows a certain fundamental dishonesty that exists in many provisions of the bill, is that the bill specifically states that it is the sense of Congress that taxpayer funds should not be used to fund candidate campaigns. And then the bill immediately proceeds to set up a system in which billions of dollars can be spent to fund candidate campaigns.

 

      And the argument made is that, well, this isn't taxpayer dollars because we're going to fund this out of corporate fines, fines assessed by the federal government on corporations. Now, they need to decide whether there may or may not be enough money to do that, given that it's kind of open-ended entitlement here. As I often point out, it's all taxpayer money. It doesn't matter if it comes from corporate fines or from the corporate income tax or whatever. It's all taxpayer money. You can use it to provide more grants to the states to have high school kids get active in election events. You can use it to give states highway money. You can use it to cut people's taxes a small bit. It's all taxpayer money.

 

      So I think this shows a certain sort of intellectual dishonesty here. They know that the provision of government funding its campaigns is really not very popular, and so they try to suggest that this isn't going to cost  you anything. But, of course, it does.

 

      Now, how will this system work? The system would provide a 6 to 1 match for small-dollar contributions; that is, contributions under $200. So if somebody gives $200 to a congressional candidate, the federal government will then throw in $1,200 for that congressional candidate.

 

      The type of people who tend to benefit from this are candidates who are extremely well known, people who are often in leadership positions—Nancy Pelosi would be one type of person—and then candidates who are really good small-dollar fund raisers. And there's a lot of evidence showing that the really good small-dollar fund raisers tend to be some of the most extreme candidates, people like Alexandria Ocasio-Cortez and Bernie Sanders. And on the Republican side, Marjorie Taylor Greene, and people like that are often the very best at raising small-dollar funds.

 

      And so those are going to be matched 6 to 1. And I think this will increase, probably, the polarization in Congress and make it easier for these kind of people on the edges of their party to create little fissions and run effectively.

 

      Also, by the way, we should note it is a provision that clearly favors Democrats at the present time. It doesn't necessarily mean that Democrats will always be favored by it, but at the present time Democrats clearly have an advantage in small-dollar fundraising. And this is just kind of a historic thing. For many years, the Republicans had an advantage in small-dollar fundraising, in large part because they got out in front of Democrats in doing direct mail, and were better at it, and got small-dollar contributions from direct mail. Now, Democrats got out in front of Republicans and are better at getting small-dollar contributions through the internet, through Act Blue and groups like that.

 

      And so this is something that every one of those small contributions is going to get six times the match from the federal government. And that's a big gift to Democratic candidates at the present time.

 

      Next on the campaign finance side, the bill will provide a number of new rules which I will go into in a moment. But these rules will be enforced by a newly partisan Federal Elections Commission.

 

      Now, the Federal Election Commission historically was a 3-3 body; three Republicans and three Democrats, with four votes needed to act on complaints. And the reason for this should be fairly obvious. Unlike other federal agencies, the FEC directly impacts who might win or lose an election. And Congress, when it created the agency, had no intention of allowing one party or the other to use it as a partisan weapon.

 

      But in this particular case, H.R.1 would change it from a six-member body to a five-member body. The chairperson who would be appointed by the president to a longer term would have far more powers than he currently has to shape the commission's staff and agenda. And then there would be two members from the president's party, two from the other party, and one independent.

 

      But, as we all know, there are independents, and then there are independents. For example, currently, the Republicans had 50 U.S. senators. Democrats had 48 U.S. senators. And yet somehow democrats narrowly run the chamber, thanks to Vice-President Kamala Harris. Why is that? Because there are two "independents" who caucus with the Democrats. And one of them, Bernie Sanders, is probably one of the more liberal Democrats, or liberal votes in the Senate even though he technically is not a Democrat.

 

      So you'll have that kind of scenario, and this is set up to guarantee that Biden's appointees would control the commission, at least through the 2028 election and possibly further on if a Democrat is elected in 2028.

 

      One of the more interesting things here for a legal audience is that it biases the FEC enforcement; that is, it requires courts -- as lawyers, most of us will be at least have vague, horrible memories of administrative law and the Chevron doctrine. You remember the Chevron doctrine requires courts to give deference to agency interpretations of the law, in a nutshell.

 

      Under S.1, Chevron bias would work if the FEC enforced a matter against a respondent. In other words, if the FEC found that the behavior violated the Federal Election Campaign Act, it's interpretation of the Act should be given deference by the courts. But if the FEC finds that the behavior did not constitute a violation of the Act, then there's a private right to sue, the original complainant could sue, and no deference will go to the FEC's interpretation that the law was not violated. So it's sort of a one-way ratchet. If the FEC finds that the behavior violates the law, it gets deference. If it finds that the law does not prohibit that behavior, it does not get any deference as the matter goes up on appeal.

 

      So how will it actually regulate in certain ways? Well, one of the main things it does is it regulates a lot of speech that historically has not been regulated. That is, generally, we have regulated speech only by political committees or speech that specifically advocates the election or defeat of a candidate. Under S.1, that regulation will expand to include speech that promotes, attacks, supports, or opposes a candidate, a vague standard, and one that in other contexts some courts have interpreted extremely broadly to cover almost anything that, in fact, mentions a candidate.

 

      For example, in one case, the Tenth Circuit-- no, I'm sorry. The D.C. Circuit  held that an ad attacked or opposed or supported or promoted a candidate when it merely called on the candidate in the most neutral terms to support a particular piece of legislation. And the D.C. Circuit's reasoning was, "Well, if the candidate doesn't support the legislation or hasn't supported it or has announced his opposition to it, that would suggest that the ad is attacking him. And if the candidate has announced his position, that would suggest that the ad is supporting him." And oddly enough, in the particular case the candidate, had not made his position know. But that was the logic of the D.C. Circuit. So essentially, anything mentioning a candidate in connection with legislation an issue, anything like that, was going to count.

 

      So all of this would be swept up into the reporting system that's going to be governed by, again, a new partisan FEC. And it will require reporting of this kind of information, and it would require the organization running these ads to declare whether these ads promoted or opposed a candidate.

 

      Now, often times the group might say it doesn't promote or oppose a candidate. It promotes or opposes an issue.  An environmental group might say, "We're  urging the public to ask that we not regulate the -- or that we not drill for oil off the Everglades." Or another candidate or another group might run an ad urging members of Congress to support a particular tax measure or something like that. So we're not opposing or supporting the candidate, but the bill would dictate that the group has to, in fact, state that it is opposing or supporting a particular candidate. And that means that donors to that organization will then be identified as supporting or opposing the candidate even when they had no intention of doing either but joined merely for the issues involved.

 

      Furthermore, organizations that make grants to organizations then make these, what we call pass-through expenditures, promote, attack, support or oppose, will have to disclose their donors when that occurs.

 

      So to give you an example, if you have a charitable group makes a grant to a 501(c)(4) social welfare organization to engage in its various activities, and then the social welfare organization decides to spend $10,000 or $20,000 to support the election of a particular candidate, which it has a legal right to do, not only would the social welfare organization, something like the Sierra Club or any kind of group like that, not only would it have to report its donors, but the groups that gave it money would have to start reporting their donors, even though at the time they didn't necessarily know that the group was going to run any particular ads like that.

 

      It also further regulates internet ads. These have been a great source of ads for low-dollar campaigns. It makes internet regulation of ads much more complex and will probably force out a lot of small-dollar campaigns. And it requires new maintenance of public files by internet companies of all political ads run on the site. And given the large number of political ads that can be run on the internet, that, as a practical matter, is likely to simply lead major providers to quit accepting political ads entirely, again, a low-cost way in which small-budget campaigns have been able to reach voters.

 

      So those are just a few of the sort of, I guess, worst provisions. The bill, as I say, has much more. It lays the groundwork for D.C. statehood under voting and campaign finance. As I mentioned, it's got a whole third section on ethics. But I think what we've covered is quite enough to give you a flavor of the bill.

 

      And so I'll stop here, and we'll see if we can take a few questions. Thank you.

 

Guy DeSanctis:  Thank you for that. We'll now go to audience questions. It looks like we have our first question.

 

Caller 1:  So a number of times, you mentioned voter confidence in the results is an important reason to be considered. And what I'm thinking is that right now, over 60 percent of the GOP believe in the fairy tale that Trump actually won the election, even in the absence of H.R.1. It's difficult to see how H.R.1 is going to make anything worse. The critical mass is known, and it's essentially quantified by these poll results.

 

      A similar number of people believe that the vaccine is some sort of government plot to subjugate them. Why would we ever design policy to gain the confidence of these dopes?

 

Bradley A. Smith:  Well, I didn't quite grasp the very last call of the question, there. But it's basically why should we have government policy? What's government policy going to do?

 

      One of the things that I have noted is that if you look back as the history of confidence in elections, what has happened over recent years is that Republican confidence in the actual results -- are the results correct? Not is the campaign fair, did the other side lie, do they have confidence in government to do the right thing, but can we trust the results as being accurate?

 

      Republican confidence has plummeted. However, that plummeting has only left Republican confidence about where Democratic confidence has been for a long time. It's actually a little bit below Democratic confidence, but not much because for many years, Republicans had a huge gap. Republicans were much more likely to believe that election results were fair and accurately reported.

 

      And if you look at the history of Democrats, including as recently as 2018 -- Stacey Abrams, who is a rock start on the Democratic Party circuit, is still claiming that she is the governor of Georgia, or ought to be, that she won that election, when she clearly did not. Had you had a different result in November of 2020, I think you would see that you would have Democratic percentages that would be just as high, really, as percentages on the Republican side is now.

 

      And so the point here is that this is a big problem —at least I think it's a big problem—that people don't actually trust that the election results are honest. I think they are honest, but, obviously, a lot of people disagree. And it's not a Republican problem. It manifests itself this way because Republicans lost the last election and because their candidate has been uniquely insistent in arguing that he won the election. But this is a bipartisan problem.

 

      And I think that one of the things we need to think about is what causes people to believe these types of things. And one would be when you have, for example, late adjustments in the voting totals, which you get when you allow votes to come in after election day, both because that's how you get these late adjustments in the voting totals, but also because people are smart enough to sit and say, "Well, wait a minute. If my candidate is winning a narrow race on election eve, and we're going to let votes be counted for the next ten days, the other side knows how many votes they need to get to win. And if I don't trust them anyway, I'm certainly not going to trust them to do that kind of counting correctly." So I do think it's important that we think about some of those ramifications.

 

      I think the bigger thing, though, is that we really need to begin thinking about voting again as sort of a civic act in which people take it upon themselves, we take it upon ourselves to govern ourselves as a people, and that we begin to realize that although we don't want to make it  hard for people to vote, we don't want to put obstacles in the way of people, convenience is not the sole criteria for determining if an election is successful or if an electoral system makes sense.

 

      And I think that the For the People Act, as it's called, is largely based on an incorrect diagnosis that some people don't vote, although we're getting record turnouts, but some people don't vote simply because it's just too darn  hard. And, again, I don't think the social science evidence really supports that. It appears that most people, if they don't vote, they don't vote because they just really don't care that much about voting. They don't like the candidates, or they don't think their vote matters, or what have you. And there's not much evidence that, again, low turnout is a particular problem, I think, for American democracy.

 

Caller 1:  But what if it's not about turnout? What if it's about convenience and not making people stand in line for eight hours, giving people drop boxes 15 days in advance. I mean, it appears the Chicago School of Economics --

 

Bradley A. Smith:  Stop. Stop. Please stop. This is a big country. You've got a couple hundred million voters in hundreds of thousands of precincts, okay? And you're going to have episodes where things don't go right. Machines break, people stand in line, and so on. These are not the norm, and we should not act as if these are the norm, and this why there's a problem. You will not find an election in which  you cannot find some precinct somewhere where voters had to stand in line for long periods of time. But that is not the norm for the overwhelming majority of American voters.

 

      Generally, our elections are actually very well-run affairs. And they do pretty good, so we shouldn't base our public policy around the extreme problems rather than around the norms that work for our system, more generally.

 

      So who's next?

 

Guy DeSanctis:  Thank you for that. Next.

 

Caller 2:  Yes, thanks very much. Greatly appreciate your presentation. Got a ton of questions, so I'll try to keep them manageable to give other people an opportunity.

 

      But number one, I know there are some arguments that have been raised about the constitutionality of various parts of H.R.1., the constitutional commitment of managing elections to the states. And I wouldn't expect you to do a thorough discourse on all of those details, but if the current consideration of severing the bill into multiple bills is something that's getting serious review, I'm curious as to which parts of those might be closer to passing constitutional muster, just as a preliminary question.

 

      And then, beyond that, I think there was a Teleforum or a FedSoc event maybe a month or so ago addressing some of these matters. In the interim, after listening to that, it occurred to me with respect particularly to the disclosure questions about donors, given that most constitutional analysis of political donation boils down to First Amendment free speech, spending money as a form of political speech, I'm wondering to what extent there has been -- so if we believe in the secret ballot as a legitimate piece of electoral mechanics and, of course, when voting was instituted in the U.K. and then brought over to the U.S., early on it was open outcry voting. You weren't permitted to be secret about how you cast your ballot.

 

      Has there been any analog drawn between if you're going to compel people to disclose donations? What's the difference between that and forcing to compel the publicity or make public an imbalance as well?

 

Bradley A. Smith:  Well, these are a couple of interesting questions, and I'll tie them together here. For example, I think one area that is clearly going to be subject to constitutional challenge if this were to pass would be most of the various disclosure provisions in Division B, the campaign finance part of the bill.

 

      Now, the Supreme Court has long recognized that you can require disclosure of donations to candidates, and apparently expenditures by candidates and also by political committees, meaning PACs; that is, groups that are organized specifically to elect or defeat candidates. And it has required disclosure when people engage in speech independent of candidates but specifically urging their election or defeat.

 

      I think some of those questions are actually kind of dubious. The general rule that the court has applied in a wide variety of settings is that the American people have a right to get together without telling the government, that they don't have to report to the government what they're doing. And I often laugh. I often use to use a hypothetical. I'd say, imagine if the federal government said, "In order to prevent Russian influence in American elections, we're going to require Americans to report all of their political activity and the contacts of who they converse with, and so on, to the federal government, which will keep it in a database where it can be accessed, not only by federal government employees, but by potential employers and creditors, nosy neighbors, and so on."

 

      And I ask those people if they like that idea, and even given the threat of Russian interference, and they all say, "No. That's a terrible idea." And  I point out we already have that. It's the Federal Election Campaign Act that requires disclosure of at least one type of your political activity and requires disclosure of bundlers, which is, in other words, not only just who gives to a candidate, but who asks somebody to give to a candidate, which gets pretty deep into people's conversations.

 

      So I do think that the basic idea of disclosure is questionable. Nonetheless, clearly the courts have upheld it for, again, this express advocacy of electing candidates or political committees. And the question would be here is, are these provisions to now extend that to all kinds of discussion just of public affairs and issues, and do so under the vague standard of does it promote or oppose a candidate, does it support a candidate, or does it attack a candidate? That's going to be very subject to constitutional challenge.

 

      You raised a point about how is it different from secret voting? And that's, of course, an interesting question. A few years ago on a case, Justice Scalia, who did not believe that people had a right to engage in anonymous political activity -- I think he was—I have tremendous respect for Justice Scalia, but I think he was wrong on that—but yes, he went out of his way in one of these cases to say, "And by the way, there's no right to secret vote, either."

 

      And as you point out, early in the Republic, most voting was not secret. I suspect now that if the issue were to come up, I suspect that a majority of the Court would hold that you do have a constitutional right to a secret ballot if they were actually confronted with that issue. And I think the analogy is not entirely misplaced. Obviously, if I gave money to a candidate, it gives a pretty good sense of whom I voted for. And, oddly enough, if you think about it, if I vote for the candidate, that actually has legal ramifications to the extent it helps that candidate win or lose, whereas if I just give money to the candidate, he has to then spend that to try to persuade people to vote for  him, which is the actual thing that gives him power.

 

      So one could make an argument that you should have  more power to keep your contributions to candidates secret than your vote. But that's not the way we've been, and I don't expect that that will change. I think the question is really just going to be will the Court uphold this new expanded authority to require disclosure of people's political associations, their memberships, and so on.

 

      And then there is a compelled speech issue there that will also be subject to constitutional challenge in the form of long disclaimers that take up more and more of the message. Some of these disclaimers that are already there take up 10 to 20 percent of a 30-second ad. And you think, "Well, what's five or six seconds?" Well, you can say a lot in five or six seconds. You can say, "Give me liberty, or give me death!" You can say, "We have nothing to fear but fear itself." You can say, "Ask not what your country can do for you, but what you can do for your country." Or you can say, "I will never raise your taxes. That's my promise." And any of those would probably be more helpful to voters than a lot of the disclaimers that they're being required to put in. And so that will be something that will be challenged.

 

      I think some of the voting provisions will be challenged as being beyond Congress's authority. Congress has the authority to regulate the time, place, and manner of congressional elections, but some of things that are required may not really fit into the idea of time, place, and manner, and they'll be challenged on that basis. I don't think at this point I would be very well equipped to really go into the ins and outs of every constitutional challenge. But for sure, there will be challenges if those pass.

 

Caller 2:  Thank you very much for those answers. I greatly appreciate it. I share your concerns, and what I think should be everybody's concerns, about the perception of legitimacy of the elections. I won't sink to the level that the prior caller did in terms of name-calling, but when there is sufficient dissatisfaction with the electoral process, then people will turn to political violence, which I think is part of what we've been seeing in the last couple of years, anyway. So thanks very much, sir.

 

Guy DeSanctis:  Thank you. Now, our next question.

 

Caller 3:  Hey, I just wanted to let you know that about 25 million people waited in line more than an hour in this last election. And it does seem to me that there is something to be said about the Chicago School of Economics cost-benefit analysis which allows people to actually die if the benefits from losing benefit enough.

 

      It doesn't seem to me that there is enough voter fraud -- nobody has ever shown that there's enough voter fraud to substantially impact these elections. So the cost-benefit analysis of allowing somebody to drive up to a drop-box in three minutes and drop off a ballot rather than stand in line for one hour, two hours, three hours, or six hours, seems, on its face, like an argument you've got to overcome.

 

Bradley A. Smith:  Okay, so we've got an organized campaign here because you don't normally randomly have two people that begin by saying, "The Chicago School of Economics," and that's great because that's the argument that -- okay, that's the argument people want to make.

 

      Look, I'm not interested in really arguing with you about this. One of the things I point out is that you don't have a lot of fraud in elections. But if you do away with all of the things that have been safeguards to fraud, you probably will get more fraud in the elections. And if it really matters that some people's votes are not counted, then we should be aware of that, that absentee ballots, for example, are more likely to be discarded as having been improperly filled out, not having it properly submitted, and so on.

 

      Again, if we talk about the number of people who stand in line, again, I don't want to make it hard for people to vote. I want to make it easy for people to vote. I think maybe we should do more, spend more money, and maybe this is even a role for the federal government to provide more grants for states to make sure that there are adequate voting machines in polling places so that people don't have long lines to vote.

 

      Having said all that, the idea that you have to go stand in line for, say, 15 minutes or 20 minutes, or something like that, it's not bad that you have to stand there with your fellow citizens and think about those citizens. They're going to vote, too. My vote's going to affect them. Their vote's going to affect me. How do I want them to think about their vote? How should I think about my vote?

 

      In other words, the goal, again, is not to make voting -- while we don't want to throw obstacles in people's way, the goal is not to make voting as absolutely convenient as possible. That is not necessarily a good election system. And higher turnout is not necessarily a sign of a healthy democracy. In fact, the democracies that tend to have the highest turnouts often are the democracies that are sort of the illest, that have the most problems, and people are voting in large numbers because they are very afraid of what the potential results will be if they don't vote. And that's not necessarily a healthy thing.

 

      Again, it's a balance here. We need to strike a balance. And what H.R.1 does, what S.1 does, is it says, "Here's the balance. It's everything that we want in terms of total convenience. And that's what we want. It's removal of any safeguard against fraud, and that's what we want. And that's the balance that we're going to mandate be struck. And we're going to prohibit states from experimenting with their own systems, systems that seem to match up with the state's electorate or the state's own situation."

 

      Again, for reasons unrelated, really, to the question of fraud, I tend to think that early voting should be curtailed, not expanded, that it should be limited to just a couple of days so that people who can't make it on election day have an option. I tend to think that we should discourage mail-in voting. Our goal should be what people should believe is that voting in person is the norm. That's the natural thing and that's right. And I think we should focus on having an election day.

 

      And I know that the benefits to that kind of thing are often kind of nebulous to people, but I think they go to the idea of forcing us to think about why we have elections, what it means to be a self-governing people, and how we should think about our vote. And I do believe that there is an element for quality as well as quantity in trying to think about voting.

 

Caller 3:  Thanks. I think that clarified your position a lot better. But I would say that not every impediment to fraud has been removed. There's a woman serving five years in jail for voting while she was on parole in Texas. And these long jail sentences seem like -- and H.R.1, as far as I know, doesn't do anything to prevent a state from punishing people for voting fraudulently. And if you disincentivize it with five years of jail, you're not going to get very much over one vote. I don't think you could get very much at all.

 

Bradley A. Smith:  Look, that's a different argument. It's got nothing to do with H.R.1. Certainly, we can make the death penalty -- we could put the death penalty in place, too. That would probably discourage fraud. I think it would be a bad idea. I don't think the penalty should be excessive in certain areas.

 

      But, on the other hand, remember, too, that equally part of the calculation for criminal activity is what are the odds of getting caught. What are the possibilities of getting caught, and what is perceived to be the norms that are generally allowed?

 

      So again, I don't see that H.R.1 is dealing with what is really a particular problem. That is, there's not really a problem that people aren't voting because it's just too darn hard. There are a few, undoubtedly. Again, this is a very large country, and there is no law anywhere in this country where you cannot find the odd case, the exception, the extreme example. That is certainly true, and that is the argument made by some people who argue that voter fraud is a rampant problem. You can always find fraud in this. There's always going to be some fraud in any election.

 

      So we have to keep all of these things in perspective and come to a balanced appreciation of what is the best approach. And the problem with H.R.1/S.1, from my point of view, is that it's a fairly partisan effort to ram stuff through on a partisan basis. It's got a public funding program for campaign finance that is clearly going to help Democrats. Maybe that's not the purpose, but in the short term, that is clearly what it's going to do. It's got a provision altering the makeup of the Federal Election Commission which, in the short-term, is going to put Democrats in charge of the Federal Election Commission. And by the short-term, we mean the next couple presidential elections. So that's a pretty big deal.

 

      It's got provisions that require new and added disclosure of individuals who support various political causes and issues at a time when there is evidence that more and more people on the political right are becoming afraid to do this simply because of social media because of what's called the "cancel culture" and that sort of thing.

 

      I don't suggest that this is explicitly a conservative or a liberal problem. But it's a problem, and it's one that seems to be affecting Republican donors' perspective more than liberal donors. And, therefore, it's a provision that favors Democrats. It's got a provision to register 16 and 17-year-olds who overwhelmingly tend to be Democratic because, let's face it, they're 16 and 17-year-olds. What is the purpose of doing that other than the idea of short-term political advantage?

 

      It's got a provision talking about D.C. statehood, of all things, under voting. What is the reason for D.C. statehood? We all pretty much know what it is. There is a legitimate argument that D.C. residents should have representation in the Senate. We could easily include them in Virginia or Maryland or something like that. But the provision, instead, is to create two new senate seats from the District of Columbia. And I think any salient person understands that this is a partisan maneuver to add two more Democratic seats.

 

      So what you have is, this is sort of the epitome of election reform done wrong, which is let's take a whole bunch of things that we really want, and one of the reasons we really want them is straightforward that they will benefit certain political point of view. Another reason is, well, maybe there's other reasons, but they just happen to benefit a particular point of view, and that tends to make people less skeptical. Let's ram these through on a partisan vote. And if you do that, that is a surefire way to make sure that the American people will not trust the election results, that they will not have confidence in those results, and that they will engage in activities to frustrate what we might say is the effort of government to operate properly.

 

      So H.R.1/S.1, to me, is just process gone mad, absolutely wrong. And one of the things I really would congratulate Senator Manchin on that he's pointed out is it's not even so much he says that he objects to every provision of the bill as much as he objects to that very process of trying to ram something through on a major issue like this that's going to affect people's core confidence in their democracy, and to do so on purely a partisan basis.

 

      And that's what's going on here and, again, I don't think any serious person denies, really, that that's what's going on.

 

      So thank you for your questions.

 

Caller 3:  So I think you -- I think you are right --

 

Bradley A. Smith:  -- Who else is -- do we have others in line here?

 

Guy DeSanctis:  Yeah, we're getting close to the time we have to close up. So thank you for the question and the answer. If you have any closing comments you'd like to make, we end things here.

 

Bradley A. Smith:  Well, if we don't have other questions, I think the comments I just made are probably pretty good closing comments.

 

      That's really what we've got going on with S.1 at the present time. And it really is a question, therefore, not just of what is best for American democracy, but it's really a question of how our lawmakers should go about making laws and, in particular, how they should think about laws that affect our fundamental law of democracy. And are these laws just a matter of playing politics?

 

      I realize, by the way, that some would throw the same accusation back that some of the Republicans who, in state legislatures, are making changes to state laws, and that's fair. But we're talking about H.R.1/S.1, which is in Congress and is a bill that is the Democrats' number one priority.

 

      And with that in mind, I think we should view it not only as a number of ideas that I think are bad ideas in and of themselves, but it's a bad process because it's both implemented for the wrong purpose, it has not consisted of going to the other side at all and saying, "Here are our concerns. What are your concerns? What can we do?" And there might be things that people could agree on, for example, such as having a mandatory paper ballots and voter verified paper ballots. I don't know that there would be agreement on that, but I can certainly see that that might be something where there would be agreement.

     

      There might be agreements, for example, on increased federal funding to make sure that polling places have enough machines, and that there are enough polling places to make sure that people are not waiting in line for more than an hour or forty minutes or something like that. There can be things that might be done. There has been no effort to try those here and, instead, we have a bill with a number of very radical provisions that I think would be, in the end, not very healthy for American democracy.

 

Guy DeSanctis:  Thank you. On behalf of The Federalist Society, I want to thank our expert, Bradley A. Smith, for the benefit of his valuable time and expertise today. I want to thank our audience for calling in and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and  your emails for announcements about upcoming Teleforum calls and virtual events.

 

      Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.