When Sen. Joe Manchin's office told CNN this week that he opposes the For the People Act, the West Virginia Democrat struck a fatal blow to his party's signature legislation to overhaul the elections, redistricting, campaign finance and ethics rules.
From its debut in 2019, the legislation was considered a long shot at best and likely nothing more than a messaging platform for Democrats. That prediction -- the first article written by The Fulcrum -- has come to fruition two and a half years later as the parties avoided attempts at compromise and fought over congressional rules that stymied passage.
In March 2019, Democrats forced the bill through the House on a strictly party-line vote while knowing Majority Leader Mitch McConnell was never going to allow a vote in the Republican-run Senate.
But after Joe Biden won the presidency and Democrats took control of a 50-50 Senate, the bill's backers thought they might have a real opportunity to enact the popular legislation (known to many as HR 1 and S 1). However, while the Democrats again won passage in the House (this time with one Democrat joining all Republicans in opposition), they still faced the daunting challenge of overcoming the Senate filibuster.
The chamber's rules allow senators to obstruct a vote by prolonging debate indefinitely. The only way to end the debate and move to a vote is to "invoke cloture," which requires 60 senators to vote in favor of ending debate and moving to a vote on the subject at hand. In recent years, cloture votes have become the norm for any partisan bill -- even without any senators actually engaging in a filibuster.
A number of Democrats have called for abolishing the legislative filibuster this year (the Senate previously ended the practice of filibustering presidential nominations) in order to pass the For the People Act. But two Democratic senators, Manchin and Arizona's Kyrsten Sinema, have said they oppose ending the Senate tradition. If both of them changed their minds, the filibuster could be abolished and only a bare majority would be needed to pass the For the People Act. (This last step could be achieved if all Democrats voted in favor and Vice President Harris broke the anticipated tie.)
With Manchin opposing the bill, there's no path forward.
So how did we get here?
First, the For the People Act has been a partisan play from the beginning. Democrats set it as a legislative priority and never invited Republicans to help craft or change the legislation. Of course, Republicans did not seek a meaningful role -- both sides dug into their deep-rooted positions with no room for compromise.
And then there's the filibuster, which for more than two centuries has been cited as a tool for preventing a majority from running roughshod over the political minority, helping the Senate cool any tempers flaring in the House of Representatives. In order to overcome opposition, senators were forced to reach a compromise accepted by both parties.
But opinions have shifted and some reformers have cited the filibuster as a leading cause of legislative dysfunction, saying one cranky lawmaker (or the minority as a whole) can gum up the works when a majority is trying to serve the people.
Your midweek reminder that the filibuster is a racist, ahistorical relic that undermines majority rule and is block… https://t.co/62Clar9w4g— Citizens for Ethics (@Citizens for Ethics)1620864049.0
While the massive bill, which has demonstrated bipartisan support in polling, has nowhere to go, perhaps it could be scrapped for parts. Republicans might be willing to accept some components that prove popular among their constituents, as long as they can still say they are preventing a federal takeover of elections. But don't hold your breath.
- Survey finds bipartisan support for HR 1 - The Fulcrum ›
- Public support for HR 1 not reflected in Congress' one-sided fight for ... ›
- HR 1 doesn't go far enough - The Fulcrum ›
- A conservative argument for HR 1, the For the People Act - The ... ›
- Political divisions over Jan. 6 commission fuel dysfunction - The Fulcrum ›
- The 35 Republicans who support the insurrection commission - The Fulcrum ›
- Manchin deals critical blow to election reform legislation - The Fulcrum ›
- West Virginia advocates implore Manchin to reconsider S 1 - The Fulcrum ›
- To change Manchin's mind, we must appeal to his heart - The Fulcrum ›
Hempowicz is director of public policy and Wasser is a policy attorney at the Project On Government Oversight, a nonpartisan group that investigates corruption, misconduct and conflicts of interest in the federal government.
This is the last in a series advocating for parts of legislation soon to be proposed in the House, dubbed the Protecting Our Democracy Act, designed to improve democracy's checks and balances by curbing presidential power.
Last year, while a global pandemic and the accompanying economic uncertainty ravaged the country, political corruption was ranked the second most important issue among voters. This wasn't an anomaly — the American public has ranked "political corruption" and "corrupt government officials" as one of their leading fears for the past five years.
It's clear we must strengthen the integrity of our government institutions so the public gains confidence that corrupt actors will be exposed and held accountable.
Greater protections for whistleblowers and independent government watchdogs will go a long way toward rooting out this corruption the public is so concerned about.
Whistleblowers support the system of checks and balances in our government by speaking up and reporting waste, fraud, illegalities or abuses of power that might otherwise go unnoticed and unaddressed. But they do so at great personal and professional risk.
In many instances, whistleblowers themselves become the subject of retaliatory internal or criminal investigations, monopolizing the truth-teller's resources. These investigations, as well as other forms of retaliation, have a chilling effect, preventing others from coming forward to expose wrongdoing and lending credence to fears that corrupt government officials are allowed to operate with impunity. Because of this, better protections are necessary to ensure whistleblowers are able to make their disclosures and combat corruption and abuse of power within our government.
Currently, federal whistleblowers are in a no-win situation. Most cannot access federal courts to enforce their protections. And the agency that's supposed to help protect them, the Merit Systems Protection Board, has not had any of its seats filled for more than two years — creating a backlog of more than 3,000 cases.
Further, the culture surrounding whistleblowers has created an almost reflexive response to shoot the messenger (through whistleblower retaliation) for reporting the wrongdoing rather than addressing the actual, systemic issues in the government that the whistleblower is disclosing.
To this end, the Protecting Our Democracy Act would strengthen whistleblower protections in many ways. Most importantly, it would allow whistleblowers to enforce their protections in a court in front of a jury of their peers — instead of the MSPB, a quasi-judicial agency within the executive branch.
The bill also would limit opportunities for government officials to disclose a whistleblower's identity. It would make it illegal to retaliate against whistleblowers by opening meritless investigations into their conduct. It would require administrative judges and employees who work with whistleblowers to undergo special training. And it would create a secure mechanism for intelligence community whistleblowers to provide information directly to Congress.
Strengthening whistleblower protections by enacting this legislation can help restore the check on corruption that is desperately needed within the federal government.
Inspectors general, the independent government watchdogs that investigate federal agencies and report their findings to Congress, also need stronger protections now more than ever.
The nature of their jobs is to provide independent oversight without political interference or retaliation, a fundamental difference from other political appointees nominated by the president and confirmed by the Senate. However, under current law, a president can remove IGs for any reason — as evidenced by the removals and replacements that Donald Trump carried out in response to oversight of his administration.
While the law prohibits agency heads from interfering in an IG investigation, this limitless removal authority allows any president or agency head to improperly block any effort that an IG undertakes to conduct independent oversight, by simply removing the watchdog rather than interfering in a politically sensitive inquiry. To conduct robust, apolitical oversight, IGs need independence both from the agency they are overseeing and from the president.
Congress responded to the rash of seemingly politically motivated firings of IGs during Trump's final year in office with the introduction of a handful of bills to protect them from removal as retaliation. One such proposal, which is now part of the Protecting Our Democracy Act, would require the president to have "good cause" for removal. The administration would have to provide Congress proof of the cause, require inspector general offices to report to Congress on any investigations underway at the time of a removal (to ensure those could move forward independently), and enhance congressional reporting requirements around IG vacancies. These fixes would bolster the independence of inspectors general and ensure they remain free from retaliation while providing the American taxpayers with independent oversight.
Stronger protections for whistleblowers and inspectors general would advance the bipartisan ideal that a functioning democracy relies on robust checks and balances. Whistleblowers should be able to make disclosures free from retaliation, just as IGs should be able to perform their jobs with integrity without facing political interference. These reforms would ensure that accountability and transparency remain the driving force in restoring key elements of our democracy.
- Meet the reformer: Danielle Brian, a dean of the watchdogs ›
- More than ever, inspectors general need stronger protection - The ... ›
- Inspectors General get some Senate GOP back up - The Fulcrum ›
- Grassley pushes more protections for government watchdogs - The ... ›
Partisan passions erupted on Wednesday at the Senate's first-ever hearing on HR 1, which has rapidly transformed from the democracy reform movement's longshot wish list into one of the topflight fights in Congress.
The session magnified the virtually total disagreement between the bill's Democratic proponents and Republican opponents. Not a glimmer of potential compromise surfaced, even about the need to do anything to fix the system.
"We have an existential threat to democracy on our hands," Majority Leader Chuck Schumer declared. Minutes later, Minority Leader Mitch McConnell derided the measure as "a solution in search of a problem" because "states are not engaging in efforts to suppress voters, whatsoever."
After more than four hours of testimony and tart exchanges among senators, it was clearer than ever that enacting the package will require limiting or eliminating the filibuster and its effective 60-vote requirement for passage. That is not close to happening, but more and more Democrats say this bill would by the most appropriate venue for changing the Senate rules sometime this year — on the grounds that protecting minorities' civil rights across the nation is a cause much more important than protecting the rights of a minority on Capitol Hill to shape policy.
The bill has generated a surge of attention mainly because it would create an expansive array of nationwide, liberalized ballot access rules, from required no-excuse absentee balloting to limits on voter ID requirements. Doing so would repel the potential wave of state efforts to make voting harder in the aftermath of a 2020 election that saw record turnout despite the pandemic.
But the measure, which the Democratic House passed over united GOP opposition three weeks ago, would also tamp down big money's secretive sway over campaigns, prevent partisan congressional gerrymandering and tighten government ethics rules — aspirations of good-government groups that in many cases predated their newly heightened concerns about election laws.
The divide over the election language is so stark that the two parties refer to it by different shorthand. Democrats almost always describe the provisions as assuring voting rights. Republicans almost always describe the same provisions as weakening election security.
The Rules and Administration Committee, which has jurisdiction over all legislation connected to elections and internal Senate operations and so counts both party leaders as members, conducted the hearing. Schumer and McConnell each asserted that a partisan power grab was motivating the HR 1 position of the party across the dais.
"Shame, shame, shame on them," Schumer said, his comments focused on the GOP's opposition to federalization of election rules.
"There's plenty you ought to be ashamed about," McConnell replied, emphasizing proposals to boost the regulation of campaign finance.
They departed after their dueling speeches, yielding to an unusual level of sniping between the two senators with the senior seats on the panel. Democratic Chairwoman Amy Klobuchar of Minnesota and top Republican Roy Blunt of Missouri have a rare reputation for collaboration in the gridlocked Senate, but the flashpoint created by the 800-page bill is clearly testing their relationship.
At one point, they sparred for about five minutes about the allocation of a few seconds of time for witnesses to finish their answers.
One of the witnesses called by the Republicans was GOP Secretary of State Mac Warner of West Virginia, whose vocal opposition to the bill — it would "overrule the balance of powers" and "stomp on states rights," he said — is seen as crucial to swaying his state's senior senator, Joe Manchin. He is the only Democrat who has not sponsored S 1, the nearly identical companion to HR 1, and is also the most prominent opponent to weakening the filibuster.
The possibility of a middle ground on the legislation seems remote. The parties fundamentally disagree about whether the states should continue to have dominant control over how elections are run (the GOP view) or whether the need to shore up voting rights can be met only by the federalized standards the Democrats have proposed.
Beyond that, there are several emerging strategic disagreements within the world of democracy reform advocates.
Some say the best option may be to shrink the bill to only the nine or so second-tier provisions that have drawn GOP support, such as mandating the disclosure of who pays for political advertising online.
Others acknowledge the standoff on the election provisions and argue those should be handled separately from the rest of the bill — calling for independent commissions to draw House seats, making super PACs disclose big donors, starting a public financing system for House candidates who rely on small-dollar gifts, enhancing the Federal Election Commission's regulatory strength, and setting new codes of conduct for the Supreme Court and Congress.
Still others, including the prominent election law professors Edward Foley of Ohio State and Rick Hasen of the University California at Irvine, are advocating for the opposite — a bill narrowed to provisions that would prevent a retrenchment of voting rights and shore up confidence in the fairness and security of elections in the face of former president Donald Trump's baseless claims about fraud.
But for now the majority of advocacy groups agree with two of the most venerable voices in the democracy reform world, Lawrence Lessig of Harvard and Fred Wertheimer of Democracy 21. They argue that the heightened attention to voter suppression and the new Democratic control of Washington have created a rare opening for pushing the entire package, that proponents should "stop arguing with themselves" and that aspiring to nothing short of total victory is both bad politics and bad policy.
The proponents point to an array of polling showing the public is behind most of HR 1's ideas. But on Tuesday a conservative group, The Honest Elections Project, released results of a survey it commissioned showings something of the opposite: broad support for such things as having to show a photo ID to vote, which the bill would disallow, and solid opposition to third parties collecting and delivering sealed ballot envelopes, which the bill would permit.
- HR 1 ad campaign focuses on keeping Democrats in line - The ... ›
- Cuccinelli to lead conservative campaign against HR 1 - The Fulcrum ›
- Progressive campaign aims to weaken filibuster to pass HR 1 - The ... ›
- HR 1 ad campaign targets Arizona, Georgia, New Hampshire - The Fulcrum ›
- Survey finds bipartisan support for HR 1 - The Fulcrum ›
Ahearn is policy director of Citizens for Responsibility and Ethics in Washington, or CREW, a nonpartisan group that works to expose ethical violations and corruption by federal officials and agencies.
This is part of a series advocating for parts of legislation soon to be proposed in the House, dubbed the Protecting Our Democracy Act, designed to improve democracy's checks and balances by curbing presidential power.
Throughout Donald Trump's four years as president, nearly every federal government ethics and anti-corruption law suffered immense public damage. But among his administration's flagrant and unrepentant disregard for such laws, the serial flouting of the Hatch Act may have been the most obvious — and among the most damaging.
The Hatch Act became law in 1939 with a simple purpose: to prevent federal employees from engaging in partisan politics while performing official government duties. Despite its low public profile, the Hatch Act codifies fundamental tenets of American democracy, ensuring "federal programs are administered in a nonpartisan fashion" and government officials do not abuse taxpayer funds to hold political power.
Our government should provide service to all people, regardless of their partisan or personal affiliation. Such a guarantee is the bedrock of a government by and for the people. Government employees of both parties have abided by the Hatch Act's principle of nonpartisan service for more than 80 years.
That tradition, and its guarantee of equal governmental service, ended within hours of the 2017 inauguration. For almost the entirety of his presidency, Trump political appointees engaged in a "persistent, notorious, and deliberate" attack on the Hatch Act, an institutional disregard that eroded "the principal foundation of our democratic system — the rule of law."
It is of critical and immediate importance that Congress address this issue before it further erodes public trust in our government. The Protecting Our Democracy Act is an important step in that direction.
It would patch some of the most problematic cracks in the Hatch Act exploited by the previous administration exploited.
The most important improvements would be strengthening the Office of Special Counsel, the agency in charge of enforcing Hatch Act compliance. The Trump administration vividly demonstrated how OSC's weaknesses created two tracks for executive branch employee compliance: Civil service and lower level appointees face standards adjudicated by the independent Merit Systems Protection Board, but higher-level employees appointed by the president are exempt and so may avoid consequences if the president chooses.
The bill would take significant steps to address this inequity between rank-and-file and politically connected appointees.
First, it would allow the OSC to fine senior political appointees $50,000 when the president fails to hold them accountable for violations. This addresses the loophole glaringly exposed, for example, when Trump refused to take any action to address senior adviser Kellyanne Conway's flagrant violations of the Hatch Act.
Second, it would increase transparency surrounding Hatch Act violations by senior political appointees. Not only did Trump repeatedly refuse to discipline political employees who violated the act, but he provided no rationale for his decisions. The bill would require presidents to provide a written statement to the OSC in response to that office finding a political appointee violated the act. At a minimum, this would make the president's choice to avoid disciplining political appointees politically toxic.
The bill also addresses a problematic loophole created by the OSC. It says the law requires an independent complaint about a potential violation before beginning an investigation. This interpretation limits any ability to proactively enforce compliance with the Hatch Act. The new legislation would end this problem by authorizing the OSC to start Hatch Act violation inquiries on its own.
While the bill is an important step in the right direction, more improvements are needed. For instance, the proposed $50,000 penalty would only be a deterrent for officials of normal financial means. It would mean little for somebody like former Secretary of Education Betsy DeVos, whose fortune is in the hundreds of millions of dollars. To bolster deterrence, Congress should include language in spending bills to prevent salary payments to political appointees with multiple Hatch Act violations. That would be a stronger disincentive than individual fines, because loss of a salary indicates a shameful betrayal of public trust.
Additionally, the Hatch Act is unclear about some aspects of executive branch officials becoming candidates for partisan office. While explicitly defining who is an employee and which elections are covered, it does not explicitly address whether an employee may use federal funds to explore a potential run for office. The OSC has interpreted the law as applying only after someone "officially announces" a candidacy, a loophole that allows abuse of taxpayer funds to go unchecked. No member of the Trump administration abused this more than former Secretary of State Mike Pompeo, whose numerous taxpayer-funded visits to conservative donors allowed him to "quietly" nurture plans to someday run for senator in his Kansas or for president.
Congress should start applying Hatch Act restrictions as soon as executive branch officials hold themselves out as exploring a candidacy — either stating they are considering a run or not denying they are considering a run. Similar to how employees may not use federal funds for partisan purposes, Congress should clarify the Hatch Act applies to those who use federal funds or official travel to meet with prospective political donors and allies.
The guarantee of unbiased government service is a necessary condition in building a government by and for the people. By flagrantly disregarding and decimating the Hatch Act, the previous administration undermined this bedrock of our government. Without immediate and bold congressional action, public trust in the rule of law may be permanently damaged. The Protecting Our Democracy Act represents the most immediate and important step towards avoiding such lasting damage.
- Time for a cross-partisan push to prevent abuses of power - The ... ›
- Fact-checking claims that Pompeo violated the Hatch Act - The ... ›