An expensive and aggressive lobbying step was taken Monday on the uphill climb for HR 1, the congressional Democrats' catchall package for assuring that voting gets easier and governance becomes more fair and ethical.
A pair of progressive organizations announced they will spend $30 million on television and digital advertising, direct lobbying, and creating grassroots pressure on the Senate. Part of the effort is to coordinate with other democracy reform groups to build momentum for what could become one of the most consequential victories over voter suppression since the 1960s.
The legislation's paramount obstacle is unified Republican opposition magnified by the filibuster, which is supposed to help democracy by giving the political minority influence but has also made partisan deadlock the norm. Advocates of HR 1 assert that, if there's ever a moment to confront the filibuster's perverse consequences, it's to pass a measure designed to resuscitate democracy itself.
So far, that argument has not proved persuasive to the two Democratic senators who have publicly committed to retaining the de facto 60-vote requirement for passing most bills, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. Some of the money in the new campaign — run by the National Democratic Redistricting Committee and End Citizens United's Let America Vote Action Fund — will surely be allocated in an effort to woo them. The organizations say they will run ads in at least a dozen states and finance organizers to target both Democratic and Republican centrist senators in six of them.
But Manchin and Sinema by themselves have the power to preserve the status quo by siding with the 50 Republicans, who deride the Democrats' democracy bill as an electoral power grab in the guise of reform — and are keen to preserve their biggest tool to combat (or else compel bargaining with) President Biden and his fellow Democrats now in control of the Capitol.
It is not yet clear the Senate's consideration of HR 1 will be the venue for deciding the filibuster's future. Democratic leaders are contemplating several modifications that would make the weapon more difficult to deploy but not eliminate it altogether. While gauging support for those, over the next few weeks they intend to focus on legislation with at least a hope of bipartisan support — on infrastructure and China, for example — in part to test the willingness of the GOP to collaborate.
In addition, Democrats say they want to put the democracy reform package through something of a normal legislative process. That means hearings and a committee debate before a climactic vote on the Senate floor. But the Senate companion bill, dubbed S 1 by the Democrats for similar symbolic impact, has not yet been formally introduced, and the first hearing is not expected before next week
The bill, which the House passed two weeks ago on almost pure party lines, has gained significantly more public attention than when it was first deliberated two years ago. That's mainly because the Democrats have started marketing it principally as a voting rights package that would countermand the extraordinary efforts in almost two-dozen Republican-run states to make casting a ballot much more difficult than in 2020.
To be sure, the measure is packed with provisions designed to make voting equally easy no matter where people live — even if that means reversing a wave of new restrictive state laws unmatched since the Jim Crow era.
The bill would require the minority of states that don't already do so, for example, to allow no-excuse absentee voting as well as at least 15 days of in-person voting before Election Day. And it would nationalize online registration, same-day registration for federal elections and automatic registration of eligible voters when they do business with their state agencies — practices not in effect in about a quarter of the states.
It would restrict how states cull, or purge, their voters rolls and make the Postal Service help people re-register to vote when they change their addresses. It would require states give at least a week's notice before changing a polling place location — and assure the average wait times for voting are less than half an hour.
But the new campaign is being spearheaded by groups that have until now been more keenly interested in other aspects of the sprawling package.
End Citizens United is a prominent voice for limiting big money in politics, and so has been primarily focused on language that would create a system of 6-to-1 matching funds for congressional candidates who refuse donations above $1,000 and boost disclosure requirements for politically active advocacy groups.
The National Democratic Redistricting Committee, meanwhile, has mainly focused on the provision turning all congressional redistricting over to politically independent commissions in each state — on the assumption that partisan demographics will put most of the cartography in GOP hands for the foreseeable future.
But the bill's reach extends even further, from ensuring felons could vote after release from prison, to beefing up election cybersecurity, to establishing ethics codes for Supreme Court justices, the president and other executive branch officials.
"This historic investment will harness the grassroots energy for unrigging the system in Washington to make it work for everyone, not just those on top, and will make it clear to the Senate that we must pass this bill," said the announcement by the two groups, who recently released polling they commissioned finding 83 percent support for the bill.
"This is a power grab" by the Democrats, GOP Sen. John Cornyn of Texas said Sunday on Fox News. "It's that simple. They want to install a permanent partisan majority in the United States when it comes to voting in elections."
To be sure, nationwide easements of access to the polls would increase participation, especially by minority voters who disproportionately lean Democratic.
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California is widely regarded as the gold standard for campaign finance transparency, but one of the state's disclosure rules will soon face scrutiny from the Supreme Court.
The high court agreed last week to hear an appeal, brought by two conservative advocacy groups, that challenges California's law requiring nonprofits to disclose their top donors.
The Americans for Prosperity Foundation, founded by the influential Koch family, and the Thomas Moore Law Center, a conservative Catholic legal group, claim California's law infringes on their rights of free speech and association, but state officials say it is necessary to prevent charitable fraud.
Since 2010 California has required nonprofits to provide, to the state attorney general, the names and addresses of major donors — similar to the federal tax forms charities must send to the IRS. This information is not publicly disclosed, and it "helps the state protect consumers from fraud and the misuse of their charitable contributions," said Attorney General Xavier Becerra, who is defending the case for California.
But the two organizations making the appeal say the state has failed to keep certain donor records confidential. In 2014, they filed separate lawsuits on the matter, and federal courts ruled in their favor. But in 2018, their cases were combined in an appeal, and California's law was upheld as constitutional.
"It is clear that the disclosure requirement serves an important governmental interest," Judge Raymond Fisher wrote in the ruling by the 9th U.S. Circuit Court of Appeals.
Following this decision, the two groups appealed their consolidated case to the Supreme Court. Oral arguments have not yet been scheduled.
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Scofield has a doctorate in comparative constitutional law and teaches government at Blinn College in Texas.
Asked to name a famous Supreme Court case, many Americans would probably initially think of three that are the best known for expanding the constitutional rights of individuals: Brown v. Board of Education, which said children have a right to attend desegregated schools in 1954; Roe v. Wade, which said women have a right to have abortions in 1973; and Obergefell v. Hodges, which said gays and lesbians have a right to get married in 2015.
These landmark decisions helped to create a political mythology of the Supreme Court as an institution that has always protected the rights of Americans. However, the politicization of the courts magnified by President Trump and Senate Republicans has ironically highlighted a truth often ignored: The nation's highest court is inherently undemocratic.
Since the election, Trump has made it clear he believes the court and the three justices he appointed — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — should deliver an electoral victory for him. This is despite the fact that Joe Biden won with 306 electoral votes and by a margin of more than 7 million votes.
He and his allies were able to get a pair of challenges to the election considered by the court this month. It took only a few hours before tossing a suit seeking to reverse the outcome in Pennsylvania. It took about a day before rejecting a bid by Texas to overturn the results from four states Biden won.
"The Supreme Court really let us down. No Wisdom, No Courage!," Trump tweeted after that second, decisive setback for him.
The rhetoric regarding the elections is a culmination of Trump and Senate Republicans' longstanding efforts to remake the courts. Majority Leader Mitch McConnell broke important senatorial norms by refusing to consider President Barack Obama's nominee, Merrick Garland, in 2016, and by rushing the confirmation of Barrett just weeks before this year's election.
When Biden takes office in January, he will face a 6-3 conservative majority on the court that threatens his ability to carry out popular initiatives, from reforming health care to taking meaningful action on climate change.
Not only will the court have the power to block the policy agenda of a popularly elected president, but the very process of choosing justices has become widely undemocratic. Republicans have won the popular vote only once since 1988, but they have appointed six out of the last 10 justices. The senators who voted against Barrett represent 13.5 million more people than do the senators who voted for her.
In light of the Trump administration's politicization of the courts, scholars and public commentators have presented several proposals for reform. The first step, however, may be convincing the public of the undemocratic nature and history of the courts.
While trust in American political institutions has long been on the decline, trust in the Supreme Court remains relatively high. A Gallup poll this year found 40 percent of Americans have a "great deal/quite a lot" of confidence in the high court and as many have at least some confidence — but just 17 percent said they have "very little."
By comparison, just 13 percent said they have ample confidence in Congress while 41 percent say they don't have much at all.
Unfortunately, despite widespread faith in the Supreme Court, the institution has not always stood on the side of expanding individual rights and democracy. Brown v. Board overturned Plessy v. Ferguson, which found segregation constitutional six decades before. Korematsu v. United States upheld the internment of Japanese Americans during World War II. Buck v. Bell, a 1927 ruling that's never been technically overturned, upheld forced sterilization of those considered "feebleminded."
For its part, the court under Chief Justice John Roberts Court has seriously weakened democratic rights. Shelby County v. Holder gutted the Voting Rights Act and ushered in a new era of voter suppression since 2013. Citizens United v. FEC has made it difficult to effectively regulate campaign financing for the past decade. And last year's Rucho v. Common Cause said federal courts had no business placing limits on partisan gerrymandering.
It is worth noting how our system is rare among Western democracies in giving the top court the power to decide what the law is.
Countries including Germany and Portugal have separate constitutional courts — they do not have the same appellate function as our Supreme Court — to protect economic and social rights. In Belgium and Switzerland, courts are constitutionally prohibited from engaging in judicial review. In the Netherlands and Britain, the parliaments have supremacy over the courts. In Canada, the top court can declare that a law violates the national Charter of Rights and Freedoms, but Parliament has the option of passing legislation over the court's objections.
All those systems recognize a conflict at the core of any democratic government: Courts have the ability to protect individual rights, but they are fundamentally undemocratic.
As one of her first acts after becoming the newest Supreme Court justice, Barrett provided the deciding vote in a case that ultimately struck down Gov. Andrew Cuomo's restrictions during a surging coronavirus outbreak on in-person religious gatherings in New York. The case was notable, because five unelected members of the judiciary ultimately interfered with the pandemic response of a democratically elected executive.
In highlighting the troubling history of the Supreme Court, Democrats can put public pressure on judges to respect the will of democratic majorities in the short-term and start building the case for long-term structural changes to the court.
Ultimately, Democrats should make the argument that in a democracy the will of the majority should not be so wholly subjected to nine unelected officials.
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The Supreme Court on Friday kept alive President Trump's efforts to upend before he leaves office how the nation's congressional lines are drawn — by no longer counting undocumented immigrants as people deserving representation.
The court dismissed a lawsuit seeking to block the president, concluding it was premature to consider. The three liberal justices dissented, saying they were ready to declare the president's plan unlawful.
The issue is theoretically vital to the future of the one-person-one-vote principle, long a bedrock of American democracy. But the Trump administration now has only its final five weeks to complete its effort to abandon that concept, a deadline widely expected to prove too tight. And even if the administration does follow through in time, fresh legal challenges would surely follow — and the new Biden administration would be expected to work to abandon the idea.
Trump in July ordered the Commerce Department to undertake a precise count of the number and whereabouts of the nation's estimated 10.5 million undocumented immigrants, then use that report in determining how many seats in the House of Representatives each state should have for the next decade — on the theory those immigrants don't merit any political influence because they are not permanent residents.
Since the 18th century, congressional apportionment has always been done based only on the number of people in each state, as counted by the census.
Trump's supplementary count had proved difficult, and the administration conceded at oral arguments last month that it looks unlikely to be completed in the next month. Trump is supposed to give his apportionment report to Congress by the second week of January.
Subtracting the number of undocumented immigrants could mean one fewer House seat for the rest of the 2020s for California, Illinois and Arizona, all states colored blue on this year's presidential map, as well as Florida and Texas, which were tossup purple for most of the campaign but were carried by Trump in the end.
States gaining seats would likely be older, whiter and Republican. One model suggests that blue Minnesota, along with red Ohio and Alabama, would all be able to hang on to seats that will be imperiled under the traditional apportionment — which also has the effect of assigning electoral votes to the states.
Carrying out Trump's policy would also shift the distribution of about $1.5 trillion in federal funds in the next decade away from urban areas and toward rural places.
"At present, this case is riddled with contingencies and speculation that impede judicial review," the court's unsigned majority opinion said. "To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here."
But Justice Stephen Breyer disagreed in a dissent joined by Justices Elena Kagan and Sonia Sotomayor.
"The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status," Breyer said. "The government's effort to remove them from the apportionment base is unlawful, and I believe this court should say so."
Dale Ho, the top voting rights lawyer for the American Civil Liberties Union, which represents some of the challengers, said the ruling was a temporary setback "only about timing, not the merits."
If Trump implements the policy in his presidency's final days, Ho said, a fresh lawsuit will be at the ready.
The heart of the argument will be that the Constitution says apportionment of the House is to be based on "the whole number of persons in each state" as determined by the census. But the president's lawyers told the Supreme Court that he gets to decide whether undocumented immigrants should be counted.
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