A Shot Across Federalism’s Bow

It would be difficult to find another piece of legislation originating in the United States House of Representatives which attempts to side-step the notions of federalism, state sovereignty, and unalienable rights more than the For the People Act of 2019.

The 116th Congress began its year by introducing its first piece of major legislation on January 3rd, imperiously named the For the People Act of 2019. The Bill summary states that the proposal “addresses voter access, election integrity, election security, political spending, and ethics for the three branches of government.”  It passed the House of Representatives along party lines on March 8th.  At the time of this article’s publication, it will not be taken up for a vote in the Senate.  Despite the legislation being essentially dead-in-the-water, it seems clear it was designed as a declaration of intent by certain factions in Congress who feel the current election process is not in the best interest of “the people”.  A careful consideration of the bill reveals that this declaration of intent is tantamount to a shot across federalism’s bow and thusly, worthy of review.

First and foremost, this act seeks to wrest the electoral process from the hands of the states by federalizing nearly all aspects of voter registration, voting procedure, and election security.  This bill would be a major step towards absolute control of the electoral process by Congress, in direct contradiction to the express intentions of the Elections Clause of the US Constitution.  This clause gives states authority in determining the “times, place, and manner” of elections.  While Congress is granted ultimate authority as it relates to the electoral process, the Elections Clause nevertheless carefully words the nature of that authority so as to maintain a national government manned by state representatives, chosen through state elections, predominantly according to state laws and procedures.  As Hans von Spakovsky testified to the House Judiciary Committee, this bill would “attempt to federalize and micromanage the election process and impose unnecessary, unwise and in some cases unconstitutional mandates on the states, reversing the decentralization of the American election process that our Founders believed was essential to preserving liberty and freedom.”  The editors of the National Review even went so far as to call the bill “the most comprehensively unconstitutional bill in modern American history.”  Among the worst provisions of the act include those that would bar the states from using established methods to verify voter addresses, meaning they would be forced to rely exclusively on the federal government to ascertain the accuracy of their voter rolls, and the wresting of state authority to determine the manner in which their congressional districts are drawn, forcing them to establish “independent” redistricting commissions with the threat that failure to do so would result in the districts being drawn by federally appointed judges.

As if this attempted assault on federalism and state sovereignty were not enough, the For the People Act of 2019 contains a host of measures which would significantly degrade freedom of speech.  The bill has been rejected as such by entities across the political spectrum.  The Institute for Free Speech warned that the bill would “limit discussion of candidates to the candidates and parties themselves, at the expense of the public at large” and that “even candidates are likely to find their speech severely restricted” asserting that “advocacy groups, unions, and trade associations” could face what amounts to a “total ban on speech.”  The ACLU asserted that certain provisions of the bill “unconstitutionally infringe the freedoms of speech and association” and that, if enacted into law, would “have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day”.  In other words, ordinary political advertisements and candidate advocacy would run the risk of being considered deceptive and organizations and individuals held criminally accountable for voter intimidation (the language is so vague that some things as simple as an endorsement could be considered criminal activity).  Any citizen engaged in political speech who is merely accused of being a foreign agent could face severe civil penalties upon a “preponderance of the evidence” as opposed to the traditional requirement of “beyond a reasonable doubt.”  The definition of lobbying would be expanded so broadly as to dissuade any and all individuals and organizations from exercising their right to “petition the Government for a redress of grievances.”  The definition of “coordinated expenditure” would expand so much that any speech which could be construed as partisan or in direct support of a candidate, regardless of actual coordination! Finally, all organizations engaged in any political speech would be required to disclose their full list of donors, even those whose donations are not politically motivated nor intended for political use.

The For the People Act of 2019 is a cornucopia of provisions drawn up by legislators who seem to hold no reverence for the traditions of our federalist system, for the importance of state sovereignty, or for the individual exercise of the freedoms of speech and association.  The bill would have placed the entire process, from the funding of campaigns, to the speech of individuals and groups, to the “times, place, and manner” of the very elections themselves, under the sole, abusive purview of the national government.  State legislatures, who are far better at channeling the will of their citizens than aloof elitists in Washington, would be rendered impotent in assuring the interests of their state and the will of its people are represented appropriately in Congress.  Private citizens, religious groups, unions, public figures, churches, non-profit organizations, corporations, business, and indeed any type of association possible would face the highest of scrutiny and the possibility of the direst of consequences at the hand of the national government for engaging in even the most nominal forms of political speech.

Advocates for federalism should be unified in denouncing the intentions of this bill, regardless of political affiliation or ideology.  No process wrought by human endeavor is perfect, least of all our process for national election, but the process involves aptly established checks and balances and currently involves a robust example of pluralism at work in a free and diverse union of sovereign states. The For the People Act of 2019 would have altered that process beyond recognition.