Democracy in America is under attack. Red states are churning out laws that make it harder to vote and easier for partisans to subvert elections. A round of ruthless gerrymandering is set to begin later this year. The influence of money in politics is greater than ever. A pair of congressional bills—the For the People Act and the John Lewis Voting Rights Advancement Act—would tackle these challenges head-on, but they are stuck as long as the filibuster remains in place. And the filibuster doesn’t seem to be going anywhere.
Fortunately, a (partial) work-around exists that would allow democracy advocates to enact (some of) their agenda. This work-around is the same vehicle that’s being used to pass almost every other Democratic legislative priority: budget reconciliation. (Reconciliation is a special legislative process that fast-tracks certain types of bills—most notably by exempting them from the 60-vote threshold ordinarily needed to overcome a Senate filibuster.) The Democrats are already making use of reconciliation to address infrastructure, health care, education, climate change, and immigration. Election reform belongs on this list too.
It’s true that many needed election reforms—including the stuck democracy bills—are ineligible for reconciliation. Those approaches mostly rely on command-and-control regulation. They require states to adopt certain policies, such as automatic voter registration and mail-in voting, and forbid states from doing other things, such as gerrymandering and disenfranchising formerly incarcerated people. These mandates and bans aren’t allowed under reconciliation.
But reconciliation does permit measures that harness the power of federal dollars to improve elections. To be eligible for reconciliation, provisions need to have a budgetary impact—to raise or spend money. This fiscal effect also has to be meaningful. It can’t be “merely incidental” to the achievement of non-budgetary objectives. So command-and-control regulation is out, but monetary carrots and sticks that reshape actors’ incentives can be very much in.
An example of a fiscal carrot is a voucher for every eligible voter who actually votes: Cast a ballot, collect a check. This policy would be a potent response to the voting restrictions proliferating across the country. Those restrictions raise the cost of voting by adding time and hassle to the process. A voucher for every voter would offset that higher cost by increasing the benefit of voting. And if paying people to vote sounds outlandish, remember that’s exactly what we do for another civic duty: jury service. Every state compensates jurors for their work.
A second example, which could be a carrot or a stick, is funding for states that enact prodemocracy reforms. Congress could offer generous grants to states that institute policies such as automatic voter registration, mail-in voting, and independent redistricting commissions. Congress could also withhold election funds from states that refuse to take these steps. Federal dollars could thus be a reward for states that strengthen democracy—and a penalty for states that don’t.
City and county governments are a third potential group of funding recipients. In 2020, private donors gave hundreds of millions of dollars to municipalities to help them run their elections. Bizarrely, several red states have since prohibited these gifts. Congress could circumvent these bans by simply disbursing money to cities and counties, no strings attached, for election administration. These payments would enable municipalities to hire more election officials, to set up more polling places, to buy better equipment—in short, to make voting less of a chore.
And fourth, a robust system of public financing could make candidates less dependent on big donors. A proposal for such a system already exists in the For the People Act, and could be cleaved off from the bill's regulatory provisions. Under this program, participating candidates would receive six federal dollars for each private dollar that’s given to them (for contributions up to $200). In return, they would forswear all other contributions and expenditures. As a result, these politicians would be less beholden to private funders and more responsive to their constituents. At least, that’s the program’s hope.
All these reforms could likely be achieved through reconciliation. Each involves the federal government spending, conditioning, or withholding funds, so each has a clear budgetary impact. As for the remaining hurdle—that this fiscal effect not be “merely incidental” to policy aims—that’s an easier bar to pass than it might seem. Senate parliamentarians, who oversee what can be included in a reconciliation bill, have long approved bills that make expenditures in service of broader policy goals.
Take the Republican effort to repeal the Affordable Care Act through reconciliation in 2017. The parliamentarian let that reconciliation bill include funding for states that declined to expand Medicaid, showing a willingness to allow policy-driven expenditures through reconciliation. Further, the parliamentarian permitted the bill to include conditions on the use of federal funds, such as Medicaid work requirements and a state innovation fund with restrictions on abortion. These precedents are crucial to predicting which election measures would pass muster. They suggest that a bill that bolsters democracy by providing federal funding to voters, candidates, or governments stands a strong chance of surviving the parliamentarian’s scrutiny.
Senate rules aren’t the only reason to pursue election reform through federal spending. The specter of judicial review provides another motivation. The contemporary courts are hostile to congressional attempts to promote voting rights. Most notably, the Supreme Court has struck down a key part of the Voting Rights Act and, just last month, narrowed what remains of that landmark statute. A similar fate could await any new election legislation that relies on regulation.
Advancing democracy through federal expenditures avoids these pitfalls. Congress’s use of its spending power rarely raises constitutional issues, so courts would be much more likely to uphold expenditures than mandates and prohibitions in this area. Nor would expenditures require federal courts or agencies to enforce any legal commands. By creating incentives through its spending power, Congress could improve elections in ways that are unlikely to run into legal trouble.
Using financial carrots and sticks may be unusual in the election context. It’s commonplace, however, in other fields. Congress has used federal funds, some with strings attached, to further policy priorities in areas including clean energy and education. Many of these incentives seek to change the actions of state or local governments. Others create incentives to motivate individuals. In short, Congress harnessing the federal fisc to achieve its policy goals is not at all remarkable.
Across America, opponents of free and fair elections have shown impressive ingenuity in devising new ways to suppress voting. Those of us who want to protect our democracy should be equally creative. Using reconciliation to enact election reforms is just this kind of novel—and necessary—step.
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August 10, 2021 at 07:14PM
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Pay People to Vote - The Atlantic
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