Defending Democracy

In 2020, Americans voted at their highest rate in three decades,^[1] yet cynicism about the electoral process has grown, fueled by Russian bots, right-wing pundits, and fringe activists. In Arizona, a masked group carrying guns monitored ballot boxes to intimidate voters in the 2022 midterm elections.^[2] In Georgia, conservative activists filed more than 80,000 challenges against potential voters.^[3] Worst of all, one of our two presidential candidates persistently fans delusional fears of “rigged elections,” and his enablers in Congress lack the courage to admit that the emperor wears no clothes.^[4] False narratives routinely spun by FOX, Newsmax, and social media leave a majority of Republicans today with a professed skepticism in election integrity.^[5] Congress has much to do. While there are many bills in the pipeline to accomplish a host of goals, seemingly nothing can pierce the hyper-partisan gridlock on this issue. While I will strongly support many of the bills that Democratic members have proposed—the Freedom to Vote Act, the John R. Lewis Voting Rights Advancement Act, and the like—I don’t expect them to pass in our divided Congress. Whether we continue to push with these existing bills, or seek piecemeal gains in the next Congress, we must find every path to protect this most fundamental of democratic institutions. I outline below a few of the most essential components of reform.

1. Prohibit Election Sabotage and Intimidation of Workers and Officials

Congress must enact protections for local election administrators—such as secretaries of state and county registrars—to help prevent their removal for partisan or political reasons. We routinely protect judges and other non-partisan officials in this way, to ensure more objective decision making. The Freedom to Vote Act, for example, limits removal of election officials to specific grounds, such as gross negligence, neglect of duty, and malfeasance. Congress must also enhance protections against intimidation of election workers, and against vote tampering or ballot destruction. Finally, every citizen should have standing to bring a suit against a state for an unreasonable failure to certify results, because of the infringement of their voting rights.

2. Restore the Full Protections of the Landmark Voting Rights Act of 1965

Some 23 states have created new obstacles that suppress voter turnout in communities of color, such as restrictive voter ID requirements. In 2013, the Supreme Court’s holding in Shelby County v. Holder eviscerated the Voting Rights Act of 1965’s bulwark against such discriminatory rules, despite the majority opinion’s admission that “voting discrimination still exists; no one doubts that.”^[6] The Court’s holding explicitly invites Congress to act to reinstitute requirements of federal “preclearance” of new state restrictions on voting. Congress can do so by updating the criteria by which states should be subjected to judicial scrutiny.

3. Create Baseline Standards for Voter Access

Congress must create a uniform standard for voting access that preempts the most onerous restrictions that roughly two dozen states have imposed on their voters. For example, it should require early voting in every jurisdiction in a location accessible to public transit. It should allow every voter to apply online to seek a mail-in ballot, and shouldn’t impose unreasonable requirements on mailed ballots, such as notarization. (How many of us outside of the real estate industry routinely get our documents notarized?). Such vote-by-mail rules become particularly imperative as we consider the access of seniors and citizens with physical disabilities.

4. Constrain Extreme Partisan Gerrymandering

We critically need clear, neutral, and uniform standards for congressional redistricting that constrain the corrosive impact of overtly partisan gerrymandering. Having a more transparent redistricting process will help, as will enhanced judicial remedies to allow for expedited challenges in court—before the maps dictate election outcomes.

5. Modernize Voter Registration

Twenty-five states already require automatic registration of voters with the receipt of a driver’s license by a U.S. citizen.^[7] Voters can also register to vote online in 43 states.^[8] Purging voters from the rolls should require automatic notification of those who are purged, and why. These and other implementations of basic technology should become national standards to make it simple for citizens who merely forgot to register when they moved residences.

Reforming Campaign Finance

In 2022, interest groups and candidates spent more than $8.9 billion to influence congressional races.^[9] This campaign and virtually every other contested congressional campaign becomes mired in accusations and recriminations about the influence of “dark” money contributed in unlimited amounts to super PACs, which can spend unlimited amounts in any campaign. We must find any constitutional way we can to rid our elections of the influence of independent expenditure committees like super PACs, or at least to diminish that influence. I say that as someone who has been both a beneficiary and (more often) a target of independent expenditures in several races, including this one. Super PACs remain an indelible part of our political architecture due to the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, and to prior Court decisions in the 1970s. Barring a constitutional amendment, we’re stuck with Super PACs.

1. Overriding Citizens United by Constitutional Amendment

That doesn’t mean we shouldn’t consider a constitutional amendment. Admittedly, it’s a long shot—with only 27 over 24 decades—and a long road to success. Yet consider two realities: first, there would be no more powerful means of enabling our democracy to succeed—across virtually every issue of importance—than decoupling large financial contributions from political decision making. Second, our very divided electorate agrees on very little, but 88% of Americans agree with the imperative of reducing the influence of large campaign donors over lawmakers.^[10] If mobilized to press legislators for change, a supermajority of Republican and Democratic voters could give this idea legs. While this is hardly a new idea—House Democrats routinely introduce a constitutional amendment to overturn Citizens United to no avail—simplifying the message and grassroots mobilization could help create momentum.^[11] Getting two-thirds support in Congress will alone require a multi-year effort, and I will put my shoulder to the wheel to get this work underway.

2. Mandating Immediate Disclosure

Until then, Congress cannot constitutionally banish or eliminate super PACs. We can improve the transparency of their activities and donors to the public, however. I have called for legislation to require every contribution to a super PAC to be publicly reported within 24 hours.^[12] With immediate disclosure, the media and other interested parties can notify the public immediately when a large donor with a suspicious agenda weighs in. In this race, for example, former New York City Mayor Mike Blomberg’s contribution to a super PAC supporting me has drawn media scrutiny, yet voters were never informed of a $325,000 contribution by PG&E to a super PAC supporting Evan Low until several weeks after the March 5th primary election. Immediate reporting would enable voters and the media to know who is weighing in, and why. The last legislative effort at such a reform, known as the DISCLOSE Act, failed to secure sufficient support to move forward in 2022.^[13] We must push it over the goal line. Similarly, good-government groups have called for laws to close loopholes on the use of foreign money for public communications in campaigns, and for expenditures such as digital communications. The DISCLOSE Act would have done so, and it would make it unlawful to establish or use corporations to conceal election contributions by foreign nationals. While not a panacea for the influence of big money, it helps to expose dark money to the light of public scrutiny, which Justice Louis Brandeis presciently described as “the best of disinfectants.”