In collaboration with Take Care, Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.
The 2018 election provides us with two main insights on American democracy. First, our democratic system of government is falling down on the job. In this past election cycle, dark money flooded our digital spaces, voters faced a series of unnecessary and discriminatory hurdles to voting, and partisan gerrymanders held together despite wave elections for the other party.
But the second insight is equally important and far more hopeful: Americans are hungry for a democracy that is more transparent, accessible, and accountable. Where democracy was on the ballot—whether it be felony re-enfranchisement in Florida, redistricting reform in Missouri, or public financing in Denver—voters favored democracy.
There are indications that the next Congress will seriously consider legislation designed to improve our democracy. In anticipation of that legislation, we asked our Campaign Legal Center experts to identify their highest-priority legislative items for democracy reform in the areas of campaign finance, voting rights, redistricting, and ethics. While there are many possible avenues by which Congress could meaningfully improve the American democratic process (as other contributors to this series have noted), we believe the proposals below should be at the top of the list because they are all workable, constitutionally sound, and would go miles toward putting our democracy back on track.
1. Bring Transparency to the Digital Age: Require Disclosure for Online Ads (Better Yet, Upend the Campaign Finance Ecosystem with Public Funding)
Political advertising is increasingly moving online. In the 2018 elections, digital political spending hit $1.8 billion, or 20 percent of total ad spending—an astonishing 2,400 percent increase as compared to the 2014 midterms, according to Borrell Associates.
But the law has failed to keep up. The last major reforms to campaign finance law came in 2002, in the relative infancy of the internet. As a result, current law allows many digital political ads to escape the transparency requirements that apply to identical ads run on TV or radio. For example, under current law, “electioneering communications”—ads that name a candidate and are broadcast to the candidates’ voters shortly before the election—are subject to reporting and disclosure requirements if more than $10,000 is spent. But the definition of “electioneering communications” includes only television and radio ads, not digital.
Thus, at a minimum, any reform legislation should make clear that the definition of “electioneering communications” includes paid digital ads. This would ensure that paid digital election ads are subject to the same reporting requirements and include the same on-ad disclaimers as campaign ads run on any other medium.
In the absence of congressional action, Facebook and Twitter have begun to institute certain informational requirements. But enforcement of these voluntary measures has been haphazard at best and the tech companies have made clear that they are ill-equipped to self-regulate in this area. The nation cannot outsource its democratic transparency to private entities whose ultimate responsibility is to their shareholders rather than to American voters. Congress should update the campaign finance statute to ensure disclosure of paid digital electioneering, thereby vindicating voters’ right to know who is spending money to influence our elections.
Digital ad reforms will help limit opportunities for foreign interference and improve transparency as political spending moves online—but a public funding program can entirely reorient our elections, by reducing opportunities for corruption, encouraging new and diverse candidates to seek public office, and broadening political participation. As CLC recently described, a well-designed program can create an incentive for candidates to fundraise and connect with the people they seek to represent—including people of modest means. And this translates to a donor base that looks more like the fabric of the community, rather than a handful of wealthy elites.
Ok, we cheated; we chose two priorities, not one. We should really do both.
2. Ditch the Bureaucracy: Make Voter Registration Easy
Every year, eligible voters either stay home on Election Day or are turned away at the polls because they are not properly registered to vote. Indeed, unregistered eligible voters drive our overall low turnout rates. In 2016, only 60.1% of the voting eligible population cast ballots but 86.8% of registered voters did. This is not only a result of self-selection of motivated voters. Voter registration issues are routinely one of the most common problems reported to the non-partisan Election Protection hotline. Studiesestimate that millions of voters are “lost” nationwide due to registrar errors discovered on Election Day. And these problems are likely to increase in light of the Supreme Court’s recent gutting of a key statutory protection against registration purges on the basis of non-voting and multiplying tactics by cynical politicians aimed at making voter registration more difficult.
Luckily, these problems are fixable at the federal level. The Constitution’s Elections Clause gives Congress broad power to regulate the “time, places and manner” of federal elections, including voter registration. In 1993, Congress passed sweeping voter registration reforms in the National Voter Registration Act (NVRA) aimed at “reducing barriers, particularly government-imposed barriers, to applying for registration wherever possible.” But given significant technological advancements and improvements to registration best practices in the past twenty-five years, the NVRA needs a remake.
Congress should enact a package of common-sense modern registration reforms proven to improve eligible voter participation: (1) automatic and portable voter registration through the DMV or other social services agencies; (2) Election Day registration as a fail-safe for eligible unregistered voters; and (3) pre-registration for 16 and 17-year-olds to foster civic engagement from early adulthood. These reforms will lower significant barriers to equitable voter participation in a tested and constitutionally sound manner. And although the Elections Clause only applies to federal elections, once states have them in place they will have little incentive not to apply them across the board.
3. Stop Letting the Foxes Guard the Hen Houses: Create An Independent Congressional Redistricting Commission
When it comes to ensuring that the post-2020 round of redistricting is fair, there are two very simple steps the U.S. House can take with respect to congressional redistricting reform. First it can take the power to draw congressional district lines out of the hands of self-interested state legislators, and give that power to an independent commission. A single national commission, comprised of non-partisan experts (demographers, political scientists, sociologists) could draw congressional lines for every state, post them publicly online, and conduct public hearings around the country to get feedback on the proposed boundaries. Every boundary decision could be justified with a written explanation of the values that those boundaries are trying to promote. The process would be transparent, would involve the public in decision-making, and most importantly would mean that voters can choose their representatives, not the other way around.
The second step would be for the Congress to adopt criteria by which the independent commission draws its lines. The criteria should include partisan fairness, the protection of the voting rights of communities of color, respect for political subdivisions, and equal population using the total population from the 2020 census. These criteria would enshrine values that we know are held by a majority of Americans (Republicans, Democrats, and Independents), and allow the commission to make sure that every voice in America counts when it comes to elections.
4. Provide Accountability with Bite: Create An Ethics Enforcement Agency for the Executive Branch
To strengthen the structural foundation of the ethics program, Congress should establish an Inspector General with regular jurisdiction over small agencies like the White House Office—which is headed by Chief of Staff John Kelly and houses some of the President’s closest advisors including Kellyanne Conway, Ivanka Trump, and Jared Kushner—and limited special jurisdiction to conduct ethics investigations throughout the executive branch.
Currently, there is no agency in the executive branch charged exclusively with ethics investigations and enforcement. The Office of Government Ethics (OGE) acts primarily in an advisory role: it provides guidance, seeks voluntary compliance, and coordinates with agency officials responsible for directing the daily activities of an agency’s ethics program. It is not an enforcement agency. Identification of conflicts of interest and prevention of other ethics violations depend on a system of cooperation, disclosure, and ready collaboration with OGE. While this system has worked reasonably well in the past, the glut of executive branch ethical issues we have seen in the last two years demonstrate the weaknesses of this system. An additional entity in the executive branch with investigative authority over ethics-related matters could fill the enforcement gap and provide an additional deterrent for top employees who are considering skirting ethics rules.