American democracy is in urgent need of repair. State legislatures nationwide are pushing legislation that would roll back voting rights and place election administration in the hands of partisans. Redistricting is under way in several states, drawing congressional maps that will be in place for a decade. And campaign spending is increasingly dominated by contributions from the wealthiest Americans, marginalizing the concerns of everyday citizens.
On September 14, a group of Democratic senators led by Sens. Amy Klobuchar (D-MN) and Joe Manchin (D-WV) introduced the Freedom to Vote Act, a package of reforms that would be the most consequential voting rights and anti-corruption bill passed in more than half a century. The bill addresses the biggest problems facing our democracy, from efforts to restrict access to the ballot, to campaign finance laws, to voter roll purges, to extreme partisan gerrymandering.
The Brennan Center’s Wendy Weiser and Daniel I. Weiner discuss the potential impact of this blockbuster legislation, the crises that make it necessary, and what stands in the way of it becoming the law of the land.
How would you describe the Freedom to Vote Act in as few words as possible?
Weiner: The Freedom to Vote Act is historic legislation that would be the most consequential voting rights and anti-corruption bill passed in more than half a century. It tackles the biggest problems currently facing our democracy by setting national standards to protect access to the vote, ending partisan gerrymandering of congressional districts, beginning to overhaul our broken campaign finance system, and creating new safeguards against subversion of the electoral process.
Why do we need the Freedom to Vote Act?
Weiser: We are facing a multifaceted crisis in our democracy. There is a concerted and highly successful push across the country to restrict access to voting, primarily targeting voters of color. We are starting a redistricting process that is going to once again be distorted by extreme partisan gerrymandering, much of which also targets communities of color. Our campaign finance system is now increasingly dominated by a small group of megadonors who are calling the shots and overshadowing ordinary citizens. And we have a new push to empower partisan legislators to take over the machinery of elections or the vote counting process, coupled with attacks on election workers, threatening the integrity of our elections.
We are facing these crises with fewer legal protections than at any time in more than half a century. The Supreme Court has severely hampered the Voting Rights Act, which used to protect us against discriminatory changes in voting laws and practices. The Court has rolled back constitutional and statutory voting protections in other ways, and it has outright prohibited federal courts from policing partisan gerrymandering, no matter how much that offends constitutional principles. The Court has also effectively gutted our nation’s campaign finance laws.
Where the Court won’t step in, Congress can. The Constitution gives Congress broad authority to regulate federal elections. And given how much is at stake, Congress must. If it doesn’t, things will only get worse. We have not seen the end of these efforts to suppress the vote or subvert democratic elections. This abuse of the democratic process will not stop unless real guardrails are put in place.
There have been multiple bills in the works that would address this crisis. How is the Freedom to Vote Act different from the For the People Act, the John R. Lewis Voting Rights Advancement Act, and the Protecting our Democracy Act?
Weiner: The Freedom to Vote Act contains the vast majority of the most critical provisions that were in the For the People Act, although it does also reflect some important concessions that were needed to achieve unity among Senate Democrats and address concerns raised by Senate Republicans and election administrators. For example, it streamlines some of the voting provisions that existed in the For the People Act to provide more flexibility for states and election officials on how to adopt the requirements. It also scales back the small donor matching program and some of the other campaign finance provisions that were in the For the People Act, although the provisions that remain would still be a huge improvement over the status quo.
Like the For the People Act before it, the Freedom to Vote Act is complementary to the John R. Lewis Voting Rights Advancement Act, which would protect voters from racial discrimination by restoring and updating the full protections of the landmark Voting Rights Act of 1965, one of the crowning achievements of the civil rights era.
The original VRA required jurisdictions with a history of racial discrimination in voting to obtain federal approval, known as preclearance, for changes to their voting rules. These provisions were neutered by the Supreme Court in its 2013 Shelby County v. Holder decision on the grounds that they were outdated. The John Lewis Act would restore the preclearance process and update it to respond to modern conditions by creating a new formula to determine which places are covered and singling out certain practices that are known to be associated with discrimination for extra scrutiny.
The reality is that we need to have national standards for access to the vote, but then we also need to restore the historic safeguards of the Voting Rights Act because Congress can’t anticipate every type of discrimination. The John Lewis Act is a critical backstop to prevent racial discrimination in voting that fits together with the Freedom to Vote Act.
Weiser: The Protecting Our Democracy Act is separate legislation that would shore up urgently needed safeguards against abuse of power in the executive branch, and protect ethics and the rule of law. All three bills are necessary. Given the scope and scale of the current crisis, we need a comprehensive approach to strengthen and secure our democracy.
How does the Freedom to Vote Act respond to the voter suppression efforts many states are engaged in, such as Texas S.B. 1?
Weiser: We closely track the state legislation to restrict access to voting, and believe that the Freedom to Vote Act would thwart the vast majority of the restrictions in new state laws restricting access to voting.
The Freedom to Vote Act creates baseline national standards that supersede more restrictive state voting rules. It also strengthens the legal standards for challenging laws that unduly burden voting rights, making it easier to win lawsuits when rights are violated. It works hand in hand with the John R. Lewis Voting Rights Advancement Act, which provides more tools to push back against discriminatory voting changes that restrict access to the ballot box.
What are the most impactful provisions in the Freedom to Vote Act?
Weiner: I would look at that in terms of three critical areas. The first is setting national standards to protect the right to vote. That includes minimum standards for early and mail voting, modernizing voter registration, and restoration of the right to vote to formerly incarcerated people.
The second is the elimination of extreme partisan gerrymandering for congressional districts, which has been a plague on our republic since the founding era but has become far more sophisticated in recent decades, resulting in durable gerrymanders that insulate elected officials even from very significant shifts in public opinion.
The third is the small donor matching system, which would create a path for campaigns for Congress to be funded through contributions from everyday Americans. The bill allows states to opt into the program, under which small donations to participating congressional candidates would be matched 6-to-1. This would give candidates the option of funding their campaigns through broad-based grassroots support, expand opportunities for those who lack wealthy networks to run for office, and help center the concerns of ordinary people in the political process. And it would do all these things through an innovative funding mechanism that doesn’t rely on taxpayer funds. States that don’t want to opt into this system could use the money for other improvements to their election systems.
Weiser: The Freedom to Vote Act also innovates by countering new tactics of election subversion, attempts to thwart the electoral process to undermine fair election outcomes.
While vote suppression legislation is a form of election subversion, across the county we have seen new and more brazen attempts to subvert election outcomes. These include attempts to empower partisans to literally overturn election outcomes, to states handing over the machinery of elections or the vote accounting process to partisan legislators and other partisan actors, to the attacks on and intimidation of elections officials. The Freedom to Vote Act directly addresses these threats to the integrity of our election system in a more robust way than we’ve ever seen before.
The bill would also end the scourge of undisclosed large-scale spending in elections, which has grown dramatically over the last decade since the Supreme Court’s notorious Citizens United decision.
What roadblocks are standing in the way of this bill becoming law?
Weiner: The main one is that under current Senate rules, you need 60 votes to advance legislation past a filibuster. Something people don’t tend to understand is that the filibuster is not something that you either have or you don’t have — it has actually been changed hundreds of times in its history and there are a number of ways the filibuster could be altered again to preserve what some people see as it its deliberative benefits.
Weiser: Democracy reform must happen, and the path forward will require some adjustment to the filibuster rules if the Freedom to Vote Act is going to move forward without 10 Republicans supporting it. As Senator Manchin has said, “Inaction is not an option.” The Senate cannot let arcane procedural rules stand between the country and the legislation we need to avert this crisis for our democracy.
What can people do to help get this bill over the finish line?
Weiner: One of the enduring challenges on this issue is that elected leaders have sometimes assumed that these topics aren’t “kitchen table” issues that actually matter to voters, so there has been temptation to give them short shrift. So the number one thing you can do is make it known to your elected leaders that you care about this. It does not matter if you live in a red, blue, or purple state. All of the reforms in this bill have broad bipartisan support. These policies deserve the votes of every member of Congress.
Weiser: We also have an unprecedented opportunity, not just to stop the crisis from getting worse, but to turn things around and put the American people — not special interests or political factions — at the center of our democracy.