WALTER OLSON, CATO INSTITUTE
How many provisions of H.R. 1, if enacted, would be struck down by the courts as unconstitutional? It’s not clear anyone has tried to compile a full list, but the likely answer is, “quite a few.”
To recap, H.R. 1 is the sprawling omnibus bill passed by the House on party lines that would assert federal control over dozens of areas related to elections, political speech, official ethics, and topics further afield. S. 1 is its Senate version. Earlier posts in this space have discussed problems with it here (speech‐hostile, bossy in areas long left to the sound discretion of the states, largely unrelated to “voting rights” rationale), here (places impossible burdens on local election administrators), here (experienced Democrats have doubts about its consequences and practicality), and here (replaces bipartisan structure of Federal Election Commission with one conducing to one‐party control).
* Perhaps the bill’s best known menace to the First Amendment arises from its threat to chill the speech of nonprofit organizations and advocacy groups that speak out on legislation. It would greatly expand the definitions of “electioneering” and “public communication” so as to require disclosure of the names of many persons who donate to organizations that engage in policy‐oriented speech. To quote an earlier post:
Per a critical account by two ACLU lawyers, that would menace the confidentiality of a nonprofit that bought an ad “criticizing House Speaker Nancy Pelosi (D‐Calif.) for supporting immigration reform or criticizing Sen. Ted Cruz (R‐Tex.) for opposing the Equality Act.” That “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.”
But that’s only one among many problems.
* The bill’s passages claiming constitutional authority, and many of its advocates, point out that Article 1, Section 4 of the Constitution (the “Elections Clause”) gives Congress broad power to enact laws governing the “time, places, and manner” of elections for U.S. House and Senate. That does establish a broad zone of discretion to enact laws governing Congressional elections, even if it’s not clear whether the phrase “time, places, and manner” can stretch to include all the different changes and practices the law would mandate.
But the bill would also impose many of the same mandates on states’ handling of presidential elections. On that, Congress’s enumerated power to legislate arises under a different and much narrower clause, Article 2, Section 1 (the “Electors Clause”), which extends to date and time but not to manner. A state attorney generals’ letter taking issue with the bill argues:
That distinction is not an accident of drafting. After extensive debate, the Constitution’s Framers deliberately excluded Congress from deciding how presidential electors would be chosen in order to avoid presidential dependence on Congress for position and authority. [citing 2 Records of the Federal Convention of 1787 109 (M. Farrand ed. 1911)] Accordingly, the Supreme Court, in upholding a Michigan statute apportioning presidential electors by district, observed that the Electors Clause “convey[s] the broadest power of determination” and “leaves it to the [state] legislature exclusively to define the method” of appointment of electors. McPherson v. Blacker, 146 U.S. 1, 27 (1892) (emphasis added). The exclusivity of state power to “define the method” of choosing presidential electors means that Congress may not force states to permit presidential voting by mail or curbside voting, for example.
Before leaving the topic, it is worth noting that the Seventeenth Amendment as to the Senate, and Article 1, Section 2 as to the House, provide that “The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” Some provisions of H.R. 1 however would require states to admit as voters in Congressional races persons who would not qualify to vote in elections for the more numerous branch of the state legislature.
* Because redistricting reform is an interest of mine, one of the first things that struck me about the bill was its scheme requiring all state governments to establish independent citizen commissions to handle House districting, and micromanaging to an extreme degree how they are to go about that task. Merits aside — and I share the view that legislative insiders have abused redistricting power often enough that it’s worth looking for alternatives — the particular mechanism chosen here almost seems devised on purpose to invite scrutiny under the line of Supreme Court cases forbidding Congress from “commandeering” or “coercing” states into doing things like passing new laws and creating new agencies. (Beyond that, some Justices on the Court may remain suspicious of whether vesting legal authority in independent citizen redistricting commissions can be reconciled with prescribed constitutional structure in the first place; in 2015, a more liberal high court than we have now upheld Arizona’s pioneering commission against constitutional attack by only a 5–4 margin, in an opinion written by the late Justice Ruth Ginsburg and joined by Justice Anthony Kennedy.)
* A provision purporting to require the federal judiciary to develop a code of conduct governing Supreme Court justices would run smack into the constitutional status of the Article III judiciary as an independent and coequal branch of government.
* In a critique of the bill that also gets into its First Amendment, federalism, and enumerated‐power infirmities, Northwestern law professor John McGinnis foresees that a provision requiring presidential candidates to release their tax returns would not survive as enforceable given the Court’s previous disapproval (as in the term limits case) of laws that have the effect of adding further qualifications to those specified in the constitutional text.
* I’ve saved the most emblematic instance for last (although I have no reason to believe that the list of constitutional violations stops there, nor any idea where it does stop). As a grab bag of progressive proposals most of which have circulated for years, the bill includes provisions requiring online platforms to keep public logs of ads on political topics. If this sort of enactment sounds vaguely familiar, I’ve written about it before in this space. In 2018, following disquiet over Russian ads in the 2016 election, my own state of Maryland enacted something called the Online Electioneering Transparency and Accountability Act, ignoring multiple warnings from Gov. Larry Hogan and others that it was likely unconstitutional. Major newspapers sued — their online operations were to be regulated as platforms because they attract numerous public users — and in 2019 a Fourth Circuit panel, confirming a district court ruling, struck down the law. Judge J. Harvie Wilkinson’s opinion called it “a content‐based law that targets political speech and compels newspapers, among other platforms, to carry certain messages on their websites. In other words, Maryland’s law is a compendium of traditional First Amendment infirmities.”
And yet the current bill includes provisions that former FEC chair Brad Smith calls “nearly identical” to those struck down in 2019.
To put it bluntly, the sponsors of H.R. 1 won’t even drop the parts of their bill that courts have already declared unconstitutional. I wonder whether they’re even trying to convince the rest of us.
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. His books include The Rule of Lawyers, on mass litigation, The Excuse Factory, on lawsuits in the workplace, and most recently Schools for Misrule, on the state of the law schools. His first book, The Litigation Explosion, was one of the most widely discussed general-audience books on law of its time. It led the Washington Post to dub him “intellectual guru of tort reform.” He blogs at Overlawyered.com.