HR 1 is kind of half-baked

It does too little on gerrymandering and too much on other stuff

(Photo by Chip Somodevilla/Getty Images)

You’ve probably heard that Democrats have legislation — HR 1 — that is “sweeping” and aimed at “political reform” or even “fixing American democracy.” But it’s possible that you don’t know too much about the actual content or the debates swirling around it.

The bill is actually too sprawling to summarize fairly at column length, which is in some ways the key thing to know about it. It represents a grab bag of ideas, some of which are populist messaging points, some of which are individual members’ pet ideas, and really only one of which — the anti-gerrymandering provisions — actually tries to tackle what I think of as a genuinely very serious problem in the country.

Unfortunately, while the bill taken as a whole is “big” and “sweeping,” the actual anti-gerrymandering provisions are kind of weak and vague. And the bill also doesn’t really do anything to address concerns that have emerged since the 2020 election and the January 6 mob that Republicans may try to steal elections. Instead, it’s actually much more focused on campaign finance and government ethics stuff that is much lower-stakes, and some of which has drawn serious criticism from the ACLU and others.

Since HR 1 was originally constructed as a message bill — something for House Democrats to pass in 2019 that Senate Republicans would bottle up, and then newly elected Democrats could complain about it — this was maybe fine. But as there is now tons of effort to try to convince Senate Democrats to alter filibuster rules for the sake of this legislation, I think it’s urgently important to try to change the gerrymandering provisions to make them actually good, and then to make whatever other changes are needed to facilitate that.

A quick capsule of campaign finance reform

To understand what’s going on with the bill, you need to take a kind of detour through campaign finance history.

Back in the 1970s, the Supreme Court ruled that in general people have a First Amendment right to spend money advancing political causes they support. But they said that Congress could, on anti-corruption grounds, regulate political campaigns’ fundraising activities. That led to the situation where there are limits on how much a campaign can raise from a given person. But over time, political actors innovated and discovered that while raising “hard money” for your campaign is capped, you could raise unlimited amounts of “soft money” for party committees like the RNC, RSC, and RNCC. This became a hot political topic in the 1990s; John McCain and Russ Feingold wrote a famous campaign finance reform bill — it’s called BCRA — designed to address it, and early in Bush’s term in office it passed with bipartisan majorities. McCain-Feingold was so popular — and so thoroughly associated in the media with good government and honesty — that Bush signed it even though he and most Republicans had long opposed it.

But McCain and Feingold recognized that party committees were just the means through which unlimited sums of money were flowing into politics. That's why they restricted the flow itself using various curbs on outside groups’ ability to run ads mentioning candidates for office within a certain electioneering window.

There was a bunch of litigation around this in the years after it was signed, with the Supreme Court mostly holding that you can’t do this. People have a free speech right to criticize candidates for office, including by buying ads and raising money to buy those ads. There were several different court cases that most people mostly ignored until one particular case — the Citizens’ United ruling — got people very upset, mostly via misunderstandings of what the legal doctrine of corporate personhood is.

The situation that resulted from all this reform is kind of perverse. Politicians are limited in the amount of money they can raise from their wealthiest supporters. Formal party committees are also limited in the amount of money they can raise from their wealthiest supporters. But those wealthy supporters themselves are not limited in the amount of money that they can spend. It’s just that the money flows through informal channels. Everyone in Washington understands the Senate Majority PAC to be a shadow DSCC that exists to support Senate Democrats and is de facto under their control. But Guy Cecil has successfully transformed Priorities USA from its original role as the quasi-official super PAC for Barack Obama’s re-election into an institution that exists under his personal stewardship across multiple election cycles.

The point is reform hasn’t really worked out, and the collapse of reform in Bush’s second term and Obama’s first term raised a lot of anxieties, and a lot of HR 1 is dedicated to addressing those anxieties.

The specter of dark money

The big thing to know about this is that the thing that worried normie Democrats after the courts undid BCRA didn’t really come to pass. It looked briefly like Democrats might be buried under a tidal wave of unaccountable dark money that propped up plutocratic candidates everywhere.

Instead, largely because of education polarization, Democrats have mostly had a fundraising edge. In the 2020 cycle, most “dark money” (this is money that’s routed through nonprofits that don’t disclose donors) went to support Democrats. But that’s not because Democrats have a special predilection for dark money. Most small-donor money went to support Democrats too. Democrats simply have a larger and more enthusiastic donor base than they used to worry about. And while Trump-Era Republicans have tons of money too, the Trumpian turn has been bad for their fundraising relative to their prior positioning.

The other problem for Democrats is that while this edge matters, it matters less than you might hope. Most voters in South Carolina are Republicans and receive enough ambient information from free media to be aware of the two parties’ main messages and ideas and to know they favor the GOP. There’s no amount of Jaime Harrison ads that can really dislodge that presumption. Now of course if Jaime Harrison had wanted to try to significantly separate himself from the national Democratic Party brand, having a shitload of money to spend on ads talking about his moderate-to-conservative views on guns, abortion, and immigration would have been very helpful in clarifying that. But I think that would have been contrary to his whole fundraising strategy, which was based on making a national Democratic audience like him.

At any rate, the response Democrats have come up with for the dark money problem (whatever you think the problem is) is to create a small donor matching program: If you agree to foreswear donations over $1,000 then any contribution of $200 or less that you receive will be matched 6 to 1 by federal money.

Then the bill also features a crackdown on anonymous donors to non-profits, which the ACLU opposes thusly:

H.R. 1, in an attempt to find a solution to the problem of “dark money,” requires public disclosure of the names and addresses of donors who give $10,000 or more to organizations that engage in “campaign-related disbursements,” which could include paid political speech that discusses a public issue such as immigrants’ rights, voting rights or reproductive freedom if the communication merely mentions a candidate for public office. That means 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 could trigger disclosure of donors that gave $10,000 or more.

Why should H.R. 1’s sponsors and supporters care? Because it 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.

I am not as invested as the ACLU in the sanctity of donor anonymity nor as hostile as the median voter to small-donor matching. In both cases, though, I am not really sure what we are solving here.

What is the problem?

You could probably write a Law and Order episode about a situation in which the bosses are interfering with the detectives’ investigation into a murder because they’re trying to protect a rich guy who — unbeknownst to anyone — is a huge anonymous donor to a dark money group supporting the mayor’s run for higher office. That’d be a good “ripped from the headlines” yarn about anonymous donors and the dangers of dark money. That said, you could also do a story where the bosses seem to be interfering with an investigation and it’s because the subject is rich, and the detectives reach the reasonable inference that rich guys often have a lot of political clout.

It’s very hard for me to think of a situation over the past 10 years where ignorance as to specifically which billionaires were backing Romney and Trump versus which were backing Obama, Hillary, and Biden has been a big problem. The billionaires who give money to Republicans are the ones with right-wing views, while the ones who give to Democrats have left-wing views. What’s more, the journalists who cover this stuff basically do know who the big Silicon Valley libs are even if it’s not always immediately obvious exactly which sums are routing in which direction.

Last but by no means least, this whole line of thought rests on a fairly arbitrary effort to draw a line between “campaign-related disbursements” and other ways money can influence politics.

Fox News’ editorial coverage is a big deal for politics. So is the Ford Foundation’s funding of a diverse array of groups that endorse defunding the police. So is the internal decision-making at Facebook and YouTube about algorithmic content promotion. So is the slanted local news coverage from Sinclair Broadcasting affiliates. I don’t see how to avoid the outcome that “the behind-the-scenes machinations of rich people matter for politics.” Especially because the Supreme Court seems likely to once again be somewhat skeptical of the idea that you can separate campaign ads from general free speech considerations.

The small-donor match doesn’t really curb the power of the super-rich since they can still give to super PACs. But it definitely enhances the power of small donors. So if you think a big problem in American politics is that the kinds of people who make small contributions to political campaigns don’t have enough influence, this seems compelling. But what Brian Schaffner and Ray LaRaja found when they studied this is that donors mostly differ from normal people by having more extreme political opinions.

The truth, though, is that while small Democratic donors are more left-wing than big Democratic donors, both groups are more left-wing than rank-and-file Democratic Party voters. The situation on the right is a little harder to characterize since I’m not entirely sure if “more moderate” is the best way to explain the difference between Paul Ryan (beloved by big donors) and Marjorie Taylor Green (beloved by small donors). But in both cases, the idea of hyper-empowering small donors does not strike me as obviously good. Sometimes in life you need to back an unpopular idea. But I’d like to see elected officials take unpopular stances in favor of ideas that are clearly good and important. Small donor matching funds is an unpopular stance in favor of an idea that’s possibly bad and of questionable significance.

Gerrymandering, by contrast, is a huge deal, but HR 1’s gerrymandering provisions are fairly weak.

Gerrymandering and the crisis of democracy

When Democratic House candidates won a narrow majority of votes in 2012 while Republicans retained majority control of the chamber, people didn’t talk about it that much. Gerrymandering is a very longstanding feature of American politics; it helped Democrats on the net in the not-too-distant past; and House elections just don’t have the kind of structure where the “House popular vote” has traditionally been a super meaningful concept.

But it really is becoming more meaningful. As the parties become more polarized and politics becomes more nationalized, it is now approximately true that your vote in a U.S. House election is basically just a vote for who you want to see have majority control.

What’s more, the actual behavior of voters in state legislative elections reveals that it tracks very closely with people’s national political sentiments. We have lots of mismatched governors like Larry Hogan and Charlie Baker on the GOP side and John Bel Edwards and Laura Kelly for the Democrats. But for state legislatures, this basically never happens — people just vote blindly for their preferred national party. But gerrymandering makes a huge difference here. Even when Democrats narrowly carry states like Wisconsin, Pennsylvania, Michigan, and Georgia, they come nowhere close to capturing a majority of state legislative seats. A red-leaning state like North Carolina delivers huge supermajorities to the GOP. If you want to talk about a real crisis in American democracy, it’s there in the gerrymandering. And if there’s one thing a political reform bill must fix, it’s gerrymandering.

So what does HR 1 do? Well, it requires the use of independent commissions. But its instructions to the commissions as to what to do are weak and don’t feature a clear mandate to pursue proportionality.¹ Why so weak? Andrew Prokop explains:

But Democratic House aides emphasized that a broad change to this part of the bill is extremely unlikely — because the politics of redistricting reform have been tricky enough for House Democrats to grapple with already. That’s both because reforms could end up redistricting some House members out of their jobs, and because the party’s slim majority means almost every Democrat’s vote is necessary. (For instance, in Massachusetts, all nine members of Congress are Democrats, even though about one-third of the state voted for Trump in 2020. A proportional standard would put some of their seats at risk.)

The bill’s drafters have also had to grapple with reluctance from some in the Congressional Black Caucus, some of whose members fear the drive for partisan balance will result in the dilution of the safe majority-minority districts they currently represent. Rep. Bennie Thompson of Mississippi was the sole Democrat to vote against HR 1 and cited the redistricting provision as one reason why. This is an intrinsically tough issue for the party to deal with, because if many Black voters are packed into just a few districts in a state, fewer Democratic voters will remain to balance out Republican voters in that state’s other districts.

The bill would clearly be an improvement on the status quo for partisan gerrymandering (there is currently no federal restriction on it as a practice). But overall, it’s far from clear that even an improved version would result in a situation where a Democratic national House popular vote win means the Democrats would control the House. 

These are simply not very good reasons.

Go for real proportionality

Bennie Thompson first won election to the House in 1992, and his fears about this reflect an outdated understanding of the political dynamics. A very real thing that used to happen in redistricting is that Southern Republicans were quietly happy about Voting Rights Act mandates to draw majority-minority districts, because that lets them “pack” Black voters into inefficient Democratic vote-sinks.

To achieve better partisan fairness, Democrats would want to spread the Black voters around thus allowing moderate white Democrats to win seats by counting on a lot of Black votes. Think of the kinds of electoral coalitions that used to send guys like John Edwards and Max Cleland to the Senate, and you have a picture of what white Southern Democrats wanted to accomplish and what white Southern Republicans and Black Southern Democrats both opposed.

Politics just isn’t like that anymore. The white electorate is smaller than it used to be, the white share of the electorate that is “gettable” for Democrats is smaller than it used to be, and the remaining gettable white voters have much more progressive views on race than they used to. Raphael Warnock, who represents a mostly-white state but whose voters were mostly Black, is the model of the modern winning southern Democrat. Proportional maps would lead to more rather than fewer Black Democrats winning elections simply because more Democrats would win elections, and a healthy share of them would be Black. It’s not just Warnock, after all. Lucy McBath and Lauren Underwood represent majority-white seats, and obviously Barack Obama and Kamala Harris both won Senate elections. The proximate impediment to Black political representation in the United States is that the vast majority of Black politicians are Democrats, and the maps are biased against Democrats.

Now, the Massachusetts House delegation has beef that is at least not fake. Proportional maps would help Democrats overall, but hurt them at least a little bit in a handful of states. And a Massachusetts House member who loses to friendly gerrymandering can’t just magically appear in a newly winnable district in the suburbs of Austin.

But this is where I think you really need to ask people to suck it up and do the right thing. If you believe even a tenth of Democrats’ rhetoric about the authoritarian menace of Trumpism, then avoiding a situation where Republicans can obtain a monopoly on political power with 49% of the two-party vote should be a really high priority. The number of members who would plausibly lose out in this swap is small, and you should promise to take care of them with an ambassadorship or whatever if the breaks go against them.

Focus, please

To be perfectly honest, I just don’t understand what the point of doing this omnibus reform bill is at all.

A standalone piece of legislation with really serious anti-gerrymandering provisions would be extremely worthwhile. And while Republicans would obviously characterize it as a power grab, honestly the fact that imposing a uniform partisan fairness rule would massively help Democrats grab power simply underscores how important it is. There’s nothing new about gerrymandering, but it’s rarely been so one-sided in its impact.

“We think election results should be fair and roughly proportional” is a clear and easy-to-understand message that works with the mass public and elite media audiences.

Then you could do the ethics stuff (about members of Congress trading stocks and so forth) separately. Honestly, you might even get some bipartisan votes there since it’s an easy “yes” for vulnerable Republicans looking to burnish their cred. The campaign finance ideas, frankly, feel to me like something that calls for further thought as to what exactly we’re trying to achieve.

Right now Democrats are hitching their hopes to gerrymandering provisions that are good-but-not-great and then weighing them down with a bunch of questionable campaign finance provisions and letting the ethics stuff just get lost in the shuffle. The House Democrats are sort of overcommitted at this point. But I think it would be very productive to stop yelling at Joe Manchin about the filibuster for a minute. What needs to happen is to write down a really good anti-gerrymandering bill, and then a calm discussion with Manchin about why he should be really enthusiastic about the idea of a really good anti-gerrymandering bill. For example, such a bill would bolster the kind of moderate politics Manchin favors — the whole point of gerrymandering is to make the median voter not matter. Then if you have a really good bill on the merits that moderates and progressives alike can agree advances their shared agenda, you can talk about how to actually get it passed. Right now, there’s too much focus on a bill that simultaneously tackles too many issues without solving the most important one.

1. You could of course actually use proportional representation, but the leading idea for how to do single-member districts in a proportional way is to say that you should draw a map such that the median district’s partisan composition is as close as possible to the mean partisanship of the state.