[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
H. R. 1: THE ``FOR THE PEOPLE ACT OF 2019''
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
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JANUARY 29, 2019
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Serial No. 116-1
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
H.R. 1: THE ``FOR THE PEOPLE ACT OF 2019''
H.R. 1: THE ``FOR THE PEOPLE ACT OF 2019''
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JANUARY 29, 2019
__________
Serial No. 116-1
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
37-688 WASHINGTON : 2020
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washingtqn TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
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C O N T E N T S
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JANUARY 29, 2019
OPENING STATEMENTS
Page
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 3
WITNESSES
Vanita Gupta, President and Chief Executive Officer, Leadership
Conference on Civil and Human Rights
Oral Testimony............................................... 8
Prepared Testimony........................................... 11
Sherrilyn Ifill, President and Director-Counsel, NAACP Legal
Defense and Educational Fund
Oral Testimony............................................... 16
Prepared Testimony........................................... 19
Sarah Turberville, Director, The Constitution Project, Project on
Government Oversight
Oral Testimony............................................... 30
Prepared Testimony........................................... 32
J. Christian Adams, President and General Counsel, Public
Interest Legal Foundation
Oral Testimony............................................... 40
Prepared Testimony........................................... 42
Hans von Spakovsky, Senior Legal Fellow, Meese Center for Legal
and Judicial Studies, The Heritage Foundation
Oral Testimony............................................... 52
Prepared Testimony........................................... 54
Adav Noti, Senior Director, Trial Litigation & Chief of Staff,
Campaign Legal Center
Oral Testimony............................................... 65
Prepared Testimony........................................... 67
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Items for the record submitted by the Honorable Jerrold Nadler,
Chairman, Committee on the Judiciary........................... 86
A letter for the record submitted by the Honorable Zoe Lofgren,
Committee on the Judiciary..................................... 104
A letter for the record submitted by the Honorable Doug Collins,
Ranking Member, Committee on the Judiciary..................... 114
A letter for the record submitted by the Honorable Sheila Jackson
Lee, Committee on the Judiciary................................ 170
Item submitted for the record from Ms. Jackson Lee............... 205
An article for the record submitted by the Honorable Pramila
Jayapal, Committee on the Judiciary............................ 244
Items for the record submitted by the Honorable David Cicilline,
Committee on the Judiciary..................................... 254
APPENDIX
Items for the record submitted by the Honorable Louie Gohmert,
Committee on the Judiciary..................................... 305
Items for the record submitted by the Honorable Matt Gaetz,
Committee on the Judiciary..................................... 338
H.R. 1: THE ``FOR THE PEOPLE ACT OF 2019''
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TUESDAY, JANUARY 29, 2019
House of Representatives
Committee on the Judiciary
Washington, DC.
The committee met, pursuant to call, at 10:05 a.m., in Room
2141, Rayburn Office Building, Hon. Jerrold Nadler [chairman of
the committee] presiding.
Present: Representatives Nadler, Lofgren, Jackson Lee,
Cohen, Johnson, Deutch, Bass, Richmond, Jeffries, Cicilline,
Swalwell, Lieu, Raskin, Jayapal, Demings, Correa, Scanlon,
Garcia, Neguse, McBath, Stanton, Dean, Mucarsel-Powell,
Escobar, Collins, Gohmert, Jordan, Buck, Ratcliffe, Gaetz,
Biggs, McClintock, Lesko, Reschenthaler, Cline, and Armstrong.
Staff present: Perry Apelbaum, Majority Staff Director;
James Park, Majority Chief Counsel, Subcommittee on
Constitution; Keenan Keller, Majority Senior Counsel; David
Greengrass, Majority Senior Counsel; Rosalind Jackson, Majority
Professional Staff Member.
Chairman Nadler. The Judiciary Committee will come to
order. Without objection, the chair is authorized to declare
recesses of the committee at any time.
We welcome everyone to this morning's hearing on H.R. 1,
the ``For the People Act of 2019.'' I will now recognize myself
for an opening statement.
While the specific question before us concerns the merits
of H.R. 1, the ``For the People Act of 2019,'' the broader
issue is what kind of country America is and should be. H.R. 1,
a comprehensive bill that strengthens our voting, campaign
finance, lobbying, and government ethics laws in numerous ways,
is a notable attempt to renew our nation's commitment to having
a government of the people, by the people, for the people.
America's promise lies in its democracy. When at its best,
our nation has taken pride in being the world's oldest
democracy and has defined itself not by race, religion, or
ethnicity, but by its democratic and constitutionally-based
system of government, one that strives to guarantee individual
freedom and genuine representation of its citizens. This is
what has made America a shining city on a hill in the world's
eyes for over 200 years.
Yet, the general arc of our nation's politics over the last
generation has made it easy to be cynical, easy to say that
America in that time has increasingly tended towards an
oligarchy in which more and more of the political power is
concentrated in fewer and fewer wealthy and powerful hands.
H.R. 1 is a bold and far-reaching attempt to correct this
dangerous drift away from representative democracy by reducing
the role of money in politics, by restoring ethical standards
and integrity to government, and by strengthening laws to
protect voting.
For example, the bill declares Congress's commitment to
reinvigorating the Voting Rights Act by restoring the act's
most important enforcement provision--its pre-clearance
provision.
Before the Voting Rights Act was enacted in 1965, states
and localities passed a host of voter suppression laws, secure
in the knowledge that it could take many years before the
Justice Department could successfully challenge them in court,
if at all. As soon as one law was overturned another would be
enacted, essentially setting up a discriminatory game of whack-
a-mole.
Pre-clearance broke this legal logjam by requiring states
and localities with a history of discrimination against racial
and ethnic minority voters to submit changes to their voting
laws to the Justice Department or to the federal district court
for approval prior to taking effect.
This vital provision was effectively gutted in 2013,
however, when the Supreme Court issued its disastrous decision,
Shelby County v. Holder, which struck down the formula for
determining which states and localities are subject to the pre-
clearance requirement. In its absence, the game of whack-a-mole
has returned.
Predictably, some states wasted no time enacting
discriminatory voter suppression laws in the wake of the Shelby
County decision. In fact, North Carolina and Texas announced
their intention to reinstate such measures just one day after
Shelby County was decided.
Although the Texas and North Carolina laws were eventually
struck down by the courts, several elections were conducted
under these laws and the damage was done.
The 2018 report by the U.S. Civil Rights Commission
confirms that many other formerly-covered jurisdictions have
also become emboldened to enact discriminatory voting measures
since pre-clearance was effectively eliminated. They know how
difficult it is to challenge such laws after they go into
effect. Restoring pre-clearance is essential to preventing the
further erosion of voting rights.
It does not help that President Trump has encouraged
conspiracy theories about massive voter fraud as a
justification for voter identification laws and other voter
suppression tactics.
Just this past Sunday, the president seized on tentative
and unverified information from Texas election officials about
potential noncitizens who were allegedly registered to vote. He
sent the wildly misleading tweet about the report, calling
voter fraud rampant and demanding voter ID laws. I hope our
witnesses today will help dispel the dangerous myth of
widespread voter fraud.
H.R. 1 also incorporates the Democracy Restoration Act of
2019--legislation I introduced in the first day of this
Congress that would restore federal voting rights for citizens
with felony convictions.
Many states deny voting rights for such citizens,
permanently branding them with a scarlet letter long after they
have paid their debt to society. Not only is ex-offender
disenfranchisement wrong and anti-democratic in and of itself,
many of these laws were deliberately designed and--admittedly
at the time--designed to entrench white supremacy and they
continue to have a particularly disproportionate impact on
communities of color, exacerbating the racially discriminatory
effect of other voter suppression measures.
H.R. 1 also aims to end voter intimidation, the
dissemination of deceptive voting information about times and
places, and other voter suppression tactics by prohibiting such
activities and adding or increasing criminal penalties for
violations.
In addition to enhancing voting rights protections, H.R. 1
takes aim at the increasing dominance of big money and dark
money in politics and influence peddling, all of which take
governing decisions away from ordinary people and diminishes
their faith in government.
For example, the bill outlines the many important reasons
why the Supreme Court's decision in Citizens United v. FEC,
which unleashed a flood of dark money in politics, must be
overturned. It also closes the shadow lobbying loophole and
requires that those who provide legislative, political, and
strategic counseling services in support of someone else's
lobbying activity is also required to register under the
Lobbying Disclosure Act.
In addition, the bill enhances the Foreign Agents
Registration Act by creating a new enforcement office at the
Department of Justice and giving it authority to pursue civil
penalties. H.R. 1 also includes a provision that passed last
year on a bipartisan basis to require the development of a
judicial code of ethics that would apply to all federal judges
including the judges of the Supreme Court, the only court in
the country currently not subject to any binding code of
ethics.
H.R. 1 helps level the playing field to give ordinary
Americans the voice that they deserve in how our country is
governed. Now more than ever Congress must return to
fundamental American ideals in leading our country out of the
darkness. Passing H.R. 1 is an important first step on that
journey. I thank our witnesses for appearing and I look forward
to hearing from them.
It is now my pleasure to recognize the ranking member of
the Judiciary Committee, Mr. Collins of Georgia, for his
opening statement.
Mr. Collins. Thank you, Mr. Chairman.
As we start today, I am confident that every lawmaker in
this room agrees that our democracy depends on protecting
voting rights and election integrity. Congress has the
authority to prohibit discriminatory treatment in voting based
on race or ethnicity as part of its duty to ensure the sanctity
of every vote.
Unfortunately, this bill actively undermines those goals.
This bill before us today federalizes elections in ways that
have nothing to do with outlawing discrimination. Instead, it
federalizes elections in ways that actually disenfranchises
state voters.
H.R. 1 would deprive state voters of their own right to
determine their state's voting qualifications, district lines,
and means of guarding against ballot fraud. The official title
of this bill is ``For the People Act.'' This bill, though, is
not for the people. It is not for everyday citizens. This bill
siphons power from state legislatures, local elected officials,
and voters and cedes power to Washington lawmakers, unelected
federal judges, and lawyers.
This bill is, in particular, for the unelected elites. It
is for the people who don't answer directly to the voters.
Contrary to its name, this bill takes power away from the
people and it does this by violating the Constitution by
trampling over both the spirit and the letter of our most
fundamental laws.
One of the interest groups buoyed by this bill is lawyers.
The ``For the Lawyers Act'' creates a private cause of action
for lawsuits related to Title 3 of the Help America Vote Act of
2002 called HAVA. You might well remember the whole point of
this legislation was precisely to avoid the kinds of lawsuits
that brought chaos to the 2000 presidential election.
It required that all voting systems allow voters to verify
their candidate selections before casting their ballots,
provide voters with the opportunity to change their selection
before casting their ballots, and notify voters when they make
multiple selections for the same office. It also requires
states to enable people to vote by provisional ballot.
To ensure that states comply with these requirements,
Congress has gave the Department of Justice the authority to
bring civil actions against state or a jurisdiction whenever
the facts assessed by career prosecutors justified the actions
to bring states into compliance with the Title 3 requirements.
To ensure that states appropriately send these--spend HAVA
funds, the Election Assistance Commission has the authority to
audit each state or jurisdiction. The Department of Justice
Civil Rights Voting Division has the authority to enforce HAVA
and develop a broad election-monitoring program to oversee the
administration of elections.
Since that time, we have not seen another post-election
litigation nightmare like the 2000 presidential election. But
under the ``For the Lawyers Act'' the possibilities of
elections disruption and voter disillusionment could be
limitless.
H.R. 1 would upend HAVA's enforcement system. It would
instead allow disgruntled voters and activist groups who are
intent on getting federal judges to overturn elections the
ability to file unlimited private lawsuits. Does a candidate
need a million more votes to win? This bill allows the losing
candidate to rely on disgruntled voters or advocacy groups in
all 50 states to cherry pick likeminded judges.
Those judges could then use the lawsuit to overturn
election results by swinging votes from one column to another.
Such lawsuits would effectively take time and money away from
the state and local election officials who desperately need
those resources to administer fair elections, not pay bogus
legal fees.
We can also call H.R. 1 the ``For the Unelected Judges
Act.'' The bill denies state legislatures the right to draw
district lines according to the will of the voters who elected
those state lawmakers and reassigns that power to unelected
commissions in a federal court in Washington, D.C.
Nine states already have redistricting commissions, but
theirs would be overridden by the commissions created under
H.R. 1. The advisory redistricting commissions and backup
commissions that have been established in eight other states
would also fall victim to H.R. 1's new commissions.
This section also allows for the private right of action,
stating any citizen of a state who is aggrieved by the failure
of the state redistricting plan, which is enacted into law, to
meet the requirements for such a plan may bring a civil action
in the appropriate district court for such relief as may be
appropriate to remedy the failure.
We see that under H.R. 1 not only can lawyers run wild
after every congressional election but they can cripple duly-
elected state legislatures before elections by challenging
every inch of the redistricting lines drawn by the commissions
under this bill.
Instead of simply allowing voters to hold state legislators
accountable for their actions, which happens every election
cycle, this bill steals the election authority and hands the
power over to unaccountable federal judges--judges who enjoy
lifetime tenures and judges who voters cannot replace.
I am sad to say that H.R. 1 is also a ``For the Violent
Criminals Act.'' I have worked with many of my friends across
the aisle on this committee to make responsible justice reforms
a reality--one of our biggest successes of last Congress, Mr.
Chairman.
We agree that the power of redemption and necessity of
rehabilitation and promoting justice and public safety. We
believe in helping people who have served their debt to society
become productive citizens. Any commitment we share in that
area, however, does not empower lawmakers to take power away
from the voters and the state representatives they elected.
Yet, H.R. 1 does that. It denies state voters their ability
to limit the vote to people who haven't been convicted of
murder, violent felonies, or other serious crimes including, by
the way, voter fraud.
Do states' voters believe that a person who has been
convicted of murder or perpetuating a fraud in our election
system has forfeited their right to vote? H.R. 1 overrides
those votes and their communities.
These provisions are not just anti-democratic. They are
patently, patently unconstitutional. The Supreme Court,
including Justices Ginsburg, Breyer, Sotomayor, and Kagan, all
held just a few years ago that, and I quote, ``Surely, nothing
in the Election Clause of the Constitution lends itself to the
view that voting qualifications in federal elections are to be
set by Congress.''
Further, the Fourteenth Amendment of the Constitution
itself explicitly recognizes the rights of states to deny the
vote for, and I quote, ``in participation of a crime.''
In addition to prioritizing felons over law-abiding voters,
H.R. 1 forces taxpayers to expand the dark web of anonymous
donors before the politicians' bill spends your money by
forcing a 6 to 1 taxpayer match based on anonymous small-dollar
donations.
That means that for every $1 and small-dollar--a small
donation someone makes to a candidate, the bill compels
American's hardworking citizens to forfeit $6 of their income
to further that candidate and their priorities, even if you are
morally opposed to their priorities.
Not only is this system cloaked in darkness, it is abusive.
There is no transparency here, no room for freedom of
conscience, no room for debate--just compulsion cloaked in
secrecy.
If Democrats want to truly work on true campaign finance
transparency, H.R. 1 would require all donations to federal
candidates to be disclosed, from $1 to $2,700. It is simple.
You donate, you disclose.
One 2018 congressional candidate, for example, raised
$100,000 basically in anonymous donations. The only listed
donor on their federal filing was ActBlue. That tells voters
nothing about who is supporting a candidate, why, and to what
end. H.R. 1 would take more money from the voters but shines no
light on the hidden web of anonymous donations that it would
support. What are my colleagues trying to hide?
H.R. 1 could also be called the ``Voting Fraud Act''
because it makes unlawful for states and localities to help
verify voter residents by sending out cards to addresses. If
the card goes unanswered within a reasonable period of time,
that information could be used to help remove names from the
voter rolls and the voter's true identity cannot be verified.
Why would responsible officials take this step? Because
they want to protect the sanctity of every vote by guarding
against voter fraud. The practice is entirely legitimate when
it purposes to identify individuals who are not properly
registered to vote and to prevent individuals from voting
illegally.
Just last year, the Supreme Court upheld Ohio's voter
registration which uses voter register's failure to return a
card verifying their residence combined with such person's
inactivity over four years as a reason to remove them from the
voting rolls. This practice is authorized under the National
Voting Registration Act of 1993, which President Clinton signed
into law, as well as the Help America Vote Act of 2002.
Justice Alito, in noting these procedures, said such are
used because voters are required to live in a district in which
they vote, and more than 10 percent of voters move every year
so states must be allowed some means of verifying a person's
address to avoid potential fraud--for example, the same person
votes multiple times based on the multiple listed residences.
The Supreme Court has already told us that promoting
election integrity is both--this way is both legal and
necessary. However, H.R. 1 rejects that decision and insists on
widening the path to voter fraud.
In summary, Mr. Chairman, my sense is that if your lawyer
is running for--running elections supporting this bill, if your
unelected justices running elections support this bill, if you
are multiplying opportunities for voter fraud and registering
voter rights for those who commit voting fraud, then support
this bill.
And, of course, if you want to take away the ability of
democratically-elected representatives to write laws according
to the will of the people who sent those representatives to the
state legislatures, then support the bill.
But if you are earnestly for the people, if you want
everyday citizens to have the power that only comes through
their ability to hold elected officials accountable at the
ballot box, you send this bill back to the drafting table
because the bill before us today throws a strong left hook to
the Constitution and expects voters to take it on the chin.
I look forward to working on areas of this bill we can work
with and with that, I look forward to hearing the witnesses and
yield back.
Chairman Nadler. Thank you, Mr. Collins.
I will now introduce today's witnesses. The first witness
is Vanita Gupta. Ms. Gupta currently serves as president and
chief executive officer of the Leadership Conference on Civil
and Human Rights.
Previously, she served as principal deputy assistant
Attorney General and head of the Civil Rights Division at the
U.S. Department of Justice during the Obama administration. Ms.
Gupta graduated magna cum laude from Yale University and
received a law degree from NYU School of Law, which is in my
district.
The second witness is Sherrilyn Ifill. Sherrilyn Ifill is
the seventh president and director-counsel of the NAACP Legal
Defense and Educational Fund. She has also been a member of the
faculty of the University of Maryland's School of Law where she
has taught civil procedure, constitution law, and a variety of
seminars. Ms. Ifill is a graduate of Vassar College and
received her JD also from New York University School of Law.
Sarah Turberville is director of the Constitution Project
at the Project on Government Oversight. In this position, Ms.
Turberville coordinates TCP's public education and advocacy
efforts on a variety of matters relating to the protection and
enforcement of constitutional rights such as independence of
the courts, access to habeas corpus, policing, and
surveillance. She is an elected councilmember for the town of
Edmonston, Maryland, and serves on the board of the port town's
Community Development Corporation. Ms. Turberville is a
graduate of Tulane Law School.
J. Christian Adams serves as president and general counsel
of the Public Interest Legal Foundation. From 2005 to 2010, he
worked in the voting section at the United States Department of
Justice. Prior to his time at the Justice Department, he serves
as general counsel to the South Carolina secretary of state. He
has a law degree from the University of South Carolina School
of Law.
Hans von Spakowsky--I hope I pronounced that--Spakovsky or
Spakowsky? Spakovsky. Hans von Spakovsky currently serves as
senior legal fellow in the Heritage Foundation's Edwin Meese
Center for Legal and Judicial Studies. Previously, he served as
a member of the Federal Election Commission and he worked at
the Department of Justice as counsel to the assistant attorney
general for civil rights. Mr. von Spakovsky is a graduate of
the Massachusetts Institute of Technology and the Vanderbilt
University School of Law.
Adav Noti is the Campaign Legal Center's chief of staff and
senior director of trial litigation. Prior to joining CLC, Mr.
Noti served for more than 10 years within the Office of General
Counsel of the Federal Election Commission. He received his
undergraduate degree from the University of Pennsylvania, his
law degree from NYU, and his Master's degree from Georgetown
University.
We welcome all of our distinguished witnesses and thank
them for participating at the committee's inaugural hearing for
the 116th Congress.
Now, if you would please rise I will begin by swearing you
in. I want to note for the record, because we are going to
swear in our witnesses at every hearing, I find it a little
strange but it is our custom so we will do it, for witnesses to
swear that they are going to tell us the truth about their
opinions.
But, nonetheless, if you would please rise and raise your
right hand. Do you swear or affirm under penalty of perjury
that the testimony you are about to give is true and correct,
to the best of your knowledge, information, and belief?
[A chorus of ayes.]
Chairman Nadler. Let the record show the witnesses answered
in the affirmative. Thank you, and please be seated.
[Discussion off the record.]
Chairman Nadler. Thank you, Mr. Cohen.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in five minutes.
To help you stay within that time, there is a timing light
on your table. When the light switches from green to yellow,
you have one minute to conclude the testimony. When the light
turns red, it signals the five minutes have expired.
And we will begin by Ms. Gupta.
TESTIMONIES OF VANITA GUPTA, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS;
SHERRILYN IFILL, PRESIDENT AND DIRECTOR-COUNSEL, NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND; SARAH TURBERVILLE, DIRECTOR, THE
CONSTITUTION PROJECT, PROJECT ON GOVERNMENT OVERSIGHT; J.
CHRISTIAN ADAMS, PRESIDENT AND GENERAL COUNSEL, PUBLIC INTEREST
LEGAL FOUNDATION; HANS VON SPAKOVSKY, SENOR LEGAL FELLOW, THE
HERITAGE FOUNDATION, MEESE CENTER FOR LEGAL AND JUDICIAL
STUDIES; ADAV NOTI, CHIEF OF STAFF, CAMPAIGN LEGAL CENTER
TESTIMONY OF VANITA GUPTA
Ms. Gupta. Chairman Nadler, Ranking Member Collins, and
Members of the Committee, my name is Vanita Gupta. I am
president and CEO of the Leadership Conference on Civil and
Human Rights, a coalition of more than 200 national
organizations working to build an America as good as its
ideals.
I previously served as head of the Justice Department Civil
Rights Division where I oversaw the federal government's
enforcement of voting rights. The Leadership Conference
strongly supports H.R. 1 and the transformative vision for
American democracy that it represents.
I thank Chairman Nadler for his leadership in calling this
hearing today and commend the other 226 co-sponsors of this
important legislation. It is past time to build a 21st century
democracy that represents our growing and diverse nation--a
democracy that welcomes every person's voice and
participation--because for too long voter suppression has been
a shameful reality in our country, undercutting the power and
representation of African Americans, Latinos, and other groups
historically excluded from our political process.
Our nation made historic strides in 1965 with the passage
of the Voting Rights Act, which sought to end racial
discrimination at the ballot box. But nearly 50 years later in
2013, five justices of the Supreme Court gutted its most
powerful tool, the pre-clearance system.
That system had enabled the Justice Department and federal
courts to block proposed discriminatory voting restrictions in
states with well-documented histories of discrimination.
Mere hours after the Shelby County decision, states began
to implement voter suppression laws. In striking down the North
Carolina law in 2016, the Fourth Circuit described the law as
``the most restrictive voting law North Carolina has seen since
the era of Jim Crow,'' with provisions that ``target African
Americans with almost surgical precision.''
There have been finds of intentional discrimination in at
least 10 voting rights cases since Shelby County and litigation
can take years, and unlike pre-clearance, occurs after
elections, after people have been disenfranchised.
This administration has only made things worse by damaging
our democracy and institutions, from elections to the Census to
the free press. The administration's assault on voting rights
can be seen in the creation of the sham Pence-Kobach
Commission, a political ploy that was ultimately discredited
and disbanded.
We also saw it in their defense of Texas's discriminatory
photo ID law and Ohio's voter purge efforts. The administration
has not filed a single Voting Rights Act case despite numerous
recent state and local efforts to block access to the ballot in
communities of color.
A strong democracy should not be a partisan issue.
Americans must have faith in their democracy and it is up to
Democrats and Republicans to restore integrity and legitimacy
to our institutions.
This committee has done it before. In 2006, Congressman
Sensenbrenner led a successful effort to reauthorize the Voting
Rights Act and we need you to do so again.
People turned out in record numbers during the 2018
election to cast their votes for democracy reform. Not only is
this reflected in the most diverse Congress in our nation's
history, but voters also cast their ballot to end
gerrymandering and make voting more accessible in ``red'' and
``blue'' states across the country.
Yet, we know that many states continue to erect barriers to
voting and that is why we enthusiastically support H.R. 1.
Importantly, H.R. 1 includes a commitment to restoring the
Voting Rights Act and updating the pre-clearance provision.
It would also restore voting rights for people with felony
convictions, a necessary repudiation of our nation's
discriminatory and racially violent past. This would add more
than 4.7 million voters to the rolls nationwide.
Reforming felony disenfranchisement has bipartisan support.
In November, 65 percent of Florida voters cast their ballots to
restore the right to vote for over 1.4 million people. It would
require states to draw congressional districts using
independent redistricting commissions.
It would prohibit the distribution of false information
about elections, particularly important in the era of Facebook
and social media platforms that can be manipulated to spread
misinformation. It would ban voter caging, voter intimidation,
unwarranted voter purging.
It would adopt nationwide Election Day registration and
automatic voter registration, which would add 50 million people
to the rolls, and it would make sure that people running
elections aren't in charge of running their own elections when
they themselves are running for office.
Voting and the ability to participate in our democracy is a
racial justice issue, it is a civil rights issue, and we are
overdue for change. H.R. 1 is a bold comprehensive reform
package that offers solutions to a broken democracy. Repairing
and modernizing our voting system goes hand in hand with
reforms that address the rampant corruption flowing from the
corrosive power of money in our elections.
Both are necessary to ensuring that our government works
for all people, not just a powerful few. Our coalition is
committed to expanding the franchise and fixing our democracy,
and we look forward to working with you until the day that
these reforms are signed into law.
Thank you.
[The statement of Ms. Gupta follows:]
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Chairman Nadler. Thank you. We will now hear from our next
witness, Ms. Ifill.
TESTIMONY OF SHERRILYN IFILL
Ms. Ifill. Good morning. Good morning, Chairman Nadler,
Ranking Member Collins, and Members of the Committee. My name
is Sherrilyn Ifill and I am the president and director-counsel
of the NAACP Legal Defense Fund, or LDF.
I thank you for the opportunity to testify this morning
concerning H.R. 1, the ``For the People Act.'' My complete
testimony has been submitted for the record.
Since its founding in 1940 by Thurgood Marshall, the Legal
Defense Fund has been a leader in the struggle to secure,
protect, and advance voting rights for African-American voters
and racial minorities.
Beginning with Smith v. Allwright, our successful Supreme
Court case in 1944 challenging the use of whites-only primaries
in elections in the South, LDF has been fighting to overcome
myriad obstacles to ensure the full, equal, and active
participation of African Americans in the political process.
H.R. 1 is the first major bill of the 116th Congress that
contains critical reforms that promise to strengthen our
democracy including restoring voting rights in federal
elections to individuals with a criminal background, impacting
upwards of 5 million Americans, and prohibiting the use of
deceptive practices and preventing voter intimidation.
The introduction of H.R. 1 also begins a larger legislative
effort to restore the Voting Rights Act of 1965 to its full
strength following a disastrous 2013 Supreme Court decision,
Shelby County, Alabama v. Holder, which gutted a key provision
of the Act.
LDF litigated that case and, unfortunately, lost in the
Supreme Court in a decision which ignored the overwhelming
evidence Congress accumulated in 2006 that the pre-clearance
provisions of Section 5 of the act were desperately needed to
protect the ability of racial minorities to participate equally
in the political process.
I remind you that Section 5 of the act was expressly
designed to address not only then-existing discriminatory
voting schemes in 1965 but to also, in the words of the
legislators who debated the provision, address the, quote,
``ingenious methods that might be devised and used in the
future to suppress the full voting strength of African
Americans.''
At its pre-Shelby strength, Section 5 would have prevented
some of the voter suppression schemes that we have encountered
over the last five years, including many that received national
exposure in the 2018 election.
The need for H.R. 1 is evident from what we are seeing on
the ground and we have been collecting all of the
discriminatory voting changes since the Shelby County decision
in a publication called ``Democracy Diminished,'' which you can
find on the Legal Defense Fund website. This is our attempt to
capture a fraction of the thousands of voting changes that
would have been scrutinized by the federal government but for
the Shelby decision.
We were also on the ground on Election Day and there we
found many egregious voter suppression tactics. Many of them
you know about from Georgia, well before the mid-term election.
In fact, Georgia officials began placing additional burdens on
voters, particularly black and Latino voters, by closing
precincts and purging over half a million people from the voter
rolls.
The voter purge, which removed 107,000 people simply
because they did not vote in previous elections and respond to
a mailing, was overseen by the Republican candidate for
governor, Brian Kemp, who was also the secretary of state.
LDF and a chorus of others called on him to recuse himself
from participating in the election but he refused. In Richland
and Charleston Counties in South Carolina, voters endured
extremely long lines----
Chairman Nadler. Excuse me, Ms. Ifill. I just want to
clarify. I assume you meant you called on him to recuse himself
from supervising the election, not from participating as a
candidate.
Ms. Ifill. From supervising the election. That is correct.
Not from running for secretary of state.
Chairman Nadler. Thank you.
Ms. Ifill. And he refused. In Richland and Charleston
Counties, South Carolina, voters endured extremely long lines
due to poll worker and machine shortages. In Richland County,
voters reported that machines were changing their votes, a
problem requiring a recalibration, according to the election
officials there, which resulted in long wait times.
In Texas, prior to Election Day we received reports that
students at Prairie View A&M, a historically black university,
did not have adequate early voting sites and we filed suit to
challenge that.
In Alabama, we filed suit on behalf of Alabama A&M students
who found themselves suddenly placed on an inactive voter list.
In Florida, voters were forced to return to court on behalf of
Latino voters to compel election officials to provide Spanish
language ballots as they had been ordered to do by a federal
court in September.
The good news, however, is that on November 6th the people
of Florida voted to approve a state constitutional amendment to
restore voting rights to over 1 million people with felony
convictions upon the completion of their sentences. This bill,
H.R. 1, would expand that across the nation.
And, finally, we must acknowledge the reality that racism
and discrimination in the electoral process is a national
security issue. Reports from the Senate Intelligence Committee
describe how Russian interference in the 2016 election included
a concentrated campaign to exacerbate racism and deceive
African Americans.
Indeed, Facebook and other platforms became high-tech
venues for the kind of racial appeals and misinformation we see
regularly in our voting rights advocacy and litigation. It is
imperative that we resist all efforts, whether from our
international adversaries or from our own lawmakers at the
local level, to weaken this effort.
History calls on us today. Millions of voters and the very
integrity of our democracy demands that this Congress act to
restore the integrity of our elections. It was in the 1880s
that the Supreme Court said that the right to vote is
preservative of all rights.
H.R. 1 is an important and imperative response to the
threats to our democracy and I welcome the opportunity to
answer your questions.
Thank you.
[The statement of Ms. Ifill follows:]
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Chairman Nadler. Thank you.
Ms. Turberville.
TESTIMONY OF SARAH TURBERVILLE
Ms. Turberville. Thank you, Chairman Nadler, Ranking Member
Collins, and Members of the Committee for the opportunity to
speak with you today about a short but vital component of H.R.
1, Section 7001, on Supreme Court ethics.
My name is Sarah Turberville and I am director of The
Constitution Project at the Project On Government Oversight.
The Supreme Court ethics provision of this legislation would
close a conspicuous gap in federal ethics rule requiring the
Judicial Conference to issue a code of conduct applicable to
each judge and justice of the United States. We support this
long-overdue ethics reform.
By extending a code of ethics to the Supreme Court for the
first time, this legislation seeks to balance the need to
enhance the public's faith in the judiciary with the imperative
to safeguard the separation of powers between the Congress and
the courts and, notably, a code of conduct for the entire
federal judiciary has bipartisan support.
In the last Congress, a bill sponsored by the former
Republican chairman of this committee contained an identical
provision.
I would like to explain a little bit about the ethics
landscape governing judges. A century ago, the ABA created the
first Model Code of judicial ethics. Today, that Model Code has
been adopted by two-thirds of the states as well as the
Judicial Conference of the United States. The iteration adopted
by the Judicial Conference contains five canons of conduct and
requires that federal judges uphold the integrity and
independence of the judiciary, avoid impropriety and the
appearance of impropriety in all activities, perform the duties
of the office fairly, impartially, and diligently, permits that
judges may engage in extrajudicial activities that are
consistent with the obligations of their office, and that
judges refrain from political activity.
This code binds a wide range of judges in our federal
system, from Circuit Courts of Appeal to judges on the U.S. Tax
Court. In fact, virtually every individual serving as a judge
in this country is held accountable to a basic code of conduct.
The glaring exception is the nine justices on the Supreme
Court.
While Chief Justice Roberts assures us that Supreme Court
justices do in fact consult the code, a snapshot from just two
recent episodes make clear that the chief justice's assurances
are no longer sufficient.
Take, for example, the comments of Justice Ruth Bader
Ginsburg made to the New York Times in the midst of the 2016
presidential campaign where she said, ``I can't imagine what
this place would be--I can't imagine what our country would
be--with Donald Trump as president.''
This seems an obvious violation of the fifth canon
prohibiting political activity. Or look to Justice Brett
Kavanaugh's conduct during his 2018 confirmation hearing where
he described the allegations of sexual misconduct against him
as a partisan conspiracy, threatened that what goes around
comes around, and demonstrated hostility towards senators
inquiring about his fitness for office.
This, rather plainly, violates canon two, requiring judges
to avoid impropriety and the appearance of impropriety. And the
comments of both justices potentially implicate canon three,
requiring a judge to disqualify him or herself for a personal
bias or prejudice concerning a party.
In essence, our federal courts operate on a two-tiered
system of ethics. Lower court judges whose decisions may be
appealed are held to account through a code of conduct and the
Judicial Conduct and Disability Act.
Supreme Court justices, however, whose decisions are
irreversible and have the widest impacts, are trusted to self-
police.
We believe that a code of conduct would help guide justices
in ordering their financial and fiduciary affairs, help inform
justices' decision-making on recusals, and assist members of
the high court in scrutinizing their extrajudicial comments and
activities more carefully.
And from this a benefit would flow that is perhaps more
important than any other. An operative code of ethics would
improve the public's faith in the integrity and legitimacy of
the courts. This is all the more important, as Ranking Member
Collins just described, because federal judges and justices
enjoy lifetime tenure and they cannot be replaced by the
voters.
For this provision of H.R. 1 to have the necessary impact,
we also encourage the Congress to consider additional measures
that would provide for robust financial disclosure obligations,
transparency of recusal decision-making, and improving access
to information about judges' and justices' public and nonpublic
appearances regardless of whether that appearance might trigger
a financial disclosure.
I will close by reminding the committee that our federal
courts rely on the public's belief in their legitimacy as a co-
equal branch of government in order to ensure that their
rulings are honored. But the prevalence of incidents like the
ones I have just described erode the public's confidence in the
institution.
We urge you to pass H.R. 1 as it is a long-overdue proposal
to address pressing ethical questions concerning the Supreme
Court. I thank you very much for your time and I look forward
to your questions.
[The statement of Ms. Turberville follows:]
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Chairman Nadler. Thank you.
Mr. Adams.
TESTIMONY OF J. CHRISTIAN ADAMS
Mr. Adams. Thank you, Chairman Nadler, Ranking Member
Collins. My name is Christian Adams and I am the president and
general counsel for the Public Interest Legal Foundation, a
nonpartisan charity devoted to promoting election integrity and
preserving the constitutional balance so that states may
administer their own elections.
I also served as an attorney at the Voting Section at the
Department of Justice and brought multiple enforcement actions
under the Voting Rights Act and have litigated a number of
areas addressed by H.R. 1.
H.R. 1 is today before this Committee. This proposal would
mark the largest transfer of power over elections from the
states to the federal government in the history of the nation.
Regarding the proposal, we can certainly agree on a number of
things.
First, it has never been easier to register to vote and to
vote in America than it is in 2019. In fact, it is difficult to
avoid opportunities to register to vote. Not only is
registration offered every single time you go to a motor-voter
office, Americans are offered registration in social service
agencies, post offices, county courthouses, outside of grocery
stores, county libraries, Marine Corps recruitment stations, in
jails, online, in high school, in church, in mobile
registration vans, on your front porch when you are visited,
and at Lollapalooza, and pursuant to various settlements of the
Department of Justice has entered into in the last few years,
even in drug treatment facilities. It is harder to avoid
opportunities to register to vote than it is to register to
vote.
Second, H.R. 1 radically transforms the constitutional
relationship between the states and the federal government. It
strips powers from states to run their own elections. Under the
Constitution, states are strongly presumed to have the power to
establish the rules that H.R. 1 seeks to take away.
There is a reason that states were given power to run their
own elections. Mainly, decentralization promotes freedom. The
Constitution decentralized control over elections to the states
because when power is centralized a single malevolent actor can
exert improper or dangerous control over the process.
This is not wild speculation. This is a simple historical
fact. Decentralized elections are more democratic because each
state develops systems more suited to the wishes of their
citizens.
The Constitution gives power over elections to the states.
It says the times, places, and manner of holding elections for
senator and representatives shall be prescribed by each state
legislature--prescribed by the state.
This is the default presumption in the Constitution and for
good reason. Fifty states and thousands of counties are better
suited at running elections than federal officials. Elections
are less subject to manipulation when they are run closer to
the people.
But, alas, advocates of H.R. 1 go all in on the last part
of Article 1 Section 4, which states that the Congress may at
any time by law make or alter such regulations. Using this
exception to the Elections Clause to justify H.R. 1 fails for
two reasons.
Firstly, this provision of the Constitution was only added
when concerns were raised that states would suffocate the power
of the new government by refusing to establish election
procedures. In other words, it was added because it was feared
states would refuse to enact rules for congressional elections
and thus terminate the federal government.
In 2019, that is a laugh line. The concern in 1787 that
states would suffocate the federal government has not
materialized in the slightest.
Second, just because Congress can do something doesn't mean
it should. Indeed, the authors of the Constitution made it
clear that the power granted to Congress to alter rules should
only be used, as Alexander Hamilton put it, as a last resort.
Congressional power to do this is described in Federalist
59 as a means of its own preservation. I will leave it to
others to opine how it is that H.R. 1's mandate for felon
voting rights granted nationwide has anything to do with
Congress's own preservation.
Just because you can do something does not mean you should.
Just because I could stay up all night, for example, playing
``World of Warcraft'' does not mean I should. Just because I
can have one more drink does not mean I should.
The Constitution plainly and explicitly establishes the
balance between the states and federal government and makes
clear who should have the power to set federal election rules.
H.R. 1's constitutional offense is grave and serious and
intrudes on the power of the states to run their own elections.
Thank you very much.
[The statement of Mr. Adams follows:]
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Chairman Nadler. Thank you.
Mr. von Spakovsky.
TESTIMONY OF HANS VON SPAKOVSKY
Mr. von Spakovsky. Chairman Nadler and Ranking Member
Collins--Chairman Nadler and Ranking Member Collins, H.R. 1
covers everything from voter registration, elections, to
campaign finance, judicial ethics, and lobbying. My testimony
today is only limited to those provisions over which the
Judiciary Committee has jurisdiction and not those subject to
other committees.
In summary, many of the provisions of H.R. 1 are clearly
unconstitutional. Others are redundant and unnecessary,
covering areas that existing federal law already covers. Many
are just bad policy that will neither help voters nor election
officials in administering a fair and secure voter registration
and election process.
It also interferes with the ability of states to determine
the qualifications of their voters, to secure the integrity of
the election process, and to determine the districts and
boundary lines of their congressional representatives.
Overall, it federalizes and micromanages the election
process and imposes unnecessary, unwise, and, in some cases,
unconstitutional mandates on the states.
I can't cover an almost 600-page bill in five minutes so I
will just point out a few of these problems. For example,
Section 1071 prohibits corruptly preventing another person from
registering to vote. Well, federal law already prohibits such
behavior.
It is a criminal violation of the NVRA to prevent someone
from registering to vote or voting or attempting to register to
vote, and punishment includes not only a fine but up to five
years in prison. It is also a criminal violation of Section
11(b) of the VRA to threaten, intimidate, or coerce any person
for voting or attempting to vote.
Section 1201 prohibits election officials from using the
Postal Service's national change of address system to verify
the address of registered voters. Nothing about this
verification process is either sinister or suspect.
Instead, the National Voter Registration Act, which this
Congress passed, expressly sanctions this activity. Congress
previously determined, quite correctly, that the Postal Service
database would help election officials indentify registered
voters who have moved out of their district.
Section 1401 forces the states to restore the ability of
felons to vote the moment they are released from prison. This
provision is, clearly, unconstitutional. The issue isn't
whether this is good state--good public policy.
The point is that Congress cannot override the Constitution
with a federal statute, and the Fourteenth Amendment explicitly
gives the states the right to take away the abilities of felons
to vote in both state and federal elections and decide when to
restore the right. If Congress wants to do this, you have to
pass a constitutional amendment.
Section 2400 forces states to establish independent
redistricting commissions and, alternatively, gives a federal
court the authority to draw such districts if the commission
does not adopt a plan.
This unfairly interferes with the rights of the citizens of
the 50 states to make their own decisions either through a
referendum process, as the citizens of Arizona did, or through
their elected state representatives on the best way to choose
members of Congress.
This is an anti-democratic measure because you are
mandating to the states that they replace their elected state
representatives with appointed members of the commission,
members who are unaccountable to voters in elections if they
don't like the kind of plans that are drawn up.
Section 7001 requires the Judicial Conference to establish
a mandatory code of conduct for the Supreme Court. Article 3 of
the Constitution states that the judicial power of the United
States shall be vested in one Supreme Court and in such
inferior courts as Congress may from time to time ordain and
establish.
All of the inferior courts--the Courts of Appeals, the
federal district courts--were created by you, by Congress, and
therefore you can impose a code of conduct on them. But the
Supreme Court was not created by Congress. It is an independent
co-equal branch. In the same way that the justices can't
dictate what ethics rules apply to you, you cannot dictate what
ethics rule apply to them.
Section 7301 would ban political appointees of a president
from involvement in any matter in which that president is a
party. This would apply to any litigation against a president's
policies, programs, executive orders, or his enforcement of a
particular federal statute that names the president.
It would prevent the president's political subordinates
such as the attorney general from participating in, directing
the defense of, or assisting in any matter in which the
president has been named as a party. If this provision had been
in the law when Barack Obama was president, the states
challenging Obama's DAPA program could have easily named Obama
as a specific party. Then, neither Attorney General Loretta
Lynch nor DHS Secretary Jeh Johnson could have participated in
the defense of the lawsuit.
This violates separation of powers and prevents a president
from being able to rely on his own appointees and carry out his
constitutional duty to see what the--that laws are faithfully
executed.
Sometimes legislation proposed by Congress is bad policy,
sometimes it is unnecessary, and sometimes it is
unconstitutional. H.R. 1 is all three.
Thank you.
[The statement of Mr. von Spakovsky follows:]
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Chairman Nadler. Thank you, Mr. von Spakowsky.
Mr. Noti.
TESTIMONY OF ADAV NOTI
Mr. Noti. Mr. Chairman, Ranking Member Collins, Members of
the Committee, thank you for the opportunity to testify today
in support of H.R. 1.
My name is Adav Noti. I am senior director of Trial
Litigation and chief of staff with the Campaign Legal Center,
which is a nonpartisan 501(c)(3) organization dedicated to
advancing democracy through law.
Before I joined the Campaign Legal Center, I served as
associate general counsel of the Federal Election Commission
and held a number of other nonpartisan legal positions within
that agency.
In my written testimony, I explain our support for four
particular provisions of H.R. 1 that are within the
jurisdiction of the Committee. What all of these provisions
have in common and what makes them important is that they each
advance the right of every American citizen to a government
that is accountable and responsive to voters.
Campaign finance laws do that by protecting the individual
First Amendment rights of ordinary citizens to meaningfully
participate in the democratic process without having their
voices drowned out by wealthy corporations that hold special
interests.
Ethics and lobbying disclosure advance responsiveness by
ensuring that government officials, whether they are elected or
appointed, act in the interests of the people rather than in
their own interests. Disclosure gives citizens, journalists,
watchdog groups, and law enforcement agencies the tools to
detect and deter governmental misconduct, undue influence, and
corruption.
For purposes of my oral testimony today, I would like to
focus on two particular democracy-enhancing provisions of H.R.
1, which are the congressional findings regarding Citizens
United and the amendments to the Foreign Agents Registration
Act.
First, regarding Citizens United, the bill does an
excellent job of laying out exactly how the Supreme Court has
completely inverted the First Amendment to deny individual
Americans the constitutional right to meaningfully participate
in the democratic process.
In a nutshell, as the findings in the bill accurately
explain, 100 years of statutory law enacted by Congress had
protected ordinary American citizens from having their voices
drowned out by corporations--corporations which, of course, are
not voters.
In 2010, the Supreme Court stripped Americans of that
protection, ruling that the First Amendment actually prohibits
Congress from ensuring the democratic speech rights of
individuals in the face of overwhelming corporate spending.
That ruling in Citizens United v. FEC, on which I personally
served as a member of the litigation team, has had catastrophic
effects on the campaign system, as every member here today
knows well.
Ordinary Americans simply cannot compete with the flood of
corporate money that is being funneled into the campaign system
through super PACs, dark money entities, and other--and other
forms to take advantage of the Supreme Court's misguided foray
into political policymaking.
These spenders are utterly unrepresentative of the American
public and so their domination of the campaign system is
increasingly rendering our government unresponsive,
unaccountable, and unworthy of our great nation.
Second, as to H.R. 1's proposed amendments to FARA, it is
important to note that the statute was passed 80 years ago to
cover Nazi propaganda in the lead-up to World War II. No
serious observer questions that preventing the secret
dissemination of propaganda to American policymakers is an
important measure for our national security. The question is
how to enforce that measure.
H.R. 1 would fix two longstanding enforcement challenges.
First, it would give FARA a dedicated home and appropriation
within the Department of Justice. That is not in any way a
criticism of the DOJ staff who currently handle that matter. It
is simply an acknowledgement that creating this dedicated home
and appropriation for enforcement will inevitably help
enforcement.
Second, H.R. 1 would provide a mechanism for civil
enforcement of FARA, which would fix the problem that under
existing law the only way to seek remedies--penalties for
violations of FARA is through criminal prosecution, which has
been problematic for a number of reasons including that
criminal prosecutions are resource intensive and they require
fairly intrusive investigations. It is simply not realistic to
conduct felony criminal proceedings over every disclosure
violation.
H.R. 1 would fix this by establishing a civil penalty
mechanism that would allow DOJ to appropriately allocate its
resources between violations that can be punished and deterred
through civil penalties and ones that require more serious
criminal action, and in my written testimony I address and
support two additional provisions in H.R. 1, which are the
amendments to the Lobbying Disclosure Act and 18 U.S.C. 208.
Thank you for the opportunity to testify today in support
of this milestone bill.
[The statement of Mr. Noti follows:]
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Chairman Nadler. Thank you, Mr. Noti.
We will now proceed under the five-minute rule with
questions for the witnesses. I will begin by recognizing myself
for five minutes.
I will ask Ms. Gupta first. Since the Shelby County
decision, Section 2 of the Voting Rights Act has been the main
statutory vehicle for protecting minority voting rights. Have
you seen evidence of intent by lawmakers to use voting
restrictions to suppress the vote of minority communities and
how has Section 2 worked? I mean, how effectively has Section
2, in the absence of Section 5, worked?
Ms. Gupta. So Section 2 of the Voting Rights Act is--thank
you for the question--Section 2 of the Voting Rights Act
remains the law of the land but is a woefully inadequate
substitute for the powers that Section 5 gave the federal
government and federal courts to prevent racially
discriminatory voting changes in states that have longstanding
well-documented histories of racial discrimination.
Section 2 cases are expensive. They take years to be
developed. They are filed after elections take place when
voters have already been disenfranchised, whereas the Section 5
pre-clearance regime really permitted the federal government to
have notice of changes being made, small and big, to voting in
local jurisdictions that have this longstanding history and it
was these changes that would get kind of fixed before elections
would take place. They were numerous and created a quite
extensive record--that was before the 2006 Congress that
ultimately reauthorized the Voting Rights Act--of present-day
discrimination.
Section 2 litigation--while I was at the Justice
Department, we filed litigation against statewide ID laws in
North Carolina and Texas, for example, that created incredible
restrictions.
In North Carolina it was known as the monster voter
suppression law, making limits to creating long lines, closures
of poll sites, racial discrimination in access to the polls,
and that litigation took years to actually work itself through
the courts. They are a woeful substitute to Section 5, which
would actually put us in a much better place as a democracy.
Chairman Nadler. Thank you. In other words, we saw after
the 1957, 1960, and 1964 Civil Rights Acts that the
registration rates for African Americans in some of the
Southern states were still 2, 3, 4, 5 percent and they only
really went up to reasonable rates--reasonable levels after the
passage of Section 5. Is that correct?
Ms. Gupta. That is right.
Chairman Nadler. Thank you.
Let me ask, I suppose, Mr. Adams. In 2006, Mr. Chabot, who
was seated here a few minutes ago, as then chairman of the
Constitution Subcommittee and I as then ranking member of the
Constitution Subcommittee, presided over hearings. I don't know
how many hundreds of hours.
We have compiled a 15,000-page record as the basis for
renewal of the Voting Rights Act in 2006. The renewal of the
Voting Rights Act including extension of Section 5 passed in
the Senate 98 to nothing and in the House 390 to 33. It was not
controversial. Republicans, Democrats, almost everybody
supported it.
Since the Shelby County decision, which invited us to pass
a new section--a new section reinvigorating Section 5 that
would substitute for the old Section 4 a new test as to which
jurisdictions were covered, the Supreme Court said we could do
that. We have been unable to have the political support do
that. We hope to change that now.
What do you think changed why it was universally recognized
and understood that we needed pre-clearance in order to prevent
local interference with voting rights as we had seen since the
Civil War for a hundred years, and today when people don't seem
to recognize that and seem to think that states' rights are
more important than people being able to vote?
Mr. Adams. Right. And we have had a number of hearings, you
will recall, Chairman Nadler, when you were on the ranking
member in the last couple of years on this. I think what has
changed is the puzzle of the triggers.
In other words, the Supreme Court held very clearly that
you have to have triggers that meet current circumstances and
nobody has been able to develop a trigger that has had the
requisite will. If you use the triggers that were in the '06
reauthorization, there would be one state covered. That would
be Hawaii. And so I----
Chairman Nadler. Well, the 2006 reauthorization was ruled
unconstitutional because the triggers were based on things
prior to 1964 and the court said we have to do it on a more
current basis and--go ahead.
Mr. Adams. So if you use the triggers from more recent
presidential elections to make it contemporaneous like the
Supreme Court required, you would have the puzzle that only
Hawaii would be covered. So everywhere else there is a large
turnout in presidential elections.
So I think what changed is a recognition that the Supreme
Court set limits on the power of Congress in this area and
there hasn't been a political coalescence of the majority to
pass something that has satisfactory triggers.
Chairman Nadler. Well, since we have seen any number of
very clear voter suppression tactics--I won't get into voter
ID, which--of which there is a political division as to whether
it is in fact a voter suppression technique. I think it is. You
think it isn't. But there are clearly--we saw one rather well-
publicized incident before the last election--I think it was in
Kansas--where a polling place was moved from a local college to
someplace where you couldn't get to in the middle of the desert
away from bus stops.
We saw another in North Dakota, I think it was, where
people on Indian reservations were told they had to--they could
only vote if they had a street address and there were no street
addresses. These are very clearly--I don't think anybody could
quibble that they were in fact intended to stop people from
voting. How would you deal with that?
Mr. Adams. Well, the problem in Kansas--and I think you are
referring to the Dodge City case--the judge found that there
was not a problem and it wasn't a desert. It was moving a
polling place a few miles----
Chairman Nadler. Well, how would you--regardless of that,
how would you deal with local efforts that are clear to deprive
people of voting rights?
Mr. Adams. Right, and there are a couple of ways. One, the
Voting Rights Act still has a pre-clearance catch. In other
words, in Texas, the Justice Department asked that Texas be put
under this provision under Section 4 that if you are found to
have violated the Voting Rights Act you are subject to pre-
clearance obligations. So there is that still in the Voting
Rights Act and the Justice Department has used that in the
Texas case.
I think another way----
Chairman Nadler. How many times since Shelby County has
that been used?
Mr. Adams. Well, part of the problem is there hasn't----
Chairman Nadler. How many times?
Mr. Adams. Well, there has been two cases filed by the
Justice Department under Section 2 that has been won.
Chairman Nadler. Two cases filed and won--okay. Thank you.
My time is well over. So I am sorry I have to interrupt you.
Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman.
Again, a lot of this conversation today I think is--I think
there is not a doubt we need to vote, everyone that wants to
vote be a part of voting. I think the issue is how do we come
about this, and some of the issues have been brought up.
I do want to find one--I always like to try and maybe find
one point of agreement that we can have on this. So that, you
know, there are so many sides. Again, Ms. Turberville, you
brought this up, and I would like for you to take for just a
moment because some may not understand--I know for the
attorneys who are used to dealing with ethics and judges--and
explain a little bit more about the Supreme Court, you know,
encourage them to put that together.
Because that is something I think we can find agreement on,
and I would like to hear you express a little bit more about
that.
Ms. Turberville. Sure, thank you, Ranking Member Collins.
There is this ethics framework that governs all judges in
the lower courts, for example, and that is both a code of
conduct that has been promulgated by the Judicial Conference of
the United States. That is also the Judicial Conduct and
Disability Act of 1980 that sets up a mechanism, a process
whereby complaints can be dealt with relative to the conduct of
lower court judges.
Neither of those mechanisms apply to the United States
Supreme Court. And so what we propose is a code of conduct
applicable to the United States Supreme Court that would be
promulgated by the Judicial Conference, of which the Chief
Justice is the head, and so that also, I believe, addresses
some constitutional issues that have been raised here.
I would also like to respond a bit to the assertion that
Congress cannot impose a code of conduct on the Supreme Court
because of separation of powers concerns, and I think that, you
know, there are a number of instances where this body has,
under the necessary and proper clause found in Article I,
passed laws to govern the function of the Supreme Court. Going
back to 1869, the Congress actually determines the size of the
Court and said that there will be eight Associate Justices and
one Chief Justice of the U.S. Supreme Court.
This body passed the Ethics in Government Act in 1978,
which actually imposes criminal and civil penalties on
Justices, as well as other members of--other Federal officials
for failure to file specific financial disclosure obligations.
And then also this body set out recusal standards that are
found in 28 U.S.C. 455 that also govern the conduct of Supreme
Court Justices.
So it would be my view that there are plenty of precedent
here to support the idea that the Congress can, at minimum,
require the Judicial Conference to promulgate a code of conduct
that specifically applies to our Nation's highest court.
Mr. Collins. Thank you.
With that, look, there has been a lot said and also Ms.
Ifill has brought up the State of Georgia, of course, my home
State. And one of the issues that was brought up, and I think
we need to be--I have no problem discussing issues and how we
do it. I do--but when the implication is a malfeasance or
something denoting something not there, the question would
come.
Is it not true--and I just read in my opening statement so
you can go back to it--the issue of sending out cards and using
the mail system and then also responding by lack of voting has
been upheld by the Supreme Court? Is that not true?
Ms. Ifill. If you are referring to the Husted decision from
the Supreme Court term regarding voter purges----
Mr. Collins. Yes.
Ms. Ifill [continuing]. And the ability to begin a purge
process using the return of those cards, yes, that was upheld
by the Supreme Court in Ohio.
Mr. Collins. Okay. Okay. So, and again, in these cases,
that was brought in to the--so, again, we can disagree with how
we want to maintain voter rolls, but it is also the implication
to say that something was illegal or was not done properly is
doing a disservice, frankly, as you look at these discussions
as we move forward.
I think the interesting is, is that, you know, there was
mentioned Georgia has 3\1/2\ weeks of early voting. We
discussed the long lines all day. That actually should be
applauded. We have long lines because a lot of people wanted to
vote.
I think there are also issues in the State of Georgia
especially and many other States where locals handle which
polling stations are open and which stations are closed and how
many voting precincts that they put at those locations. Not the
secretary of state, by the way, in the State of Georgia, has no
determination on which places go where.
The interesting issue of the purging of rolls, though, is
something, and I think we get back into this. The question
comes is when we deal in these issues and these long processes,
and you even brought up one in the State of Florida, which I am
glad you brought it up. The State of Florida had an issue and
decided that, you know, re-enfranchising, if you would, those,
that is the way it should be.
Why would we want to continue again from a perspective that
is not found constitutional by even the liberal, the more
liberal Supreme Court Justices? Why would we want to insert
into that when it is clearly nonconstitutional?
Ms. Ifill. So I would have to disagree with you about
whether it is constitutional or not. And I think it goes back
to----
Mr. Collins. Well, excuse me. But it wouldn't actually be
me you are disagreeing with.
Ms. Ifill. I understand.
Mr. Collins. It is the Supreme Court you are disagreeing
with.
Ms. Ifill. Well, it is your interpretation of the Supreme
Court's decision. So I will give mine.
Mr. Collins. Your reading.
Ms. Ifill. I think the problem we have is that, you know,
when we begin talking about the powers between the Federal and
the State government as it relates to elections, it is, of
course, critical that we look to the Constitution and that we
look to the articles of the Constitution that govern elections.
But what we have left out of the conversation, at least to this
moment, is the reordering of the relationship between the
Federal and State government that came with the passage of the
Thirteenth, Fourteenth, and Fifteenth Amendments.
The Fourteenth and Fifteenth Amendments, in particular the
Fourteenth Amendment guaranteeing equal protection of laws and
the Fifteenth Amendment prohibiting the denial of the right to
vote based on race, national origin, includes enforcement
clauses that gives this body, the United States Congress, the
power to enforce the rights that are articulated in those
amendments to the Constitution.
And it is those amendments to the Constitution that
provided this body the right, for example, to pass laws like
the Voting Rights Act of 1965, for which all the same arguments
that are being made today about the power of the States, about
interference, about what the Federal Government is allowed to
do and not allowed to do were raised and overcome.
So the Federal Government actually does have the power,
when there is evidence and when they are enforcing the rights
under the Fourteenth and Fifteenth Amendments, to actually--
your word would be interfere, but to engage robustly in the
protection of the voting rights of racial minorities.
With regard to the felon disenfranchisement issue, I think
it is a fascinating question that you are raising about the
constitutionality. Because if we look at Section 2 of the
Fourteenth Amendment to the Constitution, it does mention
people who have been convicted of a crime, but it is mentioning
it as part of the punishment scheme for rebellious States that
would deny people the right to vote, deny black men the right
to vote.
And it mentions that provision about having been convicted
of a crime within the context of when that punishment scheme
could be used, and the punishment scheme is to reduce the
number of representatives of that particular State.
So it is not clear to me that what that provision is saying
is that the Federal Government cannot or this Congress cannot,
as is set out under H.R. 1, determine that in Federal elections
those who have been convicted of crimes can participate.
Mr. Collins. Ms. Ifill, I----
Chairman Nadler. The time of the gentleman has expired.
Before I yield to Ms. Lofgren, I ask unanimous consent to
insert into the record statements from Public Citizen and from
a number of other public interest groups and coalitions.
Without objection, they will be entered into the record.
Chairman Nadler. Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
And I was going to ask that the Brennan Center statement,
if that has already been included?
Chairman Nadler. Without objection, that will also be
entered into the record if it hasn't already been.
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Ms. Lofgren. Okay, very good. Thank you very much.
I think this is an important hearing. You know, the
American people feel that the political system is rigged
against them and that their vote doesn't count or might not
matter. And there is nothing more destructive to our democracy
than that sense.
And H.R. 1 is intended to make serious reforms so people
don't have to believe that, and it also will not be true. And
as we think through how we are going to proceed, there are
parts of this act that are within the jurisdiction of the
Judiciary Committee; some in the jurisdiction of the House
Administration Committee, which I chair; also the Homeland
Security Committee. So we are all working very hard to have
hearings and to refine the act.
It has been interesting to listen to the testimony relative
to our constitutional authority, and I really thought about our
jurisdiction in two ways. One, to protect the rights of
minorities under the Fourteenth Amendment, but also Article I,
Section 4 of the Constitution, which is jurisdiction that has
rarely been exercised, frankly, which says this. ``The times,
places, and manner of holding elections for Senators and
representatives shall be prescribed in each State by the
legislature thereof. But the Congress may at any time by law
make or alter such regulations, except as to the place of
choosing Senators,'' which, obviously, has now been obviated by
the change in choosing Senators.
So we have, I mean, a substantial grant of authority, and
it is not instead of. I mean, the Voting Rights Act protects
voting rights whether you are voting for city council or school
board. But as to Federal elections, we have really substantial
authority, and I think there are reasons beyond the issue of
protecting minority rights to exercise this authority.
I mean, we already have a situation because of the way our
Constitution is set up, that the voters in California, when
they cast their vote for Senator, their vote is worth way less
than the vote of somebody in, you know, Vermont or Wyoming. So
that is just part of the Constitution.
But when it comes to representation in the House, to
further enhance disparity between the voting rights of
individual American citizens to elect their own representatives
by, for example, making it harder to register in one State than
another or limiting how you can stay registered through purges,
I mean, that really just has to do with disparity and the
rights of Americans. And it is important that each one of us
here in the House of Representatives has one vote. We go to the
floor.
So we want to make sure to the maximum extent possible that
each American when they vote for whoever their representative
is has the same opportunity to cast that vote. So I think that
is an independent basis. We are doing the Voting Rights Act
hearings. We are having a number of hearings, both in the
Judiciary Committee and House Administration, on the need for
the Voting Rights Act to be updated, but there is this
independent obligation that we have.
I am wondering, Ms. Gupta, if you--apparently--and he will
correct me, I am sure, if I have misread his statement. But Mr.
von Spakovsky seems to say in his testimony that the Fourteenth
Amendment limits Article 1, Section 4 authority. Do you agree
with that?
Ms. Gupta. The constitutional bases for Congress'
jurisdiction to ensure democratic participation and voting
rights is clear as to those two provisions that you just
mentioned. I think it is really crucial to remember, and Mr.--
two of my colleagues at this panel made a lot about this--the
fact that they believe H.R. 1 is inappropriately federalizing
elections. This is, as Ms. Ifill has said, part of a long line
that is used often with the enactment of civil rights
legislation.
It has been used to try to advocate against the Voting
Rights Act, the Fair Housing Act, and the like. The reality
actually is that H.R. 1 is bringing together a lot of laws and
policies that States have actually enacted and experimented
with, red and blue, from automatic voter registration to
Election Day registration and the like.
And the reality is H.R. 1 actually recognizes the need to
support State and local election officials as they conduct
their elections. It is not federalizing elections. There is
actually appropriations to try to give them the resources to
build the kinds of 21st century systems that we deserve. And
H.R. 1 is rooted, as you said, in the two constitutional
provisions. Congress has clear authority to ensure that the
Fourteenth Amendment is not violated and to ensure through
Article I and Section 4 that everyone's vote can be counted.
There is--there are over 13,000 election jurisdictions in
our country, and elections can be run in a multitude of ways.
But it is clear that Congress has the authority to make sure
that civil rights are not violated in the course of running
these elections and that there are equitable national standards
to guide how this is done, and that is exactly what H.R. 1
does.
Ms. Lofgren. Thank you. My time has expired.
Chairman Nadler. I thank the gentlelady.
Before I recognize Mr. Gohmert, I recognize the ranking
member for a unanimous consent request.
Mr. Collins. Thank you, Mr. Chairman.
I just want to enter into the record the Supreme Court case
Arizona v. Inter Tribal Council. Because I don't believe that
Ginsburg, Breyer, Sotomayor, or Kagan would have ignored
Thirteenth, Fourteenth, and Fifteenth Amendment.
Chairman Nadler. You are asking unanimous consent to----
Mr. Collins. Enter into the record.
Chairman Nadler. Without objection, so ordered.
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Chairman Nadler. Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
Mr. Adams, were you hearing the last answer? Do you have a
response to the statements by the last witness?
Mr. Adams. A couple. First of all, there is no question
that the Fifteenth Amendment has limits. The Supreme Court made
that very clear in Shelby. There has to be a high showing by
Congress.
The things that are in H.R. 1 I can assure you are not
going to be viewed favorably by particularly this Supreme Court
because they go way beyond what even Section 5 was. I mean,
deciding that you have X amount of days of early voting, that
doesn't have anything to do with racial discrimination, absent
some high showing in Congress, which we haven't seen.
Now the elections clause is different, and my written
testimony goes into great detail about that, that this Congress
should exercise that power as a last resort. A ``last resort''
is the term that was used by Alexander Hamilton. It was set up
to preserve the Federal Government, not to mandate 30 days of
early voting around the country.
Mr. Gohmert. And with regard to the allegation that these
constitutional claims are often raised to try to defeat civil
rights actions, I will always go back to the Constitution--that
is our foundational document--to see if anything, no matter
whether it is Republican or Democrat, whoever is bringing a
bill, does it meet constitutional muster? So I would hope that
that is where we always go back to.
And so when we seek to take the power away from the States
in the Fourteenth Amendment that says States, basically it is
up to the States that they can exclude anyone who has
participated in rebellion or other crime, I mean, you need a
constitutional amendment to seize that power away from the
States to make that determination. And I am impressed by a
political party that thinks their power will come from people
who have committed felonies and that maybe are here illegally,
don't speak the language that most do, at least 80 percent as a
primary language.
That is interesting politically, but here we are guided by
the Constitution. And I want to go back to the Voting Rights
Act. I was accused of being against the Voting Rights Act when
I made very clear I had an amendment that would force the
preclearance requirement on any area in the country that had a
certain level of racial disparity.
But Mr. Sensenbrenner and Mr. Conyers said, nope, we want
to keep--in effect what their actions said, we want to keep
punishing children, grandchildren, and great-grandchildren for
the sins of the original person back over 50 years ago, and we
want to keep that standard for 50 more years. We want to just
keep punishing sins of long-gone people, and that is not
supposed to be what America is.
And so when we had the information that clearly showed that
States had improved and they were doing a better job than a
district in Wisconsin, a district in Massachusetts, a district
in California, why wouldn't we apply those preclearance
requirements to any district where there was racial disparity?
And I got much more consideration from Mr. Conyers on that
issue than Mr. Sensenbrenner. Mr. Conyers, I said, look, I
have--and this was outside the hearing. I have talked to deans
of different law schools, liberal and conservative, and they
all say you can't keep punishing people for sins of far-gone
others. You have got to punish sins that are current. And you
have got to change that, or the Supreme Court is going to
strike that down.
And Mr. Conyers said you make a good point. Let me talk to
our folks. And he ultimately came back and said you got a good
point, but it has already passed. So let us just see what the
Court said.
Well, the Court said what I was told by liberals and
conservative deans alike. It is not going to stand scrutiny by
the Supreme Court. It didn't. So I would hope we don't try to
go back to that. If we are going to punish racial disparity,
let us go where the problem is and some arise in the future, as
they have.
But let us go to those districts and punish those by
preclearance requirements, but not keep punishing people 50
years after they have corrected their actions. So I am hoping
that when the Voting Rights Act comes up, we will look to be
more constitutional than the last slam dunk on others was.
And I see my time has expired. I yield back.
Chairman Nadler. I thank the gentleman. I thank the
gentleman.
Ms. Jackson Lee.
Ms. Jackson Lee. Thank you to the chairman and the ranking
member.
And I think what we are here today for is to assess the
current and visible and sound actions of those today that are
suppressing the vote in whatever manner that they can suppress
the vote. So allow me just to pose questions that I think will
allow you to focus on the suppression of the vote.
As I do so, let me mention the fact that the Shelby case,
of course, undermined Section 5 and created a roadmap or a
question about the formula, the current formula. But we do know
that preclearance was an effective tool for today, in the
historical today that prevented suppression of voting from
State and local entities. And I think that should be on the
record as being very clear.
I would like to pose this question to Ms. Gupta, Ms. Ifill,
Ms. Turberville, and Mr. Noti. Which, in your opinion, is the
greater and more immediate threat to our democracy, criminal
actions by a hostile foreign power to defraud an American
election--and we have heard a recounting of the place of voting
rights in the Constitution--or rampant voter fraud that exists
only in the imagination of the White House or the executive and
other like-minded conspiracy theorists?
John Dewey, the great American philosopher and education
reformer, is credited with saying, ``The cure for the ills of
democracy is more democracy.'' And many of us remember New York
Governor Samuel Tilden's famous saying, ``The means by which a
majority comes to be a majority is, in fact, an important
thing, process and fairness.''
In other words, the essence of a representative democracy
is representation and accountability, which can only be secured
and maintained by political participation, the most effective
means of which is voting.
Ms. Turberville and Mr. Noti, and I am going to go to Ms.
Gupta first, Ms. Ifill, but I wanted to share with you my
question. Please explain the threat and danger to a functioning
democracy posed by voter suppression and voter
disenfranchisement efforts such as voter caging, purging,
stacking, packing, and cracking, such as the representation by
a report by our secretary of state that some 95,000 registered
voters were found to have been identified as noncitizen and
allegedly 58,000 voted in the 2016 election.
Now this is since 1996, this report. Let me correct myself.
Since 1996, but it is well known that data does not coincide,
and many of these people may have gotten a driver's license,
and they might have moved into citizenship and then moved into
voting at different times.
Ms. Gupta and Ms. Ifill, that first question, if you heard
that first question for you, and then the second question.
Ms. Gupta. I will just start by saying thank you for
recognizing that the evidence that sustained the 2006
reauthorization was based on contemporary evidence, not the
evidence from 1965. It is an important point to make.
There was an extensive record that was developed, and we
look forward to working to develop that record to show the
contemporaneous reason why we need the Voting Rights Act
reauthorized in 2019.
I think there is no question that the--and it was
documented by the recent intel report that we have foreign
powers that are seeking to manipulate some of the greatest
vulnerabilities, racism in America, to now use--to target black
Americans and to engage in voter suppression through those
efforts. That is a huge threat that many of us are very
concerned is not being taken seriously enough, and social media
platforms are ill-equipped to actually deal or are not dealing
with these issues.
And so we are facing right now a myriad of new forms of
voter suppression through voter caging and voter purging that
will require and often requires private litigation by
organizations dedicated to that. These are some of the very
changes that a preclearance regime for the Department of
Justice would actually prevent to begin with.
Ms. Jackson Lee. Thank you. Ms. Ifill. And Mr. Noti, be
prepared.
Ms. Ifill. Let me use as an example Texas' voter ID law
from your own State. The voter ID law that Texas imposed after
the Shelby decision is a voter ID law that they had attempted
to get precleared prior to the Shelby decision, and
preclearance was denied. In other words, they were not allowed
to make that law become real because of the preclearance
requirement.
After Shelby, the Attorney General decided that they were
going to move forward with that law. It was imposed. We sued.
We challenged that law, and we won. But in the 3 Ayers that it
took us to litigate that case, during that time, Texas elected
a United States Senator in 2014, all 36 members of the Texas
delegation to the U.S. House of Representatives, the Governor,
the Lieutenant Governor, the attorney general, the comptroller,
various statewide commissioners, 4 justices of the Texas
Supreme Court, candidates for special election in the State
senate, State boards of education, 16 State senators, all 150
members of the Statehouse, over 175 State court trial judges,
and over 75 district attorneys.
We proved at trial that more than half a million eligible
voters were disenfranchised by the ID law. We were ultimately
successful in challenging, but it was too late for those
elections. And this was a scheme that had been denied
preclearance.
This is the kind of thing that undermines confidence in our
electoral system and that threatens our democracy. What excuse
can we have as a nation for disenfranchising over half a
million voters from all of the elections I just described?
Chairman Nadler. Thank you. The time of the gentlelady has
expired.
Ms. Jackson Lee. Mr. Chairman, may I offer into the record,
just briefly, a letter from Justice Roundtable, expressing the
desperate need for restoration----
Chairman Nadler. Without objection, the letter will be
entered into the record.
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Chairman Nadler. Mr. Buck.
Mr. Buck. Thank you, Mr. Chairman.
Mr. Chairman, in 1960, presidential candidate John F.
Kennedy needed to win the State of Illinois to win the
election. His brother Robert Kennedy called Mayor Richard Daley
asking about the vote count in the critically important City of
Chicago.
When Robert Kennedy asked, ``How many votes will we get
from Chicago?'' Mayor Daley responded, ``How many votes do you
need?''
The Democrat Party has a long history of stealing elections
in this country. Our chairman knows very well the history of
New York City Democrat politics with the Democrat bosses in
Tammany Hall stealing elections for decades. Whether it is Huey
Long in Louisiana or the Black Panthers in Philadelphia, the
Democrat Party relies on corruption and voter intimidation to
win elections. In 2016, we even witnessed the Democrat Party
stealing election from one of its own candidates, as Hillary
Clinton's allies rigged the primaries against Bernie Sanders.
Now, Mr. Chairman, we are presented with H.R. 1, the
Democrat Party's wish list written by special interest groups,
and here we go again. This bill works like the Chicago-style
Democrat machine. It does nothing to clean up voter rolls that
haven't been reviewed in years, allowing dead people and those
who have moved away to continue voting.
A friend told me a story about his uncle who was a lifelong
resident of Chicago and a lifelong Republican voter. His family
learned that after he died, he cast his first vote for a
Democrat. This bill fails to remove and even prevents removal
of fraudulently registered individuals. It even mandates the
counting of provisional ballots, whether those ballots are cast
by citizens or not.
Look at Texas, where officials found 95,000 noncitizens
have been registered to vote, and 58,000 noncitizens voted in
Texas elections. It doesn't take a genius to see that this can
happen anywhere without proper oversight.
This bill also infringes on a State's right to determine
whether felons may vote, criminalizes free speech, and
weaponizes the Federal Election Commission. H.R. 1 does nothing
to make elections fairer.
Mr. von Spakovsky, any thoughts on the history of election
fraud in this country?
Mr. von Spakovsky. Well, I would quote the U.S. Supreme
Court in 2008, a decision written by Justice John Paul Stevens,
in which they talked about the fact that, unfortunately, the
United States has a long history of voter fraud documented by
journalists and historians. We started a--and it could make the
difference in a close election. Anyone who believes it doesn't
occur can look at the news and see the Alabama mayor who was
just removed after being convicted of absentee ballot fraud.
We have got a database at the Heritage Foundation with
documented cases from across the country. We have almost 1,200
cases, and these are not just allegations in a newspaper of
someone saying they think they saw something wrong at a poll.
The only thing we put in our database are cases where someone
has actually been convicted of engaging in election fraud or a
court has found fraud and ordered a new election.
Some of these are isolated cases. One gentleman that we
have who was convicted of voting in three different States, but
there are other cases where it is organized, and particularly
often in absentee ballot fraud cases is an organized effort to
do that.
How widespread is the problem? Well, we don't know that.
But there are enough instances of it that the Supreme Court
thought it was sufficient to justify the voter ID law that the
State of Indiana had passed, and that is why they upheld it in
the opinion that was written by Justice John Paul Stevens.
Mr. Buck. Does H.R. 1 improve--or does H.R. 1 limit the
ability of those who want to commit fraud, or does it actually
expand the ability of those who want to commit fraud?
Mr. von Spakovsky. Oh, I think it is going to make it
easier to commit fraud. And I would point to the fact that it
severely restricts the ability of States, basically amending
the provisions that I think Congress wisely put into the
National Voter Registration Act. But it amends those provisions
to make it even more difficult to verify and check the accuracy
of voter registration rolls.
And remember, when it was upheld by the Supreme Court, they
pointed to a report, prior report that found there are almost 3
million individuals registered in more than one State, almost 2
million individuals who were deceased who were still on the
rolls.
Mr. Buck. Thank you.
Mr. Chairman, I yield back.
Chairman Nadler. I thank the gentleman. Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chairman.
Let me ask Ms. Ifill, I guess. The issue about felon voting
rights, Tennessee has a provision in its law that says that if
you are not current in your child support, you can't get your
right to vote back as a felon. You can be back on your child
support if you are not a felon and you can vote, but if you are
a felon, you can't get your rights back.
Do you know of any other State that has a such an
impediment to voting?
Ms. Ifill. Well, I do know that some States that have
sought to restore the right to vote to formerly incarcerated
persons have made that right contingent on the full completion
of the sentence.
Mr. Cohen. Right.
Ms. Ifill. Which can also mean the payment of fines or
fees, can also mean probation. And so it is not predicated
simply on having been released from prison, but it carries with
it all of the additional things that might go along with a
sentence.
Mr. Cohen. Yes, Tennessee has that. But they also have
child support.
Ms. Ifill. I have not heard that imposed in other
jurisdictions.
Mr. Cohen. It was--anybody on the panel heard of child
support?
[No response.]
Mr. Cohen. I sponsored the bill in the Senate to restore
voting rights, and that was put in by a House member, and I
think it was done for pernicious basis. It is hard to keep
current on your child support if you are in prison for a long
time anyway, but that is still part of the law.
Where are the States, Ms. Ifill, that have--most of the
States that have prohibitions on people having the opportunity
to vote if they have committed a felony?
Ms. Ifill. Well, they have been all over the country, but
certainly, there was a concentration in the South. As you may
know, some of the history of these laws emanated at the turn of
the 19th century, I guess the turn of the 20th century. After
Southern States received back their power, they passed new
constitutions. This is after the Civil War and after
Reconstruction around 1900, and we saw the expansion of ex-
felon voting restrictions in State constitutions during that
period when there was a very robust effort to try and
disenfranchise at that point newly freed slaves who had been
free for several decades.
Mr. Cohen. I was a history major, and so it astonishes me.
It is amazing. You know, in Memphis, we had a statue of General
Nathan Bedford Forrest, and it was recently taken down. And it
was put up right at the turn of the 19th, the 20th century. It
is amazing how that coincided with the felon voting issue.
Ms. Ifill. Yes.
Mr. Cohen. Just things happen, amazing.
Of the States that were in the preclearance, seven of the
nine were Southern States. Is that correct?
Ms. Ifill. That is correct.
Mr. Cohen. There were a lot of smaller jurisdictions in New
York and Michigan and some other areas of the country. What
percentage of the country that was in preclearance that was
justified were in the old Confederacy, by population, do you
guess?
Ms. Ifill. Most of them. Certainly most of them.
Mr. Cohen. Yes.
Ms. Ifill. Most of the jurisdictions that came in that were
in the North came in in the 1970s under the language provisions
of the amended Voting Rights Act, and that is when three
boroughs of New York, for example, became part of the
preclearance regime.
Mr. Cohen. And the State of North Carolina, wasn't their--
Ms. Gupta, you mentioned that North Carolina and one other
State--was it Texas--that jumped right into action and put in
some old bans after that?
Ms. Gupta. That is correct.
Mr. Cohen. So North Carolina was not one of those seven,
has kind of moved up and joined the--is that correct? Is North
Carolina one of the worst States now?
Ms. Gupta. There were jurisdictions in North Carolina that
were covered by the preclearance regime, but there are
certainly, I will say--and this is exactly why we welcome the
opportunity to develop a full record about contemporary
discrimination. Unfortunately, we have seen an expansion, kind
of a metastasization of voter suppression now around the
country.
It used to be that you saw these kinds of overt acts in the
South, and unfortunately, the disease of voter suppression
really has metastasized to a lot more jurisdictions around the
country. And we saw in North Carolina, the State actually
enacted a statewide law that was considered the most
restrictive in the country after Shelby County.
Mr. Cohen. How would you recommend to us to find the
jurisdictions that are the most heinous in terms of finding
ways to discriminate?
Ms. Ifill. Well, we welcome the opportunity to develop a
record, to give testimony. A lot of our organizations in the
Leadership Conference coalition, including the NAACP Legal
Defense Fund, MALDEF, Lawyers Committee, Brennan Center, we
have been collecting this evidence as best we can, documenting
small and big changes that have prevented people of color from
accessing the polls when laws were changed or changes were
made, both small changes and big.
And it is imperative that we collect this evidence, put it
before you so that you can restore the Voting Rights Act in
concordance with the United States Supreme Court's opinion in
Shelby and create a formula that will allow the Justice
Department now to ensure before people lose the right to vote,
before elections take place, that people are not unfairly and
unlawfully prevented from participating in our democracy.
Mr. Cohen. My time is about out, but if I can ask
indulgence. You know, our Constitution is a great document, I
concur. But you have to remember that the original sin of this
country was slavery, and the original document was drafted with
slavery in mind. That is why African-Americans were considered
three-fifths. Not three-fifths for voting rights, but three-
fifths for purposes of Southern States having representation in
Congress and in the electoral college, to maintain the system
of slavery that was in this country.
It was part of our charter. And except for the Civil War
and the Thirteenth, Fourteenth, and Fifteenth Amendments, we
would still be there, and we are still fighting it today. And
it took John Lewis in 1960s to go to Selma and to march and Dr.
King to march and for us to get a Voting Rights Act. We are way
behind, and we need to catch up and remove ourselves from that
original sin.
I yield back the balance of my time.
Chairman Nadler. I thank the gentleman. Mr. Gaetz.
Mr. Gaetz. Thank you, Mr. Chairman.
I wanted to begin by congratulating you on your ascent to
the chair and by expressing my sentiment that though we are not
members of the same party, I have every confidence that during
your leadership, this committee will be more engaging and
transparent and robust in the discussion than we were during
the 115th Congress.
Chairman Nadler. Thank you very much.
Mr. Gaetz. I will say that I had hoped that at one of our
initial meetings we would have been giving powers back to the
States in the form of removing cannabis from the list of
Schedule I drugs rather than taking powers from the States.
I will also note that with some of the new additions on the
Republican side, I think the committee would be very favorable
to that. If we were any more favorable, we might have to start
our meetings with the Grateful Dead. So I am----
Chairman Nadler. Let me just observe on your time that we
may be discussing that fairly soon.
Mr. Gaetz. I look forward to it.
Today is about voting. I wanted to tell the story of
Anthony Grant. He is from the town of Eatonville, Florida,
wanted to be mayor. Ran, lost the vote on Election Day. But lo
and behold, Mr. Grant got more than twice as many votes in the
vote by mail system. We later found out that Mr. Grant had
intimidated people who did not even live in the town of
Eatonville to mail in ballots.
And so my question is, I guess to Ms. Gupta, you say that
your organization believes that we ought to restore
automatically the voting rights of people who have engaged in
felonious conduct. Mr. Grant was convicted of a felony. When he
is done with his probation and community service and time,
should we allow him to vote again?
Ms. Gupta. The Leadership Conference would say yes. After
people have completed their sentence and served their debt to
society, the right to vote should be restored. I think it
should be----
Mr. Gaetz. Well, I want to reclaim my time. I am a country
lawyer from North Florida, but it doesn't make much sense to me
that the way to make our voting system more secure and more
trusted is to empower the people who have degraded that system
to come back and participate in it.
Another circumstance, James Webb Baker. Mr. Baker was from
Seattle, but he wanted to influence elections in my State of
Florida. And so he would send mailers intimidating people who
participated in Republican efforts, really trying to threaten
them if they would go vote.
We caught up with Mr. Baker. He was ultimately convicted.
So you think Mr. Baker ought to be able to vote, even though he
intimidated my voters in Florida?
Ms. Gupta. I don't know the specific circumstances of that
matter, but I think it is very important to recognize that
felony disenfranchisement laws are a product of Jim Crow. They
were born in explicit racism with legislatures standing up in
the 19th century, constitutional conventions deliberately
bragging about their ability to use the disenfranchisement----
Mr. Gaetz. Right. But I am not asking about those people,
ma'am. I am not asking about that. I am talking about the
people who go out of their way to intimidate voters. And what
you are saying is that then we ought to let those people back
into the system.
And I noted in your written testimony, you said that the
reason that we have to automatically restore voting rights to
felons is because of our racially violent past. Now H.R. 1,
which you are here endorsing, does it make a distinction
between people who have engaged in violent felonies and people
who have engaged in nonviolent felonies and the automatic
restoration of their rights?
Ms. Gupta. H.R. 1 restores voting rights to people with
felony convictions who have completed their sentence.
Mr. Gaetz. Violent or nonviolent, right?
Ms. Gupta. So it does not--and let me just add that when
you say ``automatically get added to the rolls,'' there is
nothing in H.R. 1 that replaces election officials' reviews of
eligibility. They still review a registration before they are
accepted into the----
Mr. Gaetz. Ma'am, I am limited on time. But that review of
eligibility does not allow them to delineate between the
violent and nonviolent. So I am looking at Anthony Bruton.
Anthony Bruton committed sex acts with a 12-year-old at knife
point, then he threatened to cut her throat and bury her. He
spent 5 years in prison for that offense.
And so then like if Anthony Bruton, under H.R. 1, were to
move out of Florida and would have moved to the State of
Missouri, where they had on the ballot a ballot question that
dealt with whether or not your past criminal conduct in violent
sexual acts would be considered in sentencing, would H.R. 1
have allowed Mr. Bruton to rape a 12-year-old at knife point,
move to another State, and then vote against actions that would
allow that to be considered at a subsequent sentencing?
Ms. Gupta. Sir, our criminal justice system needs to hold
people accountable for the crimes that they commit. What H.R. 1
does is uphold voting as a national symbol of equality and full
citizenship. It would restore the right to vote to people who
have completed their sentence and served out their debt, per
the criminal justice system----
Mr. Gaetz. Yes, I get that.
Ms. Gupta [continuing]. Accountable.
Mr. Gaetz. I just want to make the point that it is like
everybody. In the State of Florida, we passed a ballot
proposition that created a path for nonviolent felons to be
able to participate in the process again.
But what this does is that this bill would allow someone
like Nardo Harmon, who broke into the homes of people and raped
11-year-old victims. So he gets out of his house, breaks into
somebody else's house and rapes an 11-year-old. But if H.R. 1
were the law, and Nardo Harmon did that, he would then be able
to go vote against California Proposition 83 that would have
required him to wear a GPS monitoring device.
So I think that like there are some things you can do that
are so bad, the degradation of people's right to vote,
intimidating people from voting, raping children, that probably
surrenders your right to participate in those decisions in the
future.
I appreciate the chairman's indulgence, and I yield back.
Chairman Nadler. Thank you. Mr. Johnson.
Mr. Johnson of Georgia. Thank you, Mr. Chairman, and thank
the esteemed panel for your presence today.
I am reminded of the trip that Justice Scalia took. It was
his last one. It was to the 30,000-acre resort home with
exquisite furnishings and lodging owned by John B. Poindexter,
a Houston-based manufacturing industrialist who had had
business before the U.S. Supreme Court the year before, which
resulted in the U.S. Supreme Court deciding not to hear his
case. Justice Scalia did not recuse in that matter.
But anyway, he is at this luxury resort, 30,000 miles--
30,000 acres, miles away from the nearest airport. The travel
was by private jet from Washington to Texas, and then to get
from the airport in Texas out to that exclusive area, which was
only 30 miles away from the Mexican border, took some doing.
I don't know if it was by a helicopter or by a limo.
Certainly not a cab. But, and there were 35 other guests
hanging out at that weekend jaunt.
Mr. Poindexter admitted to the Washington Post that he did
not charge Justice Scalia to come and spend that weekend at
that exclusive resort or hunting preserve, whatever it is. But
the fact that he was there, the fact that we don't know who
paid for it, how much it cost, who was present. It could have
been people with pending business before the U.S. Supreme
Court, who had the opportunity in those exclusive confines to
be able to discuss their case or the issues involving their
case with Justice Scalia.
Does anyone, particularly you, Ms. Turberville, have any
problems with the--with the visual that I have tried to
describe you to and what that does to the public's ability to
have confidence in the integrity of the judiciary, particularly
the U.S. Supreme Court?
Ms. Turberville. Thank you, Congressman.
I could not agree more that those are the types of
instances that I think give rise to the public's perception
that the Justices play by a different set of rules. And I think
those instances also make clear that, you know, perhaps there
was nothing that was inappropriate occurring at that ranch with
Mr. Poindexter.
But we are no longer in the position of being able to give
the high court the benefit of the doubt, and it would seem to
me that it is appropriate for this Court, whose decisions
impact a far broader swath of America than any other court in
the country and whose decisions are irreversible, to be held,
at minimum, to a basic code of conduct and one that could have
commentary that would address these kinds of circumstances.
So I think that many Americans are bothered by instances
like that. This is not a partisan issue. There have been
instances of Justices from both the conservative wing and the
liberal wing who have perhaps engaged in conduct that we don't
know all the facts about, but the disclosure rules are not that
robust either.
Mr. Johnson of Georgia. The fact is that H.R.--Section 7001
of H.R. 1 would require the Judicial Conference to issue a code
of conduct that would apply to all Federal judges, including
U.S. Supreme Court Justices.
Mr. von Spakovsky, you take issue with that. Your opinion
is that because the U.S. Supreme Court is constitutionally
established, not legislatively, and it is coequal and
independent, then it logically follows that the legislative
branch cannot impose a code of conduct on the Supreme Court.
Ms. Turberville, you disagree with that. Why?
Ms. Turberville. Well, I think that there is a long history
of this--of the Congress exercising its constitutional
prerogative to pass laws that govern the form and function of
the United States Supreme Court. And that includes recusal
decisions. That includes financial disclosure obligations. That
includes, I said this a little bit earlier, mandating the size
of the Court and determining the length and the date of the
term of the Supreme Court.
Here, we are not even talking about looking to the sort of
complaint process like that found in the Judicial Conduct and
Disability Act. We are talking about a basic code of conduct
that the highest court of the land ought to bind itself to.
And I would--I also want to let the committee know that I
have looked into the most recent polling on this conducted by a
group called Fix the Court, and they actually enlisted both
sort of Republican-aligned and Democratic-aligned polling
company and found that 86 percent of Americans support a code
of conduct for the Supreme Court. You cannot get 86 percent of
Americans to agree on anything.
So I would suggest that this is something whose time has
come, that the American people support, and that would be a
very good thing for the legitimacy of our Nation's highest
court.
Mr. Johnson of Georgia. Thank you.
Chairman Nadler. The time of the gentleman has expired. Mr.
Biggs.
Mr. Biggs. Thank you, Mr. Chairman.
Mr. Adams, in your written testimony on page 2, you say,
``On the other hand, H.R. 1 presents an opportunity to educate
the public about how various provisions in H.R. 1 that are
already the laws of some States, like California, have injected
vulnerabilities into the elections process.'' And I wondered if
you would expand for us on what those vulnerabilities might
look like and what they are?
Mr. Adams. Right. California, for many, many years after
the passage of the Help America Vote Act, failed to comply with
it. What was that noncompliance?
The Help America Vote Act required reasonable list
maintenance. Now some people prefer to call it purging because
it scares people, but it is reasonable list maintenance on
duplicates, deads, people who are on the rolls who have moved
away. And California was supposed to implement a statewide
database so you could compare Los Angeles County with San Diego
County and so forth and see who is registered in multiple
places.
Well, California didn't do that for 20 years, and what it
created is a system that the evidence has shown has voter rolls
with huge numbers of inactive people who no longer live where
they are registered to vote. And that is exactly the kind of
thing that H.R. 1 would promote because it gets rid of
reasonable list maintenance opportunities for State election
officials.
Mr. Biggs. Thank you. And I guess for States like Arizona
that have passed an independent redistricting commission, this
bill would actually basically remove our voter-elected, voter-
mandated IRC format, which I am not sure I think works great,
but it nonetheless is what the voters wanted and it is working
the way I think the voters intended it to vote. And it would
supplant it with some Federal scheme.
Elaborate on the rationality of that, please.
Mr. Adams. What it does is take over a power the State
legislatures have in the Constitution. Now we have heard
testimony that this is justified because of the Civil War
amendments, that rampant voter discrimination allows the
Federal Government to mandate redistricting commissions.
Well, look, I couldn't even get Gingles I, which is a
prerequisite for bringing a voting rights case, in a lot of
these States probably--Vermont, New Hampshire, Maine, maybe
Washington, Idaho, Utah, maybe Kentucky, maybe Wisconsin,
Minnesota. These are States you couldn't even bring a voting
rights claim for redistricting probably. And more importantly,
Mr. Biggs, nobody has brought voting rights claims in some of
these States.
So Congress, to use the Fifteenth Amendment is a dead end
for independent redistricting commissions because there is no
showing of racial discrimination.
Mr. Biggs. And actually, it centralizes power that may not
need to go there, specifically for States like Arizona that
have already taken care of it.
Mr. von Spakovsky, I am looking at your written testimony
on page 8 and 9, and one of the things you refer to is the, for
instance, the civil penalty on failure to properly comply with
FARA, and maybe it is potentially a due process or certainly
inconsistent with the very notion of due process principles. I
would like you to expand on that, please.
Mr. von Spakovsky. Sure. I mean, look, I am the first to
tell you I think the Foreign Agent Registration Act is a good
law passed by Congress. It is needed. We need to know if
lobbyists, for example, are representing foreign government.
But the problem with the amendments to it is that it adds a
very large civil penalty.
And look, this Congress for the past year has been looking
at the issues of overcriminalization in reforming our criminal
system. And yet one of the other things that needs to be looked
at is onerous civil penalties that are imposed not under the
kind of high legal standard that you need as in a criminal
violation, but under a preponderance of the evidence standard.
And I think there are due process considerations there that
ought to be given serious thought by Congress before it does
this, particularly because, you know, it adds this new
provision in about if you are--if you don't comply with a 60-
day deadline, if you are one day over that, you may have a huge
civil penalty imposed.
And I just think it is an important law. There has been no
evidence produced that the Justice Department is failing to
properly prosecute it. In fact, we have seen recent
prosecutions under the law. And before you enhance it and add
huge civil penalties, you should think about making sure that
the due process requirements for the Justice Department to
impose something like that also protect the rights of the
American people.
Mr. Biggs. Thank you. My time has expired.
Chairman Nadler. Thank you. Mr. Deutch.
Mr. Deutch. Thank you, Chairman Nadler, Ranking Member
Collins.
Thanks to our distinguished panel of witnesses for being
here today.
I want to start just by saying I appreciate Mr. Buck's
concern over voter fraud and would refer him to President
Trump's now disbanded voter integrity commission, which
uncovered no evidence to support claims of widespread voter
fraud.
Mr. Chairman, our first priority in this committee is
protecting the integrity of our democracy. Broken campaign
finance laws allow limitless special interest dollars to create
a wedge between the American people and their government. Dark
money, in effect, loopholes promote a lack of accountability on
the campaign trail, in the White House, on the bench, and in
Congress.
Voter suppression and gerrymandering make it harder for
Americans to get to the polls and harder to have their voices
heard in this Congress. H.R. 1 is a set of desperately needed
repairs to the foundation of our representative democracy.
Mr. Noti, January 21st marked 9 years since the Supreme
Court's 5-4 decision in Citizens United. That decision, as you
pointed out, opened the floodgates of limitless election
spending that allows wealthy special interests to drown out the
voices of American voters. Could you speak to how limitless
election spending threatens the integrity of our elections?
Mr. Noti. Yes, thank you for the question, Congressman.
Limitless spending by corporations threatens the integrity
of the elections because the corporations who are engaging in
the spending are not voters. They distort the process by
drowning out the voices of ordinary American citizens who
actually are the voters and to whom the Government needs to be
responsive and accountable if democracy is going to work.
Mr. Deutch. But the Court claimed to be protecting First
Amendment free speech rights of corporations. So how does
limitless outside spending hurt First Amendment rights to
participate in the political process?
Mr. Noti. So the Court recognized or the Court for the
first time said that corporations have a First Amendment right
to engage in unlimited so-called independent spending in
campaigns. What that ignored and the fundamental flaw of the
opinion is that there is a competing First Amendment interest
of ordinary Americans--actual voters--to participate
meaningfully in that process, which is impossible if their
voices are drowned out to the level of inaudibility by massive
corporate spending.
Mr. Deutch. Right. So in the 2016 election cycle, the
National Rifle Association spent $54 million on so-called
independent expenditure political ads, funneling much of it
through dark money groups. Your organization, Campaign Legal
Center, filed a complaint against the NRA based on its election
spending. Why?
Mr. Noti. There are strong indications that some of the
spending that the NRA engaged in was coordinated with a number
of Federal candidates in that election, which coordinated
campaign spending is equivalent to a campaign contribution,
which would be unlawful under a number of existing provisions
of law.
Mr. Deutch. And the tens of millions of dollars spent on
independent expenditures violates the integrity of our
democracy in what way?
Mr. Noti. I think it goes back to the point we discussed
earlier, Congressman, that that amount of money cannot be
matched reasonably by ordinary people. And so this corporate
entity can drown out the voices of the people who should
actually have the main effect on elections, who are the voters.
Mr. Deutch. And what impact does that have on Congress'
policymaking?
Mr. Noti. Well, the----
Mr. Deutch. Let me answer that for you, Mr. Noti. Here is
the impact that that has.
The impact that that has is that common sense gun safety
measures that have the support of over 90 percent of the
American people don't even get a hearing. That is the impact
that it has. It is clear, Mr. Noti, Mr. Chairman, members of
this committee, that the majority of American people know that
Citizens United isn't working.
A May 2018 poll by the University of Maryland found that 66
percent of Republicans--I ask my friends on the other side of
the aisle to take note. Sixty-six percent of Republicans and 85
percent of Democrats want a constitutional amendment that will
overturn Citizens United to allow for limits on money in
politics. Nineteen States and nearly 800 localities have passed
resolutions in support of a constitutional amendment.
Citizens United is not protecting the First Amendment
rights of Americans. It is not giving us elections that produce
governments of, by, and for the people. Citizens United is
giving us a government that can't fix problems because it is
paralyzed by corruption. Citizens United is standing in the way
of important priorities like workers getting a living wage,
finding solutions to climate change, and making our communities
safer from gun violence.
That is why I sponsor the Democracy for All amendment to
overturn Citizens United. That is something that we need to do.
H.R. 1 acknowledges what most Americans know, that Citizens
United is hurting our republic, and we need to overturn it. If
we want Congress and the rest of our Government to respond to
the will of the people, we need to repair our democracy.
H.R. 1 is a fantastic start, and I look forward to working
with the committee to further examine the damaging impact of
Citizens United and working to overturn it. This is only a
partisan issue in Washington. Everywhere else in America, we
know that we have to pass H.R. 1, and we have to overturn
Citizens United and restore democracy to the American people.
I yield back.
Chairman Nadler. Thank you.
Ms. Lesko.
Ms. Lesko. Thank you, Mr. Chairman. And my question is for
Mr. von Spakovsky. Representative Collins suggested several
alternative names to this act, and I would say this bill should
be calling ``Fleecing the People Act.'' It contains a
provisions where Federal tax dollars from hard-working middle-
class families and single mothers would be lining the pockets
of politicians to pay for nasty TV ads and robocalls, and
paying for politicians' personal childcare and healthcare.
Under this bill, it is estimated that at least $3.9 billion
of taxpayer dollars would line the pockets of House
congressional candidates based on estimates from Bloomberg, and
an estimated $6.25 billion would line the pockets of
presidential candidates based on the formula in this bill and
the 2016 election, for a total of $10.1 billion of taxpayer
dollars. To me, this is an outrageous, outrageous use of
taxpayer dollars.
You know, Democrats recently, we were in a battle. They
blocked funding for a border fence. In Arizona, border security
is very important. Now, under this bill, they want to use
taxpayer dollars to line the pockets of politicians. To me, it
appears they would rather secure their own election than secure
our borders and our Nation. My question to you is do you
believe this is a good use of taxpayer dollars, sir?
Mr. von Spakovsky. I don't and I would also say it is
unconstitutional, the reason being that, as you know, Americans
have associational rights that have been upheld by the U.S.
Supreme Court, very important associational rights, and upheld
by very important Supreme Court decisions. And forcing
taxpayers to provide taxpayer money for candidates running for
office, particularly candidates who they don't support and
whose ideas they don't like, I think violates basic
associational rights.
That is very different than taxes being used for government
programs and government budgets. And that is why you contrast
this with the public funding program that is in place. I was a
commissioner for 2 years on the Federal Election Commission. We
administered the public funding program, for example, that
provides campaign funds for the nominees of the political
parties, the Democratic Party and the Republican Party, during
the general election if they agree to give up private
fundraising. That money is funded not through tax dollars. It
is funded through voluntary contributions by Americans. You
know, there is a checkbox on their tax returns where they can
agree to contribute to it.
That is perfectly constitutional because you are not
forcing Americans to provide political contributions to
candidates that they do not support. But I think using taxpayer
dollars for that same kind of program, to me is clearly
unconstitutional.
Ms. Lesko. Thank you, sir. And, Mr. Chair and Mr. Adams, do
you have any responses to any of the previous testimony that
you have heard today?
Mr. Adams. Well, look, there are a lot of ideas that people
have about elections. Having an omnibus Federal bill to fix
everything is not the sort of thing that the Constitution
envisions. I mean, to mandate independent redistricting
commissions, for example, when you have States that have never
had a redistricting lawsuit, and to say that somehow the Civil
War amendments and the long history of Jim Crow allows Congress
to impose an independent redistricting commission on Utah
really pushes the outer limits of the Constitution.
Ms. Lesko. Thank you. I yield my time back.
Chairman Nadler. I thank the gentlelady. Congresswoman
Bass?
Ms. Bass. Thank you very much, Mr. Chair, and thank you for
holding this hearing. I wanted to ask Mr. Adams, you mentioned
several things. You mentioned that registering to vote is easy
now, almost anybody could, power to the States. I was
wondering, well, number one, when you heard Ms. Gupta and Ms.
Ifill's testimony, and they described very specific incidents
that happen, what is your response to that? Are they lying?
Mr. Adams. They weren't lying, but it made me think of
South Carolina, South Carolina, where I had brought at least
one voting rights case in Georgetown County to allow African-
Americans to win school board seats. In South Carolina, they
had a voter ID law just like in Texas, and using the
preclearance requirement----
Ms. Bass. Wait, wait, no, stop because they gave very
specific examples of voter suppression. You said it is easy to
vote, you know, everybody can vote, no problems, why are people
interfering in this. If that is the case, then why did the
incidents that they described happen? Why did that happen?
Mr. Adams. I think a full hearing about what happened in
Texas is worth something.
Ms. Bass. But I am asking you about Georgia. I am asking
you about Georgia----
Mr. Adams. Well----
Ms. Bass [continuing]. Where the secretary of state did not
recuse himself. Do you think he should have recused himself?
Mr. Adams. Of course not. He is the State-elected
official----
Ms. Bass. So even though he was running, you thought that
that was fine for him to do that.
Mr. Adams. There was no legal obligation to do that when
you run the election----
Ms. Bass. So what about the fact that he purged over a
hundred thousand people from voting?
Mr. Adams. Well, that is called reasonableness maintenance,
and it was legal----
Ms. Bass. That is called reasonableness maintenance. I
think that is called voter suppression. You know, I served----
Mr. Adams. But that is what the law required him to do.
Ms. Bass. Wait a second. Excuse me. I serve on the Foreign
Affairs Committee and I travel the world. I spent last year in
Zimbabwe, the year before that in Kenya doing election
observation. And I have to tell you that some of the things
that have gone on in this country have been an absolute
embarrassment. The fact that in the United States in 2019 we
make it difficult for people to vote, we block people from
voting. I mean, to use the Georgia example in Zimbabwe, you
know, it is very embarrassing.
And I just don't understand when you said that Alexander
Hamilton, you were quoting him and you said ``just because we
can doesn't mean that we should.'' So States pass laws and they
passed laws right after the Supreme Court decision, and I think
our chair pointed that out. Well, just because they could, they
did that. So you said that just because the Federal government
can pass a law doesn't mean we should. So what do you have to
say for States that within 24, 48 hours after the Supreme Court
decision passed an array of measures that made it more
difficult for people to vote?
Mr. Adams. Congress did pass a law in 1993 that allowed the
secretary of state of Georgia to do exactly what he did.
Ms. Bass. And was that right, just because they could?
Mr. Adams. It complies with the Federal laws.
Ms. Bass. So that was right. And so what about the fact
that a number of these States, African-Americans, Latinos
specifically have had difficulty voting? Is that all just
fiction?
Mr. Adams. Absolutely not, and that is why I brought
multiple voting rights cases----
Ms. Bass. You have brought multiple voting rights cases,
but you basically in your opening testimony described it as
though there was no problem.
Mr. Adams. No, that is not accurate.
Ms. Bass. I would like to ask Ms. Gupta and Ms. Ifill to
respond. Ms. Gupta.
Ms. Gupta. Well, I think that the evidence that we have
laid out about the numerous instances in the last several years
around voting rights suppression efforts in Georgia, in
Alabama, in North Carolina, even in the recent midterm
elections, demonstrates the need to actually develop a rigorous
record that would support the reauthorization and the
restoration of the Voting Rights Act.
Ms. Bass. Do you think that needs to happen, Mr. Adams?
Mr. Adams. I am sorry. I didn't hear the question.
Ms. Bass. What she just said.
Mr. Adams. Whether or not Section 5 should be authorized?
Ms. Bass. Mm-hmm.
Mr. Adams. With constitutional triggers. That is the way to
do it.
Ms. Bass. Ms. Ifill.
Ms. Ifill. I think it is vital that we speak honestly in
this hearing about the situation with voting in this country.
We have lots of euphemisms that we use, like ``list
maintenance,'' to cover things like purges. And I represent
people in communities all over this country who are the victims
of these measures that are well known to have a disparate
effect on African-American and Latino voters: exact match, the
system used in Georgia, cross check, the system used by Kris
Kobach in Kansas.
Ms. Bass. Excuse me. Mr. Von--I do not want to mispronounce
your name--do you think what she is saying is fiction? Did this
happen?
Mr. von Spakovsky. I think she is wildly exaggerating and
claiming that discrimination is occurring in many instances.
Ms. Bass. So do you think discrimination occurred in the
2018 election?
Mr. von Spakovsky. May I answer the question, ma'am?
Ms. Bass. Well, I am not finishing asking.
Mr. von Spakovsky. I will give you a good example. I will
give you a good example. North Carolina, Texas, and South
Carolina all have a virtually identical voter ID law. It has a
reasonable impediment----
Ms. Bass. But let me just reclaim----
Mr. von Spakovsky. It has a reasonable impediment----
Ms. Bass. Let me just reclaim my time. Excuse me. I am
speaking right now. Well, I guess----
Mr. von Spakovsky. Well, you are not allowing me to answer
my----
Ms. Bass. Well, you said enough, okay? You said enough. I
think----
Mr. Collins. Mr. Chairman----
Ms. Bass. I think what has gone----
Mr. Collins. Regular order. I mean, the witness is either
going to answer the question or not.
Ms. Bass. Oh, I wasn't done. He answered. He said enough.
Chairman Nadler. The gentlelady will suspend. The
gentlelady controls the time. The gentlelady will resume.
Ms. Bass. Thank you. Let me just conclude by saying that
the idea that we did not have problems in the 2018 election,
the idea that all the testimony from Ms. Gupta and Ms. Ifill
was just an exaggeration is really an embarrassment, and I
think people should be ashamed of themselves.
Mr. von Spakovsky. May I respond, Mr. Chairman?
Chairman Nadler. Yes.
Mr. von Spakovsky. Thank you. I did not say there were no
problems. What I said was many of the problems have been
exaggerated. There are still serious cases of discrimination
that occur in this country, but they are rare. And the reason I
talked about Texas, North Carolina, and South Carolina is that
all three have voter ID laws that are virtually the same in
that each State has what is called a reasonable impediment
exemption. So any voter can vote at the polling place even if
they don't have an ID as long as they fill out a form saying
they had a reasonable impediment that kept them from getting an
ID.
The South Carolina ID provision was upheld by a three-panel
court in the District of Columbia. The Texas ID provision has
been approved by the Fifth Circuit U.S. Court of Appeals.
Ms. Bass. Mr. Chair.
Mr. von Spakovsky. The Fourth Circuit did not approve the
North Carolina case. So you have a disagreement among Federal
judges over those decisions.
Chairman Nadler. The gentleman will suspend. The
gentlelady?
Ms. Bass. Yeah, I just wanted to know if Ms. Gupta and Ms.
Ifill couldn't respond because I disagree with him.
Chairman Nadler. Mr. von Spakovsky, one or two more
sentences, and then Ms. Gupta and Ms. Ifill.
Mr. von Spakovsky. I would also point out that the Texas
voter ID law which is currently in place, at the time that an
interim remedy was approved by the Federal district judge in
that case, the Justice Department filed a pleading in that case
agreeing and approving that an ID requirement with a reasonable
impediment exemption was an appropriate interim remedy for that
Section 2. And the person whose name was at the top of that
pleading was Ms. Gupta.
Chairman Nadler. Thank you. Ms. Gupta.
Ms. Gupta. I need to make very clear that the North
Carolina and Texas examples, and my colleague, Ms. Ifill, will
talk about Texas, were exceedingly clear where the Federal
appellate court in the Fourth Circuit in 2016 described North
Carolina's monster voter suppression law, enacted just days
after the Shelby County/Holder decision, described the law as
``the most restrictive voting law North Carolina has seen since
the era of Jim Crow'' with provisions that ``target African-
Americans with almost surgical precision.'' That was in 2016.
Chairman Nadler. Ms. Ifill.
Ms. Ifill. This is the kind of testimony that I think is so
disturbing because it is so misleading. The South Carolina
voter ID law, which ended with the reasonable impediment
provision, actually that provision was the settlement, was an
agreement after the voter ID law had been challenged in court.
The reasonable impediment provision in the Texas voter ID law
is part of the settlement of the law that we challenged that I
described to you earlier. That was the most restrictive voter
ID law in the country, and the same for North Carolina.
In other words, to the extent that these voter ID laws now
include this reasonable impediment exception, it is because we
had to litigate it over years. And the settlement of those
cases came after years and years of elections in which voters
were disenfranchised and unable to participate in the political
process. And it is this kind of shading of the truth, shading
of the reality of what it takes for lawyers and communities to
challenge discriminatory voting practices, that is the reason
why we need H.R. 1, because the words, ``exact match'' and
``cross check'' and all of this, masks what is the reality.
If we have a long history of voter fraud in this country,
we have a longer history of racism and voter
disenfranchisement. It is time we stop dealing with fantasy and
we deal with facts. Mr. Adams and Mr. von Spakovsky have had
years to prove the existence of widespread, in-person voter
fraud that would justify voter ID, and they have been unable to
do that. What they have included on their Heritage website is
mostly about fraud in absentee voting, and we have always
conceded that to the extent voter fraud exists, that is where
it happens. It is not in-person voter fraud.
The facts are there. The studies have been done. What we
have been citing, these are not the words of Sherrilyn Ifill or
Vanita Gupta. These are the words of Federal judges in courts
not known, by the way, for being particularly liberal, who have
found intentional discrimination in the creation of voter
suppression laws. This is a real challenge for our democracy,
and we have to start dealing with facts. We have to stop
dealing with fantasy. And I am grateful that H.R. 1 is taking
this broad-based approach and that Congress is standing up to
use the power that you are given under the Constitution to
restore the integrity of our electoral system.
Chairman Nadler. Thank you. The time of the gentlelady has
expired. Before I yield to Mr. Reschenthaler, I yield to Ms.
Jackson Lee for a unanimous consent request.
Ms. Jackson Lee. Yes. Following the line of questioning
that I had, I would like to introduce into the record the 12
Russians that were indicted for obvious voter fraud by the
Mueller investigation, and then a statement regarding Maria
Butina, who focused her efforts on forging ties----
Chairman Nadler. Yeah.
Ms. Jackson Lee. I ask unanimous consent for the first
document.
Chairman Nadler. Hearing no objection, both documents will
be entered into the record.
Ms. Jackson Lee. And the----
Chairman Nadler. Both documents will be entered into the
record.
Ms. Jackson Lee [continuing]. Butina where she was involved
with the National Rifle----
Mr. Collins. I believe they have already been admitted, Mr.
Chairman.
Chairman Nadler. They have been entered into the record.
[The information follows:]
MS. JACKSON LEE FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. I want to let the members know that we
plan to continue until votes are called at about, I think,
1:45, it is anticipated, and we do not plan to take a lunch
break. Mr. Reschenthaler.
Mr. Reschenthaler. Thank you, Mr. Chairman. Before I get to
my question, Mr. von Spakovsky and Mr. Adams, is there anything
that you feel that you need to respond to before I continue?
Mr. Adams. Yes, thank you very much. We can talk about
facts and we can talk about myth, but one thing is a fact, that
it was not a settlement that led to the South Carolina voter ID
being upheld. It was an opinion by the Court of Appeals. It was
an opinion that the reasonable impediment provisions of that
case made the South Carolina voter ID subject to Section 5
preclearance. It wasn't a settlement. What might have been a
settlement were subsequent cases based on that judicial
opinion.
Mr. Reschenthaler. Mr. von Spakovsky.
Mr. von Spakovsky. I would point out that Ms. Ifill seems
to have missed the provision on the Heritage website where we
recommend ID provisions not only for in-person voting, but also
for absentee balloting. I would also point out that in this
supposed epidemic of voter suppression, during the entire 8
years of the Obama Administration, they only filed five cases
under Section 2 of the Voting Rights Act. You can compare that
to, I believe, 3 times as many Section 2 cases that were filed
under the Bush Administration.
Mr. Reschenthaler. Thank you, gentlemen. I just want to
elaborate on what my colleague, Congresswoman Lesko, was
talking about before. So I am the sole Republican and
representative from Pennsylvania on this committee, and I have
seen firsthand what happens when you let entities with
absolutely no accountability to the voters draw district lines.
Last year the Pennsylvania Supreme Court usurped the State
legislature's authority and, I would also argue, the authority
of the executive branch as well, by overturning the existing
congressional map and redrawing its own.
The U.S. Constitution gives State governments the power to
run their own elections. So by denying States the ability to
draw legislative districts as they see fit and instead forcing
them to use unelected, unaccountable commissions or the courts
to decide district lines, H.R. 1 takes power away from the
voters. It is my opinion that this is the opposite of a ``bill
for the people.'' Rather, it is a bill against the people's
rights to have their voice heard.
So Mr. von Spakovsky and Mr. Adams, could you each just
speak to the redistricting reform element of H.R. 1, and do you
believe this provision raises any constitutional issues? Thank
you, and I yield back the balance of my time after the answers.
Mr. von Spakovsky. Look, if the people of a State want to
on their own decide, either through the referendum process or
through their elected State representatives, to establish an
independent redistricting commission, they have the full
authority to do that. But for Congress to dictate this to all
the States is, I think, an anti-democratic measure. And there
are parts of this provision also that I think are potentially
unconstitutional, and I will give you an example of that.
This provision of H.R. 1 says that if a commission is not
established or if it doesn't adopt a plan, then the
redistricting lines for Congress will be drawn up by a three-
judge Federal court. Now, yeah, Federal courts get involved in
redistricting, but they only get involved when there has been a
violation of the Voting Rights Act because there has been
discrimination in the drawing of the lines or because the equal
protection doctrine of the Fourteenth Amendment, one person/one
vote, has been violated because the districts are equal enough.
And that is appropriate and courts do that.
But this bill would give the judicial branch the ability to
draw up lines when there has been no such violation. And so, in
essence, you are taking a power the Congress gives to the
legislative branches and you are giving it to the judicial
branch, and I think that part of the bill is potentially
unconstitutional. And the other part of it, I think, is very
anti-democratic, taking away from the people of a State the
right to decide whether in their State how redistricting lines
should be drawn.
Chairman Nadler. Thank you.
Mr. Cicilline. Thank you, Mr. Chairman, and thank you for
prioritizing H.R. 1. I also want to thank Ms. Gupta, Ms. Ifill,
Mr. Noti, and Ms. Tuberville for your testimony and for being
extraordinary patriots in helping to protect our democracy.
The landmark legislation that we are considering this
afternoon will do what Democrats said we would do by reducing
the influence of corporate spending in political campaigns,
restoring ethics and integrity to government, and restoring
power to the American people. Widespread cynicism in America is
caused by a deep sense that the government doesn't work for the
people, caused by policies that amplify the voices of the rich
and powerful to drown out the voices of ordinary Americans, and
making it harder and harder for people to vote.
Here in America, our great democracy will only survive if
power resides with the people and not the powerful corporate
special interests. The first step we must take is to make sure
that every American has an equal voice in their government so
that government enacts policies that advance the public good.
Instead, too many Americans are getting crushed by healthcare
costs, childcare expenses, housing costs, low wages, and
ballooning student loan debt. They have watched Congress and
this Administration rig the rules for the wealthy and well-
connected while refusing to address the issues that really
matter in their lives.
We have also seen the voting process become an obstacle
course with ever-increasing burdens particularly on eligible
African-Americans and other communities of color and on young
and low-income voters. These problems have only been made worse
by the presence of dark money in our elections, which means
anyone can secretly impact our elections, including the
prospect of foreign adversaries. And that is why it is so
important that we pass H.R. 1, which will repair our democracy
by restoring real power to the people of this country and away
from the special interests and powerful corporations.
I am very proud that the legislation includes the Disclose
Act, which would require that we shed light on very corrosive
dark money in our elections, that it provides for automatic
voter registration, which I have introduced, and finally, that
it includes legislation to give the Justice Department more
authority to better enforce the Foreign Agents Registration
Act. Without fixing our broken system and taking power from the
powerful special interests and returning it to the people of
this country, it will be almost impossible to make progress on
the issues that are important to the American people, like
higher wages, lower prescription drug costs, reducing gun
violence, and responding to the urgent challenges of climate
change.
Last Congress, we saw what happens when politicians respond
to their donors and powerful corporations. Republicans voted to
take away healthcare for 23 million Americans and raise out-of-
pocket costs for millions. They gave billions of dollars in tax
breaks to the rich so that billionaires could avoid paying
their fair share, and then proposed paying for those tax breaks
by cutting Medicaid and Social Security. And they passed
legislation to please the NRA and ease firearm restrictions
even after many of the deadliest mass shooting in modern
American history. So this bill will return power to the people
and restore our democracy. It will help us clean up the culture
of corruption in Washington and focus on making sure our
government works for the people of this country.
Republican opposition to these reforms, as seen by the
almost farcical arguments that we have heard during this
hearing, is obvious because they benefit from this broken
system, as do their donors and their super PACs. And so I want
to associate myself with the remarks of Congresswoman Bass
about the sort of very disappointing positions of two of our
witnesses that are, frankly, arguing to disenfranchise
Americans from participating in their elections by misstating
evidence and that claims are being exaggerated.
But I would like to just ask you, Mr. Noti, you in your
written testimony addressed the real pernicious impact of
Citizens United, that from 2008 to 2016, these well-funded
outside groups spent over $5 billion, and there was an increase
in special interest spending of 900 percent. That decision of
Citizens United that invited the corporate takeover of our
democracy, which many are celebrating apparently at this
hearing, was premised on two assumptions in Citizens United:
one that a new campaign finance system would be a development
that pairs corporate spending with effective disclosure, and
two, that unlimited corporate spending would pose no threat of
corruption because these would be independent expenditures.
Would you describe how those two assumptions have actually
panned out in the complete loss of control of our democracy by
the American people and the complete hijacking of American
democracy by big corporate special interests?
Mr. Noti. Yes, Congressman. Those premises weren't true
when they were written, and they are not true now. They are
considerably less true now than they were then. As to
disclosure, the inherent characteristics of the corporate form
make it very easy for individuals and entities to route money
through corporations ultimately to super PACs or other outside
spenders, and thereby to cloak the ultimate sources of funds.
So that premise of Citizens United has not played out. And to
be clear, that is mostly the fault of the Federal Election
Commission who could have stepped in and stopped this and has
chosen repeatedly not to.
As to independence, again, the Federal Election Commission
has done nothing to ensure that this new category of outside
corporate spending is, in fact, independent. In every election
cycle, the sham of independence gets shammier, and there is
more and more coordination between the so-called outside
spenders and the candidates, contrary to law.
Mr. Cicilline. And why does that matter?
Mr. Noti. Because the premise of Citizens United, even if
you take it at its face, is that independent spending does not
corrupt, but direct contributions are corrupting, but a
coordinated outside expenditure is equivalent to a direct
contribution. So even if it is true that outside spending isn't
corrupting, and it is not true, but even if it were, within the
framework of Citizens United, this should still be unlawful,
and there is no First Amendment right to corrupt.
Mr. Cicilline. Thank you. I yield back, Mr. Chairman.
Chairman Nadler. I thank the gentleman. I now recognize Mr.
Cline.
Mr. Cline. Thank you, Mr. Chairman, and congratulations on
your ascension to the chairmanship of the committee. I look
forward to working with you during the session.
I wanted to focus on a couple of different issues coming
from the Commonwealth of Virginia where just about every one of
these issues is in play right now. But first, speaking to the
reality of voter fraud, which has been discounted by several of
my colleagues on the other side, we need look no further than
my own district where a gentleman is just finishing his prison
term in the Federal penitentiary for submitting fraudulent
voter registration forms to the voter registrar. And it was
only caught when he submitted a registration form for a
previously-deceased local judge that the registrar actually
identified the name, recognized it as a local judge who had
died some years prior, and alerted authorities.
But we do have voter fraud. It is in Virginia and it is
real, and we need to take steps to improve the integrity of our
voter rolls. But also I wanted to ask, because this does focus
on restoring the right of ex-felons to vote, one of the rights
which is taken away from individuals when they are convicted of
felonies. I would ask Ms. Gupta, does your organization support
the restoration of the additional rights which are taken away
from individuals when they are convicted of felonies?
Ms. Gupta. The Leadership Conference has advocated for
ending many of the collateral consequences that accompany
people even after they have completed their sentence. There
have been any number of studies that have been conducted that
actually indicate that people who have served their time, and
pay their commitment to the country, and who have their voting
rights restored are actually less likely to re-offend, and that
disenfranchisement actually hinders their rehabilitation and
reintegration into their community. And so there are public
safety reasons actually to support the restoration of rights
once a person has been held accountable by the criminal justice
system.
Mr. Cline. So right to serve on a jury, for example?
Ms. Gupta. This hearing is about H.R. 1 and the restoration
of rights.
Mr. Cline. I understand. Does your organization support----
Ms. Gupta. I don't think that we have taken a blanket
position.
Mr. Cline. Okay. Ability to run for public office?
Ms. Gupta. Again, I don't think the Leadership Conference
has an official public position. What we have said is that the
restoration of rights of citizenship actually inures to the
benefit and rehabilitation of people who have served their time
and completed their debt to society by serving time in prison.
Mr. Cline. But in keeping with that, that would be an
understandable rehabilitation to restore that right.
Ms. Gupta. Again, I think that the Leadership Conference
doesn't have an official position on it. We have spoken more
broadly to the plight of collateral consequences that, frankly,
encumber too many people, too many people of color who have
been subjected already to bias in the system to deliberate
double sentences.
Mr. Cline. Okay. Reclaiming my time, can you speak to the
practicality, and actually what this is doing is enabling
someone who has been convicted of a felon, either at the State
or local level, to vote only in Federal elections. Is that
correct?
Ms. Gupta. Yes, H.R. 1 would apply to Federal elections.
Mr. Cline. Okay. Do you see any problem in the application
of that restoration of rights to only vote in a Federal
election when there are local elections on the ballot? Let me
go down to Mr. von Spakovsky on the actual ability,
practicality to implement this kind of two-tiered system.
Mr. von Spakovsky. I am not just an election lawyer, but I
have actually been a county election administrator in two
different States, both Virginia and Georgia. Local counties
have big enough trouble maintaining one voter registration
list, and keeping it accurate and up to date, and doing the
kind of maintenance they need to. It would be very difficult--
in fact, I would say probably almost impractical--for
jurisdictions to keep two separate sets of books indicating
that some people are registered and can vote in Federal
elections, others can only vote in State elections. It would
cause great confusion, and I think you would have election
officials all over the country complaining that you have just
made their job even more difficult than it already is.
Mr. Cline. Thank you, Mr. Chairman. I would also ask the
gentleman in Virginia, we have a 50/50 or 51/49 legislature
where the final seat in the legislature, control of the
legislature came down to literally the drawing of lots after a
recount, after a second recount, because it was done right
before the legislature started. If this private right of action
is granted, what would that do to the ability of a legislature
in this situation of Virginia to actually conduct its business
on time?
Chairman Nadler. The time of the gentleman has expired.
Mr. Adams. There is no question that litigation will be
more common if the private right of action under Hoevel was
expanded and further delay certifications.
Chairman Nadler. Thank you.
Mr. Raskin. Mr. Chairman, thank you. A great Republican
president spoke of government of the people, by the people, and
for the people, which has been the tantalizing and always
elusive dream of American history. We have an Administration
today which has converted the Federal government into a money-
making operation for the President, his family and friends, and
a handful of other people, completely distorting and deforming
the constitutional design. They have been taking money from
foreign princes, kings, and governments in direct violation of
the emoluments clause. They gather every night over at the
Trump Hotel, which I call the Washington Emolument because that
is where you go to deposit all of your support for the Trump
Administration.
So H.R. 1 is serious business. It is about restoring
democracy and the trajectory of Democratic enlargement and
equality in our history. Ms. Gupta, let me start with you. I
heard the gentleman from Florida try to undermine the idea of
restoring voting rights to former prisoners by invoking two
very scary specters. One is of people who had offended against
democratic norms getting their right to vote back, and the
other was people who had committed violent offenses. I am going
to ask about both of those.
Let's start with one of my constituents, for example, Jack
Abramoff, who committed multiple public corruption offenses--
bribery, conspiracy, and so on--spent several years in prison,
and he was restored his voting rights. Do you think that that
was a proper thing to do, or do you think that he should be
denied his voting rights forever?
Ms. Gupta. Well, as I said, when a person serves their
sentence and serves their debt to society, voting rights should
be restored. We have a duty in this country to ensure
participation of people in our democracy, and when people have
served their prison terms, they should have their rights
restored.
Mr. Raskin. Okay. Thank you. What about hundreds of
thousands of people who took up violent arms against the Union
and tried to destroy the government, including people who were
serving in government, like Senator Breckenridge from Kentucky
who went over to the Confederacy and committed treason against
the Union? Do you think that President Johnson and the
Republicans in Congress did the wrong thing by restoring voting
rights to people who took up arms against the Union and killed
people who were carrying the Union flag?
Ms. Gupta. Our consistent position was that that was an
appropriate restoration of rights. We understand that there are
things that people will do that put them in the line of
criminal accountability. But the fact is that voting is a
national symbol of full citizenship, and when a person has
served out their term, they should be able to have their rights
restored.
Mr. Raskin. Thank you very much. Mr. Noti, I have got a
question for you. The premise of Justice Kennedy's opinion in
Citizens United was that the CEOs, in taking money directly out
of the corporate treasuries and spending it in politics, ``were
exercising vicariously the underlying free speech rights of the
shareholders of the corporation.'' Now, is it your sense that
most CEOs and corporations are consulting the shareholders
before they spend money in politics today?
Mr. Noti. No, Congressman, and one of the premises of the
opinion was that if shareholders didn't like the way their
corporation was engaging in political spending, they could stop
it.
Mr. Raskin. Because there would be prompt and rapid
disclosure on the internet, right?
Mr. Noti. Disclosure and the mechanisms of ``corporate
democracy'' is the phrase that was used.
Mr. Raskin. Okay. So we have neither disclosure nor
democracy in terms of the shareholders controlling. Would you
favor a proposal which would say that no corporation can spend
any money in our politics without a prior majority vote of the
shareholders, which is the rule that exists in the United
Kingdom?
Mr. Noti. That would be an appropriate measure for either
this body or the SEC to impose.
Mr. Raskin. Okay. Thank you very much. Ms. Ifill, let me
come to you quickly. I have learned something astonishing in
this hearing, which is that our colleagues across the aisle now
are openly championing gerrymandering, which is reviled by the
vast majority of the American people. But they are standing up
both constitutionally and politically for gerrymandering, which
is quite remarkable, and if I read any of them wrong, I would
happily be corrected.
But can you talk about the way that gerrymandering is used
to nullify the democratic rights of the people? The gentleman
from Pennsylvania spoke, complaining apparently about the
Pennsylvania Supreme Court's ruling, which gave us the first
reasonably fair elections in Pennsylvania in a very long time.
Before that, a State that is basically a blue State or an
evenly-divided State had 13 Republicans and 5 Democrats in
their delegation. The North Carolina delegation has 10
Republicans and 3 Democrats, again, in a 50/50 State. In Ohio,
it is a 3 to 1 split where there are 12 Republicans and 4
Democrats. And do you think that that kind of partisan
lopsidedness is justification enough for them to embrace and
advance gerrymandering as a reasonable constitutional and
policy for America?
Ms. Ifill. Let me begin by saying I represent a nonpartisan
civil rights organization and have litigated, you know, for
many years on that basis. However, the very premise of our
democracy is that no one group has all the power all the time.
The whole premise of a democracy is based on shared power, and
it is based on the ability to know that if you don't have
power, you may have power tomorrow.
Any scheme that seeks to lock in the power of one group
into perpetuity undermines the very foundation of our
democracy, and it breeds cynicism within the electorate and
turns people away from participation in our democracy. I would
also point out that partisan gerrymandering very often is
accompanied by racial gerrymandering, and that the affiliation
of various racial groups with political parties means that a
very serious partisan gerrymander usually has consequences that
submerge and silence the voice of racial minorities as well.
Mr. Cicilline [presiding]. Thank you very much. The time of
the gentleman has expired. Ms. Jayapal, the gentlelady from
Washington.
Ms. Jayapal. Thank you, Mr. Chairman. This is indeed a
great day that we get to have a hearing on a bill that really
seeks to restore Americans' faith in our democracy. And I want
to spend most of my time on a fairly little-known provision,
which is the Foreign Agents Registration Act, or FARA.
Two years ago, former national security adviser, Michael
Flynn, retroactively registered as a foreign agent under FARA,
a law that initially Congress enacted in 1938 to address
increasing concern about the influence of Nazi propaganda. Mr.
Flynn's FARA registration indicated that the Turkish government
paid him more than $530,000 to serve as a lobbyist while
simultaneously working as a Trump Campaign adviser. Months
later, reports emerged that he worked on a $15 million plan to
kidnap a political enemy of Turkish President Erdogan and fly
him to an island prison. In addition, former Trump Campaign
manager, Paul Manafort, pled guilty to conspiracy against the
United States to violate FARA in regards to his failure to
register as an agent of Ukraine's government.
The events of the past few years, I think, have truly
illustrated how important it is for us to exercise proper
oversight over how foreign agents are trying to influence U.S.
policy. And so let me direct my questions to Mr. Noti. You are
the senior director of trial litigation and the chief of staff
for the Campaign Legal Center and an expert on FARA. How are
Mr. Flynn and Mr. Manafort able to get away with this, and is
this a problem for our democracy?
Mr. Noti. They are examples of the enforcement problem that
I mentioned in my opening statement. Basically, there is an
under-resourced unit within the Department of Justice charged
with FARA enforcement, but because of the resources they have,
all they can do is look at the filings that come in and send
follow-up letters. There is nobody who is charged with looking
more broadly to see whether there are foreign agents out there
who are not registered who should be, and that is one of the
things that H.R. 1 would correct.
Ms. Jayapal. Thank you. I think it is quite incredible to
me that the Department of Justice has only pursued seven
criminal enforcement actions for FARA violations from 1966 to
2015, and as you say in your statement, it is not a slam on the
Department of Justice. There simply haven't been the resources.
But let me ask you if the provisions in H.R. 1 are sufficient
to address these problems in our current system.
Mr. Noti. Well, I think one additional gap in FARA that the
examples that you raise point out is what has come to be known
as the LDA loophole, the fact that somebody who is registered
under the Lobbying Disclosure Act need not register under FARA.
There was bipartisan support last Congress for eliminating that
loophole. It needs to be eliminated and would have addressed,
in all likelihood, the two situations you raised.
Ms. Jayapal. Thank you. One other thing I am concerned
about is that some political activities to capture promotional
or informational activities on behalf of a foreign principal
may not be captured. And I think that is particularly
concerning given Russian actions to interfere in our elections.
Do you think that FARA should cover these sorts of activities?
Mr. Noti. Absolutely. I mean, going back to the original
purpose, the whole point of the act was to make sure that the
American decisionmakers and government officials and the public
weren't subjected to foreign propaganda without at least
knowing that it was foreign propaganda. So if there are gaps in
FARA's current coverage that are allowing that activity to be
conducted, those should be closed.
Ms. Jayapal. Thank you. And I would like to briefly mention
one more concern of mine regarding lobbying on behalf of
foreign countries. Last month, the New York Times reported that
``The targets of U.S. sanctions are hiring lobbyists with ties
to President Trump in order to avoid sanctions.'' So, for
instance, last June, following personal intervention by
President Trump, the Commerce Department rescinded sanctions
that could have seriously damaged the Chinese technology
behemoth, ZTE. The President acted after a $1.4 million, 3-
month lobbying push on behalf of ZTE.
Mr. Chairman, I seek unanimous consent to enter this
article into the record.
Mr. Cicilline. Without objection.
[The information follows:]
MS. JAYAPAL FOR THE OFFICIAL RECORD
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Ms. Jayapal. Thank you. Let me just ask Ms. Gupta to
clarify something that I think I heard from some of the
witnesses earlier, which is there seem to be some indication
that people are trying to say that we are somehow inflating the
concerns about voter suppression. I would like to ask you to
comment on that and specifically this claim that there is no
problem with voter suppression, which I think is what I heard,
but I am sure I will be corrected if not. But please comment.
Ms. Gupta. There has been trial after trial in the last
several years that laid bare the amount of evidence of voter
suppression. And I feel like it is important for members of
Congress to understand that Mr. von Spakovsky has made a career
out of giving misleading testimony. In fact, as recently as
June of 2018 in a case called Fish v. Kobach, U.S. District
judge Julie Robinson, opined on Mr. von Spakovsky's expert
testimony around a proof of citizenship requirement.
She said that ``The Court gives little weight to Mr. von
Spakovsky's opinion and report because they are premised on
several misleading and unsupported examples'' of what was in
that instance non-citizen voter registration. She pointed to
his ``myriad misleading statements,'' said that ``His advocacy
led him to cherry pick evidence in support of his opinion,''
and said that ``lack of academic rigor in his report, in
conjunction with his clear agenda and misleading statements
render his opinions unpersuasive.''
We represent organizations that have been long in the
business of fighting voter suppression, and this is why these
misleading statements are deeply, deeply troubling and
misleading to members of Congress.
Mr. Cicilline. Thank you very much.
Ms. Jayapal. Thank you. I yield back.
Mr. Cicilline. The gentlelady's time has expired. There is
a vote which the time has run out. I am going to recognize Mr.
Correa for his 5 minutes, and then we will take a recess so
folks can vote.
Mr. Correa. Thank you, Mr. Chairman.
Mr. Cicilline. We will come back immediately after votes.
Mr. Correa. Thank you, Mr. Chairman. I want to thank the
members of this panel for being here today. This is such an
important issue, my first Judiciary Committee hearing, and
thank you very much for your service today.
I am an original co-sponsor of H.R. 1 because I believe
that when people vote, America is strong. When people vote,
democracy is stronger. And I strongly believe that to protect
our voting rights system, everybody eligible to vote, his or
her rights have to be guaranteed. We have to do everything we
can to make sure every eligible American voter votes.
My district, I am home to a huge group of American
veterans, many veterans from the Greatest Generation still with
us, many highly decorated for their bravery. And my district
also, we are also home to many new Americans. In fact, many
people call my area the new Ellis Island of America. One thing
we all have in common is we all work hard. We are all blue
collar folks. Like my parents, these new immigrants work really
hard, obey all the laws to the best of their ability, work hard
for the American Dream to someday earn the right to vote as
American citizens.
Then something interesting happens. Folks begin to try to
figure out how to suppress votes. In my district, you got
subtle things like robocalls, people getting phone calls saying
you shouldn't vote, it is against the law for you to vote. And
then there are things that aren't so subtle. In my district a
few years back, we had a whole guard voter incident. Whole
guards were hired to guard the polls in the mainly ethnic areas
of my district. A few years later, a letter went out to
primarily Hispanic voters saying be careful. If you break the
laws, you are a felon. Be very careful. And you know what this
does? Maybe on its face that letter was legally correct, but
most of my voters who are new citizens have worked so hard to
follow the law, that anything at all that threatens them,
threatens their status, they run away from those situations.
In these two cases, after the elections we were able to
find the court system to address these issues. But my question
to you, Ms. Gupta, is, what do we do before the election? What
happens when these incidences come to our attention? Can we
protect our voters to make sure that they know that their
rights as American citizens are to be protected? What is our
recourse?
Ms. Gupta. Well, our recourse used to be that changes in
local voting patterns would be reported to the Justice
Department, and there would be recourse for the Justice
Department to ensure that racial discrimination was not
animating these changes and preventing people from exercising
their franchise. As we said, in 2013, the United States Supreme
Court gutted that key tool of the Voting Rights Act, and it is
why H.R. 1 is such an important act in order to restore the
Voting Rights Act, and to restore the ability of the Justice
Department and Federal courts to actually prevent these kinds
of nefarious actions from taking place before elections.
Litigation is crucial, and groups have risen to the
challenge to file Section 2 cases. But they are time intensive,
they occur after elections after people have already been
disenfranchised, and can take years to come to adjudication,
during which elections are taking place. And so that is why it
is incumbent and necessary for Congress to restore the
provisions of the Voting Rights Act.
Mr. Correa. So H.R. 1 will help protect the rights of my
American citizens to vote before the election.
Ms. Gupta. H.R. 1, yes, expresses a commitment to restoring
the Voting Rights Act, and that is what we hope to achieve in
this Congress. H.R. 1 also contains a slew of protections that
have become proxies for racial discrimination around list
maintenance and unwarranted voter purging. H.R. 1 seeks to
remedy those so that people can have their rights guaranteed
before elections take place.
Mr. Correa. Thank you, Mr. Chair. I yield the remainder of
my time.
Mr. Cicilline. What a gentleman. I am going to ask
unanimous consent to include in the record a Brennan Center for
Justice report entitled, ``Non-Citizen Voting: The Missing
Millions,'' which makes clear that these claims about voter
fraud are completely unsupported by the evidence; a second
article by the Brennan Center entitled, ``An Insidious Foreign
Dark Money Threat: New Reports about Russian Money Going to the
NRA Could Prove Watchdog's Fears Correct;'' an article by The
Hill entitled, ``Most Dark Money Spending in Recent Elections
Came From 15 Groups;'' and finally, a GAO report entitled,
``Post-Government Employment Restrictions and Foreign Agent
Registration: Additional Action Needed to Enhance
Implementation Requirements.''
Without objection, so ordered.[The information follows:]
MR. CICILLINE FOR THE OFFICIAL RECORD
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Mr. Cicilline. I thank the witnesses. We are going to stand
in recess, and we will return immediately after votes.
[Recess.]
Mr. Richmond [presiding]. I am going to call the hearing
back in order so the Judiciary Committee will resume, and with
that, we will have Mr. McClintock will be recognized for five
minutes.
Mr. McClintock. Thank you, Mr. Chairman.
Ms. Gupta, you take a very expansive view--over here--take
a very expansive view of our constitutional authority to write
state elections laws as they pertain to federal elections.
Florida, we have heard, allows felons to vote. Does Congress
have the constitutional authority to override such a law and
prevent felons from voting nationally in federal elections?
Ms. Gupta. It is well within Congress's power under the
Fourteenth Amendment to prevent racial discrimination in voting
and devices that perpetuate racial discrimination, and that
would be the basis for restoring the right to vote for people
with felony convictions in federal elections.
Mr. McClintock. I am not talking about restoring the right
to vote. I am saying if Congress has the right to draft and
enact elections laws binding the states in federal elections, I
would assume that would include forbidding felons to vote,
which is recognized under the Fourteenth Amendment.
Ms. Gupta. Well, Congress can restore under the Fourteenth
Amendment. I am not sure that I--that I understand your
question.
Mr. McClintock. So they can do the things that you think
need to be done but can't do the things you don't want to see
done.
Ms. Gupta. Well, I think it is----
Mr. McClintock. That seems to be a bit of a double
standard. Let me go on.
Mr. von Spakowsky, seems to me there are two fundamental
principles in voting. Number one is that every citizen who
wants to vote and is qualified to vote should vote without any
fear of intimidation or discrimination.
The other principle is one citizen one vote. Every
fraudulent or illegal or multiple vote that is recorded cancels
out a citizen's legal and legitimate vote. Our laws have to
reconcile both of those principles. Could you give us an
assessment of this bill?
Mr. von Spakovsky. I think that is very true. In fact, when
Congress passed the Help America Vote Act in 2002, that was
what a number of members of Congress said. They want to be sure
that everyone who is eligible to vote gets to vote and that
their votes are not stolen or diluted through fraudulent votes.
So, now, there is a----
Mr. McClintock. Does H.R. 1 threaten these principles or
support these principles?
Mr. von Spakovsky. I think H.R. 1 does not support these
principles. In fact, it is going to make it very difficult for
states to have the kind of integrity and security that they
need in the election process.
Also, H.R. 1, as I said, to me there are provisions in here
that are anti-democratic, taking away the right of voters to
make their own decisions in particular states on how they want
their congressional representatives picked. That is--that is
not a good idea. It is not only bad policy; I think it is
potentially unconstitutional.
Mr. McClintock. What university studies are you aware of
that estimate the number of noncitizens who are currently
voting illegally?
Mr. von Spakovsky. I am aware of a number of studies. Mr.
Adams actually could speak to this more clearly. The Public
Interest Legal Foundation has done a number of reports on
various states including Virginia and I think Michigan and
others where they went and got actual election records from
county election departments, asking them for the lists of
voters who, on their own voluntarily, contacted election
departments and said, ``I am not a U.S. citizen. I need to be
taken off the voter rolls.'' And they found that there were
thousands of such voters in various states on their reports.
Mr. McClintock. How many thousands? Tens of thousands?
Mr. von Spakovsky. Well, Mr. Adams can answer that.
Mr. McClintock. Mr. Adams, can you help us?
Mr. Adams. Right. Thank you.
What we found was a pervasive problem with noncitizens on
the rolls. If you look at my written testimony, I actually
include two examples. I do screen shots of voter registration
forms--one from Virginia, one from New Jersey--and these are
but two of many that we have harvested, where the applicant
actually marks on the voter registration form that they are not
an American citizen.
Mr. McClintock. So just in terms of numbers, what kind of
estimates are there?
Mr. Adams. It is hard to know. It is hard to know. I mean,
it is significant, and in a state like Virginia all it takes is
one where control of the House flipped.
Mr. McClintock. Mr. von Spakovsky, just very quickly. My
understanding of Citizens United is that it upheld the right of
individuals to pool their resources so that they can compete in
the marketplace of ideas against billionaires, for example.
What have I got wrong on that?
Mr. von Spakovsky. Yeah. I am always surprised at this
criticism of the Citizens United decision, particularly the
idea or the claim that it somehow helps the rich.
If you go all the way back to Alex de Tocqueville in his
``Democracy in America,'' he talks about something that we all
know is true, which is that Americans use associations for many
reasons including in the political arena.
For the average person like me who is not rich, if I want
to get my ideas across to Congress or other folks I join a
membership organization. There was a lot of criticism here
earlier of the NRA. But the NRA represents millions of
Americans who have a particular view of the Second Amendment.
That is not any different than millions of Americans who
are members of Planned Parenthood or NARAL. The whole point of
Citizens United was that there was a federal law barring all
corporations and unions, and corporations included nonprofit
corporations and membership organizations like the NRA, like
NARAL, like the NAACP, from engaging in independent political
speech. That was, clearly, a violation of First Amendment. It
is unconstitutional and I think it was a great decision by the
court.
Mr. Richmond. The gentleman's time has expired.
We will recognize the gentleman from California, Mr.
Swalwell.
Mr. Swalwell. Thank you, Mr. Chairman. Thank you to our
panel for participating in this.
And I have to tell you, after being in Congress for six
years I have come to find that there are so many issues that my
Republican colleagues and I agree on and that the American
people agree that we have reached consensus on, and that ranges
from reducing gun violence to addressing climate change to
finding health care solutions.
But my constituents ask and people I encounter across the
country always ask, if we have reached consensus where 90
percent of Americans think we should have background checks,
the majority of Americans believe that climate change is
happening, 90 percent of Americans think we should have the
DREAM Act, why can't you guys even vote on these issues?
And I have concluded that it is the dirty maps and the
dirty money. It is rigged gerrymandered maps where politicians
from both parties protect their friends and the status quo and
it is the outside unlimited nontransparent money where
Republican colleagues have told me, ``I am with you on this
issue--I am
just--'' and I have had someone say this to me, ``I am afraid
about how I am going to be scored,'' meaning that these outside
groups will give scores based on how you vote and if you are
not with them they will primary you with more money in an
unlimited kind of way, and that is poisoning our politics and
preventing us from reaching consensus.
So I think we have an opportunity in this bill, the ``For
the People Act,'' to empower everyday voices.
And I want to start with Ms. Ifill, and if it is okay I
want to call you Professor Ifill because I don't know if you
remember--you were my civil procedure professor at the
University of Maryland. [Laughter.]
Ms. Ifill. I love that.
Mr. Swalwell. You wouldn't remember me. I remember you. I
was not a standout student at all. But, Ms. Ifill, according to
your testimony, Section 5 of the Voting Rights Act would have
prevented some of the voter suppression schemes that we have
encountered over the past five years, and I was hoping you
could articulate some of those schemes today.
Ms. Ifill. Yeah, just a few of them. Earlier, I spoke about
Texas's voter ID law, an ID law that had been denied pre-
clearance prior to the Shelby decision. Two hours after the
Shelby decision, the attorney general of Texas tweeted out his
intention to resuscitate that law, which he did, and we spent
three years litigating it. We ultimately prevailed. But in the
ensuing three years there were elections for all kinds of
offices--a law that, clearly, could not have survived pre-
clearance.
Just in 2018 we were on the ground in Georgia on Election
Day doing election protection work. In Grady County, the
polling place had been changed two weeks prior to the election.
A notice had been placed in a very small community newspaper,
but otherwise there was not real notice provided to the
community. And so people arrived at the old polling place and
community residents had to spend the day standing outside the
old polling place directing people to the place of the new
polling place that had not been properly identified.
Under Section 5, the moving of a polling place is the kind
of thing that you had to submit to pre-clearance and have it
approved by the Justice Department before it could be
implemented.
Now, there were a number of people that day who could drive
to the new polling place. But there were a number of people who
had just taken off work and had a limited amount of time to
vote and could not drive to the new polling place and so went
back to work and were unable to participate in the political
process.
Those are just two small examples--well, one big and one
small--but both consequential of the kinds of changes that
would very easily have been--have been averted and the problems
that would have been averted had Section 5 been in place
wouldn't have required litigation--would have simply required a
review by the Department of Justice and an opportunity for the
community to resist that change or to at least be informed of
that change in a timely way.
Mr. Swalwell. Thank you.
Mr. Noti, it is my hope that in our lifetime we have
publicly-financed campaigns. I hope you will briefly speak to
whether you believe that could occur. But I also have one
concern with super PACs today.
As I understand it, and correct me if I am wrong, if a
candidate contacts a donor and tells the donor that there is
ABC super PAC working on my behalf, that candidate can solicit
a contribution up to the maximum that candidate could receive
federally. So I think it is, you know, $2,700 today.
But as I understand it, there is no disclosure requirement
by that candidate that they made that ask and, of course, there
is no way to know if the donor made the contribution or not
because of the lack of transparency.
Is that something that you think maybe we should address is
having the candidates affirmatively, you know, tell the public
that they have made requests for super PAC help?
Mr. Noti. That is correct, Congressman. But I would go
farther than that. Candidates should not be soliciting for
super PACs, period.
Mr. Swalwell. Agreed. Yeah.
Mr. Noti. Right, so that the----
Mr. Swalwell. But the FEC allows that today.
Mr. Noti. Currently, the FEC allows that. The FEC probably
has the authority to put an end to it. Congress certainly has
the authority to put an end to it as an implementation of
Citizens United. But if it is going to be happening, yes, the
public should certainly be aware and journalists and law
enforcement should be aware that that is happening.
Mr. Swalwell. And, quickly, will we see publicly-financed
campaigns in our lifetime? Is that something we should aspire
to?
Mr. Noti. Absolutely. The momentum for publicly-financed
campaigns, for small-dollar matching in particular, is growing.
More and more jurisdictions are considering them or
implementing them. The District of Columbia just this year
implemented a matching system. I think that will rise up from
the municipalities and states to Congress, yes.
Mr. Swalwell. All right. Thank you. I yield back.
Mr. Richmond. The gentleman's time has expired.
I will recognize Ms. Scanlon for five minutes.
Ms. Scanlon. Thank you.
As a newly-elected member of the Pennsylvania delegation,
my constituents and I know all too well the importance of the
reforms included in this bill.
The gentleman from Pennsylvania mentioned earlier that our
congressional districts were redrawn last year but he neglected
to mention that the redrawing occurred because those districts
had been unconstitutionally gerrymandered as part of the red
map strategy that was funded by dark money.
Our democracy doesn't work when special interests push
gerrymandering and other voter suppression tactics that weaken
our representative system of government and I am sure my
colleague, Congresswoman Dean, will agree with me that what
happened in Pennsylvania is exactly why we need legislation
that prevents gerrymandering and gives voters fair
representation so that they can choose their elected
representatives rather than the other way around.
I am extremely proud that H.R. 1 contains a commitment to
restore the Voting Rights Act as well as measures to prevent
gerrymandering and other forms of voter suppression. I am also
proud that my first bill, the Inaugural Fund Integrity Act, has
been included in this landmark legislation.
That bill would put limits on donations to presidential
inaugural committees and require public disclosure of all
donations and spending by such funds in order to expose and
reduce opportunities for corruption.
H.R. 1 also provides measures to modernize our elections
while maintaining security so that all citizens can participate
in our democracy. Therefore, I am also proud to be a leader on
language in this bill to increase access to voting for
individuals with disabilities.
To that end, Ms. Gupta, could you discuss whether there are
particular issues that impact voters with disabilities?
Ms. Gupta. Yes. There are a number of issues that impact
voting for people with disabilities. There are inaccessible
poll sites in too many places that don't meet the criteria
established by the Americans with Disabilities Act. There are
accessible machines that don't work.
Poll workers may not be trained in how to interact with
people with disabilities and, you know, there are also
individuals with disabilities--many veterans actually with
disabilities who seek to vote securely and independently and
are unable to do so in the same manner as every other voter,
and H.R. 1 seeks to--with a specific provision focusing on
access to voting for individuals with disabilities. It requires
states to promote access to voter registration and voting for
people with disabilities as well as grants to improve voting
for people with disabilities and creates a pilot program that
would actually allow people with disabilities to register and
vote from home as well as provide necessary training for poll
workers to make sure that nobody with a disability is prevented
from exercising their franchise.
Ms. Scanlon. And these measures, in addition to helping our
veterans, would also help seniors, wouldn't they?
Ms. Gupta. Yes, they would absolutely help veterans,
seniors, and others with disabilities--intellectual
disabilities, physical disabilities, and the like.
Ms. Scanlon. As someone who has organized and participated
in election protection work and as the representative of a
vibrant and diverse community, I know all too well the impact
of voter suppression.
Ms. Ifill, can you speak to turnout gaps among different
ethnic and racial groups and how Congress might help reduce
some of that?
Ms. Ifill. Thank you very much, and I am glad you asked the
question because Congress recognized in the passage of the
Voting Rights Act that the ability to participate in the
political process equally is actually the focus and that
casting the ballot is actually only part of that. It is casting
the ballot, it is having that ballot count, and it is the
meaningful opportunity to participate in the political process.
And, in fact, the more individuals, particularly from
minority groups, do not see their ballot counting, the less
they are incentivized to turn out and participate in the
political process.
And so what we see across the board when we are engaging
with the communities that I represent is we are often seeing
low registration numbers. We are often seeing low turnout
numbers.
We are often seeing people who turned out but couldn't vote
because they waited on long lines. We are seeing a whole menu
of ways in which minority communities are discouraged from
participating robustly and fully in the political process, and
that means that their voices aren't heard and that lessens
their confidence in our political system, in our justice
system, and in their rights as free citizens in our society.
Ms. Scanlon. Thank you. I have to say that that accords
with what I have seen when I have been working at polling
places myself throughout my district.
Thank you. I yield back.
Mr. Richmond. The gentlelady's time has expired.
I now recognize the gentlelady from Texas, Ms. Garcia.
Ms. Garcia. Thank you, Mr. Chairman.
First, let me just say that my remarks are really going to
be about direct experience. You know, I have heard today some
statements about how things are exaggerated, that things are
fiction, that this isn't really the way it happens.
But let me just tell you about some of the things that have
happened to me personally as a voter. I got a letter from our
voter registrar when I was an elected county commissioner.
An official just two floors down from me sends me a letter
that I got in the mail that told me that I would be purged from
the voter list because there was a discrepancy between what was
on my driver's license and what the post office said. That is
an example.
Then I thought things were straight. But then when I was a
senator--an elected senator--I went to Election Day and I was
told that I was not on the rolls. It was a little bit later on.
Many years had passed. Thought it was fixed. I was not on the
voter rolls and it was just--it turned out to be confusion
between the spelling of my name because sometimes it is spelled
S-Y-L-V-I-A or sometimes S-I-L-V-I-A. So well, all right. Just
another problem.
Well, lo and behold, when I was in the primary for this
particular race for the United States Congress, I went to my
polling place and a huge line. But it wasn't because they were
all there to vote for me. It was because the machines were
broken. They had not even started.
So I had to stand in line probably for an hour, an hour and
a half, before they got the machines working. Now, you tell me
that is all coincidental or you tell me that I am just a
problem voter. Or is it because my last name is Garcia?
I mean, I don't know. It just seems that in my district
whenever we have an election--and it is a 77 percent Latino
district--we always have to make sure that we got people to
answer the phones, that we know where to call for the hotline
with the secretary of state, who to call at the county. I mean,
they are all in my phone, and I am lucky because when all of
these things happened I pulled out my phone and called
officials directly. But your average voter doesn't have the
capacity to do that.
So, to me, that is why we need the Voting Rights Act. That
is why we need so much of what is in this bill.
So I wanted to start with you, Ms. Ifill, and it is good to
see you again. I know that you and I both testified before the
Senate Judiciary Committee on the extension of the Voting
Rights Act some years ago. So here we are again on this side of
the House.
You talk about how the changes or you are beginning to see
a lot of voter suppression post-Shelby and, again, because I
keep hearing this fiction and exaggeration. Can you give us
examples of some of them, particularly in my state who seems to
be the king of voter discrimination of late?
Ms. Ifill. Well, I think it is just this week that your new
secretary of state sent a letter out to counties indicating his
belief that there is the potential that 95,000 noncitizens are
on the voter rolls or have been voting, and we have already
sent a letter along with the Texas Civil Rights Project and
other civil rights groups asking him to rescind that letter.
We have received no information about how he compiled that
list. We are asking for transparency. This is the kind of thing
that can result in voter fraud prosecutions. Even if they are
unsuccessful, they have the effect of deterring people from
wanting to register or participate in the political process.
I have already talked about the Texas voter ID law. We are
also challenging Alabama's voter ID law and that case is
pending before the court right now. We have talked about
polling place changes. We have talked about the use of exact
match in Georgia, even though it is well documented the
disproportionate effect that this has on both African Americans
and Latinos.
There is a myriad of voting changes that have been
implemented despite the clear knowledge that they will have a
disparate impact on African Americans and Latinos, and all of
this is pursued with the--with the idea that somehow this is
going to bring--what was the name of the commission that my two
colleagues sitting at this table served on--the Election
Integrity Commission--that this is going to increase the
integrity of elections----
Ms. Garcia. This----
Ms. Ifill [continuing]. That this is going to stop voter
fraud. And yet, we don't have the evidence of widespread voter
fraud. We just heard Mr. Adams say it is difficult to say how
many, if there are sizeable numbers of noncitizens who have
voted.
But, by contrast, we can tell you precisely how many voters
were disenfranchised by Texas's voter ID law. We could tell you
precisely how many were disenfranchised by Wisconsin's voter ID
law.
We can tell you precisely how many were disenfranchised by
North Carolina's omnibus voting bill. We can tell you the
effect of ending early registration on Sundays when African
Americans do ``Souls to the Polls.'' So we have all of the
evidence that these measures suppress the votes of racial
minorities.
Ms. Garcia. Thank you. And----
Mr. Richmond. The gentlelady's time has expired.
Ms. Garcia. Thank you, Mr. Chairman.
Mr. Richmond. I now recognize the gentleman from Colorado,
Mr. Neguse.
Mr. Neguse. Thank you, Mr. Chair. Also, I want to extend my
thanks to Chairman Nadler for hosting this important hearing
and to extend my gratitude to Congressman Sarbanes for his
leadership in crafting this important piece of legislation that
provides much-needed reforms to our democratic process.
Access and transparency, I know we can all agree, in our
voting system is vital to the integrity of our democracy. In
the 2016 election, 92 million eligible Americans did not vote
and in 2014 we witnessed the lowest voter participation rate in
72 years.
For the nation's democracy to function properly and for
government to provide fair representation, all eligible
Americans must have the opportunity to vote and be encouraged
to do so, which is why I am so excited about supporting this
piece of legislation.
Last week I introduced legislation that would allow 16- and
17-year-olds to register to vote ahead of their 18th birthday
to ensure that every first-time voter has the ability to engage
in our political process early on. The bill, largely, emulates
legislation that was successfully enacted in Colorado, in my
home state.
We already see that when young voters are registered they
participate at rates comparable to older voters, which is why
pre-registration is so important. Voting really is a
foundational right and it is essential that there are as few
barriers as possible for registration and participation in our
democracy.
I believe if we start this process at a younger age we can
spur political participation and engagement in all Americans.
And so my questions are for Ms. Gupta and Ms. Ifill. I
guess I am curious about your thoughts around pre-registration
and, in particular, if you have seen any data or anecdotal
evidence to suggest that when youth are engaged in the
democratic process early in their lives that they are more
likely to stay engaged.
Ms. Gupta. Well, thank you, Congressman, for--both for the
legislation and for your comments. I think that it is really
important, the kind of access that we provide through
registration and at what point we provide it.
It is both automatic voter registration, making that the
default rather than the kind of--the thing that people have to
affirmatively take steps to do--but also your bill of really
focusing on pre-registration so that when a person turns 18
they can actually exercise their right to vote.
These really signal the kind of country we want to be and
the kind of democratic participation we want to have. We saw
extraordinary youth turnout in the 2018 mid-term elections. In
Florida, there was a recent study that showed the extent to
which young people in Florida turned out to vote and felt more
connected with government than they had ever felt before.
And we have had a historic, I would say, problem with
people--young people in this country feeling disenfranchised
and alienated and marginalized from government and when they
feel like government is corrupt or does not work for them they
do not want to participate.
And so that is why H.R. 1--so much of what it is doing,
frankly, is about restoring the legitimacy of government and
the role of civic participation in young people's lives, and as
young people become more and more kind of connected to the
issues of the day it is really important for the kind of
democracy we want to be that we provide ample opportunity to
have them register as early and as frequently as possible, and
that is why H.R. 1 with AVR nationwide would go a long way.
Ms. Ifill. Just very briefly, I would say I think there is
no more damning reality about the crisis in our democracy than
the failure for there to be widespread bipartisan support to
ensure that young people are pre-registered to vote and that we
are introducing them to their citizenship obligations as adults
as soon as possible.
It is impossible for me to understand how that can be
controversial, how that can be partisan, and the fact that it
is speaks volumes about the crisis that we face in this
country.
Mr. Neguse. Thank you both.
Last question relates to the gerrymandering piece of this
or the piece of legislation that targets the practice of
gerrymandering. A core component of H.R. 1 looks at partisan
gerrymandering in our country, and ensuring that every voter
and district is represented equally instead of carving out
districts so that one party is favored over another is critical
to restore Americans' faith in our democracy.
This last elections voters were loud and clear about their
opposition to partisan gerrymandering and that includes my home
state of Colorado where voters passed an effort to create
independent commissions for redistricting.
So my question is to Ms. Gupta. I know in your capacity you
travel the country quite a bit, you know, meeting with folks
about these issues including the need for gerrymandering
reform.
I am curious about--certainly, in my state it is very clear
that there are a plethora of people who want this change and
they expressed that at the ballot box. I am curious about your
conversations in other states and whether this is something
that is top of mind to the folks that you have visited with.
Ms. Gupta. There is a reason why voters in ``red'' and
``blue'' states in 2018 voted for--to create independent
redistricting commissions around the country. I think people
are fed up with thinking that the parties can own their voters
and, in fact, voters want to be able to choose their
politicians, not have politicians choose their voters.
In 2015, the United States Supreme Court decided that it
was perfectly consistent with the Constitution to make sure
that legislators weren't drawing their own lines. We stand
unique in the world for allowing that kind of thing to happen.
Gerrymandering is a uniquely American phenomenon, and yet,
H.R. 1 really goes a long way to prevent intentional
manipulation of district lines for partisan advantage and it
goes through a very carefully calibrated and described process
of having five Democrats, five Republicans, five independents,
sit--all randomly chosen from a pool of applicants--sit on an
independent commission.
There are specific criteria about how district lines would
get drawn and a plan would need majority support to be enacted,
including the backing of at least one Democrat, one Republican,
and one independent.
And, as you said, in California, Arizona, and Colorado--
your state--we have seen improvements in representation, in
voter confidence and trust, and how district lines get drawn
and in competitiveness.
And so this reform embodied in H.R. 1 is really important
to restoring legitimacy in how district lines get drawn.
Mr. Richmond. The gentleman's time has expired and I will
recognize the gentlelady from Georgia, Mrs. McBath.
Mrs. McBath. Thank you, Mr. Chairman, and thank you to each
of the witnesses that are here today sharing your expertise on
these very, very important issues.
And I just want to take a moment to really acknowledge my
own father, who was the only black dentist in Joliet, Illinois,
in the early 1960s and he was also the president of the
Illinois branch of NAACP for over 20 years and also served on
the executive board. So I am no stranger to the civil rights
movement. My mother was also a nurse and she also was actively
involved in the civil rights movement.
Now, from the time that I could walk with my family I
marched alongside my family and my parents and fellow
demonstrators, shouting for equality and calling for justice,
and I often say the very first song I ever learned was ``We
Shall Overcome.''
And my father, he actually planned those marches and I can
still picture him presiding over the meetings at my kitchen
table in our house filled with poster boards and preparations
and hope.
So when it comes to voting rights, my father's work is
still completely unfinished. Now, but today we are starting all
over again. What I witnessed my father and my mother fighting
for, we are fighting for all over again with preparations, with
resolve, and with hope.
And I would like to make reference to an article by
Vox.com, if you have a chance to look at it. It is entitled,
``Why Long Lines at Polling Places are a Voting Rights
Injustice.''
And my question today is both for you, Ms. Gupta, and also
Ms. Ifill. My colleague, Congressman Collins, said earlier
today that he thought that long lines to vote in Georgia were a
good sign, and I know many of--many of his Republican
colleagues absolutely believe the same thing and I can tell you
I do not. Might I say I witnessed firsthand voter suppression
in the state of Georgia, having come through those very
elections in November.
Would you two both be willing to explain to me why long
lines, at best, are a sign of underinvestment in voting and, at
worst, a form of extreme voter suppression?
Ms. Ifill. Thank you.
Let me tell you what we saw on Election Day. We do election
protection work every Election Day, whether there is a federal
election or not, where there are primaries and general
elections, and the long lines that we see are a testament to
our failure. They are a monument to the failure of our
democracy to invest in the casting of ballots and in the right
that the Supreme Court has said is preservative of all rights.
I cannot imagine how anyone could think that voters waiting
on line in the morning for four hours in Gwinnett County,
Georgia, because the machines lacked the power cords, how
anyone could think that was a good thing.
I don't understand how anybody could see the lines--I
actually have video of it--I was told I couldn't submit video--
of the lines in north Charleston, South Carolina, Election
Night as elections are being called and African Americans are
standing in line for two and three hours.
I cannot imagine how we can think it is positive that in
Harris County the election judge had to extend the polling
place hours because people had to stand in line so long because
the machines were malfunctioning.
I can't imagine how we could think it is something positive
when machines are flipping the votes in South Carolina, in
Florida, in Texas, causing voters to stand on line, have to
move to a provisional ballot line--how voters arriving on
Election Day--I was there in November 2016 doing election
protection work in Alabama and I cannot tell you how many
elderly African-American couples came to vote together and only
discovered, living in the same place for 25 and 30 years, that
one was on the rolls and one was not. One could cast a ballot
and one had to cast a provisional ballot.
I don't know how we could possibly think that is a good
thing. This is not a partisan concern. This is about whether or
not we are a healthy democracy, and it is an embarrassment and
a disgrace that we compel people to spend four hours standing
on a line to exercise their right as citizens to participate in
the political process.
Ms. Gupta. I would just like to add I think that there is
simply no reason that the United States of America, the
wealthiest nation in the world, would not have sufficient poll
sites and number of poll sites so people can vote and not have
to wait in four-hour lines.
There is simply no excuse for it, and in the aftermath of
the Shelby County decision the Leadership Conference, in
conjunction with other civil rights groups, compiled a list of
poll closures--thousands that happened in the aftermath of the
Shelby County decision because these small minor things were
undetectable anymore to national organizations, the federal
government, and the like.
These are the ways in which we have cut voting access by a
death by a thousand cuts since the Shelby County decision and
these are the kinds of things that would have been forced--have
been pre-cleared by the Justice Department or federal courts
around simple things like the closure of poll sites that can
seem pretty innocuous or efficient actually carry with them
incredibly detrimental impacts on voter access.
And so part of what H.R. 1 does is actually both seek to
enhance the jurisdiction of the Election Assistance Commission
that has a responsibility to make sure that machines work. But
the restoration of the Voting Rights Act here, again, the case
must be made as to why it needs to be restored so that these
kinds of seemingly minor changes actually that result in the
disenfranchisement of voters are detected in advance.
Mrs. McBath. I want to thank you very much for explaining
the truth.
Mr. Richmond. The time of--the time of the lady is--
gentlelady has expired.
I will recognize the gentleman from Georgia.
Mr. Collins. Thank you, Mr. Chairman.
Just as a clarification, I appreciate the gentlelady being
here and congratulating her on being a part. But also she said
there does need to be truth and I would not say that my comment
on long voter lines were a indication of incompetence on poll
officials who wouldn't put a plug on a voting machine.
Indications of long lines is people actually showing up to
vote, which I think Ms. Gupta--Ms. Gupta and Ms. Ifill would
agree with.
Having in my state of Georgia, in which some of the
counties that have the longest lines are the ones who chose. In
Georgia it is the local officials that choose how many voting
machines they put into their place of polling. It is how many
they would--and if they have two years, most of them, between
times to figure out how to plug in a machine, then maybe we
need to change the election officials in those counties.
But to say and to imply that I would say that long lines
are--a showing of problematic system in our voting or elections
is--no, mine was a compliment because actually in--between 2014
and 2018 in the state of Georgia we saw an 11 percent increase
in black male voting. We saw a 14.58 percent increase in black
female voting. We saw an 18 percent increase in Hispanic male
voting and a 24 percent increase in Hispanic female voting.
Mine is to let everyone vote that wants to vote, that registers
and gets there and we have a very generous early voting. I just
want to make that clarification for the record.
I yield back.
Mr. Richmond. The gentleman from Arizona is recognized, Mr.
Stanton.
Mr. Stanton. All right. Thank you very much, Mr. Chairman.
I am proud to be a new member of this Congress and I am
proud that in the 116th Congress the very first bill that was
introduced is the ``For the People Act.'' We are going to make
very positive reforms to help the American people have more
confidence in our democracy, obviously, including a plan to
restore the Voting Rights Act, nonpartisan redistricting
commissions, ban shadow lobbying, banning corporate
contributions and dark money, and many other things I think
would be very positive steps, moving it forward. I am proud to
be a co-sponsor.
I come from Arizona where we do have clean elections and it
works out very well--publicly-funded elections--and both
Republican and Democrats in the state of Arizona have
successfully used the clean election system to get elected to
public life.
We have a nonpartisan redistricting commission that has
been mentioned. We passed it in 2010. It has created very
competitive congressional elections and state legislative
elections. I think it has built confidence by the people of
Arizona, more confidence in the electoral system.
And I was mayor of the city of Phoenix and we saw the big
problem as it relates to dark money and the influence of dark
money. We put banning dark money on the ballot as a municipal
initiative. It passed with 85 percent of the vote. Our next-
door neighbors in the city of Tempe, also in my congressional
district, they did even better. A ban on dark money in the city
of Tempe passed with 91 percent of the vote. The American
people in a bipartisan way are in favor of these positive
reforms.
Now, I also come from a state with a very large Native
American population and we are blessed to have a very large
Native population, and I want to ask the witnesses here,
particularly Ms. Gupta and Ms. Ifill, to talk about the
benefits--if this Congress does do the right thing and restore
the Voting Rights Act, maybe some of the specific benefits to
our Native American citizens.
Ms. Ifill. I am glad you mentioned that. You know, I think
many people are aware of what happened in North Dakota with the
voter ID law that required a street address. You know, we have
over the years worked with the Native American Rights Fund and
those lawyers in Alaska where there are very particular
problems of voter--of voter suppression that have occurred over
the years.
And if you are not familiar with Native American
reservations, if you are not familiar with what it means to be
in these rural areas, if you are not familiar with the customs
and practices of those communities, you can think that these
measures that are--that are described as efficient have no
effect.
And I think that North Dakota law--that voter ID law--was
the perfect example. The idea of requiring a street address
might sound innocuous to many people. But it was in
understanding that many Native Americans did not have a street
address and seeing that community come together to try to
quickly create street addresses to comply with the law on one
hand is maybe one of the positive things is seeing people want
so much to vote that they are willing to try to comply with the
law.
But it is actually terrible that they have to come together
to try and meet a law that puts this onerous burden on them--
that requires this of them even though their communities are
not situated in such a way as to make compliance with that law
easy.
So we should remember when we think about the Voting Rights
Act we talk about the African-American population, we talk
about the Latino population. The Native American population is
also part of this as is the Asian-American population in terms
of language, minorities, and the kind of ballot assistance and
materials that they need as well.
Mr. Stanton. Thank you so much.
Ms. Gupta. Yeah. I will just say that when I was at the
Justice Department one of my great regrets is I don't think
that we were ever able to fully approach voting rights for
Native Americans in the way that the struggles that they were
actually facing in many, many parts of the country in rural
communities.
The poll sites are simply too far and too few and they
are--there were instances in Alaska where people would have had
to travel for a hundred miles to get to a poll site. It was
simply--it was not even conceivable that this was appropriate
in our modern-day time.
And so part of what is needed is when we think about
restoring the Voting Rights Act is really focusing on the
availability of poll locations in Native American communities
to address this very serious problem.
Mr. Stanton. Thank you very much. I have one follow-up
question actually for Mr. Noti in a different direction.
As a new member of Congress, I am learning a lot about
something called shadow lobbying where--which apparently is a
huge loophole in the lobbyist registration requirements--people
being hired to provide strategic consulting whether or not they
have any expertise in the area simply because of relationships
they may have formed.
Obviously, the case of Michael Cohen is the most famous one
where he was paid a significant sum in areas outside of his
expertise. Talk about shadow lobbying and how this H.R. 1 would
fix that loophole.
Mr. Noti. Right. So the Lobbying Disclosure Act is an
important transparency measure that allows citizens to know the
influences that are being brought to bear on lawmakers. One
existing loophole in it is that it only reaches sort of the
last individual who actually talks to the policymaker.
And so what some enterprising folks have figured out is
that if you just keep yourself one step removed from that--you
do all the same work, the same advice, the same guidance who to
talk to, what to say, but have somebody else actually conduct
that activity--under existing law there is a perception that
does not count as lobbying and therefore doesn't trigger either
registration or other financial disclosure obligations.
H.R. 1 would close that loophole by designating strategic
support--strategic counseling in support of lobbying as
lobbying. One of the criticisms I believe I heard today was
that it is broad and amorphous--who knows what strategic
consulting is. It is not strategic consulting generally--
strategic consulting in support of lobbying.
Mr. Richmond. The time of the gentleman has expired and we
will now have the gentlelady Dean from Pennsylvania.
Ms. Dean. Thank you, Mr. Chairman, and I thank the ranking
member and all the members of the committee. I also thank all
of you for coming to testify on this very important measure.
I, too, am a brand new member of Congress. I come from
Pennsylvania--from the great Commonwealth of Pennsylvania. So
you will note that our experience in Pennsylvania will be
threaded in my remarks and in my questions.
I wanted to start with a sentence out of your testimony,
Ms. Gupta, which I applaud. You write, ``Our democracy works
best when everyone, no matter who they are or what their color,
can fully participate.''
I couldn't agree with you more and I share, Ms. Ifill, your
bafflement that we are actually having a debate over whether or
not we should get full participation--full voter participation
or should we allow things to stand in the way of full voter
participation.
Two areas that I wanted to focus on--and I will direct my
question for you to enlighten us, to both Ms. Gupta and Ms.
Ifill--are the recent kind of incubator experiences of
Pennsylvania in the area of voter ID and in the area of
redistricting--incubators in the case of good and in bad. The
bad would be in 2012 a Democratic legislature with a Democratic
governor--this is a presidential election year, you will
recall--passed, and this is pre-Shelby--Pennsylvania is not a
part of that--passed voter ID.
Seemingly innocuous. Euphemistically, of course you should
show your identification. I came in two months later in a
special election to the Pennsylvania House and we saw the
collateral damage that that did, the lack of trust that voters
had.
We went to nursing homes after nursing homes to try to help
older people who no longer had identification cards, who
couldn't access, in many cases, their birth certificates. We
know that it disenfranchised or attempted to disenfranchise
students, young people, poor people, and, clearly, people of
color. Our speaker of the House was caught nationally, you will
remember, saying, ``Voter ID. We got it. That will get us Mitt
Romney,'' or whomever.
So I ask you to tell us about how this important
legislation will speak to those very corrosive types of
legislation, and I will flip over and then give it to you both
to say the very good news that happened. Just one year ago, the
Pennsylvania Supreme Court said that our congressional lines
were palpably gerrymandered, palpably unconstitutional.
And so I am a little baffled, again, by my colleague on the
other side of the aisle from Pennsylvania who found that to be
a troubling decision. It was a constitutionally-based decision
and I, frankly, wouldn't be here if it weren't for that Supreme
Court decision, which rectified a 13 to 5 delegation in
Pennsylvania to a 9-9, matching our voter registration.
Can you talk about both of those issues and how H.R. 1 will
give us the opportunity to rectify those problems?
Ms. Ifill. Let me start, briefly, and then I will turn it
over to Vanita and particularly on the voter ID piece, which
you very eloquently describe that experience in Pennsylvania,
which I think is really instructive for us.
First of all, the idea of the need for voter ID laws and
their proliferation around the country, even pre-Shelby, really
comes out of a set of kind of voter suppression tactics and
ideas that were being circulated, frankly, and that is why it
is so important for us to speak the truth in this moment and to
say these are not ideas that came about because there was
evidence of widespread voter fraud.
That has still not happened despite the many years that
many experts have had to try and prove it. They have not been
able to prove it.
Ms. Dean. It was actually stipulated in that Pennsylvania
case----
Ms. Ifill. That is correct.
Ms. Dean [continuing]. That they couldn't come up with a
case.
Ms. Ifill. They could not even demonstrate that it existed.
So this was an answer in search of a problem. This was not some
good government measure designed to address ballot boxes that
were being subjected to some kind of fraud.
This was a move designed to control the population, to
control the electorate, and to control the outcome of
elections, and people understood exactly what it meant and what
it was.
The reality is that we have members of the population for
whom it is difficult to get the kind of ID that is required by
these laws either because they are in situations where they no
longer have their birth certificate, where they don't have the
underlying documents because they have to pay for the
underlying documents, or because, in some cases, as in Texas
and in North Carolina, the legislatures actually picked forms
of ID that they knew that minority populations were less likely
to have.
This is a terrible thing in a democracy to have a
legislature meet and pass a law whose purpose is to
disenfranchise a segment of the population.
And so it is critical in H.R. 1 that we address this issue,
that we call a spade a spade and stop pretending that these
voter ID laws are some good government measure. They are a
disenfranchising measure, they have metastasized around the
country, and it is time for the United States Congress to
address it.
Ms. Dean. Thank you.
Mr. Richmond. The time of the gentlelady has expired.
I will now recognize the gentlelady from Florida, Ms.
Mucarsel-Powell.
Ms. Mucarsel-Powell. Thank you, Mr. Chairman. I wanted to
thank Chairman Nadler for holding this important hearing here
today. Thank you to all the witnesses for appearing in front of
us today.
I think that we all agree that so many Americans in this
country are losing faith in our government and there are so
many reasons for this, and I am glad that we are finally
addressing some of them in this hearing.
I know that Americans do not want their elected officials
to be improperly swayed by campaign contributions. Americans do
not want their neighbor's vote to count more than their own
vote and we, in the Congress of the United States, must do
everything we can to ensure that an individual's right to vote
is not impeded.
And it reminds me near the end of Justin Ginsburg's dissent
in the Shelby County v. Holder. She suggested a simple analogy
to illustrate why the regional protections of the Voting Rights
Act were still necessary.
She wrote that, quote, ``Throwing out pre-clearance when it
has worked and is continuing to work to stop discriminatory
changes is like throwing away your umbrella in a rainstorm
because you are not getting wet.'' I am a representative of
Florida. I don't throw away my umbrella.
So with that, I wanted to ask Ms. Gupta, Florida was one of
the states that required pre-clearance before the Shelby County
decision. Can you provide us with an example of a change to the
voting laws in Florida that were enacted since the decision and
what sort of impact it has had?
Ms. Gupta. Thank you, Congresswoman. There have been a
significant number of poll site closures in the state of
Florida which have created a lot of issues around long lines
and accessibility of poll sites.
These kinds of changes, as I have said, they seem minor
because they happen in different places and they are small in--
you know, closing a poll site doesn't seem like it would rise
to some kind of nefarious effort.
But taken collectively, the Justice Department was unable
to have any clear indication of what was happening with the
number of poll sites being closed locally, and that is the kind
of thing where those kinds of changes would have been pre-
cleared or not by the Justice Department to prevent racial
discrimination.
There are any number of these kinds of minor and major
changes that Florida has made since the Shelby County decision
that have not been detected by the Justice Department as a
result of the Shelby County decision and these are the things
that ultimately corrode people's confidence in the government
and in elections and make people decide to opt out of voting
altogether when they feel like their vote won't be counted or
that the system is so rigged against them that there is no kind
of accountability for the kinds of these local changes and
subtle--more subtle changes that are getting made in previously
pre-cleared jurisdictions.
Ms. Mucarsel-Powell. Thank you, Ms. Gupta.
And I just wanted to follow up on Mr. Gaetz's comments
about Amendment Four. You know, as we all know, Floridians
approved this amendment to the state constitution so that we
can restore the franchise to most former felons.
How does H.R. 1 ensure that Amendment Four is effectively
and quickly implemented? Ms. Ifill.
Ms. Ifill. Well, it is certainly a complement to the
Florida--to the Florida law that recently passed and I think it
is really an important one. I heard Mr. Gaetz's colloquy with
my--with my colleague and I, to be honest, was mystified by it.
As I understand it, in Florida, for example, formerly
incarcerated persons can contribute to campaigns, which means a
wealthy former felon like Jeffrey Epstein, who has been in the
news very much, can and does contribute large sums of money to
political campaigns.
I am not sure why we would regard someone who had served
their time for a crime that they had committed and been
convicted of voting--why we would consider that more pernicious
than the ability to contribute to campaigns.
We live in an American system of justice in which once you
have paid your debt to society you should be restored as a
citizen. That means that you should be able to get a driver's
license. That means that you should be able to get a job.
That means that you shouldn't be banned by the misuse of
criminal backgrounds checks from being able to do a job and it
also means that you ought to be able to cloak yourself in the
ultimate expression of citizenship in a democracy, which is the
ability to cast a ballot and vote.
So I don't see the making a distinction in terms of the
crime. Our criminal justice system should ensure that someone
is released only when we feel confident that that person is no
longer a threat to society, and if our criminal justice system
has made that determination then it seems to me it is entirely
appropriate for that person to return and also receive the
franchise along with their other citizenship rights.
Thank you.
Ms. Mucarsel-Powell. Thank you, Ms. Ifill.
Mr. Richmond. The time of the gentlelady from Florida has
expired. I now recognize the other gentlelady from Florida,
Mrs. Demings, for five minutes.
Mrs. Demings. Thank you so much, Mr. Chairman, and thank
you to all of our witnesses for joining us today. I know it has
been a long day but, believe me, it is an important day. For
the time that I was able to be here I was mystified too, Ms.
Ifill, by some of the things that were said.
For someone who spent 27 years in law enforcement and then
to hear my colleague from Florida talk about when a person has
paid their debt to society, that is decided by a judge that
they still should be further disenfranchised.
Let me just start here. You know, someone said that the
only thing necessary for the triumph of evil is that good men
do nothing. Now, I have heard it said several times that we
live in the greatest country in the world and, believe me, I
know that we do.
But America--when we are deciding what we need to do,
moving forward, many times America has to take a look backwards
and our past in this area is painful and it is ugly and it is
deep.
Let me just, in case we--because we are the decision makers
and you all help us make those decisions--let me just kind of
remind you about black and brown people who simply wanted to
exercise the right to vote, were--many of them were the victims
of hangings, beatings, burnings, bombings, dismemberments,
disfigurements, all for wanting to exercise their basic right
to vote.
And then when America became more sophisticated, we moved
from physical harming to poll tax and literacy tests, questions
like how many bubbles are on a bar of soap or how many feathers
on a duck.
We further, in the greatest country in the world, did
everything that we could, those who were in decision-making
positions, to humiliate, to embarrass, to disenfranchise.
How long will we have to still, as we sit here in 2019,
continue to have to defend a person's right to cast their vote?
The good man who made the decision, and women, with the Voters
Rights Act of 1965 didn't do so because there wasn't a problem,
and when we talk about that was old and that is in the past,
no, that was in my lifetime and it was actually in the lifetime
of several of the members who sit here on this panel.
They did so because there was a significant problem,
particularly in Southern states, for which I am a
representative of one of them. And so if we are serious about
America being the greatest country in the world, then we all
should play a role in making it easier for our citizens,
regardless of their race, their sexual orientation, their
gender, to exercise that basic right.
I am proud of Florida in spite of the role that my
colleague called earlier--four people who were violent felons.
Well, a judge decided they had paid their debt to society. I
would also like to know the race of those four individuals and
we are going to check into that.
But let me ask Ms. Gupta. As we try to identify ways for
people to continue to vote, could you talk a little bit about
independent redistricting commissions and how effective they
have been?
Ms. Gupta. Sure. Thank you, Congresswoman.
Independent redistricting commissions exist right now, for
example, in California, Arizona, Colorado. We heard from
members of Congress in Pennsylvania talk about the ruling that
declared that the way that Pennsylvania was drawing district
lines was tantamount to unlawful gerrymandering. They will now
also have an independent commission.
A number of states in November, just this past November--
``red'' states, ``blue'' states--actually created independent
redistricting commissions out of a recognition that voters,
frankly, are fed up with unlawful gerrymandering.
And these redistricting commissions they have been
authorized by the Supreme Court which, as I said, decided that
it is perfectly okay for legislators to make sure that they
aren't participating in a drawing of their boundary lines, and
in places like California, Arizona, and Colorado that have had
these commissions for a while we have seen improvements in
representation and competiveness of elections and in voter
trust. And so this is why these provisions in H.R. 1 are so
important.
Mr. Richmond. Thank you. The time of the gentlelady has
expired. We have votes. We will go on to Ms. Escobar, the other
gentlelady from Texas, who is recognized for five minutes.
Ms. Escobar. Thank you, Mr. Chairman.
It is my privilege to serve on this committee and I would
like to thank and express my gratitude to Chairman Nadler and
to Representative Sarbanes for this outstanding bill, and
thanks to all of you on the panel for spending time with us
today to answer our questions and to be sure to share what you
know with the American public.
I come from El Paso, Texas, a great community on the U.S.-
Mexico border--the safe and secure U.S.-Mexico border--a
community that is 80 to 85 percent Latino in a state that
really has played a significant role in trying to suppress
turnout.
Texas is one of the states that has most aggressively moved
to purge the rolls and the voter ID law--thank you for
challenging the voter ID law. It has proven problematic for a
number of reasons and for one reason that I want to bring to
light here today just to shed more light on the myriad of
issues that we have heard about today.
But our local county elections offices, which are already
strained and have very few resources, when they have to
continue to adapt to these changing laws they have to use the
precious few resources that they have in order to open up more
polls and to hire more staffing and move it to educating people
about the changes that have occurred with voter ID.
My own county elections office in El Paso thankfully has a
leader at the helm, Lisa Wise, very interested in increasing
turnout, educating voters. But it stretches precious resources
in a very thin way. And when you have misinformation on top of
these laws, it creates an even worse situation.
And, Ms. Ifill, you mentioned our new secretary of state
and the letter and the press release and kind of the subsequent
fallout that occurred after he essentially tried to scare the
state of Texas about folks voting who maybe should not vote.
Can you share with us what the consequences of doing
something like that are? When people sound that kind of alarm,
as you mentioned, without transparency, without information,
without backup, what happens? What are the consequences?
Ms. Ifill. Well, first of all. For voters, themselves, it
scares people into, you know, being afraid of participating in
the political process because they don't know if they are going
to be checked. They don't know if they may have said something
or written something that was inaccurate.
You know, when you fill out these registration forms under
penalty of perjury, you know, the fear that maybe you got
something wrong that you thought was right really frightens
people.
Many people, particularly in the Latino community, live in
mixed homes. By mixed, I mean some people are documented and
some people are undocumented, and so the fear of exposing
relatives or other people to legal authorities or that this may
in some way be opening up some new investigative unit that
might frighten voters.
But here is the other thing that it does. It also emboldens
and empowers those people who want to challenge the right of
Latino voters and minority voters to participate in the
political process.
It emboldens those individuals who are white supremacists
in some instances, who are racists in other instances, who
believe that they have the right to challenge anybody at the
polls.
It makes them feel that they have the state at their back
in making the kind of unfounded challenges that many of them
make and that intimidates voters from participating in the
political process when they are challenged in that way or when
they see challenges happening at the polling place.
It is frightening, it is intimidating, and the secretary of
state should exercise more responsibility before unleashing
that kind of panic.
Ms. Escobar. Thank you very much. I yield.
Mr. Richmond. Well, thank you.
Before I conclude the panels, let me just say, and to Mr.
Adams and Mr. Spakovsky, we are all a product of our life
experiences and I won't assign any ulterior motives to you or
any hidden agenda.
But I will just say that my life experiences are much
different than yours. Minorities had to fight for the right to
vote. Women had to fight for the right to vote. We were not
born with it. That is what makes the right so precious and why
we fight so hard to protect it.
But I do agree with my colleague, Mr. Collins, from the
other side of the aisle that the goal is for everybody to vote
in a very meaningful fashion. But my fear is that we have run
around this country talking about voter fraud and we have hyped
up a problem that does not exist, all in an effort to justify
adding a little bit more fear to those people who had to fight
for that right.
So my mother, who is from the poorest place in the country,
one of 15 brothers and sisters, who does not miss an election
not because her son is in Congress but because she had to fight
and march for the right to vote.
So I would just hope that you take that for what it is and
just giving you the benefit of my life experiences.
And to Ms. Gupta and Ms. Ifill, Ms. Turberville and Mr.
Noti, thank you all for being here. Mr. Adams and Mr.
Spaskowsky, I didn't say thank you for being here. So thank you
for being here, also for being distinguished witnesses at
today's hearing.
Without objections, all Members have five legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
The hearing is adjourned.
[Whereupon, at 2:24 p.m., the committee was adjourned.]
APPENDIX
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