Mar 24, 2021
Senate Hearing Full Transcript March 24: For The People Act, Voting Rights
The Senate Rules Committee held a hearing on voting rights and the For the People Act on March 24, 2021. Read the transcript of the full hearing here.
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Senator Klobuchar: (03:10)
I called to order this hearing of the Rules and Administration Committee on S. 1, the For the People Act. Today, we are here to consider For the People Act, a legislation that I’m honored to lead with Senator Merkley and Majority Leader Schumer, which has been co-sponsored by every Democratic member of this committee. I would like to thank Senator Blunt, our colleagues, and our witnesses for being here today. I would also like to acknowledge, in addition to Senator Merkley, two of our other members who are new to this committee and are new to the Senate, Senator Ossoff, who along with Senator Warnock was elected in Georgia, where we all know election issues were front and center, as well as Senator Padilla, who has his own extensive experience with these issues from his time as California’s secretary of state.
Senator Klobuchar: (04:11)
Last month, when we held this committee’s organizing meeting, I announced that the For the People Act would be the subject of our first legislative hearing. I’m also pleased that we took part in very constructive hearings, along with the Homeland Security Committee on the January 6th attack on the Capitol, and our productive work Senator Blunt and I are doing together on oversight and investigations of that day is continuing. In the end, that insurrection was about an angry mob working to undermine our democracy and it reminds all of us how very fragile our democracy truly is and how it is on all of us to not just protect that democracy, but to ensure that it thrives. That democracy is due for some rejuvenation.
Senator Klobuchar: (05:09)
This bill is essential to protecting every American’s right to vote, getting dark money out of our elections, as well as some very important anti-corruption reforms. It is about strengthening our democracy by returning it to the hands of its rightful owners, the American people. As I said from the stage on the inauguration day, on that beautiful day, which Senator Blunt so much to make a success, under that bright blue sky at the very place where you could still see the spray paint on the bottom of the columns and the makeshift windows that were put in place, I said, “This is the day our democracy picks itself up, brushes off the dust and does what America always does, goes forward as one nation under God, indivisible, with liberty and justice for all.” Well, we can’t do that if anyone’s vote is suppressed. At a time when the right to vote is under attack and special interests and dark money are drowning out the voices of the American people, we need to take action.
Senator Klobuchar: (06:17)
Last November in the middle of a pandemic, in the middle of a public health crisis, nearly 160 million Americans voted, more people than ever before, in part because the methods of voting, specifically ways that we made it easier to vote, were extended in states across the country. That was an extraordinary thing, that was progress, but what was the result? Well, just since the beginning of this year, now over 300 bills have been introduced in state legislatures across the country in nearly every state, including my own home state of Minnesota. Efforts have been made to suppress the vote, efforts have been made to introduce bills that would suppress the vote.
Senator Klobuchar: (07:13)
As Senator Warnock said in his maiden speech on the Senate floor last week, to vote by mail, which is how 45% of voters cast their ballots in the last election, and 14 states have introduced legislation to make it easier to purge voters from the rolls. At the same time, the huge sums of money spent on elections are drowning out the voices of voters. According to the Center for Responsive Politics, spending for the 2020 election cycle was approximately $14 billion, more than double the 2016 cycle. Dark money also continues to flood our elections, denying voters their ability to know who is trying to influence their vote.
Senator Klobuchar: (08:02)
These are real threats to our democracy and the For the People Act takes them head on in a common sense way to return the power to the people. That is why the American people overwhelmingly support the provisions of this bill. According to a Pew poll from last year, 65% of respondents said the option to vote early or absentee should be available to any voter. A poll from the Campaign Legal Center found that 83% of likely voters support public disclosure of contributions to organizations involved in elections. Our recent Morning Consult poll found that 57% of voters support requiring states to establish nonpartisan redistricting commissions.
Senator Klobuchar: (08:49)
These are not new ideas. Many of the provisions in this bill have already been adopted across country in red, blue and purple states and have the support of Republican and democratic governors and elected officials. They should be extended to all people in America. 21 states have same-day voter registration, including red states like Idaho, Wyoming, and Iowa. Kentucky’s Republican secretary of state just recently praised a bill that would make early in-person voting permanent. He called it the most significant election reform legislation in the past quarter century. 20 states have automatic voter registration laws, including Alaska and Georgia. Even Ohio’s Republican secretary of state has called for automatic voter registration in his state. 45 states allowed all voters to vote by mail in the November election and 43 states have early voting. They should all have early voting.
Senator Klobuchar: (09:47)
What this bill does is to take the best of the best and simply puts in place minimum standards. I note, it’s not just bipartisan support in the state, there are nine bipartisan bills that are part of the For the People Act, including the Honest Ads Act, a bill that Senator Graham and I have long tried to get passed, along with Senator Warner, a member of this committee. I’m focused on having a productive discussion of what is in the bill before us and how we will address the real challenges our democracy is facing.
Senator Klobuchar: (10:22)
Based on what some of my colleagues say, I think I want to briefly respond ahead of time to that. We may hear about voter fraud despite the fact that experts have found that voter impersonation fraud is so rare than an American is more likely to be struck by lightning than to commit voter impersonation fraud. We may hear about alleged problems with the 2020 election, despite the fact that in November, the Trump administration’s Department of Homeland Security, along with state and local officials across the country, called the 2020 elections the most secure in American history.
Senator Klobuchar: (10:58)
We may hear about federal overreach, despite the fact that Article 1, Section 4 of the US Constitution empowers Congress to make or alter, those are the words of the Constitution, rules for federal elections “at any time”. We may hear about alleged violations of the First Amendment, despite the fact that the Supreme Court has repeatedly held that disclaimer and disclosure requirements are constitutional and that the court has never held that there is a constitutional right to spend anonymously on elections. We may hear about taxpayer funding of campaigns, despite the fact that this bill includes a provision stating explicitly that no taxpayer money should be used to fund campaigns.
Senator Klobuchar: (11:44)
The subject of this hearing, the very health of our democracy, is simply too important to allow these types of misrepresentations to go unaddressed. At its core, the For the People Act is about three simple ideas, making voting easier, getting big money out of politics, and strengthening ethics rules. These are not radical proposals. These are ideas that nearly everyone in this country agrees with, and this bill, we can make them a reality and ensure that Americans have a democracy that works for them.
Senator Klobuchar: (12:22)
With that, I am honored to turn it over to Ranking Member Blunt. Thank you.
Senator Blunt: (12:27)
Thank you, Senator Klobuchar. Good morning to everybody here and I’m pleased that others will be attending as the morning goes on. Before I begin my comments on today’s hearing, I’d like to congratulate Chairwoman Klobuchar on becoming head of our committee. Senator Klobuchar and I have a long history of working together to try to make the daily work of the Senate go better as an institution, and we have worked on lots of bills outside of the scope of this committee, as well. As all of you know, we’ve also begun bipartisan hearings on the events of January the 6th. As the Senator said, we’re continuing interviews, extensive interviews, on that topic and we’re going to be looking to see what comes next there. I look forward to continuing the committee’s work with her as we look to the remainder of this Congress.
Senator Blunt: (13:20)
I also want to mention the four new members that have joined the committee. I’d like to formally welcome Senators Merkley, Hagerty, Padilla, and Ossoff to the committee. Senator Padilla and I both served as secretaries of state and have maybe more of a sense of the many things that you worry about on election day than people who have been candidates on election day but never have had the responsibility that secretaries of state and local officials have.
Senator Blunt: (13:48)
Now to the business of today. It’s been 21 years since the first bill of a Congress has been referred to the Rules Committee. I think the first bill, the S. 1 bill is symbolically important. It’s intended to demonstrate the highest priority of the Senate’s majority party. As the Rules Committee begins its review of the majority’s highest priority, S. 1, we should note that Democrats defended the last elections as secure without meaningful election fraud, as Senator Klobuchar has done here today. They point to the high level of voter participation and the ability of states to make pandemic-driven changes. If you follow their view of why we need this bill in spite of those two things, it’s because the states are now headed in the wrong direction. They had been pointing to 253 bills, that became 300 bills this morning, but 253 bills mentioned in almost every article filed in 43 state legislatures to make it harder to vote. Now, nobody is a bigger expert on how you should conduct elections than politicians. When people come to see me who are with the airline industry, I say, “Okay, what you’re going to find in Congress is everybody here thinks they are experts on two issues, elections and air travel.” Elections are something that every state legislature thinks they’re a expert on, and frankly, six or seven bills filed in the average legislative session by Republicans and that many filed by Democrats would not be an unusual number at all.
Senator Blunt: (15:40)
The truth is, almost none of those bills become law. In fact, the Brennan Center, who’s been the source of these 253 bills that restrict voter access, say that so far only two have become law. One bill in Arkansas further defines the implementation of photo ID requirements and the other bill in Utah requires the Lieutenant Governor to send the Social Security list of deceased recipients to county clerks so that they can initiate the process of removing the names of dead people from the voter rolls. The Brennan Center lists that removal as voter suppression. I think they also list the bill that Senator Klobuchar talked about in Kentucky as voter suppression, because it takes the expansion that Kentucky made in the pandemic moment and then institutes the best of that expansion as part of permanent law. You can’t have both voter suppression and praising the bill at the same time as an example of how we need to move forward and states are moving forward in these areas.
Senator Blunt: (16:50)
Now, it’s never mentioned that over 700 bills have been filed by Democrats in state legislatures, and actually more than a hundred of them have somehow become law. A hundred Democrat bills passed into law and two Republican bills sounds like there’s a little disproportion there, but let me give you an idea on that one. One of the Illinois bills requires the establishment of polling places in county jails, so prisoners can vote.
Senator Blunt: (17:20)
The bill that we’re looking at really doesn’t have much to do with the topic of how well the elections were conducted in the last cycle, or Democrats wouldn’t be offering the bill at all. One of the goals of S 1 will be a federal takeover of the election process. In my view, that would be an unmitigated disaster for our democracy. Today’s hearing will shed light on some of the destructive elements contained in this legislation.
Senator Blunt: (17:55)
I’ve been a former election administrator, first as the Green County clerk in Missouri’s third largest County and later as Missouri’s secretary of state. I’m greatly concerned about the idea that somehow one-size-fits-all regulations from the federal government change a system that has served our country well since the beginning of the country. The diversity of our election system is one of the greatest strengths of our election system. You all have become perhaps tired of me consistently quoting President Obama in 2016, who made that exact same observation, one of the strengths of the system is the diversity of the system.
Senator Blunt: (18:40)
S 1 would force a single partisan view of elections on more than 10,000 jurisdictions around the country. State and local election administrators would be forced to change how they register voters and which voting systems they can use, how they handle early voting and absentee ballots, and how they maintain their voter list. The bill would require states to make ballot drop boxes available for 45 days prior to a federal election. It even designates the location of the drop boxes and tell states how the ballots are to be taken out of the drop boxes and counted. It would mandate unlimited ballot harvesting, a process where one person collects and submits an unlimited number of ballots, a system ripe for abuse as Democrats in the House of Representatives contended when they refused the election of a Republican from North Carolina because of ballot harvesting. This bill would also require states to allow felons to vote in federal elections, and it does allow states that don’t want to do that to have a separate set of voter registration lists, one for federal elections and one for other elections.
Senator Blunt: (19:59)
What’s more, this bill would require all of these changes to be made very quickly, so quickly that should this legislation be enacted chaos will reign in the next election and voters will have less faith in the integrity of their elections than they currently do. S 1’s path of destruction doesn’t stop at election administration. It would result in a partisan federal election commission, a commission that is designed to be half of one party and half of the other, federal monies would flow into campaign coffers at the rate of $6, six federal dollars for every dollar raised up to $200. $1,200 from the treasury for $200 raised would be particularly helpful to candidates when they can pay themselves a salary to campaign as this bill also allows.
Senator Blunt: (20:54)
These are only a few of the things that people need to be aware of. I’m sure they’ll be aware of much more by the end of this hearing. There are First Amendment issues, there are Tenth Amendment issues, a federal takeover of congressional redistricting, a constitutional issue. Let me finally request that, as a committee, we really worked through this and other issues based on the principles of fair play.
Senator Blunt: (21:22)
Now, as I said earlier, Senator Klobuchar and I have worked closely together for a long time and we will continue to, but on this issue, the first time my staff saw a draft of this 818-page bill was March the 12th. After agreeing to the number of witnesses on March the 16th, we were informed at 6:18 PM on Thursday, March the 18th, that instead of having the three Democrat witnesses and two Republican witnesses we’d agreed to, there’d be six Democrat witnesses and we could add our witnesses if we could find them over the weekend. This committee has a long tradition of respect for the minority party, I hope that custom will be restored. I’m glad to be joined by so many of our colleagues today, Chairwoman, and look forward to the hearing.
Senator Klobuchar: (22:15)
Thank you very much, Senator Blunt. I think you know our strong friendship will continue despite our disagreements on this bill. I will want to point out one thing. The bill has been in existence for years. The version of the bill that was introduced this year is very similar to the one that was introduced in the last Congress almost two years ago. The Senate bill actually closely tracks the text of the House bill, which passed the House of Representatives, was introduced on January 4th, 79 days ago. With that, we’re honored to have both leaders here, who are members of this committee. I’ll first hand this over to Senator Schumer.
Senator Schumer: (23:02)
[inaudible 00:23:02]. This is the first committee meeting I’m attending as majority leader because I believe this issue is so, so important. Now, the story of American democracy [inaudible 00:23:27] messy, full of contradictions, full of problems, two steps forward, one step back. It was a century and a half before women got the right to vote, another half century before African-Americans could enjoy the full rights of citizenship. It took movements and decades of fraught political conflict to achieve even those basic dignities and establish the United States as a full democracy worthy of the title.
Senator Schumer: (23:58)
Progress in the right to vote is a hallmark of this democracy. When the nation was founded, you had to be a white male Protestant property owner in many of the states, so a very small … If we kept those rules into effect, let’s not change things, we maybe would have 5% or 10% of the American people voting. But no, our move to equality, our move to fairness, has been inexorable, but it didn’t happen on its own. It took mighty movements and decades of fraught political conflict to achieve those basic dignities and establish the United States as I said, as a full democracy worthy of the title.
Senator Schumer: (24:49)
But any American who thinks that the fight for a full and fair democracy is over is sadly and sorely mistaken. Today, now, in the 21st century, there is a concerted nationwide effort to limit the right of man American citizens to vote and to truly have a voice in their own government. In the wake of the November elections, one of the safest in recent history, Republican-led state legislatures have seized on the former president’s big lie that the election was stolen, and introduced more than 250 bills in 43 states aimed at tightening voting rights under the guise, the guise, of election integrity. Instead of doing what you should be doing when you lose an election in a democracy, attempting to win over those voters in the next election, Republicans instead are trying to disenfranchise those voters. Shame on them.
Senator Schumer: (25:54)
In Iowa, where college students and rely on the flexibility provided by early and mail-in voting, the Republican legislature voted to cut early voting by nine days, closed polls an hour earlier, and tightened rules on absentee voting. In Wisconsin, where urban and rural precincts face vastly different administrative burdens, Republicans have proposed limiting ballot drop boxes to only one municipality, no matter what its size. It could be 10,000 voters in a rural republican county or 500,000 voters in an urban democratic voting county, one ballot drop box. In Arizona, no fewer than 22 separate measures to limit voting rights have been introduced, including a bill to require every absentee ballot be notarized. How are poor people going to pay for a notary when there’s virtually no indication of fraud? It’s one of the most despicable things I have seen in all my years. Shame, shame, shame. Other things in Arizona? Two bills to ban automatic voter registration and same-day registration, even though neither practice exists in Arizona.
Senator Schumer: (27:12)
The most reprehensible effort of all might be found in Georgia, where Republicans recently passed a bill to eliminate early voting on Sunday, on Sunday, a day when many church-going African-Americans participate in voter drives, known as Souls to the Polls. What an astonishing coincidence, outlaw voting on a day when African-American churches sponsor get out the vote efforts. I’d like one of the Republican members on this committee to give us a plain sense justification for that restriction, no early voting on Sundays. Why did Georgia Republicans outlaw it? Monday through Saturday, legitimate voters show up, but Sunday is voter fraud day. Give me a break. Every one of us, Democrat, Republican, liberal and conservative, knows what the Georgia legislature is doing. They don’t even have a good justification for it.
Senator Schumer: (28:12)
This is infuriating. I would like to ask my Republican colleagues, why are you so afraid of democracy? Why, instead of trying to win voters over that you lost in the last election, are you trying to prevent them from voting? Our country has come a long way, supposedly, since African-Americans in the South were forced to guess the number of jellybeans in a jar in order to vote. But some of these voter suppression laws in Georgia and other Republican states smack of Jim Crow rearing its ugly head once again. It is 160 years since the 13th, 14th and 15th Amendments abolished slavery, and Jim Crow still seems to be with us. The laws, their various cousins in Republican state legislatures across the country, are one of the greatest threats we have to modern democracy in America. According to The Washington Post, these laws could strain every available method of voting for tens of millions of Americans, the most sweeping contradiction of ballot access in the United States since the end of Reconstruction.
Senator Schumer: (29:32)
If one political party believes that when you lose an election the answer isn’t it to win more votes, but rather to try and the other side from voting, we have an existential threat to democracy on our hands. If we don’t stop these vicious and often racist actions, third world autocracy, like Erdoğan’s Turkey or Orban’s Hungary, will be on its way. That is why the country so badly needs S. 1, a bill that would combat all of these voter suppression efforts, a bill that would make it easier, not harder, to vote by automatically registering American voters when they get a driver’s license, by guaranteeing at least 15 continuous days of early voting, a bill that would limit dark money and corruption in our politics and much more. We’re going to hear from my fellow democratic committee members why the bill is so important, and I expect we’re going to hear the same tired canards from our Republican colleagues, many of which have no basis in fact, most of which defy belief. We’re going to hear year that this bill, gasp, register Americans to vote, is a democratic power grab. We’re going to hear that it’s a federal takeover of our elections, nevermind that the founders, who my Republican colleagues invoke when it’s time to confirm a right-wing judge, wrote in the Constitution, in the Constitution, that the Congress has the power to pass laws to determine the time, place and manner of federal elections.
Senator Schumer: (31:19)
We’ve been down this road before. Opponents of voting rights throughout history have always said, “Leave it to the states.” Just leave it to the states to discriminate against African-Americans, Latinos, Native Americans, younger Americans in college. It is shameful our Republican colleagues are proposing these ideas in 2020, the same kinds of state’s rights that have been used from time immemorial to prevent certain people from voting. Shame, shame, shame. This is not-
Senator Schumer: (32:03)
… shame, shame. This is not an usual political argument. This goes to the core of our democracy. The crowning achievement of the American civil rights movement was a federal election law. You might know it better as the Voting Rights Act. Federal, federal, bi-partisan. The truth is that we have passed scores of federal election laws and amended our constitution to guarantee the franchise to our citizens. Often bi-partisan led by Republican presidents.
Senator Schumer: (32:39)
The Voting Rights Act of in 1965, the National Voter Registration Act of 1993, the Help America Vote Act of 2000 to the 14th, 15th, 1920 third, 24th and 26th Amendments. All election changes. That’s because in a democracy, it shouldn’t matter if a state wants to make it so onerous for a particular group to vote that it’s nigh impossible. Is requiring a notary public any different than asking people to guess the number of jelly beans in a jar? I guarantee you the motivation is exactly the same. It shouldn’t matter if a state wants to do it, if it’s so, so wrong. So, so against the grain of our democracy. Voting rights are sacrosanct. They must be inviolable. And if Congress has to pass a law or amend the constitution to protect the voting rights of our citizens, that’s what we should do. That’s what we must do. That’s what our democracy requires we do. S1, the For the People Act will be a priority in this Congress. Thank you.
Senator Klobuchar: (34:02)
Thank you very much, Senator Schumer. We now turn to the Republican leader, Senator McConnell
Senator McConnell: (34:12)
From what the majority leader is just said, the state bills that he refers to, I believe Senator Blunt has mentioned only two of them have passed and they had absolutely nothing to do with suppressing the vote. It’s also noteworthy that this is a solution in search of a problem. The turnout in 2020 was up 7%. The turnout in the 2020 election was the highest since 1900. States are not engaging and trying to suppress voters whatsoever. This is clearly an effort by one party to rewrite the rules of our political system. But even more immediately, it would create an implementation nightmare, as Senator Blunt pointed out that would drown state and local officials who run elections. This proposal needs all the scrutiny it can get. And I’m glad we’re all here to give it that scrutiny. This legislation would forcibly rewrite the election laws of all 50 states from here in Washington. Popular policies like voter ID requirements would be banned, unless states neutered them with loopholes.
Senator McConnell: (35:38)
Meanwhile, unpopular and absurd practices like ballot harvesting, where paid political operatives can show up carrying stacks of other people’s ballots would not just be allowed, it would be mandatory. Washington would mandate that every state and county in America adopt same day voter registration with minimal safeguards, but it would make it incredibly difficult for states and counties to conduct routine voter list maintenance like removing dead people or voters who don’t live there any longer. Then there’s the whole question of political speech. Refereeing campaigns and policing speech or sensitive tasks. Appropriately, the FEC was designed after Watergate to be bi-partisan and even split three to three. So let me do all on that for a minute. After Watergate, my party, the Republican party was just about wiped out. The overwhelming democratic majorities could have done anything they wanted to.
Senator McConnell: (36:45)
It never occurred to them that the federal election commission set up to police how we run campaigns would be made a partisan entity. They could have done it. Then now we’re in a 50/50 Senate and a narrow majority in the House. And this audacious move wants to turn the judge of our democratic process into a partisan prosecutor? Talk about shame. Anybody ought to be feeling any shame around here, it’s turning the FEC into a partisan prosecutor, the majority controlled by the president’s party to harass and intimidate the other side. That’s what you ought to be ashamed about. Over in the House Administration Committee, we’re having an example right now of how that could happen. The Democratic majority is trying to overturn a certified election result. I want to ask how many of our friends on the other side here, just arguing last month and the month before that certifying a state election was the gold standard.
Senator McConnell: (38:05)
It’s over after a certification. Apparently, not in the House. Of course the constitution gives the house to determine who will sit there. That doesn’t mean they should go against everything they were preaching in the last two months about the sanctity of state certification and simply ram through someone who lost the election according to officials in Iowa. That what happens, I would say to my democratic friends. That’s what happens when you let partisan bodies regulate elections. And that is certainly not what we need at the FEC. And that’s what among other things, you ought to be ashamed about. This bill would also expand the scope of this newly partisan FEC. More power over more of American speech, more mandates for private groups to publicize their list of supporters. Associational privacy is a core liberty. It’s been championed heroically by organizations like the NAACP. This bill is such an attack on citizen’s privacy that even the left wing ACLU opposes this bill.
Senator McConnell: (39:24)
These are big picture problems. But on a practical level, even if you disagree with everything I just said, the fact is, as Senator Blunt pointed out this legislation, it’s just not ready for prime time. It’s an invitation to chaos, chaos, state level election officials, including Democrats are signing alarms left and right. This messaging bill would create a nightmare if it actually became law. It would mandate brand new voting machines that not even been produced yet. It mandates something that doesn’t exist, let alone certified and approved. It would force every state to rush through big changes like inventing new, unsecure, automated telephone systems to register voters. I’m sure prank callers would have a field day with that. This thing even has something to say about the paper on which local officials would be able to print their ballots and the kind of envelope adhesive they have to use.
Senator McConnell: (40:32)
That’s a really important thing for the federal government to dictate. What kind of adhesive they have to use. What a great idea. Just the prospect of all these silly new mandates has already keeping local officials up at night. And that includes by the way, Democratic local officials who conduct elections. And of course this thing would even put American taxpayers on the hook for transfer payments. Don’t be kidded into thinking there’s not federal money in this bill transfer payment that would go directly to fund political campaigns. Taxpayer funded bumper stickers and attack ads, what a great idea. The American people really going to like that. Taking their money and spending it on attack. Add bumper stickers, buttons and balloons.
Senator McConnell: (41:24)
Look, even liberals who liked this bill better than I do or admitting all the practicalities needed to go back to the drawing board. This is nowhere near ready for prime time. It’s an invitation to total chaos. So I’ll close with this. Senator Klobuchar, I had your job after the 2000 election. Chris Dodd and I teamed up to pass the Help America Vote Act. It was a major voting bill. What it did was it tried to encourage making it easier to vote, but harder to cheat. It was a combination of things.
Senator McConnell: (42:09)
Well-balanced. It passed 92 to two. 92 to two. That’s the kind of consensus that can be built when you approach a subject like the one that’s before us today on the right way. By contrast this bill did not receive a single vote in the House. And I predict it will not in the Senate, should we unfortunately have to vote on it. Both Republicans and Democrats voted against it in the House. Now we’ve just seen two consecutive presidential elections, 2016 and 2020, where chunks of Americans on both the left on the right took turns refusing to accept the result when their side lost. We can’t afford to go further down this road. We should be finding ways to rebuild trust, not destroy it further. But that’s exactly what a partisan power grab would guarantee. And that’s what S1 is all about. Thank you, Madam Chair.
Senator Klobuchar: (43:23)
Thank you very much, Senator McConnell. I do want to clarify that the bill did pass the House, did receive votes in the house 220 to 210 with only one Democrat voting against the bill by a prior agreement, Senator Merkley who’s the author of the bill is going to say a few words and then we’ll introduce the witnesses. Thank you.
Senator Merkley: (43:42)
Thank you, Madam Chair. And this is clearly a very important conversation for our country. It has been since we were born. Our founders had this revolutionary idea that instead of power flowing down from kings and being edicts on the people, it would flow up from the people to guide our nation in its current time and in times to come. That power is exercised through the ballot box, which makes that ballot box and incredibly important, not just a symbol of government, by the people, but the core device through which that power is exercised. Our founders recognized that this could be difficult. And I think you have all heard that Ben Franklin in 1787, when he was leaving the constitutional convention exiting the door of the Independence Hall was asked, “Doctor, what have we got, a republic or a monarchy?” And he replied, “A republic, if you can keep it.” And this battle over keeping the vision of our country of power flowing up from the people has been one that we have had to fight to maintain throughout our history.
Senator Merkley: (45:09)
It was Lincoln who he was speaking at Gettysburg commented on fact that, “We here highly resolve that these dead shall not have died in vain. That government of the people by the people, people for the people shall not perish from the earth.” Now our founding document was flawed and that it didn’t give the power of the ballot box, the power of the vote to every individual. And we have worked through great struggle to make sure that that is remedied. Through the 14th and 15th Amendment, we overcame some of the barriers on race. Through the 19th Amendment barriers on gender happening within the lifetime of my father, I was astounded to learn as a child. Overcoming barriers that denied Native Americans, the right to vote with the Indian Citizenship Act of 1924. Overcoming barriers of Jim Crow in the Voting Rights Act of 1965. LBJ commenting at that time said, “The vote is the most powerful instrument ever devised for breaking down injustice.” And many have characterized the power to vote as the most fundamental right. Robert Kennedy famously saying, “Each citizens right to vote is fundamental to all the other rights of citizenship.”
Senator Merkley: (46:40)
So here we are now. Once again, struggling with battle on how to defend the integrity of our election process, the integrity of the box. We have elections that are afflicted by gerrymandering, which is a direct attack on equal representation. Political scientists continue to tell us that the representation in the House of Representatives is significantly biased by the gerrymandering that takes place in various States. Every American has a stake in the integrity of eliminating gerrymandering. The dark one money flowing through our campaigns, the big money is a source of such cynicism to Americans that this unidentified massive hundreds of millions of dollars is drowning out their voice. They see those campaign attack ads, hundreds and hundreds of millions of dollars, nobody knowing where this money comes from and what they know is that isn’t power from the people, because people don’t have hundreds of millions of dollars. That is powerful from the corporations. That is power from the mega rich attempting to influence the course of our country.
Senator Merkley: (47:54)
Not for the people not of, by and for the people, but of, by and for the powerful. We have a responsibility to address that. And then voter suppression. Well, this is not as I just heard, some silly idea that we should stop voter suppression, it is fundamental. We took an oath to the constitution and that involves defending the right to vote, defending the ballot box. And we’re going to see a lot of laws passed trying to take that way. We all know know how easy it is to manipulate the vote on election day. We know because we see it. We see the long lines in very poor communities. We see difficult places to reach or removed precinct polling places in areas that are primarily where black Americans vote. We see the false information put out by various characters saying, “Oh, the election was last week. Sorry you missed it.”
Senator Merkley: (48:54)
When actually the election is a coming week. Or saying, “Here’s the place to vote.” But it’s not accurate. And so the antidote to the manipulation of election day has been to enable people to vote early or vote by mail. It’s worked in red states like Utah, it’s worked in blue states like Oregon. It has been popular with citizens who want to know that they can exercise their right without being sent to the wrong place, without being sent to some place that has no parking. Without being sent to someplace where there’s no staff, so they have to wait in line for five hours.
Senator Merkley: (49:29)
Without worrying about whether that November election is in the middle of a snowstorm. They want to exercise that right, and we have a responsibility to defend their ability to do so. So let’s take on these afflictions in a bipartisan manner. Until recently it was bipartisan in support of the vision of election integrity. Let’s summon that spirit together again. Let’s summon the spirit that led us to the 14th and 15th Amendments, the 19th Amendment, that led us to the 1924 Indian Citizenship Act, that led us to the 1965 voting Rights Act. It is our responsibility and it’s imperative that we act and we act now. Thank you, Madam chair.
Senator Klobuchar: (50:23)
Thank you very much, Senator Merkley. Before we swear in our first panel of witnesses today, I’d like to make a motion to enter into the record some documents by unanimous consent. They were submitted by national leaders, civil rights groups, democracy reform groups, and others in support of S1, the For the People Act. I’d like to highlight three letters in the group. The first from former first lady, Michelle Obama’s organization, When We All Vote. In support of the bill, which has been signed by more than 60 people who are national leading voices in the arts, sports and civil rights, including Tom Hanks, Kerry Washington, Lin Manuel Miranda, and Isa Ray.
Senator Klobuchar: (51:04)
A letter from the Declaration for American Democracy and supported the bill that has been signed by more than 300 national and state organizations and a letter from the National Disability Rights Network, which highlights some of the challenges voters with disabilities continue to face when casting their ballot and emphasizes the urgent need to enact many of the reforms in the For the People Act, unanimous consent to put these letters in the record, put them in the record. I’m now going to introduce three of the witnesses and Senator Blunt will introduce the other witnesses, the other two witnesses, including one that’s with us today. But before we do that, I’ll swear in the witnesses. If the witnesses could please stand, including those joining us virtually and raise your right hand.
Senator Klobuchar: (52:03)
Do you swear that the testimony you will give before the Committee shall be the truth, the whole truth and nothing but the truth so help you God?
Secretary Andrew Mac Warner: (52:13)
Attourney General Holder: (52:13)
Senator Klobuchar: (52:14)
Thank you. Now, our witnesses. Our first witness today is former US Attorney General, Eric Holder. Attorney General Holder began his career in public service in the Public Integrity Section of the Justice Department in 1976. He was later appointed by President Reagan to serve as a judge on the Superior Court of the District of Columbia in 1988. After Attorney General Holder stepped down from bench in 1993, he made history as the first African-American to serve as the US attorney for the district of Columbia. In 1997, he was named Deputy Attorney General by President Clinton and became the first African-American to serve in that position. He then moved on to a law firm at Covington and Burling. And after that in 2009, he again made history by becoming the first African-American to serve as US Attorney General under President Obama. In 2017, he launched the national democratic redistricting committee and have served as its chair.
Senator Klobuchar: (53:29)
Our second witness today is Secretary Jocelyn Benson. Secretary Benson was elected as Michigan’s 43rd Secretary of State in 2018. Over the last two years, she has implemented a number of major reforms. And this is very important to the discussion we will be having today about the implementation issues. She has been able to do this with no issues to Michigan’s elections, including putting in place automatic voter registration, same day registration, and no excuse vote by mail for all voters, as well as conducting post election audits. Before taking office, she was the youngest woman in US history to lead a top 100 accredited law school after she was appointed as the Dean of Wayne State University Law School in Detroit at the age of 36. Previously, she was an associate professor and associate director of Wayne laws Damon J Keith Center for civil rights. She also currently serves as vice chair of the advisory board for the Levin Center at Wayne law, which he founded with former us Senator Carl Levin. Secretary Benson received her BA from Wellesley University, her MA from Magdalene College at the University of Oxford and her law degree from Harvard Law School.
Senator Klobuchar: (54:51)
Our third witness on the first panel is Mr. Michael Waldman, president of the Brennan Center for Justice at New York University Law School. He has served in that capacity since 2005. He began his career in 1989 as a director of Public Citizens Congress Watch. From ’93 to ’95, he served as a special assistant to President Clinton for policy coordination and was the top White House aid on campaign reform. He then continued to serve in the Clinton administration as director of speech writing and assistant to the president until 1999. He has written for State of the Union addresses and two inaugural addresses. Mr. Waldman has also been a lecture in public policy at Harvard, John F. Kennedy school of government and practice law in Washington, DC and New York. He received his BA from Columbia University and his law degree from NYU School of Law. And I’ll now turn it over to Senator Blunt, introduce the two other witnesses.
Senator Blunt: (55:54)
Thank you, Senator Klobuchar. Since you responded to Senator McConnell’s comments, I have just one brief comment to what Senator Schumer had to say. He said he’d like for any Republican to answer the question of why Georgia should eliminate voting on Sunday. They are not eliminating voting on Sunday. It did not pass the legislature. The Republican Lieutenant Governor even refused to preside over the debate. This is an idea like most of the 253 ideas out there introduced by some Republican in some legislature somewhere that will not happen. We can spend all day talking about legislation that was filed by Republicans that will not become law. Or we can talk about this bill. And I hope we get to where we talk about this bill. I have two witnesses today we’ve asked who can talk about this bill with great knowledge of how this bill will affect states.
Senator Blunt: (56:55)
One of our witnesses, Todd Rokita was elected to serve as the Attorney General of Indiana in November of 2020. Prior to that, Todd Rokita served Indiana and the Congress and as Indiana Secretary of State. Todd was elected as President of the National Association of Secretaries of State in 2007. Our second witness today, Mac Warner is a West Virginia’s 30th Secretary of State. He graduated from the United States Military Academy at West Point and the West Virginia university school of law. Prior to serving as Secretary of State, he served his country for 23 years in the United States Army and five years in Afghanistan with the State Department. And I’d like to turn to Sarah Capito for any additional comments she might make about her secretary of state Mac Warner.
Senator Capito: (57:48)
Well, thank you, Senator Blunt. Thank all of you. And I want to thank our Secretary of State Mac Warner for joining us today. He ran a flawless election in 2020 under difficult situations for everybody. We had more people voting. We had no disputes to speak of, and I want to thank our Secretary of State for not only being a leader in this area on mobile voting as well, but also for serving our country. He comes from a long line of West Virginians, and I’m proud to have him here with us today. Thank you.
Senator Klobuchar: (58:21)
Good. We’ll start with our first witness. The witnesses have five minutes for an opening statement and we will begin with the Attorney General Holder.
Attourney General Holder: (58:33)
Thank you, Chairman Klobuchar, Ranking Member Blunt, members of the committee. I want to thank you for the opportunity to appear before you today. For as long as this country existed, there have been two opposing forces that have fought over how we define and confer the rights and privileges of citizenship, freedom and equality. Every step that has brought us closer to universal suffrage has been met by those often by those who are in power, who want to maintain an unjust status quo. Much in the same way that reconstruction was followed by the era of Jim Crow, the progress one by the civil rights movement, including the Voting Rights Act of 1965 has faced a multi-pronged assault that has sought to take us back to an era in which politicians, not the people, pick who wins and consequently who can participate in elections. The events of the past few months have brought into stark focus what has been true for too long. There is a large and powerful faction in this country intent on retaining power and will bend or break the rules of our democracy in order to do so.
Attourney General Holder: (59:37)
The attack on our system of government did not begin or end with insurrection at the Capitol on January the sixth. For years now, politicians have sped the same lies about voter fraud and advanced falsehoods about the integrity of our electoral system. The fact is that there is no evidence of widespread or systemic fraud during the 2020 election or at any other time. Yet state legislators around the country have used these baseless assertions as a pretext introduced, as you’ve heard more than 250 bills in 43 states that would restrict who can vote. This new wave of bills is the latest step in a decade long project to systematically chip away or outright eliminate key protections for voters in a way that has undermined our representative democracy. Too many Americans and particularly people of color, face discriminatory and onerous barriers to vote. The For the People Act is a necessary and appropriate response to both the erosion of voting rights and the advancement of special interest.
Attourney General Holder: (01:00:39)
The combination of unprecedented partisan gerrymandering during the 2011 redistricting process, the wave of voter suppression bills passed in the wake of the Supreme Court’s disastrous Shelby County decision and the flood of dark money unleashed by the court’s Citizens United decision have all combined to create a political system that does not adequately represent the desires of the American people. The For the People Act is the right remedy at the right time.
Attourney General Holder: (01:01:05)
This bill recognizes that the best solution to abolishing the undemocratic trinity of issues plaguing our democracy, gerrymandering voter suppression, dark money is to get rid of all of them at once. By creating a baseline of protection for voters, rooting out corruption in dark money and ending the practice of partisan gerrymandering, this Congress can create a fair level playing field in our electoral system. This bill also makes evidence that Congress should pass the John Lewis Voting Rights Advancement Act, which would update the formula for determining which jurisdictions are subject to federal clearance. Taken together, the For the People Act and the John Lewis Voting Rights Advancement Act represent the greatest pieces of civil rights legislation since 1965 and are badly needed reforms that will strengthen our democracy.
Attourney General Holder: (01:01:55)
Now, despite what opponents may say, this bill would not favor either party. To the contrary, it would create a level playing field for the American people. The reality is that no matter what political party you support or what policies you advocate, your voice will be stronger if politicians are required to be responsive to your needs. Now is the time for Congress to exercise its constitutional authority to protect the structure of our representative democracy. Ensuring a true representative democracy is how we advance equality, opportunity and justice in areas where too many Americans are still let down, left out and left behind. It’s how we make every vote count and how we make every voter count. It’s making the determination of what kind of country we want to be. One closer to its founding promise or nation turning away from our democratic ideals. Passing this bill will be a critical and necessary step to restoring power to the people where it belongs. Thank you.
Senator Klobuchar: (01:03:01)
Thank you very much, Attorney General Holder. Next with us today, Secretary Andrew Mac Warner from West Virginia.
Secretary Andrew Mac Warner: (01:03:12)
Thank you, Chairwoman Klobuchar, Ranking Member Blunt, and members of this committee. Thank you for letting me address the implications of S1 on the state of West Virginia. Dubbed For the People’s Act, this is anything, but for the people, in fact, it is against the people it is against the states and it is against the United States. First, it is against the people because it overrules access and it overrules checks and balances. My most vehement objection to this is that by prohibiting electronic transmission of ballots, it strips the most efficient and secure form of voting for our military. The people who put their very lives on the line for our democracy and way of life. When I was deployed as were my two sons, my two daughters, my two sons in all, all of whom served in the US Army. It is prohibited, they have had difficulty voting. Therefore, when I became Secretary of State-
Secretary Andrew Mac Warner: (01:04:03)
… had difficulty voting. Therefore, when I became Secretary of State, I determined to fix this, and we did it through electronic transmission of ballots using mobile devices. We proved the technology with our military, and then we extended it to voters with disabilities, giving them not just the right to vote, but the opportunity to vote. 31 states allow electronic transmission, and S1 strips this opportunity for everyone to vote electronically. How is this for the people? Clearly it’s not. S1 also overrules checks and balances in our election security. It mandates AVR, including 16-year-olds. It bans ID laws and shields non-citizens from prosecution. It eliminates signature verification. It pushes mail-in voting without photo ID. It promotes ballot harvesting and requires drop boxes. It delays election results by requiring acceptance of ballots up to 10 days. That delay and all of these collectively decrease individual confidence, and it increases distrust in our elections.
Secretary Andrew Mac Warner: (01:05:08)
Second, S1 is against the states because it requires a huge expansion of state legislation and imposes funding mandates far beyond states’ abilities to implement. It forces de-certification of every voting machine in West Virginia, wasting tens of millions of dollars that you provided to us through [inaudible 01:05:26] funding. It mandates same-day registration, which requires poll books connected to the Internet through high-speed broadband, something West Virginia simply cannot do. We do not have high-speed broadband in all the precincts of West Virginia. It requires agencies beyond DMV, such as colleges and social services, to automatically register people that come in contact with them and transmit their personal identification information, thereby increasing risks for hackers, and it busts our budgets. It forces election officials to accept and count ballots voted in incorrect precincts. It stops states from cleaning up voter registration lists.
Secretary Andrew Mac Warner: (01:06:07)
West Virginia’s Clerk Association President, Linda Huggins, said this. “Clerks are unanimously against S1 because deadlines cannot be met and requirements are not achievable.” Clerk. Michelle Holly cited unfunded mandates as showstoppers, and Clerk Brian Wood said, “It doesn’t matter if you’re Democrat or Republican. If you want to keep our democracy intact, you’ve got to leave it up to states to run their elections.” To implement the changes by January 1st, a special session of our legislature would be required, which is not practical and would be hugely expensive. In sum, take away the ideology and the partisanship. Clerks across West Virginia, most of them whom I’m told are Democrats, are against S1.
Secretary Andrew Mac Warner: (01:06:51)
Third, S1 is a vast federal overreach. This 800-page monstrosity stomps on states’ rights. The US Constitution does say that the time, place, and manner of elections shall be prescribed by state legislatures. States have individual approaches based on history, geography, and cultures that create vastly complex and different election processes. This broad mosaic provides election security versus a one size fits all approach. The private right of action remedy is tremendously problematic, as are the number of severability clauses that indicate S1 is not likely to withstand judicial scrutiny. The court cases will increase delays, cause confusion and distrust in our already contentious, intense election process.
Secretary Andrew Mac Warner: (01:07:38)
In conclusion, S1 is not for the people, especially not for the people of West Virginia. Federalizing elections has never been done before and for good reason. Senators, please leave election administration up to the states. The impossible requirements and unfunded mandates of S1 will create election chaos and further divide our country. On behalf of the state of West Virginia, as its chief elections official, I urge you to consider these grave implications, and I thank you for this opportunity to bring these various serious flaws and concerns to your consideration. Thank you.
Senator Klobuchar: (01:08:12)
Thank you. For a different perspective on the bill, the Secretary of State for the state of Michigan, Jocelyn Benson.
Secretary Benson: (01:08:27)
The election of 2020 is behind us. The war on democracy is escalating. In addition to the ongoing efforts of democracy deniers to spread misinformation alongside continued attacks and threats against election officials, a new battlefront has emerged in state legislatures all across the country. Yet Michigan’s story demonstrates a different path. Our experience underscores that voters on both sides of the aisle want reforms like those in the For the People Act, and it shows how with sufficient funding, partnerships, leadership, and political will, it is entirely possible to efficiently and successfully implement those reforms.
Secretary Benson: (01:09:07)
In November 2018, Michigan citizens voted overwhelmingly to amend our state constitution to instill the right to vote absentee without a reason, same-day voter registration, automatic voter registration, and an independent citizens redistricting commission. My office was charged with working with 1,600 clerks all across our state to implement all of these policies in advance of the 2020 election cycle, and we did, because these policies are not new. Implementing them is not rocket science. Many states already have these reforms in place. We conferred with leaders in those states to learn from their experience, replicate best practices, and modernize our democracy effectively and efficiently. We implemented automatic voter registration, for example, with security protocols in place to ensure that only eligible citizens were registered. By November 2020, we increased our number of registered voters by a quarter of a million.
Secretary Benson: (01:09:59)
We found that voters on both sides of the aisle embraced the ability to vote absentee and used secure drop boxes to return the ballots. The number of people voting absentee in Michigan increased exponentially, from 1.1 million in November 2016 to 3.3 million in November 2020. We saw thousands of new voters register in the days leading up to the November election, including 30,000 on Election Day itself, and the majority of those were under 30. In the end, due in no small part to these reforms, we had the most successful, secure election in our state’s history.
Secretary Benson: (01:10:33)
We’ve also succeeded in implementing Michigan’s first Independent Citizens Redistricting Commission, enacted by voters in 2018. We found that when given the chance, citizens embraced the opportunity to draw their own legislative districts. The commission is already at work, and you can learn more about their work at redistrictingmichigan.org.
Secretary Benson: (01:10:51)
Now, if Michigan can do all of this in one election cycle in the midst of a global pandemic and during one of the most significant and highly scrutinized election cycles in our lifetime, every state in the country with proper funding and leadership can do the same, because while states are laboratories of our democracy, federal minimum standards ensure equal protection of every citizen’s right to vote. Yes, every state will face unique circumstances in incorporating a new federal floor, but it’s our job to meet those challenges, not to shirk them.
Secretary Benson: (01:11:23)
Just as the National Voter Registration Act took a popular state policy in Michigan, the motor voter law, and made it a nationwide convenience for every citizen, it will take collaboration, partnerships, leadership, and funding, but it can be done. Truly, only politics and political will stands in our way.
Secretary Benson: (01:11:41)
I want to close by noting that 56 years ago at this very moment, thousands were marching to Montgomery, Alabama from Selma [inaudible 01:11:50] on their federal government to protect their right to vote against the efforts of states to impede their access. Many of those brave advocates were beaten and lost their lives, but their work led to the passage of the Voting Rights Act, one of the most effective voting laws in our nation’s history. When it was proposed, it was met by many of the same attacks and critiques that we hear today. Opponents said compliance would be impossible, that it would be an overreach of federal authority. But in the years that followed, those critics were proved wrong, and our nation became a more perfect union as a result.
Secretary Benson: (01:12:24)
So clearly, history instructs and the current moment demands they once again step in and defend democracy. At this moment, you are our greatest hope, and this legislation is our best chance to stop this rollback on voting rights that is sweeping state legislatures throughout the country. I urge you to act and advance this legislation, because no matter where a voter lives or who they vote for, their right to vote should be protected. The future of our democracy depends on your leadership today. Thank you.
Senator Klobuchar: (01:12:55)
Thank you very much, Secretary Benson. The next witness is Attorney General Todd Rokita. Thank you for being with us.
Attorney General Todd Rokita: (01:13:07)
Thank you, Chairwoman, Ranking Member. I appreciate you inviting me to speak today on behalf of the citizens of Indiana. My name is Todd Rokita, and I serve as the attorney general for the state of Indiana. Prior to that, I served as Indiana’s Chief Election Officer, as well as a member of Congress. Given my experience as Indiana’s Chief Election Officer and in various offices, I know how elections can and should be run to ensure transparency and public confidence in elections. We don’t hear enough about the need for public confidence in our elections in order to make this republic work.
Attorney General Todd Rokita: (01:13:43)
Any effort to address America’s election system must begin with recognition of a simple fact. The 2020 presidential election was unlike any other in our history, and it doesn’t need to be repeated, because we shouldn’t be having pandemics every time we have a presidential election. The 2020 election involved an effort to convert what has traditionally been Election Day in our country to a month-long process of vote gathering, ballot harvesting, last-minute rule and law changes by people not authorized to do so. All this resulted in shaken confidence in our electoral system and a profound unease, if not outright distrust about the results. Americans saw mountains of mail-in ballots being processed in cavernous central account processing centers, tens of millions of mail-in ballots overloading the processing capacity of the system in many states, turning the tabulation of those into a weeks-long process. In case after case, we saw vote watchers and observers excluded from an opaque, seemingly never-ending counting process.
Attorney General Todd Rokita: (01:14:51)
Many of the problems of 2020 resulted from the efforts of those without the authority to do so trying to control how the election was run and changing election rules at the last minute. This led to an unprecedented number of election lawsuits that, frankly, have overwhelmed the system. Senate Bill 1 would increase the number of those lawsuits, both against states and states suing the federal government. The mandates of this bill are wholly unnecessary, and the determinations for how elections are operated should remain with the states, as intended by the framers for good reason.
Attorney General Todd Rokita: (01:15:28)
The proposed changes will open our elections up to increased voter fraud and irregularities and promote … Perhaps the most egregious provision is the axe elimination of voter and photo ID laws. Requiring government-issued photo ID at the polls represents a common sense, simple best practice for election administration. It is in place in over 32 states. Government-issued photo ID has been the global standard for documentary identification purposes for decades.
Attorney General Todd Rokita: (01:15:57)
I recently talked with a Hoosier who had dual citizenship. She is an American citizen, and she is a Mexican citizen. She showed me her voting card, a specially issued card just for voting that not only had her picture, but a copy of her thumb fingerprint that was compared at the voting booth when she had to use it, had to dip her thumb in ink and use it to compare. Now, this is Mexico, by many a third world country that has better turnout than we do, upholding the integrity of one citizen, one vote there, and here, this bill making a lot lower standard than that illegal. We’re going in the opposite direction for a free society.
Attorney General Todd Rokita: (01:16:44)
Regardless of which party or candidate a voter favors, all Americans should have confidence in the outcomes of their elections. No American’s vote should be devalued by fraudulent votes. Earlier this month, 19 of my attorney general colleagues joined me in a letter to your leadership opposing HR1, similar to S1. As we wrote in the letter, the act has several constitutional deficiencies and mandates that, if passed, would federalize state elections and impose burdensome costs and regulations on state and local officials.
Attorney General Todd Rokita: (01:17:14)
The measures proposed in S1 turn our constitutional election structure on its head. They would open the door for greater fraud and less confidence. Our system of government depends on the electorate having faith in the outcome of our elections. Removing voter integrity measures such as photo ID laws, requiring votes to be counted up to 10 days after the election, requiring that unaccountable commissions and DC judges far removed from the states should draw our district lines isn’t going to solve any of that. It’s going to make the situation worse.
Attorney General Todd Rokita: (01:17:46)
Voters should have a voice through their directly elected representatives in their states in how these elections should be run. While the bill pretends to apply only to federal elections, the simple fact is these changes will apply across the board, because no state can afford to have separate elections for state elections and federal ones. States should continue to hold elections in a matter that best suits each state, and S1 would take control entirely away from the states. Simply put, if states are laboratories, and that’s what our founders intended and that’s what’s been proven time and time again, the passage of S1 would make the states’ laboratories closed, and no innovation would occur. Should the act become law, I could tell you the sun won’t set in Indiana before we sue the federal government, and I’m sure other states will join. Thank you for your time.
Senator Klobuchar: (01:18:40)
Thank you. Next, for our final witness, Michael Waldman, the president of the Brennan Center for Justice.
Michael Waldman: (01:18:50)
Thank you, Madam Chairwoman, Ranking member Blunt, and members of the committee. Thank you for the opportunity to testify on behalf of this landmark legislation. We believe the For the People Act, S1, would be the most significant democracy reform measure in over half a century. It is the next great civil rights bill in response to the demand for racial justice in our country. It is long overdue, and it is urgently needed now.
Michael Waldman: (01:19:23)
Now, as you know, there are a number of reforms in this legislation relating to curbing the role of money in politics to dealing with gerrymandering to dealing with ethics. I want to focus on the sacred right to vote, which is in so many ways at the heart of our democracy and our understanding of ourselves as Americans. I ask you to think about what happened in 2020. Despite the pandemic, despite voter suppression, despite the lies, it was the highest voter turnout since 1900. As has been said, the Trump administration’s own Department of Homeland Security confirmed it was the most secure election ever.
Michael Waldman: (01:20:05)
This is something we ought to celebrate. Instead, what has happened? We had the big lie about the election being stolen. We had the insurrection driven by that big lie, and now in states across the country, a wave of legislative attempts to curb the vote, the most significant attempted cutback in voting rights since the Jim Crow era. The Brennan Center has studied these laws for years and found, as has been mentioned, 253 laws that would in one way or another cut back on voting. That was last month, seven times higher than the rate four years ago. The number is actually higher right now. These laws are being pushed hard. It is only March, I should note, and already the governor of Iowa has signed into law significant cutbacks, for example, in vote by mail. In Georgia, the legislature is finishing its work this week on an egregious bill. There was a public outcry that has forced changes, but there are still tremendously harmful provisions that will be moving through the legislature.
Michael Waldman: (01:21:18)
These laws that we see across the country affect voters of color, young voters, poor voters, and the intent, I’m afraid, is often unambiguous. One of the sponsors of these bills in Arizona said the purpose was to make sure or that only “quality voters” had the right to vote, not that everybody would have the right to vote. That does not strike me as true to our American spirit.
Michael Waldman: (01:21:47)
S1, the For the People Act, deals with this in a very important way, and I want to be very clear. This legislation would stop this wave of voter suppression cold. It stops it in its tracks, and Congress has the power, the right, the authority, constitutionally and legally, to do this. What this bill would do is set national standards to ensure that every eligible citizen has the freedom to vote and the ability to make that ballot count. It would make automatic voter registration, already the law in 19 states, Democratic and Republican States, the law of the land. It would ensure access to vote by mail and early voting and other things that proved so popular and so effective in recent years and are used by tens of millions of people enthusiastically. It would ensure the right to vote be given to returning citizens after they are incarcerated so they can rejoin our society.
Michael Waldman: (01:22:47)
It would take all these important steps, and I note again that every one of the things in this legislation, every proposal in this legislation is based on a tested and effective reform or policy at the national level, at the state level, and at the local level. It would bolster election security in significant ways, and it has been noted you are more likely to be hit by lightning than to commit voter impersonation in the United States. We can’t allow the conspiracy theory about massive misconduct to guide policy.
Michael Waldman: (01:23:23)
I will note also that this legislation in very significant ways honors the Constitution. The Elections Clause give Congress this power, and I would note as well that the Supreme Court of the United States in 2019 in an opinion by John Roberts specifically pointed to this legislation as a constitutionally sound example of Congress’s power to set election law. This is part of the great story of American democracy. Will we live up to our best ideals? Will we build a multiracial democracy that really represents all people, or will we allow a drive to take place to turn the clock back to cut back on those rights? This legislation would be a significant and, again, long overdue milestone for our country, and I urge you to enact it.
Senator Klobuchar: (01:24:16)
Thank you very much, Mr. Waldman. Thank you to all of our witnesses. I’ll begin the questioning and then turn it over to Senator Blunt. I did want to clarify one thing. I’ve been hearing the word chaos tossed around. Well, let me tell you what chaos is. Chaos is what we’ve seen in the last few years, five-hour, six-hour lines in states like Arizona to vote. Chaos is purging names of longtime voters from a voter list so they can’t go vote in states like Georgia. Chaos is the state of Texas that you can only have one drop-off box for votes and ballots in their state, including huge counties like Harris County, with nearly 5 million people. Chaos is forcing people in Wisconsin to stand in garbage bags in the rain, waiting in line just to exercise their right to vote. Chaos is people in South Carolina being told that they have to have a notary public to be able to get a mail-in ballot and having to do it through a window of a hospital while they’ve got COVID.
Senator Klobuchar: (01:25:18)
Chaos is a law in North Carolina that a circuit court ruled was so discriminatory against African Americans that they said, this is a conservative circuit court, that it was designed with surgical precision, their words, not mine, to discriminate against African Americans. Chaos is what we saw happen at the Capitol when people heard for an entire year that our election isn’t sound and they decided to come here and take it into their own hands. That angry mob, that was chaos.
Senator Klobuchar: (01:25:50)
What this bill tries to do is to simply make it easier for people to vote and take the best practices, what we’ve seen across the country, and put it into law, as we are allowed to do under the Constitution. So I’ll start with you, Attorney General Holder. The For the People Act would ban practices that states use to purge voters, effective immediately. Can you explain how voter purges disproportionately impact some voters and why these provisions are so important, given what we just heard from Mr. Waldman about all of the bills that have been introduced across the country to limit people to vote? Is this threat real?
Attourney General Holder: (01:26:35)
The threat is extremely real. I mean, voter purging occurs in disproportionate numbers in places. I’ve looked at a study that indicates that [inaudible 01:26:46] of all the voter purging has occurred in states that were formerly covered by the Voting Rights Act of 1965. This desire to purge voters because people decided not to exercise their right to vote disproportionately falls on people who are people of color or people who vote Democratic. So this is something that I think that we need to be cognizant of. There are movements to try to keep people away from the polls, and purging people from voter registration rolls is one of the tactics that is unfortunately used too frequently.
Senator Klobuchar: (01:27:22)
Under Article 1, Section 4 of the Constitution, Congress can make or alter, those are the words of the Constitution, rules for federal elections “at any time.” Is that correct?
Attourney General Holder: (01:27:36)
That is correct. The power that Congress has under the Elections Clause with regard to the regulation of federal elections is very broad.
Senator Klobuchar: (01:27:44)
The Supreme Court has upheld this power as “broad” and “comprehensive.” Is that right?
Attourney General Holder: (01:27:54)
That is correct. The court has considered the Elections Clause in a number of contexts, and I’m not aware of any instance where the court has said that Congress has somehow gone beyond that, which you could do with regard to the regulation of federal elections.
Senator Klobuchar: (01:28:08)
Thank you. Mr. Waldman, your organization has done a great deal of work monitoring these bills that you just discussed, and you mentioned some of them are actually becoming law as we speak. Can you speak briefly to some of the most egregious bills you’ve seen just briefly? Mr. Waldman?
Michael Waldman: (01:28:31)
Thank you, Madam Chairwoman. In Texas, for example, there’s a proposed legislation moving through the legislature that would require people with disabilities to have a witnessed note confirming that they have the right to get an absentee ballot. You see cutbacks on absentee balloting and vote by mail all across the country, and you see them in ways that are politically very, very targeted. In Georgia, the legislation that was moving through the legislature until the last day or so in this form ended effectively no excuse absentee balloting, but preserved it for people over 65, who tend to vote conservative, who tend to be white. You see laws of this kind all over that are very precisely targeted that look neutral, but have a very, very sharp and clear racial and partisan bent.
Senator Klobuchar: (01:29:29)
Okay. Last year, because of the pandemic, 45 states, this is for you, Mr. Waldman, did not require an excuse for voters to request a mail-in ballot, and 34 states allow for this in every election, including states like Utah, Montana, Florida. We just saw how critical mail-in voting was, and a lot of voters really liked it. They said, “We want to keep it.” This bill, Mr. Waldman, would ensure that all voters can request mail-in ballots, going forward. Do you agree that all voters should be able to vote by mail and that voter participation, whether you are a Democrat or Republican in a blue state or a red state, increases when voters have options to cast their ballots?
Michael Waldman: (01:30:11)
Absolutely. This legislation would preserve something that was a hugely successful effort. First of all, even before 2020, tens of millions of people in this country vote by mail without incident. It has not benefited either political party. Last year, many people found it was convenient and it would be unwise in the extreme to take it away, to take away from voters something they had found to be very useful in our newly mobile society, which is not the same as it was when we set Election Day on one day so that you could get to the polling place in your horse and buggy. We should guarantee that as something that everybody all over the country, regardless of where they live, as a minimum standard have access to vote by mail. It’s important to note you’ll hear people say this switches everybody to vote by mail. That’s not true. It merely gives people the opportunity to vote by mail and make sure that they have the ability to apply for that kind of absentee ballot.
Senator Klobuchar: (01:31:16)
Thank you very much. My last few questions to you, Secretary Benson, Secretary Warner, your fellow Secretary of State, testified that this bill would somehow create barriers to ballot boxes. Over the last two years in Michigan, you have put in place many of the policies that are actually included in this bill as we look at best practices to set national standards, including automatic voter registration, same-day voter registration, and no excuse vote by mail for all voters. By the way, those policies have led my state to be number one, number one in voter turnout time after time, electing Republican governors over the years, Democratic governors, and Independent governors in Jesse Ventura. So has your experience, has your experience, Ms. Benson, been that these policies have somehow created barriers to voting?
Secretary Benson: (01:32:07)
No, quite the opposite. In fact, not only were these policies enormously popular among voters on both sides of the aisle, both in voting to enact them and also taking advantage of them, we saw record-setting voter turnout in every election that followed the implementation of these policies. That included a statewide primary election in the midst of a pandemic that did not include any major contested statewide primary on either side or race. So even absent a highly contested election, these policies in and of themselves increased significantly voter turnout on both sides of the aisle in the state of Michigan within a year of them becoming a mandate in our state constitution.
Senator Klobuchar: (01:32:52)
Thank you very much. Thank you to our witnesses. I’ll turn it over to Senator Blunt.
Senator Blunt: (01:32:56)
Thank you. Thank you, Senator Klobuchar. Mr. Walden, I think I’ll start with you. You mentioned, as Senator Klobuchar did, as others have, that the last set of elections were the most secure elections ever. You accepted that and have repeated that. It seems to me based on that, there’d be no reason to have this discussion unless you could create a false narrative, in my view, that somehow states are passing massive legislation that changes the voting structure to people’s disadvantage. Now, that’s different than individual members of the legislature introducing bills. You said the last set of legislative bills are more bills than usual. Now, actually, I think on the Republican side, 22 bills of those bills are in Arizona and 22 or so of those bills are in Georgia, which I suspect my back of the envelope calculation would indicate that the four, five, or six bills in other states is about right.
Senator Blunt: (01:34:04)
Believe me, politicians believe they are election experts, and there are always bills passed, almost always bills filed, almost none of which pass. Every article on this topic cites your organization and all of this voter suppressing legislation that, one, all isn’t voter suppressing, and, two, just simply is not going to become law. It’s a great excuse to upend a system that’s served the country well for a long time. On the Utah bill, for instance, that I cited earlier, HB12 requires the lieutenant governor, who’s the chief election authority, to provide Social Security data of deceased individuals to county clerks so they can begin the process of removing deceased individuals from the voter rolls. Why would that be voter suppression?
Michael Waldman: (01:35:01)
Oh, well, thank you, Senator. When we look at legislation across the country, we look to see whether the measure is potentially restricting or suppressing-
Senator Blunt: (01:35:12)
Just on the question I asked, why would that bill, removing dead people from the voter rolls based on Social Security information, be voter suppression?
Michael Waldman: (01:35:22)
Because there are frequently errors in the lists that are used in Social Security and other [crosstalk 01:35:30].
Senator Blunt: (01:35:29)
So your view would be your view would be the federal government is not capable of telling the state which Social Security recipients died and no longer get a check, so we should turn the entire election over to a federal structure. I just don’t agree.
Senator Klobuchar: (01:35:44)
Senator Blunt, can we allow the witness to answer the question, please?
Senator Blunt: (01:35:47)
Senator Klobuchar: (01:35:47)
Senator Blunt: (01:35:48)
The witness did answer the question. The witness answered the question, Senator.
Senator Klobuchar: (01:35:53)
We’ll clarify it later.
Senator Blunt: (01:35:54)
Senator, the witness answered the question by saying the federal government often is in error in giving information to the states. That was the answer to the question.
Senator Blunt: (01:36:02)
… information to the states. That was the answer to the question. Let’s go to the Secretary of State Warner who’s here, and the other two as well. We had three different views of this from two current Secretaries of State, and one person, the Attorney General of Indiana, who was the Secretary of State until the end of last year. I think to some extent that may show why one size fits all maybe doesn’t ever fit anybody very well. Secretary Warner, what would be the challenge? You said you’d have to have a special session in the legislature, you think, if this bill passed, and tell me again, why that would be the case?
Secretary Warner: (01:36:45)
The expanse of this bill would force states to address these issues such as the funding to get these new machines. When this de-certifies all the machines we have in West Virginia, we have to go back and get new machines. That’s quite the process to find that funding, to then put it out for bids, that sort of thing. I want legislative directive. Again, that’s what our Constitution says. It’s going to be left up to the states. And so I want that direction from the legislature to tell me so then I can execute the provisions to implement this vast, as I called it, monstrosity of a bill. There’s just too much in there. The clerks are extremely against the same day voting, same day registration aspect of this bill. That just would overwhelm them.
Secretary Warner: (01:37:29)
And as I said, when you don’t have the broadband capability throughout the state, it’s an impossibility. And so then our legislature would be up to trying to find a way to address what Congress is passing down to them, but then meeting the reality. That’s the problem of so much of the discussion that’s going on here today, it’s talking points versus reality. And that’s where I always turn to my clerks and my clerks tell me that unanimously across the board, they are against this S-1 because of the unfunded mandates and the expense that it would impose upon them in the election administration.
Senator Blunt: (01:38:02)
And Attorney General Rokita, you said you thought there’d be immediate legal action by a number of states. What would be the principle legal focus of that action as to why this should not move forward?
Attorney General Todd Rokita: (01:38:15)
Thank you, Senator. Well, of course, the constitutionality of this all is immediately called into the question, not just with regard to the Framers clear intent that state legislators and legislatures to determine these rules, but also in terms of redistricting, which would be usurped by the federal government and particularly unelected judges. The people have the most power in this situation when they can hold directly their representatives accountable for redistricting processes. So that’s a huge problem. The private right of action that’s in this bill that was not in the Help America Vote Act is also a huge problem. When you have individual citizens, like, for example, a prisoner who decides that his rights were now violated as made up in this bill can sue the states. Untold amount of litigation will happen. So it’s not just the states against the federal government, it’s this bill would give rights and private rights of actions to citizens for their apparent, not real, grievances, and that will drive up costs to states significantly.
Senator Blunt: (01:39:26)
Thank you, Attorney General Rokita. Thank you, Chairman.
Senator Klobuchar: (01:39:31)
Thank you very much. Mr. Waldman, 30 seconds. Do you want to finish answering that question before I turn it over to Senator Feinstein?
Senator Blunt: (01:39:37)
I would say, Chairman, the five minutes is mine.
Senator Klobuchar: (01:39:42)
I am not going into time. You went six minutes.
Senator Blunt: (01:39:43)
It is not Mr. Waldman’s. I didn’t take the four minutes you took before the clock started.
Senator Klobuchar: (01:39:49)
I am the Chair now.
Senator Blunt: (01:39:49)
Or the 1.48 minutes after.
Senator Klobuchar: (01:39:51)
I simply want to give Mr. Waldman 30 seconds to finish answering the question, and that is my prerogative as Chair.
Senator Blunt: (01:39:58)
Well, if I’d have given him 30 seconds to answer the question or another minute, I wouldn’t have been able to answer my questions within near the five minutes that every member should be restricted to here.
Senator Schumer: (01:40:08)
Madam Chair. I think the Senator from Missouri took six minutes and 12 seconds of his five minutes.
Senator Klobuchar: (01:40:13)
Yes, I was generous in the time. I was generous in the time. Mr. Waldman, could you just finish answering the question? My goodness, what? Could you left the witness, please, Mr. Wicker? Senator Wicker, I’ll let him just finish. 30 seconds.
Michael Waldman: (01:40:31)
I will be brief. One must be very careful when purging voters from the rolls to ensure that the lists are checked and double-checked. Unfortunately, there are errors, and that’s why voters should have protected rights as in this bill to ensure that they are not being removed from the rolls when they ought to be eligible and ought to be able to vote.
Senator Klobuchar: (01:40:52)
Thank you. Senator Wicker.
Senator Wicker: (01:41:00)
The position of the chair on the time in question is irregular. I’ve been a member of the Senate now for 13 years, [inaudible 01:41:16]. The Chair took four minutes after she’d made her [inaudible 01:41:22]. He took over six minutes then to ask questions. Now, she knows fully what that does to Senator Blunt that a witness can filibuster an answer and take up five minutes of a Senator’s time. So Senator Blunt was well within his rights to cut that off to move to other matters. But if the Chair in this committee, on this important day where we have two panels, is going to run this committee in a way that I’ve never seen in 13 years, then I will point out that this is quite irregular. Thank you, ma’am.
Senator Klobuchar: (01:42:23)
Excellent. So I will note that testimony is supposed to be five minutes and the time can be extended by the Chair, including for questioning, which I just did for Senator Blunt, and I’m sure we can work that out. And I will say what’s unprecedented is that we’re finally having a hearing about something big. We’re finally having a hearing in the Rules Committee about an actual bill and that everyone’s here in this beautiful room. That is unprecedented. And I will be nothing but more than fair as we go forward, because I understand how important this is. And with that, I turn it over to Senator Feinstein. Thank you.
Senator Feinstein: (01:43:01)
Thank you, Madam Chair. In 2013, the Supreme Court struck down a key pre-clearance provision in the Voting Rights Act, which required jurisdictions with a history of discrimination against minority voters to obtain approval from the Justice Department before making changes to voting laws. At the same time, the Washington Post has reported that, “In 43 states around the country, Republican lawmakers have proposed at least 250 laws that would limit male early in person and election day voting with such constraints as stricter ID requirements, limited hours, or narrower eligibility to vote absentee, according to data compiled as a February 19 by the nonpartisan Brennan Center for Justice.” Let me ask both witnesses. Can you discuss why it is so important to pass the For The People Act Now? Nobody’s here to answer?
Senator Klobuchar: (01:44:28)
I think they just need a specific witness to go forward. Do you want to take that, Attorney General Holder?
Attourney General Holder: (01:44:35)
Yeah, I’d be glad to answer the question. It seems to me that this is the right time, this is the right act dealing, as I said, with that unholy trinity of voter suppression, dark money, and gerrymandering. These are all things that are handled by this act and will make electrical system more fair, more responsive, and more available to the American people. And that’s why I think this bill should be passed.
Senator Feinstein: (01:45:05)
Thank you. Last June, California passed bipartisan legislation to mail every voter a ballot before the November election in order to mitigate the risk of spread of COVID. As my colleague Senator Padilla I think can attest, our election was successful. Almost 70.8% of voters participated. That’s the highest percentage of eligible voters since 1952, and there were no reports of widespread voter fraud, according to the Los Angeles Times. California is not the only state to recently expand vote by mail. For example, in 2018, Michigan supported a measure that established the right to vote for may by mail. I’d like to ask Ms. Benson, did this measure increase access to ballots in the 2020 federal election?
Secretary Benson: (01:46:08)
Yes, it did it. Remarkably, we saw one of the most secure high turnout elections in our state as a result of policies just like that.
Senator Feinstein: (01:46:18)
Well, can you describe it a bit more so we have something tangible?
Secretary Benson: (01:46:23)
So, in 2020, as I mentioned, we saw in particular the amount of people who voted absentee go from 1. 1 million in 2016 to 3.3 million in 2020. That was enormous. And we saw 5.5 million people vote overall in the Presidential election. But we had four elections in 2020, and in every single one of them, we saw more people vote than ever before taking advantage in more numbers than we had even expected of their right to vote absentee. In doing so, they utilized secure drop boxes to return their ballots. They utilized applications that were mailed to them, to every registered voter, in order to know how to request their ballot. In short, I think Michigan’s experience over the past two years is the blueprint for how every state in the country can effectively and securely take the policies in the For The People Act and make them real for their voters.
Senator Feinstein: (01:47:18)
Thank you. The recent SolarWinds hack, and this comes from intelligence, is a reminder of the scale of the cyber weapons our adversaries possess and our ongoing need to secure critical infrastructure from attack. In light of this attack, it’s troubling that even after 21 states were warned they were targeted by Russian hackers in 2016 approximately 10% of votes cast in 2020 do not have a verifiable paper record. To be clear, this doesn’t mean that these votes were fraudulent, but it does suggest a major vulnerability in the event of a large scale attack on our elections. The For The People Act would require states to use voter verified paper ballots in elections and conduct risk limiting audits. How would the For The People Act protect our election systems against foreign interference and attacks?
Secretary Benson: (01:48:32)
Well, simply put, you can’t hack paper, and one of the reasons we had one of the most secure elections across the country in recent history is because so many states used paper ballots. That enables for us in Michigan to have more than 250 post-election audits to affirm that the ballots were accurately counted by the voting machines. It enables transparency and enables reliability. And notably, there are systems set up to enable military and overseas voters to have those same protections of paper ballots in voting and making sure their votes are received on time. And again, many states have gone through this and can provide the best practices and experiences that underscore how to do this.
Senator Klobuchar: (01:49:15)
Thank you. I think we’re going to go move on. So thank you very much. Next, Senator Cruz. Thank you, Senator Feinstein.
Senator Cruz: (01:49:22)
Thank you, Madam Chairwoman. This bill is the single most dangerous bill this committee has ever considered. This bill is designed to corrupt the election process permanently, and it is a brazen and shameless power grab by Democrats. It speaks volumes that this is HR-1 and S-1, that the number one priority of Democrats is not COVID, it’s not immunizations, it’s not getting people back to work, it’s not getting kids back in school, it’s keeping Democrats in power for 100 years. And how do they do this? They do this by instituting a bill that will promote widespread fraud and illegal voting. Under this bill, there’s automatic registration of anybody if you get a driver’s license, if you get a welfare payment, if you get an unemployment payment, if you attend a public university.
Senator Cruz: (01:50:18)
Now, everyone knows there are millions of illegal aliens who have driver’s licenses, who are getting welfare benefits, who attend public universities. This bill is designed to register every one of those illegal aliens. General Rokita, what would the impact be in state elections of automatically registering millions of illegal aliens to vote?
Attorney General Todd Rokita: (01:50:45)
Well, despite the cost and everything in the system, it would dilute the votes of every citizen who is supposed to be voting. So they want voter turnout, they want more people to participate, and you cannot vote in this country unless you’re a United States citizen in a federal election.
Senator Cruz: (01:51:07)
And the bill explicitly says if an illegal alien is registered to vote under its provisions, even though it’s illegal for him to vote, that illegal alien will not be liable. So it anticipates, the Democrats here anticipate, and their desired effect is to register millions of illegal aliens, is that correct, General Rokita?
Attorney General Todd Rokita: (01:51:29)
Senator Cruz: (01:51:30)
But it’s not just illegal aliens. This bill is designed to get criminals to vote. A great many states across this country prohibit felons from voting. This bill strikes down all those laws. This bill says, “If you’re a murderer, if you’re a rapist, if you’re a child molester, we the Democrats want you voting.” Every one of those state laws is struck down, is that right, General Rokita?
Attorney General Todd Rokita: (01:51:55)
That’s correct. And if they don’t get their way, they sue the state, as I referenced in my earlier answer.
Senator Cruz: (01:52:00)
So apparently the Democrats have determined that if millions of illegal aliens get to vote, if millions of criminals get to vote that, that will benefit Democrats because they understand that criminals and illegal aliens are much, much more likely to vote for Democrats, is that correct?
Attorney General Todd Rokita: (01:52:19)
Senator Cruz: (01:52:20)
Not only that, this bill strikes down photo ID laws. 29 states have photo ID laws, including by the way, the state of Arizona, including the state of Georgia, including the state of West Virginia, all of which I might note, have Democratic senators. But I’ll tell you, the Senate Democrats are so interested in maintaining power that they’re asking the Senators from Arizona, from Georgia, West Virginia to join a bill that strikes down the photo ID laws in their states. General Rokita, do photo ID laws help protect the integrity of elections?
Attorney General Todd Rokita: (01:52:56)
Absolutely. They give people confidence. They make sure that we hold to the principle of one person, one vote, particularly one citizen, one vote. And, in fact, in Indiana, where we had the country’s first photo ID law, voter turnout went up and it went up because more people had confidence in the process. In fact, when others on this panel and other places say that a certain subset of our country or of our electorate can’t vote with photo ID, that’s really a racist statement.
Senator Cruz: (01:53:29)
Well, you’re right that Indiana’s photo ID law was a model for the nation, and at the time Indiana passed it, it was challenged in court. I was Solicitor General of Texas. I led a coalition of states defending Indiana’s photo ID law before the United States Supreme Court. And the United States Supreme Court upheld that law by a vote of six to three. The majority was written by Justice John Paul Stevens, a noted liberal, who observed rightly that voter fraud is a serious problem, that photo ID laws protect the integrity of elections, and what do Democrats want to do? They want to strike down every photo ID law in the country to encourage voter fraud. Not only that, this bill mandates ballot harvesting. It mandates party operatives being able to go into nursing homes, collect every ballot there, throw out the ballots they don’t like, because there’s no supervision over the ballot harvesting.
Senator Cruz: (01:54:22)
The Carter Baker Commission chaired by Democratic President Jimmy Carter said ballot harvesting was a major source of voter fraud. What do Senate Democrats do? Look at the Carter Baker Commission, say, “Where do we get fraud? Let’s do more of that.” This bill has rightly been called the Corrupt Politicians Act, because it is designed to keep corrupt politicians in office and everyone supporting it should be ashamed. Finally, Madam Chairman, I’d like to introduce six letters in opposition to this bill to the record. A letter from the Family Research Council, a letter from Citizens United, a letter from Concerned Women for America, a letter from the Public Interest Legal Foundation, a letter from the Independent Women’s Forum, the Independent Women’s Law Center, and the Independent Women’s Voice, and a letter from The Campaign for Liberty.
Senator Klobuchar: (01:55:08)
Any opposition letters will be admitted in the record.
Senator Schumer: (01:55:11)
Senator Klobuchar: (01:55:11)
Thank you, Senator Cruz. Senator Leahy.
Senator Schumer: (01:55:14)
It’s interesting the junior Senator from Texas says allowing felons to vote would, of course, benefit Democrats. I note that the state of Vermont has always allowed felons to vote and overwhelmingly elected a Republican Governor in this last election, and even though we’re the 14th state, we’ve only elected one Democrat to the U.S. Senate. So it certainly isn’t something that might benefit just Democrats. But we are a concern when state legislatures across the country are pushing legislation that would make it more difficult for the disabled, for shift workers, to cast ballots, inviting pirates and poll watchers. That’s not what’s intended. I’d asked them to look at Vermont where we have the most honest voting you can imagine. But I thank the witnesses for being here today. I hope we can stop this sliding backward in the face of a spree of voter suppression laws across the country. How do we make it easier, not more difficult for our citizens to vote?
Senator Schumer: (01:56:27)
Recent election cycles have seen dramatic increases in early person voting, especially during the COVID pandemic. It helped in rural areas like Vermont. We boast we can make voting easy, but also safe, secure, and legal. You can vote early. You can vote by mail. If you’re home bound, you can have a ballot delivered to you by two Justices of the Peace. Now, Ms. Benson, you served the people of Michigan, a state in which backers of former President Donald Trump challenged the validity of your elections. And certainly parts of your population are as rural as Vermont. So I’d ask you, do you doubt the safety and security of your elections? And have you had any evidence presented to you or in the courts or anywhere else that mail-in early and absentee voting led to widespread fraud in Michigan’s elections?
Secretary Benson: (01:57:24)
Thank you, Senator. Michigan’s experience has demonstrated that these policies can be implemented securely and effectively with an eye towards making sure everyone, citizens on both sides of the aisle, whether they live in rural or urban areas can participate in their democracy. And I’ll emphasize that when it comes to making sure that every valid vote is counted and that only valid votes are counted, these policies not only enable that, further that, but there’s plenty of data, facts, and evidence to underscore exactly how to ensure that’s the case. And you can look to not just Michigan, but states all around the country who have successfully ensured that people can vote securely through these provisions and that they’re administered securely to ensure that only valid citizens are able to, for example, register to vote automatically when they get to their driver’s license.
Senator Schumer: (01:58:16)
I think you’ve done it as securely as Secretary Condos in our state has done. And I think in many ways our state’s a roadmap for the For The People Act. Now, Attorney General Holder, you and I have spoken many times about the Supreme Court’s devastating decision in Shelby County that gutted Section Five of the Voting Rights Act that led to a spree of state suppression schemes not seen since the Civil Rights era, in fact, some of them almost immediately after the case came down. The For The People Act, we’re trying to ensure states are moving toward increased access, not less. But can we also make sure that under legislative action states are already taking the action to not penalized or unduly burden? Can Congress consider some kind of certification process for states to show they’re already meeting the voting access requirements of this legislation?
Attourney General Holder: (01:59:21)
Yeah. I think having some kind of requirement that makes states prove that they are in fact following the intent of the law will be something that ought to be considered. I’m very concerned that after the Shelby County case, for instance, 1700 polling places around the country were closed, and for no good reason. There are a number of things that happened post Shelby that have hindered the ability of people, especially people of color, to get to the polls. And so having some kind of requirement that shows that states are in fact doing all that they can to make sure that their citizens have access to the polls I think would be something worth considering.
Senator Schumer: (02:00:02)
Thank you. And I will discuss that further with you one of these days we have a chance to talk. But I really appreciate that.
Attourney General Holder: (02:00:08)
Madam Chair, I thank you for this hearing. I think it’s vitally important.
Senator Klobuchar: (02:00:12)
Thank you very much, Senator Leahy. Next, Senator Wicker.
Senator Wicker: (02:00:32)
[inaudible 02:00:32] Okay. Am I on or not? Okay, now I’m on. Madam Chair, I really think you should start my time again.
Senator Klobuchar: (02:00:51)
I will. I will. You can start.
Senator Wicker: (02:00:54)
You are my dear friend.
Senator Klobuchar: (02:00:55)
There you are. All right.
Senator Wicker: (02:00:57)
Anything I’ve said is not personal at all.
Senator Klobuchar: (02:00:59)
No, I understand.
Senator Wicker: (02:01:00)
People of the United States may like the sound of a bill that says it’s going to be easier for people to vote. I think Senator Cruz right to an extent, it makes it easier for some people to cheat in elections. But when you go step by step and ask the questions, as this pollster did, the American people object to many, many provisions in this bill. And I’d like to ask Secretary Warner and General Rokita about this. Universal mail-in voting, this may be great for some states, but 71% of Americans are concerned about that, and only 26% are not concerned. Remote ballot drop boxes, 74% of Americans are concerned about that. Only 24% are okay with it. Preventing states from regularly cleaning up voter registration files to ensure that people who have died or moved out of the state are removed, preventing states from doing that, 82% of Americans are concerned with that provision in this bill. Only 17 are not concerned.
Senator Wicker: (02:02:26)
And yet one of the witnesses for the majority has told this committee that using social security numbers to remove dead people is voter suppression. I believe in eternal life, Madam Chairman, but I think once we’ve passed on, the voting stops. General Rokita, you were a member of the House when ballot harvesting was an issue, were you not?
Attorney General Todd Rokita: (02:03:03)
I believe it was. We voted against it several times.
Senator Wicker: (02:03:06)
Well, as I recall, a member from North Carolina, a Republican was elected in a close election and was expelled or not seated from the House of Representatives because he engaged in ballot harvesting, which was illegal under the law of North Carolina, but would be not only legal but required to be legal in all 50 states and the District of Columbia.
Attorney General Todd Rokita: (02:03:36)
That is correct.
Senator Wicker: (02:03:37)
That practice by that member who had won the most votes was denounced on both sides of the aisle as wrong, as rife for fraud, and the Republican member was not seated on a bipartisan basis because he engaged in a practice that would be blessed by this act. I’ll ask each of our witnesses in two minutes to comment about whether ballot harvesting, in other words, letting hundreds of people go out there and pick up ballots to bring them in and trust them to do that. What do you think about that, Mr. Secretary?
Secretary Warner: (02:04:18)
I’m completely against it, Senator. Thank you for the question. The Carter Center has addressed these issues and the further we get away from election day with the mail-in ballots and so forth, that’s where the fraud is most likely to occur. The gold standard in elections is voting in-person at a polling precinct under the supervision of trained poll workers on Election Day. And that’s where we need to go, and only if there is a good reason for doing something other than voting on Election Day, then that’s where you open up early voting, you open up to do absentee ballots. But that should be for a reason, a legitimate reason as prescribed by a state legislature. And each of our states has different character in the people and in different history. Here in West Virginia, the 1960 presidential election was bought by John F. Kennedy, and they bragged about that for years. They took that as a sense of pride.
Secretary Warner: (02:05:09)
That’s in our character, and we need to overcome that. We’re not proud of that anymore. And that’s wherever the ballot harvesting, the mail-in ballots, all that, we want to keep a tight reign on it and our legislature is well aware of that, and that’s where I want to get my guidance, is from the state legislature, and not go towards automatic voter registration, the mail-in ballots, the same day registration. All these provisions that are in this bill, our legislature is against.
Senator Wicker: (02:05:31)
Quickly, General Rokita, there’s a poll that says, “Allowing political organizations and activists to collect thousands of ballots and deliver them unsupervised to the County Clerk, 83% of Americans are concerned.” Is this legal or illegal in Indiana? And is it a good idea?
Attorney General Todd Rokita: (02:05:49)
It’s illegal in Indiana and it’s a terrible idea. And I look back to Senator Feinstein’s argument for California. It’s not that California mailed these ballots out, live ballots, to every voter, they mailed it out to every name on the voter list. And if, like this bill, you don’t clean up that voter list, that means you’re going to have tens of thousands, maybe millions of ballots out there that are live associated to people who shouldn’t vote, meaning they’re dead, they moved away, they’re in prison, except for Vermont, I guess, but what have you. So that’s why this is a terrible idea. They need to have professional partisan paid, campaign paid, ballot harvesters going around collecting those live ballots, and trying to get them cast. And this bill does not allow you to challenge those ballots.
Senator Wicker: (02:06:33)
Thank you, Madam Chair.
Senator Klobuchar: (02:06:36)
Next up is Senator King, who’s with us remotely. Senator King? Okay, I think we’ll be joined by Senator King later, but we will now turn to Senator Merkley.
Senator Merkley: (02:06:57)
Thank you very much to all of our witnesses. And I want it to turned to Michigan Secretary of State Jocelyn Benson. And I wanted to understand, with your automatic voting registration system, do you have a system to make sure people are aware of the requirements to be a legal voter and that instructs them to opt out of being signed up if they don’t meet all the requirements?
Secretary Benson: (02:07:26)
Yes, we do. But we don’t just have that, we actually have six checks in place in multiple different places and positions to ensure that only valid citizens are being registered to vote through this process. And as we’ve implemented over the course of the past year and a half, we’ve found that to be enormously successful through those checks, and again, leading to the registration of nearly a quarter of a million new eligible citizens, registered voters in the state of Michigan.
Senator Merkley: (02:07:53)
So have there been any examination or studies of Michigan that have turned up a significant numbers or any numbers at all of folks who are non-citizens?
Senator Merkley: (02:08:03)
Is there any numbers at all of folks who are non-citizens registering to vote under the AVR system?
Secretary Benson: (02:08:07)
No. And there’s also, again, a procedure in place to ensure that if there’s one error, that it’s quickly found by one of the other checks. That’s why six checks, through multiple partnerships, has been critical to ensure that if there is an issue, that it’s found in and addressed long before that person either is in a position to wrongly feel that they have the ability to participate. So in other words, the checks and balances that we have in place in our state prevents what [crosstalk 02:08:42]-
Senator Merkley: (02:08:42)
I’m going to interrupt you, because I know my time will run out quickly. But tell me again, how many more people got registered because of AVR?
Secretary Benson: (02:08:49)
250 million, and notably because of Real ID, which is in place of course, and being implemented in a number of other things. People have to show documents in order to get their driver’s license. And those documents also affirm [crosstalk 02:09:03]-
Senator Merkley: (02:09:02)
Okay. I’m going to cut off your… Keep your answers real short if you’re able to for me. That would help me out. So one of the concerns that has been noted is cybersecurity, and we are worried about this in all sorts of contexts, transferring information. You don’t have to give me all the details, but are you working to address cyber security to make sure that we don’t have voting systems that are hacked?
Secretary Benson: (02:09:28)
Yes. And thankfully, to our successful partnerships with the federal government, we’ve got all the more resources to be able to do that.
Senator Merkley: (02:09:35)
And another question that comes up is the cost of implementing this. And that’s certainly a legitimate concern and the complexity of modifying existing computer code. In terms of how long it took you and the cost, were you able to cover it with the funds from the America Votes Act, or was it a big burden on the state of Michigan?
Secretary Benson: (02:10:01)
It was not a big burden. It does take funding, but notably the approximately 2 billion allocated to states through this act would address many of those issues. And the funding goes, not just to the implementation, but also educating voters about how to take advantage of these new rights.
Senator Merkley: (02:10:18)
So it wouldn’t be an imposition on the states if we passed the funds to enable them to hire the help needed to get this done, is what you’re saying.
Secretary Benson: (02:10:27)
That’s absolutely right.
Senator Merkley: (02:10:28)
So you’ve road-tested this, and I want to make sure one point is very clear. How many people were found who have signed up illegally to vote and voted in a Michigan election, in the 2020 election?
Secretary Benson: (02:10:42)
Senator Merkley: (02:10:43)
None. Zero, [crosstalk 02:10:44] so when my colleague from Texas says that this bill is about registering millions of illegal aliens, and yet we’re basing a model based on the good work that Michigan and Oregon and other states have done. And you’ve found zero. We can just discount that as some sort of a hyperbolic speech, not a real recounting of how the system works. Is that correct?
Secretary Benson: (02:11:07)
Yes. I recommend that.
Senator Merkley: (02:11:08)
Okay. Well, I think it’s really important to get past the hyperbole. You empowered hundreds of thousands of people to vote in Michigan. Or I didn’t get the Michigan number. You gave me, I think, you said 250 million. But that wasn’t AVR in Michigan. What was the number in Michigan of how many new voters under AVR?
Secretary Benson: (02:11:27)
That’s correct. A quarter of a million, 250,000.
Senator Merkley: (02:11:30)
Quarter of a million. Okay. Thousand. Thank you. Yeah, so 250,000 people were empowered with this right to vote, to make sure that the obstructions were knocked down. Not a single illegal voter, and that seems like exactly what this Congress should be defending and making sure happens across this country, taking the good work that’s been piloted in states like Michigan.
Secretary Benson: (02:11:54)
I agree. Yes. And again, the system works. With proper funding and enough partnerships, there’s no reason why every state in the country can’t follow our lead and implement the provisions of this act.
Senator Merkley: (02:12:05)
And there’s one last question here, because I think these are legitimate concerns that have been raised that we can learn from the experience of states that have gone through this process. But some voting machines would be de-certified, in part because they don’t produce paper ballots, or some voting machines would be certified for that reason. Our paper ballots integral to the system of having high integrity elections?
Secretary Benson: (02:12:31)
Yes, they are, because you can’t hack paper. And the more incentives we have to improve the security of our ways of tabulating those paper ballots, the better off our democracy will be.
Senator Merkley: (02:12:41)
And we would like to have American made machines to also ensure there’s not some internal back door corrupting our elections. Is that right?
Secretary Benson: (02:12:50)
Yes, that is.
Senator Merkley: (02:12:51)
Yes. Thank you very much. Your experience is very instrumental, very instructive.
Secretary Benson: (02:12:54)
Senator Merkley: (02:12:54)
Senator Blunt: (02:12:54)
Senator Capito: (02:12:59)
Thank you, Senator Blunt. And thank you for the hearing. Secretary Warner, all of us have want to have the ability to participate in our elections and democracy and have great faith in this and not be disenfranchised. We’ve heard from Michigan and Indiana and West Virginia, that certain things are working in their states. Great. If things are working in their states, we should keep doing that. I note in your bio, Secretary Warner, that you say that 313 outdated duplicate out-of-state deceased and convicted felon voters have been eliminated. At the same time, in a state as probably one fifth the size of Michigan, you’ve also registered 246,000 new voters, 67 of which are high schoolers. And you don’t have same day registration.
Senator Capito: (02:13:44)
You don’t have the other provisions that she has. So I think that we’ve tailored the way we want to get new and energetic voters on our rolls and get rid of the voters that are no longer eligible to vote. So congratulations to on that. The specific thing I would like to talk about is your mobile voting app. You’ve talked about your overseas service members with electronic voting, but I think it’s also important to know that you’ve expanded the use, with the help of the legislature, I believe, of online voting for disabled individuals. And I’ve heard from our deaf and blind community in West Virginia about what S.1 would do to prevent them from using this tremendous increased accessibility voting option that you’ve pioneered in the state of West Virginia. So if you could briefly share your concerns about the impact that this bill would have on military voters and voters with disabilities.
Secretary Warner: (02:14:38)
This bill would absolutely eliminate the opportunity for military people overseas, for voters overseas, and for what you just mentioned, the voters with certain disabilities, especially the blind community and folks who are physically not able to get to the polling locations. That’s where we have enabled them to vote using a mobile device that’s tailored to their specific situation. I visited one quadriplegic who physically could not get out of his bed to go vote. 35 years old, said for the first time in his life, he felt like an American where he could vote using this. So S.1 would eliminate that.
Senator Capito: (02:15:09)
That would eliminate those folks’ ability to vote. Now we’re talking about accessibility to voting, and this eliminates our military out of our country and certain folks with disabilities in our state to be able to vote at the most convenient and technology-tested way. I would also note in the state of West Virginia in the 2020 election, without this bill, you increased the number of voters by about 130,000 that actually came to the polls. Is that about a correct statement?
Secretary Warner: (02:15:39)
We had over 800,000 people vote. And we have just over 1 million active voters. So we had a tremendous turnout.
Senator Capito: (02:15:47)
Okay. I want to follow up on something you said in your statement and something Senator Merkley said about the de-certification of certain machines. Now I understand in West Virginia, all of ours are paper.
Secretary Warner: (02:15:59)
Yes. We have a paper trail, auditable. Yes, we do.
Senator Capito: (02:16:01)
Okay. So why would our machines be de-certified under this legislation?
Secretary Warner: (02:16:06)
This bill requires that all the machines meet the VVSG 2.0 system. And no state has the machines ready to meet that, because this was just passed a month ago by the EAC. So we’re all getting used to what those requirements are. We’d have to go out and buy new machines to meet this new standard.
Senator Capito: (02:16:21)
So you’re telling me every state would have to buy new machines?
Secretary Warner: (02:16:23)
You’re correct, under this.
Senator Capito: (02:16:24)
Every state would have to buy new machines under this?
Secretary Warner: (02:16:26)
Senator Capito: (02:16:26)
Now, remember the funding that we put into Help America Vote Act to make sure that you’re up to the point which you are right now, today.
Secretary Warner: (02:16:34)
Senator Capito: (02:16:35)
So I’m going to ask a question. This is a dangerous thing, but I have no idea what the answer is going to be here. But there’s a provision in this bill that says that we are going to politicize the FEC, and we are going to make it instead of even three Republicans, three Democrats, the majority party will be able to have a majority vote at the FEC. I’m going to ask everybody, yes or no. Do you agree with that provision in this bill, Mr. Holder? Yes or no?
Attourney General Holder: (02:17:03)
I do. The FEC has proven to be totally ineffective in the way that it is constructed now.
Senator Capito: (02:17:08)
So that’s a yes?
Attourney General Holder: (02:17:10)
Senator Capito: (02:17:10)
You’re in favor. Okay. Ms. Benson?
Ms. Benson: (02:17:14)
Senator Capito: (02:17:15)
Michael Waldman: (02:17:18)
Senator Capito: (02:17:19)
Secretary Warner: (02:17:20)
Senator Capito: (02:17:21)
Attorney General Todd Rokita: (02:17:23)
Senator Capito: (02:17:23)
I cannot believe that three out of the five witnesses thinks that it’s a good idea to take a non-partisan FEC commission and politicize it and make decisions about elections when you can use your majority vote to ram anything through. That, to me, is a major red flag in this legislation. Thank you.
Senator Blunt: (02:17:48)
Senator Padilla: (02:17:51)
Thank you, Mr. Chair, for the time being. And I would request in advance maybe an extra minute, as one of the other prior state chief elections officials serving in this committee right now. Let me begin by commenting on remarks made earlier by Minority Leader McConnell. So glad that he made reference to the Help America Vote Act that he worked on. And as I recall him speaking, he said it was both crafted and passed, not just on a bipartisan basis, but specifically, given the approach to make it easier to vote and harder to cheat. Well, the second part has clearly been accomplished, folks. Voter fraud in America is exceedingly rare. Study after study, investigation after investigation, report after report shows that. And anybody with evidence or proof to the contrary needs to step up and bring it forward. Easier to vote and harder to cheat.
Senator Padilla: (02:19:11)
We still have a lot of work to do on the first part. Voter purges, discriminatory voter ID laws, long lines that nobody should have to suffer and wait through to exercise their fundamental right to vote. Let alone the false choice too many voters were forced to make last year, in either protecting their health and their lives, versus exercising the right to vote during the COVID 19 pandemic. We have a lot of work to do still on making it easier for eligible citizens to register, to stay registered, and to cast their ballot. And anybody who agrees with Minority Leader McConnell in thinking that the 2020 election went so well, then you have to also denounce the hundreds of bills that have been introduced, even though they haven’t been passing yet, that have been introduced, that would have the effect of making it harder for eligible citizens to participate.
Senator Padilla: (02:20:25)
Now, let me jump to three questions for the three witnesses pretty quickly. And let me ask the three, and then we’ll get their responses. I’m learning how to manage my time as a new member around here. The first addressed to Mr. Holder. Now, I’ll bypass the preamble and just asked the question, in reference to the flurry of bills that we’ve seen since the start of this year, coming off of the November 2020 election. How these recent proposals further highlight the need to create a federal baseline of voting rights and access to the ballot that should apply across the country. That’s number one. Number two question for Mr. Waldman. Some folks have argued, “Well, separate and apart from S.1 and H.R. 1, there is the John Lewis Voting Rights Act. Isn’t that enough?”
Senator Padilla: (02:21:19)
While I think restoring the teeth of the Federal Voting Rights Act is critical, Mr. Waldman, can you explain why it is necessary to create a baseline of voting rights through S. 1 rather than only implementing new pre-clearance requirements for state and local jurisdictions to go through the Department of Justice in the defense of voting rights? And lastly, two questions for Secretary Benson. Hello, Jocelyn. As Michigan’s Chief Elections Official, you obviously have a vested interest in ensuring the proper administration of free and fair elections in your state, as your colleagues across the country. So does the For the People Act rest control over elections away from state officials and local elections officials and federalize elections, as some have argued? And if you have a minute, as well, to quickly comment on your experience with the independent redistricting commission, that’s one area that California has led on as well. Thank you.
Secretary Benson: (02:22:26)
Thank you, Senator Padilla. With regards to the implementation, I think what we’ve seen is that with proper funding, and with all the things that we’ve learned from other states in place, it is possible to implement all of these policies. And it amazes me how so many of the arguments we’ve heard today were made against the Voting Rights Act of 1965, almost verbatim to overreach argument on this. And I’ll underscore that in Michigan, we had a state policy, the Motor Voter Law that the NVRA expanded nationwide, that again, same arguments were raised. It’s not possible. It’s an overreach. It’s a federal takeover.
Secretary Benson: (02:23:03)
It wasn’t the case. Actually, dramatically improved our system of election administration all across the country. So these arguments have been made before, and they haven’t proven to play out in reality. And I’ll direct anyone, I know my time is limited, to michiganredistricting.org, to also see the enormous success we’ve had implementing a citizens redistricting commission in Michigan. And we’ve basically, essentially, found that when you give citizens the ability, on both sides of the aisle, to draw their own legislative districts, they embrace that ability with good intentions. And we have, through this commission, effectively eliminated gerrymandering in our state.
Michael Waldman: (02:23:43)
Senator Padilla, we need both this legislation and the John Lewis Voting Rights Advancement Act to ensure equal access to the ballot for all Americans and to ensure that there is not racial discrimination in voting. As you note, the John Lewis Voting Rights Advancement Act deals with the restoration of pre-clearance, which is a fairly specific thing relating to past racial discrimination and how it plays out in voting. But this legislation too, by setting national standards and ensuring that we can’t have cutbacks in access to voting, that unfortunately also have a very direct tinge of discrimination, that that can’t happen as well. And I will note that Representative Lewis, when he was still with us, was very involved in the writing of this legislation when it was in the House of Representatives.
Senator Padilla: (02:24:44)
Attourney General Holder: (02:24:50)
With regard to this need for baselines, I think that is extremely important. We keep hearing about this cry about voter fraud that simply doesn’t exist. Simply because you say it, doesn’t necessarily mean that it exists. I look at Texas, for instance. Senator Cruz wanted to talk about that. The attorney general, Ken Paxton, according to NBC News, spent 22,000 hours looking for voter fraud. Found 16 cases of false addresses on registration forms. He talked about the late Justice Stevens, who said that his vote upholding voter ID laws because of a concern about fraud was the worst decision he ever signed on to. There is simply not. There are simply not any indications of fraud to the extent that would justify the very draconian measures that have been put in place and that this act would prevent from being put in place. And that would separate people from their ability to affect the direction of the nation and would return power to the people.
Senator Blunt: (02:25:51)
Senator Padilla, I think you maximized your time. Congratulations on that. Senator Fischer?
Senator Fischer: (02:25:59)
Thank you, Senator Blunt. In the 2020 presidential election, in the state of Nebraska, we saw an excellent job done in administrating the vote. And we had record turnout. We saw over 960,000 people vote out of 1.26 million registered voters. And I am so proud of the job that Nebraska has done. And as I sit here today, and I listens to my colleagues on the other side of the aisle and the witnesses that they brought forward, as well as my colleagues on my side of the aisle and the witnesses that we’ve brought forward, it sounds like states are doing a great job. We hear that there’s very little or no voter fraud. We hear that the voter turnout was tremendous in this last election, which all of us want to see. We want people to exercise their right to vote. We want that to happen.
Senator Fischer: (02:27:05)
So I would just ask for us to think about, why in the world would we give up state control of our elections to the federal government? Most everybody in here is saying, in their own fashion, that our elections are working. Yet, we’re saying, “Oh, my heavens, we have to have the federal government take over control.” I vehemently disagree with that. And as I look through this bill, my staff worked overtime trying to get through the 800 some pages. But what we saw were proposals that I think are done in a political fashion. What we’ve seen is a lot of confusion in this bill. In some cases, I would say sloppiness, in how this bill was written.
Senator Fischer: (02:28:13)
Senator Merkley brought up one point about that states have to purchase the paper [inaudible 02:28:21] voting machines that are compliant with new standards. And I believe you, Secretary Warner, you also spoke to that. We have conflicting deadlines in this bill that we discovered. In one section, it says this has to happen by January, 2022. In another, it conflicts with that. I see chaos. I see chaos in trying to meet these requirements for a 2022 election. For example, these machines don’t even exist yet. So you tell me how we’re going to get this implemented. You tell my elected officials in Nebraska, our secretary of state and his very competent staff, how we’re going to be able to meet all this. And I would imagine before we’re through here, we’re going to find a lot more.
Senator Fischer: (02:29:18)
And as Senator Wicker pointed out, when the American people hear what’s in this, they do not support it. We all want fair elections. We all want more citizens to vote. That’s what keeps a democracy strong. But to try and portray this as something it isn’t, is just pretty darn disingenuous. Secretary Warner, I would ask you, in your written testimony, you identify the unrealistic deadlines that I mention, that we see in S.1. And it makes it difficult for states to meet that. Can you speak to some of the challenges, for example, to when we look at the de-certification of millions of dollars worth of equipment that I mentioned? Can you quickly… Well, I’ve used a lot of time already. But can you speak to that? And then I will have a number of written questions to you, because we can’t just sit here on both sides and speak in grandiose terms. We need to get down to the nuts and bolts in this and figure out what’s going to happen and if it’s even realistic, sir.
Secretary Warner: (02:30:37)
Thank you, Senator. And I think you’ve articulated the sentiment, especially the people of West Virginia, with the problems with this bill. On the equipment itself, since it doesn’t exist, you have to go through that process of the vendors actually developing that. And they say it’s anywhere between 12 and 36 months. So that would shoot way past even the January 2022 timeframe. And then there’s the whole process of acquiring that equipment. Then there’s the training the clerks, and then the clerks training the poll workers on that. It just unrealistic. And that’s one of the major concerns that our clerks have expressed to us.
Senator Fischer: (02:31:08)
Yeah. I saw much of this when I was in the Nebraska legislature. I chaired the transportation telecommunications committee. We had to implement Real ID, and Nebraska was one of the first states to be able to get that done. It takes time. It takes time to do the Help America Vote Act, is when that came out. It takes resources. So when we’re looking at a complete federal takeover of the election system of the United States of America, we need to understand what’s fully involved here. Thank you, sir.
Secretary Warner: (02:31:43)
Senator Klobuchar: (02:31:44)
Thank you very much. And back from voting. We’ve been able to run two votes with us having a seamless hearing. I want to thank Senator Blunt for helping me with that. And if any of our witnesses need a three, four minute break here, let us know, because we’ll just finish up unless Senators want to have a second round of questioning of this panel. So next, Senator King.
Senator King: (02:32:08)
Thank you, Madam Chair. I appreciate it, and appreciate the recognition of the voting. As a former governor, I’m sort of conflicted here, because I am a strong believer in state’s rights. And the states have the ability and need the ability to make their own laws according to their local needs and their local situation. On the other hand, I view many of the provisions of this bill as a kind of extension of the 1965 Voting Rights Act. And as has been testified, the Congress has evolved itself in voting and voting rights on numerous occasions. And really, what we’re talking about here is protecting the right to vote. So I wanted to ask a couple of questions.
Senator King: (02:32:49)
Mr. Waldman, one is a sort of forward looking request. You were collecting data. You’ve reported on all of these bills that have been filed around the country. I would appreciate it if you would notify the committee, perhaps on a bi-weekly basis, as we move into the consideration of this bill, what is happening to those bills that have been introduced around the country. Ranking Member Blunt pointed out that some of them will be enacted and some won’t. And I think it would help us in our deliberations to learn exactly which of these bills have gone forward in which states, and that will allow us to sharpen the provisions of the bill. Mr. Waldman, can you do that for us, please?
Michael Waldman: (02:33:32)
We certainly can. And indeed our website already tracks the path of these bills, but we will make it very useful and usable to the committee. But it is also the case that there is a very fierce push to enact these bills happening in plain sight in front of our eyes. And we ought not, I would suggest, ignore that either.
Senator King: (02:33:54)
And I agree with you. And I think if we’re talking about enacting a floor to protect the right to vote, then we shouldn’t have to wait for states to be infringing on that right. This should be a protective measure. There hasn’t been a lot of discussion. And I suppose, Mr. Weldman, you’re the guy to ask about this. At least when I’ve been here at the committee meeting this morning, about gerrymandering. I consider that one of the most serious problems afflicting our democracy. And it happens in both ways. There are Democratic gerrymandered seats. There are Republican gerrymandered seats. The problem is, instead of the voters choosing the politicians, the politicians choose the voters. Talk to me about the effect of gerrymandering in this country, the extent of it, and what it’s doing to our politics.
Michael Waldman: (02:34:45)
Thank you, Senator. You are exactly right. Both parties gerrymander when they can, and it is a risk to the representation of voters. It is a risk of partisan abuse. It is a risk of choking off the voices of communities of color that are often the fastest growing communities. This legislation follows what a lot of states have done, what a lot of voters have put in place in a lot of states. It bands partisan gerrymandering. It requires that redistricting be done with standards for representation of communities and other fair standards. It includes nonpartisan commissions to implement this. But even if this legislation is not passed in time to implement those, it has very, very valuable national standards to ensure that all voters are able to have competitive and representative elections.
Senator King: (02:35:40)
Well, and one of the hidden problems with gerrymandering is, if you’ve got a district that’s all democratic or heavily Democrat or heavily Republican, you tend to have members elected who are on the edges of their two parties. You don’t win a primary in one of those by being moderate. And I think that’s one of the things that’s contributed to the polarization that we see in the Congress. Have you observed that?
Michael Waldman: (02:36:05)
Yes, sir. That does seem to be the case. And of course, in legislatures as well. And the rules in this bill don’t just affect right now, as we know, because redistricting happens every 10 years. And it’s going to begin in a few months around the country. If there are abusive redistricting practices and unfair maps that are drawn, those can lock in a bad system, can lock in advantage, for much of a decade. And it really does make it something where voters don’t want to vote if they don’t have a real opportunity to be heard.
Senator King: (02:36:40)
And unfortunately, the Supreme court punted on that issue when, I think, they had a good case before them that they could have handled, and I think advocated a constitutional responsibility. That’s another question. I want to thank all the witnesses today. I just want to close with a little piece about Maine. We have same day registration, no excuse absentee voting, no voter ID, and no fraud. And I just wonder about all of these provisions that are being enacted all over the country to chase fraud allegations that I have not yet seen validated in any objective forum. So Madam Chair, I appreciate the hearing, Ranking Member Blunt, and look forward to consideration of the bill.
Senator Klobuchar: (02:37:30)
Well, thank you very much, Senator King. And we do appreciate the Maine secretary of state support for this bill as well. Next, Senator Hagerty.
Senator Hagerty: (02:37:43)
Thank you, Chair. I want to direct this question both to Secretary Warner and to General Rokita. I’m going to ask you if you agree with me, that this bill, by eliminating common sense security measures for voting, by bypassing elected state representatives, is really a power grab by those politicians that are currently in power that wrote this bill to use their power. Even though it’s so thin in a 50/50 Senate, to use their power to fundamentally change the rules of the game so they stay in power permanently.
Secretary Warner: (02:38:19)
That’s what it would appear to be Senator.
Senator Hagerty: (02:38:22)
General Rokita, do you agree?
Attorney General Todd Rokita: (02:38:25)
Yeah. And you can just look at the, excuse me, look at the number of the bill. It’s H.R. 1, and Senate Bill 1. And as a Leader McConnell said, “It’s very telling what the most important priority is for Democrats.” Frankly, I’ve never seen a group of people complain so much after winning.
Senator Hagerty: (02:38:45)
Doesn’t using government power to ensure you stay in power sound more like the Maduro regime? Or chairman Mao’s regime, than it does something would happen here in the United States of America?
Attorney General Todd Rokita: (02:38:57)
Yeah. I think the American people see right through it. That’s why this Senate has got to vote this bill down, just for nothing else, maintain their credibility. If you look at these state legislators and whether the bills that they’re proposing are good, or bad, or ugly, or what, they’re responding to their constituents. They’re responding to the American people. They are closer, frankly, to the American people than the federal government is. And clearly, people felt that, because of the last minute rule changes and everything else, the last election wasn’t a good one, from a process standpoint. The 2018 and 2016 elections were much better.
Senator Hagerty: (02:39:40)
General, can I keep you on point for just a few more minutes? I’d like to ask three quick questions, and I think they could probably be simply yes or no answers. John Rokita, is it accurate that under this bill, it’s quite possible that a court in Washington DC would redraw every single congressional district in all 50 states before the 2020 midterm elections, rather than allowing the elected…
Senator Hagerty: (02:40:03)
… before the 2020 midterm elections, rather than allowing the elected representatives of those people in those states.
Attorney General Todd Rokita: (02:40:07)
Yeah. That’s exactly where this is going. You can argue whether redistricting is good or bad and if it could be done better, but you make it a lot worse by definition when you take it more out of the hands of the people. The fact of the matter is state legislatures are directly elected by the people. D.C. circuit judges, or three-panel appellate judges, are the most removed from the people, by design, in terms of the judiciary. But it is the responsibility, as the framers intentionally noted, that the first branch of government, the legislatures, be in charge of this process for accountability reasons.
Senator Hagerty: (02:40:48)
Yeah. I can tell you the people in Tennessee would agree with you. We would not want to cede our power to set the rules of elections to the district court here in Washington, D.C. Next question, is requiring a voter to present a reliable form of identification an important method of determining that a voter is who that voter claims to be and not trying to impersonate someone else? Secretary Warren, may I ask you that question?
Attorney General Todd Rokita: (02:41:11)
Absolutely. Yeah, it’s 19th and 20th century technology. It’s very simple. Only a photo allows you to determine that you are who you say you are. It’s important for confidence. You can argue whether there is voter fraud or not voter fraud in your state. It depends if you’re actually looking, number one. Number two, it’s a very difficult crime to spot because the evidence goes away right after the vote is cast. There’s no dead body with an outline to make afterwards to prove a crime. It goes away. It’s very difficult and prosecutors don’t like prosecuting it because it’s very different than the run of the mill crimes that they’re used to prosecuting.
Attorney General Todd Rokita: (02:41:52)
That shouldn’t be the measure. The measure should be the confidence that it brings to the process. Time and again, like the Mexico example I gave, the Indiana example I gave where turnout goes up after presenting a photo ID, is valid because it’s telling people, “You know what? We’re going to invest in this process like we do when you go rent a video, as you used to do, or where you go to get out on an airplane. We’re going to care enough about your vote to make sure that it’s one person, one vote.” That’s what photo ID does.
Senator Hagerty: (02:42:22)
Yeah. One last question. Would you agree that allowing paid-by-the-hour political operatives to go out and harvest ballots and drop them in unmanned boxes would actually decrease election integrity, Secretary Warren?
Secretary Warner: (02:42:36)
Absolutely, Senator. And the answer to your former question was yes.
Attorney General Todd Rokita: (02:42:39)
Yeah, absolutely it would. It would increase-
Secretary Warner: (02:42:41)
The voter ID increases confidence in the elections.
Senator Hagerty: (02:42:43)
General Rokita? General?
Attorney General Todd Rokita: (02:42:45)
Sorry. I didn’t mean to step on anybody. I was … yeah, absolutely. That would be chaos. That’s the real definite chaos, waiting in a line, hopefully a short line, is not chaos. This kind of stuff coupled with the lawsuits that are going to come with this bill, that is going to be chaos for 2022 and beyond.
Senator Hagerty: (02:43:02)
Senator Klobuchar: (02:43:06)
Senator Hagerty, you done? Okay. Thank you very much. Next, Senator Ossoff.
Senator Ossoff: (02:43:16)
Thank you, Madam Chair. Thank you to our distinguished panel for your testimony. Thank you as well to Senator Merkley for your leadership on this issue. Madam Chair, as you know, this is an issue of particular concern as one of the senators from Georgia. It’s with a heavy heart that I report to the committee and to the panel for those who are not aware that right now in Georgia’s state legislature, a significant faction of Georgia’s Republican delegation is pursuing utterly meritless, blatant voter suppression legislation that is so brazen in its partisan and racial targeting that even Georgia’s own Republican lieutenant governor refused to oversee the debate of this legislation because it is obvious to all, and indeed openly admitted by some of these Republican legislators, that the exclusive purpose of this legislation is to gain a partisan edge in elections by making it more difficult for Black voters and working-class voters in Georgia to vote.
Senator Ossoff: (02:44:38)
I take exception to the comments that you just made, Mr. Rokita, that public concern regarding the integrity of the recent election is born of anything but a deliberate and sustained misinformation campaign led by a vain former president unwilling to accept his own defeat. Who rather than observing the sacred tradition and necessary process of a peaceful transition of power for a losing candidate for the presidency undertook a scorched-earth effort to undermine public confidence in the integrity of our elections that was so dramatic and so destructive that it culminated in a violent assault on the United States Capitol.
Senator Ossoff: (02:45:29)
Former President Trump’s own senior officials, cabinet officials, directly rebutted his meritless claims that there was any level of voter fraud that might have had a substantive impact on the outcome of the election. I find it disturbing that a chief law enforcement officer from one of our great states would indulge in that kind of misinformation and spread those kinds of conspiracies when public confidence in the integrity of our elections is absolutely essential to sustaining our democracy.
Senator Ossoff: (02:46:06)
I want to turn for a moment now to the legislation before us.
Attorney General Todd Rokita: (02:46:09)
Can I have a minute to respond to that?
Senator Ossoff: (02:46:11)
No, you may not.
Senator Klobuchar: (02:46:12)
Senator Ossoff: (02:46:13)
I’d like to turn now for a moment to Ms. Muller.
Senator Klobuchar: (02:46:15)
Senator Ossoff, just give him 30 seconds to respond.
Senator Ossoff: (02:46:18)
Go ahead, sir.
Attorney General Todd Rokita: (02:46:20)
Yeah, Senator. I mean, that’s true. I mean, we’re trying to have a constructive debate. You’re not adding to it by cutting people off after invoking their name. I would say that you’re entitled to your opinion, as misinformed as it may be, but I share the opinion of millions of Americans. The other difference between my opinion and yours is mine comes with the ability to file lawsuits.
Senator Ossoff: (02:46:42)
Well, whether our elections have been conducted with integrity is a matter of fact, not a matter of opinion. Moving along, I’d like to ask Ms. Muller, we’ve seen in Georgia some of this legislation filed intended to make it more difficult for some to vote, would even bar the distribution of water and snacks to people who are being forced to wait in lines that in Georgia had stretched as long as six or eight or 10 hours as a function of inadequate resourcing of election infrastructure and training of election personnel. What is your view Ms. Muller of this sort of voter suppression legislation?
Senator Klobuchar: (02:47:24)
Yep. Ms. Muller is coming right up on our next panel. But why don’t we ask one of our other witnesses, maybe-
Senator Ossoff: (02:47:31)
Sure, Mr. Holder.
Senator Klobuchar: (02:47:33)
Attourney General Holder: (02:47:35)
Yeah. I am very concerned about that. I’ve looked at studies that show that African-Americans in Atlanta had to wait 51 minutes to vote. White Atlantans had to wait six minutes to vote. There’s no indication of widespread voter fraud. People say it all the time, but simply saying it doesn’t make it so. These measures that they’re trying to put in place are really only designed to make it difficult for people who they think will vote against them, make it more difficult for those people to vote without any kind of basis for the concerns that they express.
Senator Ossoff: (02:48:11)
Thank you, Mr. Holder. Thank you to the panel. Thank you, Madam Chair. I yield back.
Senator Klobuchar: (02:48:15)
Thank you very much, Senator Ossoff. Next up, Senator Hyde-Smith.
Senator Hyde-Smith: (02:48:21)
Before we start, I have a question of the chair.
Senator Klobuchar: (02:48:24)
Senator Hyde-Smith: (02:48:25)
Earlier, Senator Schumer, the majority leader, had requested a response from Republican members of this committee as to things that were happening in Georgia. When is the appropriate time that I can respond to [said 02:48:40] question?
Senator Klobuchar: (02:48:40)
You could respond right now, Senator Hyde-Smith.
Senator Hyde-Smith: (02:48:42)
Thank you very much.
Senator Klobuchar: (02:48:43)
Senator Hyde-Smith: (02:48:44)
Senator Schumer’s question was, he was wondering why on Sundays Georgia would not participate in an electoral process of gathering signatures, of registration and things on Sunday. I would just like to respond to that. Georgia is a Southern state, just like Mississippi. I cannot speak for Georgia, but I can speak for Mississippi on why we would never do that on a Sunday or hold an election on a Sunday. This is our currency. This is a dollar bill. This says, “The United States of America, In God We Trust.” Etched in stone in the U.S. Senate chamber is, “In God We Trust.” When you swore all of these witnesses, the last thing you said to them in your instructions was, “So help you God.” In God’s word in Exodus 20:18, it says, “Remember the Sabbath and keep it holy.” That is my response to Senator Schumer.
Senator Hyde-Smith: (02:49:44)
Thank you, Madam Chairman. Now, I will begin with my questions. Also, I have a letter that I would like to have entered into the record. I’m really concerned how this legislation would negatively affect the integrity of the election system. I recently received a letter from our secretary of state in Mississippi, Michael Watson. He was concerned that the various provisions in this act provide new pathways for election fraud and undermine the First Amendment right to free speech through censorship of campaign activity and restrict state’s authority to conduct local elections.
Senator Hyde-Smith: (02:50:20)
Given Secretary Watson’s role as Mississippi’s chief election officer, I would ask that the entire letter from Secretary Watson be entered into the record.
Senator Klobuchar: (02:50:30)
[That 02:50:30] objection, entered in the record.
Senator Hyde-Smith: (02:50:33)
One of the specifics concerns raised by Secretary Watson was the bill’s effect on Mississippi’s voter ID law. Voter ID was adopted by the people in Mississippi in 2011. Not only did we adopt it, we made it an amendment to the state constitution. It was passed by an overwhelming margin. The Voter ID has been implemented with success in Mississippi. We’ve provided government issue ID, free to cost to our citizens not only to vote, but any other thing that they might need a government ID for. Our secretary at that time, Delbert Hosemann, worked closely with the Obama justice department and beginning in the drafting of the phases of the enabling law through the final implementation.
Senator Hyde-Smith: (02:51:16)
The result of this collaboration is that Mississippi’s voter ID law is working successfully while such policies in other states have been embroiled in extensive litigation. However, the legislation before us today would nullify Mississippi’s successful voter ID law. Under S 1 in a federal election, an individual could walk into a polling place, register, and vote on the spot without ever showing any proof of identity or residency, and for that matter, of age.
Senator Hyde-Smith: (02:51:48)
Mr. Rokita, I’m going to put this one to you. How would allowing individuals to register and vote in a federal election without ever confirming their identity or residency lead to further undermining voter competence?
Attorney General Todd Rokita: (02:52:03)
Thank you, Senator. Yeah, the implications are obvious, more cheating, more potential for abuse. Couple that with aggressive ballot harvesting as this bill promotes and doesn’t allow or prohibit, or prohibitions against, you can see where all this is going. I go back to what leader McConnell said during his opening remarks, which was true when we all implemented the Help America Vote Act about 20 years ago. It improved the process because it was bipartisan. Yes, make it easier to vote, but make it harder to cheat.
Attorney General Todd Rokita: (02:52:40)
Senator, what this bill does, and by the way, I don’t take the premise that it’s hard to vote. There has to be some basic responsibilities for the individual in a free republic. One of those has to be taking reasonable, common-sense initiatives to cast your ballot. We can continue to improve upon that of course. I think one of the huge avenues we could continue to explore is technology. But if you don’t couple that improvement of the voting process, like using technology with individual responsibility and accountability, then all you’re doing is making it easier to cheat. Where the Help America Vote Act was yes, let’s make it easier to vote and harder to cheat, this bill is let’s make it easier to cheat, period.
Senator Hyde-Smith: (02:53:27)
And I agree with you on that. I just did a press conference in reference to Jennifer Jackson in Brookhaven, Mississippi who called me. She had gone to vote and she was told you can’t vote, you’ve already voted. She saw where someone had signed her name. She looked above it and her deceased father had already voted that morning as well. The fact that voter fraud is prevalent. It is rampant and in close elections, it does make a difference.
Senator Hyde-Smith: (02:53:54)
I’ve got just a few minutes, or one minute. This bill would also create a complicated multi- ballot system for states like Mississippi as you referred to. Giving that voter ID is part of our state constitution, the state will still have to require voter ID for voting on state and local issues even if the law prohibits it for federal elections. This would create a system of multi-balance and conflicting rules, which will make voting much more complex and time-consuming for voters and those running our elections. If our goal is to reduce wait times at the polls, this multi-ballot system combined with the same-day voter registration would drastically increase the amount of time it takes to vote.
Senator Hyde-Smith: (02:54:35)
Secretary Warner, how will the conflicts between this bill and state law create problems and make voting more difficult in West Virginia?
Secretary Warner: (02:54:44)
Well, I think West Virginia is very similar, as you described the process and the people in Mississippi. I think I was hearing and seeing the people in West Virginia in a similar light. This process of the same-day registration and then voting is the thing that the clerks mentioned to me the most that was going to complicate their administration of the elections. Then, the ID does not present problems. I found it ironic that on this morning’s news there was talking about bringing your ID to get a COVID shot. We’re requiring people to bring an ID to get a COVID shot, but it says that it’s a problem to vote. No, people don’t have problems.
Secretary Warner: (02:55:21)
We implemented voter ID just a couple of years ago ourselves in West Virginia. No problems whatsoever with the implementation, no complaints. In fact, people would typically come into the polling precinct and hand people their ID before they were even asked, because that was the expectation. When we have the voter identification laws, it adds confidence to the process. This bill complicates the entire process going in the wrong direction from where we need to go.
Senator Hyde-Smith: (02:55:44)
Thank you very much, Mr. Secretary.
Secretary Warner: (02:55:46)
Sure. Thank you.
Senator Hyde-Smith: (02:55:46)
Senator Klobuchar: (02:55:48)
Thank you very much, Senator Hyde-Smith. I think that concludes our panel. We’re going to move on to the second panel. I want to thank all of our witnesses. It was a good morning on a critically important bill. So thank you and we’ll just take a minute to switch out the panels. Thank all of you for coming and testifying before us. I can see our people who are virtual waving. I’m waving back. All right, thank you.
Speaker 1: (02:56:16)
All right. The Jennifer Jackson [inaudible 02:56:21]. [Yes. 02:56:44].
Roger Wicker: (02:56:19)
Roger Wicker, good to see you. Thank you so much.
Senator Hyde-Smith: (02:56:19)
That was great. Thank you so much.
Roger Wicker: (02:57:42)
(silence) I appreciate you coming. [inaudible 02:57:42].
Speaker 1: (02:57:43)
Roger Wicker: (02:57:46)
[inaudible 02:57:46]. Yeah. Oh, he’s a good one. He’s a good one. Well, I’ll try to be back.
Speaker 1: (02:57:56)
Okay. You’re going to [inaudible 02:57:56]. Absolutely.
Roger Wicker: (02:58:02)
That’s probably [inaudible 02:58:02].
Speaker 1: (02:58:13)
Speaker 3: (02:58:31)
Speaker 1: (02:58:33)
Yep. I’m going to go [inaudible 02:58:33].
Speaker 2: (02:59:11)
(silence). [inaudible 02:59:11].
Trevor Potter: (02:59:21)
Speaker 3: (02:59:34)
[inaudible 02:59:34]. This is [inaudible 02:59:30] the camera. [inaudible 02:59:32] five minutes [inaudible 02:59:36].
Speaker 5: (02:59:38)
Test one, two. Test one, two.
Speaker 3: (02:59:43)
[inaudible 02:59:43]. [inaudible 02:59:44] going to push the button to talk? Is there a really tiny, bright light [inaudible 02:59:49]? [inaudible 02:59:50], but I do suggest turning [inaudible 02:59:54] trying [inaudible 02:59:54] talking [inaudible 02:59:55]. Okay? All right? But, you can [inaudible 02:59:58].
Speaker 2: (03:00:01)
[inaudible 03:00:01]. Hey, [inaudible 03:00:04]. Good to see you.
Speaker 4: (03:00:18)
Speaker 3: (03:00:18)
[inaudible 03:00:14] five minutes [inaudible 03:00:16].
Senator Klobuchar: (03:00:23)
Trevor Potter: (03:00:56)
Senator, great to see you. What a treat. Good to be here.
Senator Klobuchar: (03:00:57)
[inaudible 03:00:57] mentioned your name.
Speaker 2: (03:00:57)
Hi, Senator. [inaudible 03:00:57].
Senator Klobuchar: (03:00:57)
Yeah, I [inaudible 03:00:57].
Fred Wertheimer: (03:00:57)
Hi, Senator. How are you?
Senator Klobuchar: (03:00:57)
Fred Wertheimer: (03:00:57)
Senator Klobuchar: (03:00:57)
Thank you so much.
Lee Goodman: (03:00:57)
Thank you for having me. Thank you.
Trevor Potter: (03:00:57)
Hello, Senator. How are you?
Senator Blunt: (03:00:57)
How are you?
Trevor Potter: (03:00:57)
Senator Blunt: (03:00:57)
Good to see you.
Trevor Potter: (03:00:57)
Nice to see you.
Senator Blunt: (03:01:05)
Great to see you. I greatly enjoyed seeing your son [inaudible 03:01:05].
Trevor Potter: (03:01:06)
Oh, sure, sure. [inaudible 03:01:06].
Senator Blunt: (03:01:15)
They like that. [inaudible 03:01:15]. Perfect.
Fred Wertheimer: (03:01:16)
Hey, Senator. Sorry [inaudible 03:01:16].
Senator Blunt: (03:01:20)
[inaudible 03:01:20]. I appreciate it.
Lee Goodman: (03:01:21)
Senator, Blunt. Thank you [inaudible 03:01:21].
Senator Blunt: (03:01:50)
Lee Goodman: (03:01:50)
Senator Blunt: (03:01:50)
Trevor Potter: (03:01:50)
[Goes double. 03:01:45]
Senator Klobuchar: (03:01:52)
Thank you very much. We’ll go right through today. We really appreciate our second panel. I’m going to just mention who they are, then swear them in, and then give them their righteous and rightful introductions. With us today is the Honorable Trevor Potter, the former Republican chair of the Federal Election Commission who’s here to testify for the bill. The Honorable Lee Goodman, former Republican chair of the Federal Election Commission, who will be on the other side, against the bill. The third is Fred Wertheimer, the director of Democracy who I believe has been working on these issues for over 50 years, but we’ll let him tell us that. Then we also have with us the Honorable Bradley Smith, former Republican chair of the Federal Election Commission and then Tiffany Muller, the president of End Citizens United.
Senator Klobuchar: (03:02:44)
The purpose of the second panel is to focus on the campaign finance and the ethics portions of the bill, where the first panel was focused on the voting portions of the bill. If the witnesses could stand including our remote witnesses so I can swear you in. Raise your right hand. Do you swear that the testimony you will give before the committee shall be the truth, the whole truth and nothing but the truth so help you God?
Lee Goodman: (03:03:12)
Trevor Potter: (03:03:12)
Fred Wertheimer: (03:03:12)
Senator Klobuchar: (03:03:12)
Thank you. You may be seated. The first witness I’ve mentioned today on our second panel is Mr. Trevor Potter. Mr. Potter is the former Republican chair of the Federal Election Commission. He is also the president of the Campaign Legal Center, which he founded in 2002. Mr. Potter was appointed to the Federal Election Commission by President George H.W. Bush in 1991, where he served as a commissioner until 1995. He served as general counsel to Senator John McCain’s 2000 and 2008 presidential campaigns. He has authored several books and manuals on lobbying regulation and disclosure, campaign finance, and federal election law. He has chaired numerous American Bar Association election law and lobbying regulation committees and taskforce, and is currently a member of the ABA’s standing committee on election law. He has also served on the Common Cause national governing board, and currently serves as an advisor for the American Law Institute on issue one. He received his undergraduate degree from Harvard and his law degree from the University of Virginia School of law.
Senator Klobuchar: (03:04:35)
Fred Wertheimer is the founder and president of Democracy 21, as I mentioned. In 1971, he joined Common Cause where over the course of 24 years he served as the organization’s legislative director, vice president for program operations and president. In 1997, Mr. Wertheimer established Democracy 21, which has played a role in the enactment of the bipartisan Campaign Reform Act of 2002 and the Honest Leadership and Open Government Act of 2007, and the establishment of the Office of Congressional Ethics in 2008. He has served as a fellow at Harvard University’s Shorenstein Center on the press politics and public policy, and also as a visitor lecturer at Yale. He has served as a political analyst and he has participated as a lawyer in every major Supreme Court campaign finance case since 1976, including Buckley v. Valeo and Citizens United v. FEC. I think we can concede here that he is qualified to be a witness in front of this body. He received his undergraduate degree from the University of Michigan and his law degree from Harvard.
Senator Klobuchar: (03:05:53)
Tiffany Muller will be speaking last on the panel. She is the president and executive director of End Citizens United. She has been in this role since 2016. She became the first openly-gay public official in Kansas in 2004 as a member of the Topeka City Council, where she led successful efforts to expand anti-discrimination protections. After working for governor Kathleen Sebelius, Ms. Muller ran a political research forum in Florida. She served as chief of staff to two members of Congress. Prior to joining End Citizens United, she was the deputy political director for the Democrat Senate Campaign Committee. She received her undergraduate degree from Washburn University and her master’s degree from the University of Maryland. I’ll turn it over to Ranking Member Blunt to introduce the other two witnesses. Thank you.
Senator Blunt: (03:06:50)
Thank you, Chairwoman. Welcome to all of our panelists. The two I get to introduce, Lee Goodman. Mr. Goodman previously served as chairman of the commission, of the commissioner and commissioner both of the Federal Elections Commission. He has served as the legal counsel and policy advisor to the governor of Virginia, the attorney general of Virginia, the associate general counsel to the University of Virginia and general counsel to a number of political organizations. His experience covers a broad range of policy-oriented subjects, including federal and state campaign finance laws, ethics laws, and election administration. We’re glad to have him with us as well.
Senator Blunt: (03:07:32)
Another former commissioner of the federal election commission, Bradley Smith. Professor Smith is the founder and chairman of the Institute for Free Speech and is the Josiah Blackmore and Shirley Nault professor of law at Capital University in Columbus, Ohio. Again, he previously served as a commissioner of the Federal Elections Commission, including vice chairman in 2003 and chairman in 2004. Thank you, Chairwoman.
Senator Klobuchar: (03:08:01)
Well, thank you very much. Each witness will now be recognized for five minutes for their opening statement. We will begin with the Honorable Mr. Potter.
Trevor Potter: (03:08:13)
Thank you, Senator Klobuchar and Senator Blunt for the honor of appearing before you today in support of S 1, the For the People Act. The campaign legal center of which I am president is a nonpartisan, nonprofit organization dedicated to advancing American democracy through law. Many of S 1’s provisions have bipartisan origins and have broad bipartisan public support with majorities of voters from both parties saying they back provisions in the legislation. I do not believe this bill benefits one party over the other, but it does benefit the American people by making their government and election process more accessible and transparent.
Trevor Potter: (03:09:02)
Let me give you a few examples of the bipartisan roots of key provisions of S 1. The FEC reform provisions are drawn from a bipartisan bill introduced in the last three congresses. Digital disclosure provisions are drawn from the Honest Ads Act introduced in the last two congresses with bipartisan support and reforms to strengthen the Foreign Agents Registration Act have a similar bipartisan background. Super PAC coordination provisions echo those included in bipartisan bills and are similar to bipartisan state measures, such as a 2019 bill introduced in West Virginia by a Republican state Senator and passed with bipartisan support, signed into law by that state’s Republican governor. Provisions that would end shadow lobbying track the bipartisan bills previously introduced and implement recommendations from a bipartisan American Bar Association task force.
Trevor Potter: (03:10:11)
I would like to note one critical component of S 1 that CLC believes is particularly important, reform of the FEC. The Federal Election Commission has grown deeply dysfunctional and our democracy is suffering as a result. During my time at the FEC, I remember only one agency deadlock on an enforcement matter. Deadlocks now occur with great frequency, almost routinely if the matter has significant political or legal importance. My written testimony to this committee details the rise of these deadlocks over the last decade, and the numbers are stark.
Trevor Potter: (03:10:59)
Some will try to argue that things aren’t as bad as the record shows, but in doing so, they play games using numbers that equate routine commission votes such as approving the minutes with votes on major enforcement matters, or they average commission votes over the FECs whole history when the deadlocks are almost all in the last 10 years. The failure of the FEC to muster a majority in recent years to enforce campaign finance laws has resulted in an explosion in secret spending by [C4s 03:11:40] and other groups that do not disclose their donors. In the 2020 election cycle, dark money group spent $1 billion in political advertising or other expenditures, including $600 million transferred to super PACs to spend, thereby blatantly laundering the money to prevent disclosure of the donors.
Trevor Potter: (03:12:03)
… laundering the money to prevent disclosure of the donors. The open involvement of federal candidates and officeholders in raising funds for their supposedly independent super PACs raises the very real danger of corruption. Some people will tell you that FEC commissioners who refuse to support transparency are only protecting First Amendment rights, but the Supreme Court ruled 8-1 in Citizens United, that knowing the source of funding of political advertising is a crucial right of voters.
Trevor Potter: (03:12:38)
Requiring groups like Citizens United, which was not a political committee, to disclose their donors is constitutional, the Supreme Court said in that case. Yet the FEC has repeatedly deadlocked on disclosure issues, whether the write regulations implementing the disclosure holdings of Citizens United or in multiple enforcement matters involving disclosure. S-1 would therefore, restructure the FEC to address well-documented problems by changing the number of FEC commissioners, improving the commissioner selection process, strengthening the enforcement process to prevent commissioners from deadlocking on making investigations at an early stage, and making meaningful judicial review of FEC action or inaction easier. I believe these changes will allow the FEC to function as the crucial and effective watchdog it needs to be. Thank you.
Senator Klobuchar: (03:13:36)
Thank you very much. Next up, we have the honorable Lee Goodman. Thank you.
Lee Goodman: (03:13:44)
Chair Klobuchar, if I could move on from [inaudible 03:13:51] about S1. One point of clarification, Chair Klobuchar, you announced that I was here in opposition to S1. I can tell you that in 800 pages of legislation, I’m sure there are some elements of it that I can speak in favor of.
Senator Klobuchar: (03:14:10)
Lee Goodman: (03:14:11)
However, let me note that, what I see as the central feature of the bill in the campaign finance that I-
Speaker 6: (03:14:21)
Lee Goodman: (03:14:28)
Can you hear me now?
Senator Klobuchar: (03:14:29)
Yep. We could hear you before. You’re okay.
Lee Goodman: (03:14:32)
… outweighs many of the benefits of the bill. I also believe that the bill misfires and is inadequate in many ways to address, for example in the foreign meddling approach using the honest ads provisions. The central feature of the bill that I believe makes the bill objectionable for the American people are, is its vast expansion of the type of speech Americans wished to engage in, subjecting them to public and compulsory disclosure and doxxing.
Lee Goodman: (03:15:12)
It does that in two central ways. First, it imposes on the compulsory exposure regime of the FEC a requirement that citizens disclose who they are, who their donors are, who their members are anytime they make a campaign related disbursement in an election cycle of $10,000 or more. A campaign related disbursement is defined as any public communication, that would include pamphlets, direct mail, robocalls, TV broadcast, online. Anytime somebody funds a public communication, even if it is focused solely on legislation, but it nevertheless mentions a politician in connection with that legislation in a favorable or unfavorable light, also known as the PASO standard, Promote, Attack, Support, or Oppose. That is a extremely vague standard on which to regulate the American people’s desire to speak and to exercise their First Amendment right to speak if they so choose anonymously on policy and issues. You don’t have to look very far in the law to find good examples of how vague that standard is. It would represent a vast expansion of speech regulation in America to everyday ordinary policy speech.
Lee Goodman: (03:16:58)
The second area that this bill expands public compulsory disclosure and exposure of citizens and groups when they want to speak is under the honest ads provisions. The honest ads provisions require that anytime an individual organization desires to speak about any matter of public policy, in the bill it discusses issues of national importance. Anytime you want to spend $500 to do so online you must disclose who you are, you must disclose the leaders of your organization, your address, details about your communication to the public. And yet, it does so under the purported interest of preventing foreign meddling, and yet it targets the speech of American citizens and it imposes on American media companies all new liability. Both civil and criminal liability, because one bill makes American media companies both the policemen of foreign speech that might end up on their online platforms and subjects them to potential criminal sanctions if they fail to do so.
Lee Goodman: (03:18:21)
So while it starts as a proposal for Russian meddling, it imposes restrictions on all American citizens and media companies. It is under inclusive to even effectively address active measures by foreign countries because it covers only paid ads, not the free posts that occur on social media. It affects only large platforms, and yet there are thousands of smaller platforms that reach hundreds of millions of Americans. It does not address that. And it does not address print media, direct mail, robocalls, and other forms of communications.
Lee Goodman: (03:19:03)
It imposes all new standards on media companies, and it also has a fundamental contradiction with the Foreign Agents Registration Act, which exempts the media for carrying foreign propaganda. US courts have ruled this law unconstitutional or, excuse me, a very similar law in Maryland. All of this expansion of speech regulation must be understood in the current context in the times in which we live, where we have heightened political polarization and intolerance in America, because that informs the degree of chill and restriction on actual speech that will occur if this expansion of speech regulation takes effect. Thank you Chair.
Senator Klobuchar: (03:19:54)
Thank you very much. Our next witness, Mr. Wertheimer.
Fred Wertheimer: (03:20:07)
[inaudible 03:20:07] and other members of the committee for the opportunity to testify today. I also want to thank Senate Majority Leader Schumer, Lead Sponsor Senator Merkley and Chairwoman Klobuchar for their leadership on S1, which we consider an essential bill for democracy reform.
Fred Wertheimer: (03:20:34)
There’s nothing new about the campaign finance proposals in S1. I testified before this committee in 2012 for the DISCLOSE Act. The major campaign finance provisions have been before the Congress and the Senate at least since 2000 and earlier, in many other cases. The campaign finance reform proposals were passed in the House in 2019. I testified before the House Administration committee, the Senate Majority, and the last Congress chose not to consider this bill or not to hold hearings.
Fred Wertheimer: (03:21:19)
I first testified before this committee in this room in 1973. As I was waiting to testify, a newly elected Senator, Senator Joe Biden of Delaware, testified and spoke on behalf of public financing of elections. He described public financing as the swiftest and surest way to purge our election systems of the corruption that, whatever the safeguards, money inevitably brings.
Fred Wertheimer: (03:21:52)
Senator Biden continued to be a leading voice for public financing of elections throughout his career. Congress enacted the Presidential Public Financing System in 1974 with a bipartisan vote. And after the Senate twice had passed a similar bill, that was blocked by the House. The new system work well for decades, almost every major party candidate used this system for seven elections. Three Republicans and two Democrats were elected president using this system.
Fred Wertheimer: (03:22:25)
President Ronald Reagan benefited most from the system using it three times. The RNC and the DNC voluntarily requested and accepted public funds to help finance their convention for decades. The system broke down in 2000 when the growth of the costs of campaigns simply outweighed the benefits that the system provided and Congress never revised a system.
Fred Wertheimer: (03:22:59)
The campaign finance system today is flooded with funds coming from influence-seeking billionaires, millionaires, lobbyists, bundlers, business executives, dark money groups, super PACs, and special interest PACs. As a result of Supreme Court decisions, the American people have been treated to the spectacle of the top donor and his spouse in the 2020 elections giving $218 million. $218 million to influence the 2020 elections. The next leading individual donors provided $153 million, $72 million, $68 million and $67 million respectively.
Fred Wertheimer: (03:23:47)
The top 100 donors to super PACs provided $2.1 billion. The national median family income in the United States in fiscal 2020 was $78, 500. The current system may benefit the interest of the donors, the super PACs, the dark money nonprofits and the candidates being supported, but it does not benefit the interest of the American people. S1 addresses this problem by providing an alternative financing system that gives candidates the option, the voluntary option, to finance their campaigns with small contributions matched at a 6-1 ratio.
Fred Wertheimer: (03:24:32)
There’s a big difference between the presidential system and this system, the presidential system was financed with tax revenues, the new system prohibits the use of tax revenues to finance the matching funds. The system would be financed entirely by a small surcharge on penalties and settlements paid to the government by corporations, corporate executives, and wealthy tax cheats. This system also does not have spending limits and therefore it does not run into the problem that the presidential system ran into. Thank you very much.
Senator Klobuchar: (03:25:09)
Thank you, very much, Mr. Wertheimer. Next, we turn to the honorable Bradley Smith.
Bradley Smith: (03:25:22)
Thank you Chairman Klobuchar, Ranking Mender Blunt and members of the committee. S1 is, frankly, a cynical bill. This 800 page bill is not for the people, it’s for the politicians. Note that as we meet here today, if a citizen went to congress.gov to try to learn what this bill was about, he would be met with this message, “As of March 24th, 2021, the text has not been received for S1.” This rush forward with a lengthy and complex bill suggests the desire to make sure that few of the American people actually understand its impact, but the insiders understand it.
Bradley Smith: (03:25:55)
Yesterday in a “training” session on how to pressure Senators to pass S1, held by an ad hoc group called Declaration for Democracy, a Democratic US Senator expressed his belief that S1 would eliminate two thirds of the speech critical of the progressive agenda. And speaker after speaker noted the S1 was needed because it would silence voices that question the progressive agenda and thus make that agenda easier to pass.
Bradley Smith: (03:26:18)
The cynicism for the “For the Politicians Act” is highlighted by two provisions. The first is the point just noted by Mr. Wertheimer that the bill claims not to use taxpayer money to fund elections. It then immediately sets up a system using taxpayer money to fund elections. The bill provides that the system will be paid for with fines, penalties and the sale of government assets. But all of this is taxpayer money and all of us know that. How cynical is it to claim that the funds of the US government are not taxpayer money? Like they’re just magical funds that are somehow there?
Bradley Smith: (03:26:48)
Next is the change in the FEC from a bipartisan organization to an agency under partisan control. How cynical is this? All morning long through the first panel I listened to one member after another of this committee insist that we had to pass S1 to do away with partisan redistricting. But apparently we need to pass S1 to get partisan enforcement of campaign finance laws.
Bradley Smith: (03:27:11)
If I want it to foster distrust in American elections, I could think of few better ways to do it than to change the FEC from a bipartisan to a partisan organization. S1 will put the FEC under effective partisan control of the Democratic Party through at least the 2026 midterms, longer if a Democrat is elected president in 2024. Now the cynical claim that this is not true because one member will be “independent,” but we know that there are Independents and then there are independents. For example, currently, the Republican’s hold a 50-48 majority in the Senate, which is why Chairman Blunt opened this meeting and I’m here as a majority… No, wait. That’s not right, is it? That’s because the body’s two Independent Senators caucus with the Democrats. And I think it’s fair to say that one of those two, Senator Sanders, is further from a typical Republican than is the typical Democrat.
Bradley Smith: (03:27:58)
Indeed, the FEC technically has an Independent now, but he caucuses with the Democrats, was Former Democratic Leader Harry Reid’s attorney, and was appointed to a Democratic seat on the commission on Senator Reid’s recommendation. It’s cynicism. We’re all cynictis to try to claim that this is not a partisan power grab at the FEC.
Bradley Smith: (03:28:16)
Now the first defense of every rogue violator of campaign finance laws is that the FEC is on a partisan witch hunt. And the response we all know, immediately… And I’ve heard it from Mr. Potter, heard it from Mr. Wertheimer, is the commission is bipartisan. Got to have bipartisan majority. If S1 passes, of course, this will be gone. And if you want to create cynicism, I think having a partisan enforcement body is a good way to do it.
Bradley Smith: (03:28:40)
Of course, this new partisan FEC will have lots of new rules to write and enforce. Your opening statement, Madam Chair, was correct that the Supreme Court has upheld disclosure. But it was incorrect to suggest, just as it has been suggested here and by others on this panel, that any particular proposals in this act have Supreme Court support. To the contrary, numerous Supreme Court decisions have limited past attempts to expand disclosure in the sort of ways included in this bill.
Bradley Smith: (03:29:09)
Specifically, S1 would unconstitutional regulate speech that mentions a federal candidate or elected official at any time under a vague, subjective and dangerously broad standard that asks whether the speech promotes, attacks, supports or opposes, PASO. This would in effect leave the media, which is exempt, an even greater control of public discourse and messaging. But the focus of the bill on identifying who is speaking is also bad for democracy. We should be focusing on issues rather than on individuals and contributors to organizations so that those people can be doxxed and personally attack, exacerbating the politics of personal destruction and further coarsening political discourse in our country.
Bradley Smith: (03:29:51)
There’s a lot more bad in this bill, I could go on for some length, but my time is nearing an end. So we’ll leave it to say that a detailed analysis of its provisions is available @www.ifs.org by the Institute for Free Speech and in my prepared comments and I look forward to questions. Thank you very much.
Senator Klobuchar: (03:30:15)
Thank you very much. And our last witness is Tiffany Muller.
Tiffany Muller: (03:30:23)
Thank you so much, Madam Chairwoman. Chairwoman Klobuchar, ranking member Blunt, and distinguished members of the committee. Thank you for the opportunity to appear before you today to discuss S1, the For the People Act. I would like to thank Senator Merkley for introducing this bill with Chairwoman Klobuchar in leading the efforts in the Senate. I would also like to thank Senator Schumer for recognizing the grave urgency to pass this bill and designating it S1.
Tiffany Muller: (03:30:48)
And finally, I would like to thank the other witnesses participating today many of whom, like my colleagues Fred Wertheimer and Trevor Potter, have given decades of service on these issues as the Chairwoman pointed out earlier. My name is Tiffany Mueller, I’m the president of End Citizens United Let America Cote action fund. We are dedicated to fighting the biggest threats to the foundation of our democracy, unlimited and undisclosed money in politics, and voter suppression. I’m pleased to be here to represent our 4 million members nationwide. They are regular people in every state across the country; teachers, nurses, first responders and business owners, and many more who make this country run. And like too many other Americans, they believe their votes don’t matter and their voices aren’t heard. And too often, they’re right. The For the People Act can change that. It ensures people, not just the powerful, are the foundation of our democracy. Americans understand that the money in politics has led to corruption and that ultimately, it’s not only impacting their own bottom lines, but their lives and the daily lives of their families. They know corporate interests and big donors have access and influence that they don’t. They’ve seen the impact of a broken Washington firsthand.
Tiffany Muller: (03:32:07)
Here’s how the corruption of our democracy has impacted real people in this country. Big pharma has spent hundreds of millions of dollars on campaign contributions and lobbying since 1990 and it was rewarded with a $76 billion corporate tax cut. But drug prices didn’t go down for our members or anyone else, even during this pandemic. In fact, almost one out of every three Americans quit taking medicine they needed this past year because they couldn’t afford it.
Tiffany Muller: (03:32:35)
Another example, almost 90% of Americans support background checks for all gun sales. It’s not controversial, yet, even in the face of horrific mass shootings, including in Colorado and Georgia just this week, Congress has been unable to act. The NRA has spent nearly $130 million in outside money in our elections since 2000 and has blocked even the smallest progress. We can look at the response to this horrible pandemic. After an initial bipartisan effort to pass early relief, it took over nine months to allow a vote on much needed additional assistance to American families. That delay was largely caused by corporations demanding special carve-outs to give them immunity.
Tiffany Muller: (03:33:19)
That, Senators, is money in politics. And money in politics has always been a problem, but the magnitude has exploded since the 2010 Citizens United decision. In the 20 years before that decision, there was $739 million in outside spending on political issues. And the 10 years since that has skyrocketed to $7.3 billion. This flood of outside dollars has been driven by a handful of wealthy Americans who often have different priorities than everyone else.
Tiffany Muller: (03:33:49)
The amount of dark money is increasing at a dangerous rate. Right now only a quarter of outside spending is fully disclosed. Only a quarter. The American people deserve to know who’s trying to influence their vote and their representatives in government. And not only are these dark money forces preventing progress on the most important policy issues, but they have launched an all out assault on the right to vote with an intensity not seen since the Jim Crow era.
Tiffany Muller: (03:34:16)
In the run-up to the 2020 election dark money groups funded dozens of lawsuits across the country, attempting to disenfranchise millions of Americans. And after the election, they spent millions more to spread the big lie about fraud and that the election had been stolen. Now, they’re funding an unprecedented attack on voting rights at the state level. The New York Times just reported that dark money groups are driving the strategy because they believe it’s the only way to protect their interests.
Tiffany Muller: (03:34:44)
This all underscores the urgent need to pass the For the People act and to pass it now. The individual elements of this bill work together to take on corruption, hold government accountable and put the power into the hands of regular Americans. These are popular, common sense reforms to reduce the influence of money in politics, crackdown on corruption in both parties, ensure accurate elections and protect voting rights. They’ll benefit everyone regardless of their political affiliation. Which is why 83% of Americans, including nearly three quarters of Republicans, want to see the For the People act signed into law. Thank you so much for having this hearing today on this critical bill and I look forward to your questions.
Senator Klobuchar: (03:35:26)
Thank you very much, Ms. Muller. And I’m going to allow Senator Warner who has a conflict to take my first slot here. But I did want to clarify one thing, which was stated by one of the witnesses. This bill is publicly available. It is on the websites of both of the lead authors of this bill, Senator Merkley and myself. Sometimes there is delay in getting bills officially, long bills, on senate.gov. But we all know this is very, very similar to HR1, which has been on the House website for a number of months. There were some technical changes made on the Senate side, and you can compare them if you would like with our bill. But I don’t think there’s any question that the witnesses knew what is in this bill. And in fact, most of the major components have been out there for years. And with that, I turn it over to Senator Warner.
Mark Warner: (03:36:28)
Thank you, Chair Klobuchar. Thank you for holding both these panels. Thank you for leadership on this issue. I want to start my questions with the Mr. Wertheimer and Mr. Potter. I start by thanking both of you for your help that you gave to Senator Klobuchar and I as we were drafting the Honest Ads Act. One of the reasons why I’m online, because I’ve got an Intel hearing it two-
Senator Klobuchar: (03:36:56)
Senator Warner, could you just turn up your volume just a little bit? It’s not a big deal.
Mark Warner: (03:37:03)
Usually I’m told to me tone down and rather than tone up, is that better, Amy?
Senator Klobuchar: (03:37:07)
That’s a little better. Just keep going.
Mark Warner: (03:37:11)
The Honest Ads Act, as you knew, grew out of what came out of the 2016 campaign where we saw social media firms who were suddenly being used in politics in a dramatically different way than any prior national campaign. We saw foreign actors in [inaudible 03:37:35] 2016, oftentimes Russians, misrepresenting themselves as Americans on social media. And then, literally, purchasing in certain cases campaign ads in rubles. We’re seeing these efforts to affect domestic elections by foreign actors. I think that can end up weakening confidence in our political system. Mr. Wertheimer and Mr. Potter, can you speak to ways in which the Honest Ads Act brings longstanding constitutional transparency requirements for politics in our digital age?
Fred Wertheimer: (03:38:14)
Yes. The campaign finance disclosure laws for the most part were written in the 1970s. The internet did not exist, computers barely existed in homes. What the Honest Ads Act does is bring the normal disclosure that has existed for decades and that has been repeatedly upheld by the Supreme Court, onto campaign related communications on the internet. And I think it’s extremely important because the internet became a way of evading campaign finance disclosure laws.
Fred Wertheimer: (03:38:59)
We know that foreign interest, and Russia in particularly, took advantage of the ability to do anonymous, without disclaimer ads on the internet. I think it fills a major loophole into the disclosure laws. Now, I want them to make one other comment here. A comment was made that the PASO test was too vague, and our colleagues who made that comment have their views. But here’s what the Supreme Court said about the PASO test. They said, “It is not unconstitutionally vague. It provides explicit standards for those who apply them.” The court said, “Any public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participating.” He or she, I would add. “The record on this score could scarily be more abundant.” Disclosure is the baseline of campaign finance laws and the Honest Ads Act and the Disclose act fill gaping loopholes in order that the American people can know, when they see campaign communications, who is behind those communications.
Trevor Potter: (03:40:34)
[inaudible 03:40:34] Shall I answer Senator Warner, as well?
Senator Klobuchar: (03:40:35)
Sure. Is that okay Senator Warner? Yep.
Trevor Potter: (03:40:38)
I will be quick, which is to say, the two key pieces of this are one, we’re talking about paid advertising on the internet. Paying more than $10,000 for advertising is what then requires the disclosure of the sources of funding. So we’re not talking about people sitting at home blogging away, but paid advertising.
Trevor Potter: (03:41:02)
Secondly, this establishes an archive so that when advertising is paid, people can find out what’s said. That’s really important because, in the pre-internet world when somebody paid for advertising in a newspaper or on radio or TV, there was a record of that kept in the business’s files or available to the public. You could see it and know who was saying what. On the internet with targeted advertising, there are communications that can go only to a very small segment of people. And no one else will know what’s being said, but it’s paid advertising and so that archive would require at least a public record of who is paying for the advertising and communicating with Americans about elections.
Mark Warner: (03:41:52)
I know I jumped the line and my time’s expired-
Senator Klobuchar: (03:41:55)
No you can [crosstalk 03:41:55] Go ahead.
Mark Warner: (03:41:57)
I want to thank you both. And recognize that while the social media companies have, on a policy basis, tried to put some of these procedures in place. We still don’t have the law of the land. I think our democracy is important enough that we ought to not rely simply on the goodwill of Mark Zuckerberg, even when he’s doing the right thing.
Mark Warner: (03:42:16)
I’d only quickly add, Madam Chair, one other component that I’ve thought was darn common sense. We’ve seen recently the Director of National Intelligence has come out with a report indicating, in the 2020 election we saw Russian intervention again, we saw Iranian intervention, we saw less Chinese but potential for Chinese intervention. And I just hope the FIRE Act, which is also part of this important legislation. Pretty darn simple, it says if a foreign intelligence service tries to offer assistance to a presidential campaign, the appropriate response ought to be, “Call the FBI and not say thank you.” I won’t get a chance to ask that question, but I appreciate very much that piece of legislation being included. Thank you, Madam Chair.
Senator Klobuchar: (03:42:58)
Excellent. Thank you. We’ll turn to Senator Blunt and then to Senator King.
Senator Blunt: (03:43:02)
Thank you, Chairwoman. I’m a little hesitant to this, I only have five minutes. Again, grateful that you’re all here. But Mr. Goodman, this may be the easiest time to get into your view of this. Do you want to respond to what you just talked about and maybe how the Maryland case you think would apply here that you say already has been determined to be unconstitutional? But respond any way you want for maybe a minute and a half, and then I’ll interrupt you if I need to.
Lee Goodman: (03:43:32)
[inaudible 03:43:32] Mr. Wertheimer said that we need the Honest Ads Act to create disclosure of campaign related communications. Actually, the Honest Ads provisions [crosstalk 03:43:42]
Senator Blunt: (03:43:42)
Is your mic on, sir?
Lee Goodman: (03:43:43)
I’m sorry. I’m responding to Mr. Wertheimer’s comment that the Honest Ads provisions would affect campaign related communications. Actually, the Honest Ads provisions compel public doxxing and disclosure of anyone who wants to speak about any national issue-
Lee Goodman: (03:44:03)
Anyone who wants to speak about any national issue, any public policy issue at all, without regard to elections, without ever referencing a candidate for public office. You now have to disclose everything about you and your communications under this bill. Mr. Potter said that there was a trigger of $10,000. That’s not the trigger for disclosing who you are when you want to talk online. The trigger there is $500. So anytime someone wants to talk about taxes, abortion, climate change, gun rights, whatever the issue is, and they spend as little as $500 to talk about that issue on the internet, in a paid ad, they have to disclose everything about their communication, who they are, and open up their archive… Or I’m sorry, go into an archive.
Lee Goodman: (03:44:53)
And one comment about the archive. This bill states what its purpose is. It says that we need to identify for counter speakers and fact checkers who said what on the internet. I do not believe that the First Amendment will tolerate a governmental interest that says you must disclose who you are to empower your political opponents, to fact check you and to know what you are saying. So these are fundamental flaws in that.
Senator Blunt: (03:45:22)
Thank you, Mr. Goodman. There’ll probably be other questions by their members on this. Let’s go to Mr. Smith in the 1974, about the time Mr. Wertheimer was beginning involved in all this, the 74 amendments to the federal elections campaign act took a lot of the enforcement, if not all the enforcement away from the Justice Department that they thought could easily represent only one side, and transferred that to this newly created FEC that would be required to be represented by both sides. Can you give some examples of, in your experience there, what would have happened if any three of the members would have been able to do whatever they wanted to do? I know the law specifically says there’d be five members, and any time, a majority of them are there, that’s a quorum. So that would be three. And a majority of them are currently serving. I’m not trying to get into whose absence or hiding from somebody. But what do you see as some of the potential problems here?
Bradley Smith: (03:46:30)
Well, that’s a difficult question. You’d have to ask about specific enforcement actions. But basically, you’re talking about having a partisan majority. And one of the things we know is that not only are the partisan polls in Washington… All of us, we’re human. We tend to see things through our prisms. But it’s not, “So I’m going to get this person because he’s a Republican and I’ve got three democratic votes.” It’s also the natural tendency… Most campaign finance laws affect different differently. Different groups have different ways of communicating. Republicans do a lot more work with direct mail. Democrats do a lot more work with groups like ActBlue. If you get a partisan committee, it’s easy for a group to say, “Well, what ActBlue is doing seems perfectly reasonable, but that direct mail stuff the Republicans are doing seems like a terrible violation of the law.”].
Bradley Smith: (03:47:18)
In other words, you lose that perspective and you have the ability to force things through. So I think it is a major problem. And if I can say real briefly, I’m trying to answer your question there, but I do hope somebody will give me a chance to talk a little bit more about the Paso standard, because I think Mr. Wertheimer left something very important out of his description of the Supreme Court.
Senator Blunt: (03:47:38)
All right. Well, as my colleagues are listening on that, let me ask one more quick question. I think I can phrase it the way that’s yes or no for everybody. On this issue of independence, who, can clearly from all their other activities, function as if they were always going to join one side or the other, on March the 12th of this year, Axios published a memo that had been written by, according to the article, quote, “A prominent voice in campaign finance reform world,” end quote, and shared with white house staff. This memo advocated for finding ways around congressional intent by replacing a current Republican FEC commissioner with a democratically aligned nominee who would probably be an independent, a democratically aligned.
Senator Blunt: (03:48:34)
Yes or no to all five of you. Were you are any organization that you represent or work for, to the best of your knowledge, involved in writing this memo? Not suggesting there’s nothing wrong with that, but if there is, I may want to ask more questions, Mr. Potter?
Trevor Potter: (03:48:53)
Senator Blunt: (03:48:53)
Fred Wertheimer: (03:48:53)
Senator Blunt: (03:48:56)
Lee Goodman: (03:48:57)
Senator Blunt: (03:48:59)
And our other two witnesses, Mr. Smith?
Bradley Smith: (03:49:04)
Senator Blunt: (03:49:05)
Ms. Meuller: (03:49:06)
Senator Blunt: (03:49:06)
Well, the five of you were pretty far into the well-known people who talk about public financing and campaign finance reform and other things. So thank you for those answers. Senator King, you’re next.
Senator King: (03:49:25)
Thank you very much, Senator Blunt. Mr. Goodman, I want to ask some questions about your thoughts about disclosure being some kind of violation of the First Amendment. If you give $100 to my campaign, I have to disclose your name, address, occupation. But if you give 10 million to my campaign in the form of a super PAC or against me, there’s no disclosure. I don’t really get that. It seems to me the identity of the donor is relevant information for the public. And I don’t understand why it’s an invasion of a millionaire’s privacy to have their names known and it’s not an invasion of my next door neighbors when I have to disclose their name when they contribute to my campaign. Explain why we have these two parallel systems that just can’t be reconciled.
Lee Goodman: (03:50:23)
Yes. Senator, the courts over the years have drawn a sharp distinction between the disclosure that is permitted under the First Amendment when someone gives money to a political committee or makes an independent expenditure to fund explicit electoral speech. And the individual who gives your campaign $2,800 per election, or 150 or $200, is disclosed publicly and all of those names are publicly available on the internet. When the millionaire gives money to-
Senator King: (03:51:06)
Why shouldn’t that rule apply to somebody that buys ads that says I’m a scoundrel?
Lee Goodman: (03:51:10)
I’m sorry. I spoke over you, Senator. I’m sorry. I missed that.
Senator King: (03:51:16)
Why shouldn’t that same rule apply to somebody who spends millions of dollars to buy ads on television during a campaign that says I’m a scoundrel or I’m a Saint?
Lee Goodman: (03:51:28)
The boundaries drawn for that are if the millionaire gives money to a super PAC, then their name is publicly disclosed because a super PAC is a political committee that discloses all of its donors. Now, where the law has drawn the line is the disclosure is permitted constitutionally so long as the speech that it is funding is explicit electoral speech. And in the bipartisan campaign reform act, that notion or that realm of speech that can require disclosure was expanded to electioneering communications. This bill, however, this bill would require that disclosure, if all you want to do is a year, a year and a half before the election, you want to talk about legislation pending and attach a senator’s name to it in a favorable or unfavorable light, this bill would expand that public disclosure to people who want to talk principally about public policy and issues, under a vague standard called Paso, where anything that would be deemed favorable or unfavorable about you, in that context, would trigger disclosure of the people who fund that speech. And I believe that the courts will [crosstalk 03:52:48].
Senator King: (03:52:48)
Well, I don’t agree with you that there’s full disclosure of… I don’t believe that there’s full disclosure of people who are contributing dark money to campaigns through 501, C4s, and other formats. I don’t think that happens. In Maine, if you go to a town meeting, you can’t wear a bag over your head. People have a right to know who’s expressing their opinions. And that’s part of the information that’s important to the voters. Madam Chair, before I go any further, I wanted to mention something in the prior panel and I didn’t get to. I think we need to be careful in the bill about requiring paper ballots, which I’m totally supportive of, from a security and cybersecurity point of view, but we have to consider people with disabilities. And so that’s something that I think we can work on as this bill moves through the committee and into the Senate. But I think we need to be aware of some of the subtleties here involving people with disabilities.
Senator King: (03:53:53)
Mr. Potter, it’s nice to see you. I think you and I were at the last hearing of this rules committee on campaign finance, some five, six, seven, eight years ago with Justice Stevens. Can you talk to me about the disclosure and the importance of disclosure? And am I correct that I think dark money comes into campaigns through independent expenditures, and we can’t find out who they are?
Trevor Potter: (03:54:18)
Yes, Senator. It’s good to be back in this room with you virtually on this subject. We still need work on it. Your question points out why, which is… You’re right. Somebody who gives you money is disclosed or your opponent money over $200. As Mr. Goodman says, if they give to a super PAC, the identity of the person or the entity giving to the super pack is disclosed. But if they give to a C4, which runs the very same ad that your opponent could be running, or that the super PAC could be running, then there is no disclosure of the donors paying for that ad. And as I indicated in my opening remarks, what can happen is that the C4 gets the money and then it transfers it to a super PAC, which spends it. So you end up effectively gutting the disclosure provisions, even for the super PACs. And that’s the key problem we have here. And that’s why we’ve seen this wave of secret money in elections.
Senator King: (03:55:30)
Thank you. I’m out of time. I appreciate both of your answers. Back to you, Chairman Klobouchar.
Senator Klobuchar: (03:55:37)
Thank you, Senator King. Next, Senator Hyde-Smith.
Senator Hyde-Smith: (03:55:43)
Thank you, Madam Chairwoman. And thank you to all of you that are testifying today. It’s a great resource to have, and we appreciate your willingness to do this. One of the most concerning portions of this bill for me is the sections setting up government funding for financing political campaigns. This concerns me for two specific reasons. First, we are approaching a $30 trillion now in debt, and I firmly believe in addressing this debt is a fundamental responsibility that we have that is necessary to keep our economy at full strength for future generations. Putting the government on the hook to pay for political campaigns is a step toward further unnecessary spending and further debt at a time when we need to be getting our fiscal house in order.
Senator Hyde-Smith: (03:56:37)
Second, I am concerned that this program will effectively force Americans to subsidize speech that is fundamentally against their beliefs. For example, pro-life Americans will have to pay through their tax dollars for ads promoting candidates who support abortion on demand. Mr. Smith, I’m going to ask you about this. I know you’ve dedicated so much time in defending our First Amendment freedoms, especially as it relates to political speech rights. How might this sort of government financing of campaigns envisioned under this legislation endanger rights of consciousness and freedom of speech?
Bradley Smith: (03:57:25)
Well, I think it’s recognized that this is very unpopular, which is why the act, like I say, [inaudible 03:57:31] language saying, “Oh, we’re not going to use any tax dollars for it,” but then immediately proceeds to set up a system using tax dollars for it. They’re not income tax dollars, but it’s money that belongs to the federal fisc. It can be spent on other things if it’s not spent on these campaigns or we could give it back to the taxpayers. So it is government funding. And it is a problem. In fact, the system is more problematic than that because it’s got a big match. I believe it’s a six to one match. So if a party goes out and somebody goes out and gives 50 bucks to a campaign that you really hate, and it might be somebody really terrible, by the way, we’ve had cases of neo-Nazis and so on getting money in some of these programs in the States, then the federal government gives six times that to that candidate.
Bradley Smith: (03:58:17)
And so I do think that’s a very serious problem that Americans, I think, don’t like that. I prefer to think that we should be funny campaigns, the people, not the government. And one of the other problems with this kind of system is that it makes everything a scandal. In other words, it leads the government into more and more campaigning. Well, what can you say? They require you to say certain things or not say certain things, because now you’re spending public money. Once you’re spending public money, the government has an interest in how it’s spent, and that is very dangerous implications in the long run for campaigns.
Senator Hyde-Smith: (03:58:52)
Thank you. Also, my second question, while I have a little time left, this law would expand the definition of what’s covered by federal election campaign act to include any paid internet or paid digital communication. As the conversations we’ve just had, this comes at a time when we have seen a rise in internet censorship by big tech companies, just over the past few years. The problem of social media censorship is affecting so many across our society. I’ve heard from many just everyday Mississippians who have had their posts blocked or deleted, or even their accounts were locked because they are certainly monitoring this closely. And Mr. Goodman, can you explain what the expanded definitions in this legislation could mean for freedom of speech on social media sites?
Lee Goodman: (03:59:47)
Yes, Senator. Under this bill, anytime you want to talk about a matter of public policy, and you don’t even have to mention a politician or candidate, you are forced to disclose who you are, who your board of directors is, the audience to which you are communicating. And you go into a public file and library for everyone to see who you are, what your home address is, and what you had to say. And this bill also imposes upon the social media platforms. And it’s not just social media platforms, Senator. It’s the washingtonpost.com. It’s newyorktimes.com. It’s wallstreetjournal.com. All of these sites that sell advertising on the internet, this one bill makes them both the policemen to make sure foreign actors don’t slip through the cracks, and, at the same time, makes them criminally responsible if they fail at that task.
Lee Goodman: (04:00:51)
Now, that is a task that the FBI and our national security agency failed at in 2016. And now we’re putting that burden and making them both police and criminal in one bill. And you know what the result will be? If we’re worried about selective censorship now, these social media sites will simply close their platform because of the cost and burdens and potential liability to all citizens. And that is not a constructive result. It is not pro-democratic, because we will lose these low cost platforms for advertising because the costs just will not be worth it.
Senator Hyde-Smith: (04:01:28)
Thank you very much for your answer. I yield, Madam Chairman.
Senator Klobuchar: (04:01:32)
Thank you. Next, Senator Merkley.
Senator Merkley: (04:01:39)
Thank you, Madam Chair. And I’d like to enter for the record a letter from the governor of Oregon, Kate Brown, and a letter also from Democracy For All, 2021, as well as an opinion piece, that HR1 isn’t at all an unconstitutional bill.
Senator Klobuchar: (04:02:03)
Since the governor of Oregon grew up in Minnesota, is there any objection? There entered into the record. Thank you.
Senator Merkley: (04:02:10)
There is a strong connection between Oregon and Minnesota in seeking to ensure that every citizen has access to the ballot that this fundamental American right is guaranteed for all. And I wanted to turn to you, Mr. Potter, in your considerable experience at Federal Election Commission, and understand, in a modest length of time, whether you believe that for Congress to put in essentially guidelines for states to follow on congressional elections is constitutional.
Trevor Potter: (04:03:01)
[inaudible 04:03:01] constitution says that the states primarily have the right to regulate elections, except that Congress may intervene, regarding the time place and manner of elections. And over the years, Congress has done that on a number of occasions. So it has superseding authority, which it has used.
Senator Merkley: (04:03:33)
Yes. And that authority is specifically stated in terms of elections to the House of Representatives and to the US Senate. And my understanding of the reasoning behind that was no matter what one of the original 13 States you were part of, because Congress was going to make decisions affecting all, that everyone in every state had a stake in the integrity of the elections in the other states, and thus, created that explicit power in the constitution. Would that be a fair explanation of why that was included?
Trevor Potter: (04:04:08)
It would be, Senator. And I would add that since then, Congress and the States have amended the United States Constitution, specifically with the 14th and 15th amendments to broaden the federal role in ensuring that all Americans have the right to vote and people are not denied the right to vote because of their color. So there are other broader provisions now in our constitution regarding the right to regulate elections in states.
Senator Merkley: (04:04:35)
As well as the 19th for ensuring that women have the right to vote. Thank you very much. And Mr. Wertheimer, I want it to turn to you, because there’s been this discussion about whether it adds to integrity or subtracts from integrity to be able to have people run for office using, essentially, a matching fund for small donations. And we have had some experience with this around the country. We’ve have had some experience also with the presidential matching fund. But my impression is that citizens really don’t like the idea of bazillionaires essentially buying a stadium sound system to drown out the voice of everyone else. So the idea of getting small donations across America, where the influence on an individual is dispersed, where no one person can say, “Hey, I ran $100 million in your campaign or $5 million or $1 million,” which kind of corrupts… So under this provision for small dollar donations that have a match, does that increase the integrity? Or is there some fatal flaw in that approach?
Fred Wertheimer: (04:06:00)
No, it ain’t increases the integrity and it increases the credibility of the way decisions are made around here.
Senator Merkley: (04:06:07)
So if we really believe in government buy and for the people, not by and for the richest and most powerful Americans, this system of small donations with matching grants makes a lot of sense.
Fred Wertheimer: (04:06:22)
It does. The American people believe, in my view, that big money, influence seeking funders have far, far too much influence over the way Congress and Washington makes decisions. The small donor who gives $200 is not going to buy or obtain influence for $200. The donor who gives over $200 million is. The 100 donors who gave $2.1 billion to super packs are going to get that influence, and it comes at the expense of the American people.
Senator Merkley: (04:07:06)
So that very premise of equal representation, that very premise involving that vision of government by the people, means that we have to get big money out of these campaigns or to balance it with the opportunity for small donations?
Fred Wertheimer: (04:07:23)
Yes, and it doesn’t change the existing system. Any member of Congress, any candidate can run under the existing system. It gives candidates, office holders an opportunity to turn to small donors and non-influence funds, if they choose that option. But it frees them from having to depend on and be obligated to big money funders.
Senator Merkley: (04:07:52)
Thank you very much. My time is up. And if I can just close with a short comment. I know that many members here spend enormous amount of time calling the richest people across America on both sides of the aisle to ask for funding or attending little gatherings with the richest people in America to solicit their funds, receive their funds. But the idea that one could possibly run for office speaking to small donors across America, average citizens who care about healthcare and housing, education, living wage jobs, equality, taking on the pollution in their environment, getting equal opportunity, that idea that you’re fighting for them seems to me a perfect fit with the vision on which our country was founded, government of by and for the people.
Senator Klobuchar: (04:08:39)
Thank you, Senator Merkley. Senator Hagerty.
Senator Hagerty: (04:08:44)
Thank you, Chairwoman Klobouchar, and thank you, witnesses, for being here with us today. Mr. Goodman, I’d like to direct this first question to you. Would you say that this bill is taking the regulatory approach to essentially control what speech the American people are allowed to hear, rather than allowing them to listen for themselves to a wide variety of sources and decide for themselves what they believe?
Lee Goodman: (04:09:10)
It does, Senator. Any time you chill speech, and the mechanism in this bill, principally to chill American’s right to speak is through the compulsory disclosure provisions and the expansion of those compulsory exposure provisions, to issue speech. And we have documented studies that show we’ve got two generations of young people who’ve been raised at heightened levels of intolerance. We have heightened levels of cancel culture, de-platforming culture. And what this bill is, it runs headstrong into that cultural war that we are experiencing right now. And so what it does is it chills people’s ability and willingness to speak openly, both online and through other mechanisms, even about public policy. And what that does is it diminishes people’s right to speak. It diminishes all of our rights to hear that speech. And so it diminishes speech overall.
Senator Hagerty: (04:10:14)
Indeed, indeed. And wouldn’t you say that attempting to silence your opponents, to censor what people can hear, and to criminalize those who would say what you don’t want them to say is more akin to what you’d see in a totalitarian regime, like that of Venezuela or China?
Lee Goodman: (04:10:33)
I accept that premise. I’ll also add that this whole idea of public doxing, of public compulsory disclosure, has been used to censor Americans throughout our history, depending on who controls prevailing culture at the time. And it’s been ecumenical. In the red scare, the subpoenas that went out to people, the questions, name the names of your fellow communist or socialist. Southern politicians demanding from the NAACP, give me your donor list in order to do business, even to litigate in my state of Alabama. This mechanism of public doxing and compulsory government disclosure has been a tool, a cudgel to affect censorship of American people. And it has gone right to left and left to right. And today, it is left against right.
Senator Hagerty: (04:11:34)
Well, let’s stay on that for a minute. Doesn’t this public disclosure requirement essentially put a nationwide bullseye on the back of every donor and their family who might contribute to a religious institution or some other institution that at some point in the future might make some political speech that the left decides they don’t like?
Lee Goodman: (04:11:52)
Senator, that’s what it does. Because if you’re a religious organization and you want to talk about an issue of national importance… And this has been especially acute in the social issue arena, historically, because those are the most sensitive issues. And they excite the most passions of people, on the right and the left. People who support Planned Parenthood, and if they are disclosed, they have red paint thrown on their front porches, for example. People on the right who support life are called names and they are harassed as well. And it has grown. And so yes, Senator. And Mr. Potter said, and we’re going to create an archive. In other words, we’re going to find out who said what, when, and we’re going to create an archive for all time so that people can go back and find out what group you were associated with for all time.
Senator Hagerty: (04:12:48)
Indeed. Thank you. Thank you, Madam Chairwoman.
Senator Klobuchar: (04:12:53)
Thank you. Thank you very much. We may be joined by one more senator, but I will now get to my questions. I’ve deferred to some of the other senators. So I think I’ll start with you, Mr. Potter. Thank you so much. As a former Republican Chair of the Federal Election Committee, I think you know a little bit about how this works. And thank you for being here testifying today for the For the People Act. As a former Republican FEC commissioner, do you see this as creating advantages for parties or do you see it as simply allowing people to vote and creating more transparency? And just talk about what this is like, because clearly, there are some Republicans who agree with you, especially the polls have shown this, but yet right now, we’re in basically a partisan divide on this. And how do you see this as a Republican?
Trevor Potter: (04:13:52)
Thank you, Senator. To me, I think the lesson we learned over the last 20, 30 years is that it’s a real mistake to try to predict what the partisan outcome will be of making it easier to vote. I do not believe that more transparency in politics helps one party or the other, that greater vote turnout does, that absentee ballots do. I was a Republican election lawyer before heading off to run the campaign legal center. And all of my candidates had major absentee ballot programs on which they spent a lot of money to turn people out and guarantee they will have voted before the election so that if it rained or they were feeling badly, they didn’t miss the chance to vote.
Trevor Potter: (04:14:43)
So I think it’s a mistake to look at this through a partisan lens. I think it is better to say that most of these provisions deal with very real problems that have been identified and that the disclosure we will see as a result of this, the issues we’re talking about today, the independent redistricting commissions that will be required by this bill and states across the country help people in red and blue states.
Senator Klobuchar: (04:15:12)
And certainly, I remember just this week talking to Senator Tester about this, about Montana. They had a high voter turnout because of the vote by mail, but Republicans predominantly won in that state in this last election, but more people voted. And I’ve certainly seen this ebb and tide in my own state, as I mentioned earlier, where we’ve had some of the most open elections in the country in terms of number of people voting almost, always the highest voter turnout. We’ve had Governor Polenti and we’ve had Governor Dayton and we’ve had Governor Ventura and we’ve had both Republican and Democratic senators with those rules in place. Could you just highlight a bit the election, the FEC, of your frustration, having been on there and the way it’s structured, which was all for good purpose? It was structured before-
Senator Klobuchar: (04:16:03)
For good purpose, it was structured before and is structured now and why we would be restructuring it, and how that could play either way, depending on who won an election. Because there’s been claims that some kind of power grab, but I think it’s important to know once we change it, it’s changed, no matter who’s in charge.
Trevor Potter: (04:16:22)
Well, I think there are a couple of points that are important. One is that some people say, well, the FEC is functioning just the way Congress intended, which is to say it’s doing nothing. I don’t think that’s true. I think you go back and look at the Watergate legislation that created it. And what people wanted to make sure is that it was fair, that both parties were involved, and that it took a bipartisan majority to take action. And while I was there, that’s essentially what happened. It was very much a, I’m going to vote against your guy, but you better vote against mine when this comes up, so there was a back and forth. That has changed. We’ve seen this over the last decade, real partisan deadlock, and the effect of that deadlock is it can’t actually take action. It can’t open investigations because without permission of a majority, there is no way to go forward. It can’t do rulemakings, et cetera.
Trevor Potter: (04:17:20)
I think in terms of the question of whether this is a partisan power grab, there are a couple of things I’d note. First, current law says not more than three of any one party. This proposal says two of each party and one independent. And the guarantee there, the safeguard is two-fold. First, this establishes something that I and others have proposed for quite a while, which is an independent non-partisan blue ribbon group to advise the president on nominees, so that it isn’t just party leaders who are doing that. Then you have, of course, the safeguard of the Senate. Commissioners don’t get there without Senate confirmation. And finally, and I think probably most importantly, the FEC does not have the ability to fine someone. It is not a court. All it can do is investigate and say, “We think you broke the law and if you will agree to pay this fine and admit the violation, the matter is over.” If you say, “No. I didn’t. I don’t think that’s right.” Then the FEC has to go to court and Sue someone and get a federal judge to determine that there was a violation of law. So at the end of the day, what we’re talking about is an independent finding by a federal judge, unless the person admits that they did in fact, violate the law.
Senator Klobuchar: (04:18:42)
Very good. Thank you for that succinct and actually understandable explanation. Mr. Wertheimer, the Supreme Court is the only federal court in our nation that’s not required to follow a code of ethics, and yet they are deciding the most important decisions of our day. And this comes up a lot in Supreme Court hearings in judiciary, but I’m not sure all the senators understand this, that the federal courts, district court, circuit court, they have ethics rules they have to follow and report things. Could you talk about how the code of ethics that’s contained in this bill would help to improve public trust in the fairness of Supreme Court decisions?
Fred Wertheimer: (04:19:24)
Well, it’s just common sense that the Supreme Court and federal judges should have a code of ethics. The important part about this provision is that it leaves it to the judicial conference to determine what that code of ethics is. So it maintains an independence for the judiciary. The chief justice is the chair of the judicial conference and it’s made up of judges. So they will create their own code of conduct.
Senator Klobuchar: (04:19:56)
Which presumably could be like the circuit court ones they have right now.
Fred Wertheimer: (04:20:00)
Yeah. Absolutely. I’d like to make one other comment if I could.
Senator Klobuchar: (04:20:05)
Fred Wertheimer: (04:20:06)
I would like to read to you, since we’ve been discussing disclosure, what Justice Scalia has said about disclosure. And he said it in a case involving the names of petition signers, he said the following, “Requiring people to stand up in public for their political acts, fosters civic courage, without which democracy is doomed. From my part, I do not look forward to a society, which thanks to the Supreme Court, campaigns anonymously, hidden from public scrutiny and protected from the accountability of criticism. That does not resemble the home of the brave.” Thank you.
Senator Klobuchar: (04:20:52)
Very good. Thank you. I’ll have one last question. Ms. Mueller, because now you’re not going to have any other senators, I believe, come. One last question of you, and I guess it’s a good segue from the quote that Mr. Wertheimer just read from Justice Scalia. To me, public knowledge is everything, about who’s making the decisions and who’s supporting them and where their funding is coming from. Without that, it’s hard to make informed decisions in a democracy. And do you just want to end things here for my set of questions, Ms. Mueller, by talking about, not maybe the details. We know we’ve had some discussions about this, what’s in the bill, which is of course the DISCLOSE Act, long introduced by many in this body, including Senator Van Hollen and when he was over in the house, and Senator Kaine and many others. But could you talk about, just from your perspective, how that knowledge is going to help and what you see as some of the worst shenanigans that have been going on since the Supreme Court decisions that could be cured by knowledge and also by perhaps public financing?
Tiffany Muller: (04:22:15)
Absolutely. Thank you so much, Senator. The American people have really lost faith in who government is working for. Pew’s been doing research over the past 50 years on does government work for just a few big interests or does it work for the American people as a whole? And right now, 76% of Americans think it works for just a few big interests, that, frankly, those who are writing the biggest check, get to have the biggest say in our government. And the fact that so much of that money that’s flooding into our election. We had a 2020 election that cost $14.5 billion. More than double the most expensive election that we’ve ever seen. And the fact that more and more of that money is undisclosed and untraceable, just further erodes that competence in government and who it’s working for. And it is absolutely essential to trust in government and to being able to evaluate political claims in political discourse, that we’re able to see who is funding claims in elections.
Tiffany Muller: (04:23:23)
And that’s really what this entire bill is about and what this entire hearing is about is, are we going to allow our elections to be controlled by just a few big interests? Or are we going to give the power back to the people and make sure that we take corrective action to make sure that government is working for the people again? And that’s absolutely what the small dollar donor program does too, Senator. It says that by voluntary measure, that if candidates say they’re not going to take big money and they’re not going to take special interest money, that we’re going to empower people to get involved in our democracy. And we’ve seen this successfully implemented across the country with Republicans and Democratic candidates taking advantage of it. And so to us, that’s what this is all about, as restoring faith and trust in our government.
Senator Klobuchar: (04:24:13)
Thank you very much. I just want to clarify. It’s Senator Whitehouse who leads the DISCLOSE Act in the Senate. And with that, Senator Blunt, you want to ask a few more questions?
Senator Blunt: (04:24:23)
I have a couple more, chairwoman, if we have time for that. Before I do that, let me be sure I don’t fail. I have a number of letters, statements, press reports, and other documents, opposing or raising concerns about this bill that I’ll be entering into the record. These letters and statements are from a broad spectrum of organizations that oppose S1, ranging from the March For Life to the ACLU and covering a broad spectrum of interest from disability rights to free speech. I’d like to enter those in the record, if there’s no…
Senator Klobuchar: (04:24:58)
Without objection. So entered.
Senator Blunt: (04:24:59)
No objection. Just a couple of questions I have as we finish up. And again, thanks to our witnesses for being here today. Mr. Wertheimer, when I was leaving the House, I guess 2008 was the start of my last term in the House, you were helping set up that office of congressional ethics. That was designed to have membership that were almost certain to be of equal number. Do you think now that was a mistake?
Fred Wertheimer: (04:25:25)
No. The ethics committees have always had equal number on its body. But I don’t believe that translates to an argument for keeping the federal election commission the way it is.
Senator Blunt: (04:25:39)
But you wouldn’t expect that Congress to change the ethics committee in the Senate to where it had not an equal number. Is that what you’re saying?
Fred Wertheimer: (04:25:48)
No. I think the ethics committees in the Congress have always had equal numbers and we support that.
Senator Blunt: (04:25:58)
Well, I would think at the time, in 1974, that that was at least one of the models looked at and I’ve heard what we said about that. I’m wondering, Mr. Potter, if the commission suffered in your view from having a long period of time, most of the previous 10 years, until this committee worked to get six commissioners in place again. There’s a long period of time when either there were three commissioners or there was almost never six commissioners. This is looking backward at a time when you weren’t on the commission. Do you think that was harmful to the commission?
Trevor Potter: (04:26:33)
There was a period of, there’ve been two periods of time, to my knowledge, when it has not had a quorum. And I think that is incredibly harmful to the commission. One was in 2008 and one was much more recently, last year, I believe. So, yes, I do.
Senator Blunt: (04:26:50)
And I think that one had lasted for a while and then we got a quorum and then somebody left and there was no quorum again. We finally do have a six commissioners, which was in the last decade, not the usual practice. And I am glad and was glad to see that. Mr. Smith, in the last round of questions I had, you said if you had time, you had a couple of thoughts about the PASO Standard. I believe that… do you want to address that?
Bradley Smith: (04:27:19)
Yes. Thank you, Senator. It was suggested that the PASO Standard had been upheld by the Supreme Court. And it needs to be noted that the Supreme Court upheld that only in the context of political party speakers saying, and I quote, “Because actions taken by political parties are presumed to be in connection with political campaigns.” So generally speaking, you can’t apply that standard to everybody else. It’s like saying because Ford once won the 24 Hours of Le Mans, I could take my Ford Flex out and go win at Le Mans next year. And that’s just not necessarily true. Two other things, much has been said about dark money. It needs to be remembered. Dark money constitutes about 2% to 4% of total spending in U.S. Elections, and it has been consistent in that range ever since the Citizens United decision. When we think about it as 2% to 4%, knowing that much of that is comes from groups that are very well known publicly, like the NRA, the NAACP, the National Association of Realtors. The nature of the problem tends to shrink a little bit.
Bradley Smith: (04:28:17)
Finally, Mr. Potter, if I… I may have misheard him, because I can’t believe he would make this mistake, but I thought I heard him say that newspapers had a political ad file that they had to keep. And of course that is not true. And indeed the type of political ad file that’s promoted in this bill was recently held unconstitutional by the Fourth Circuit in Washington Post v. McManus, just about 18 months ago in 2019. And I thought those were three points where people should not be left with an incorrect impression about what the reality is and the full story. Thank you.
Senator Blunt: (04:28:48)
Thank you, Mr. Smith. Mr. Potter, did you want to… Did you misspeak or is there a disagreement here?
Trevor Potter: (04:28:55)
I’m not entirely sure I heard Mr. Smith correctly, but my point was that current law requires disclaimers on paid advertising in newspapers, radio, TV. Radio, TV are required to keep public files of those. Any one of us can go and look at a newspaper and see who paid for it. None of that is true for paid advertising on the Internet. There is… it disappears, and it isn’t widely available. There is no way once it has occurred to go back and see what was advertised or who was paying for it. And that’s what this would address.
Senator Blunt: (04:29:37)
Bradley Smith: (04:29:41)
Thank you again, Senator. I’ll just say again, that type of broad sweeping public ad file outside the context of public broadcasters recently held unconstitutional in Washington Post v. McManus, Fourth Circuit 2019.
Senator Blunt: (04:29:57)
Thank you. Thank you, chairman.
Senator Klobuchar: (04:29:57)
Thank you very much. Do you want to say a few closing words, Senator Blunt? I was going to say a few things.
Senator Blunt: (04:30:03)
Well, I’m sure we’re all going to have plenty more to say about this as we move forward. I would say on the issue, which still troubles me, of thinking every bill introduced in every state somehow represents a broad view of the country or the way the country’s headed. I would say, also as it relates to the 2020 elections in the pandemic, many states stretched, as I believe they had the right to do under most of their state constitutions and laws, to make it easier for people to vote in a pandemic circumstance than it would be any other time. In some of these so-called suppression movement bills that may actually be the ones that have a chance of passing, states are looking at that, they’re trying to capture what part of that they should make part of their permanent process, which almost always is a much more, bigger open door than they would’ve had prior to 2020, but reflects the likelihood that we’re not going to have a pandemic every election.
Senator Blunt: (04:31:15)
I just think this is not the reason to move forward. Now you can make all the cases you want about why we should do these things, but I think the idea that somehow state legislatures are doing things that will dramatically change everyone’s positive view, that mentioned the talk today about the 2020 elections is, frankly, a false narrative. And I hope we can talk about the merits of this bill as opposed to what some random state legislature may have filed in a state legislative body that may not even ever have a hearing, let alone have a chance to get on the governor’s desk. Thank you.
Senator Klobuchar: (04:32:01)
All right. Well, thank you very much, Senator Blunt. And I want to thank our witnesses for appearing today to discuss this legislation, which I consider essential to our democracy. The testimony we’ve heard today makes clear that the For The People Act is, to quote Secretary Benson, the Secretary of State of the state of Michigan, as she told us our best chance to stop the roll back of voting rights and to ensure that the voice and vote of every citizen is protected. And yes, we had a turnout like no other, nearly 160 million people in 2020 in the middle of a pandemic. And in a way it just tears at your heartstrings to think that people were willing to find a way to participate in this democracy, Democrats, Republicans, Independents, people of any political party. It was an amazing moment for our democracy, and I, for one, think that once we’ve opened that door of finding ways for people to legally and safely vote, that you don’t want to go backwards.
Senator Klobuchar: (04:33:11)
You want to keep those reforms in place, that that’s a good thing. And as a former Republican chair of the FEC, Mr. Potter just pointed out, it doesn’t always mean that one party wins. The House actually got closer, in terms of the majority, in this last election. There were a number of statewide elections won by Republicans, but what it means, and I’ve experienced this big time in my own state because we have the highest voter turnout in the country year after year, is that more people are participating. They feel part of our democracy. They don’t feel left out by our democracy. I have people come up to me all the time that say, “I voted. Well, I didn’t vote for you, but I voted.” Or, “I voted for you. I wasn’t going to, but then I did.” They’re part of it. They want to talk about it. They’re proud that they participated as citizens.
Senator Klobuchar: (04:34:04)
And that’s what I think we lose that if we start making it harder and harder for people to vote. And I feel the same way about the money in politics, as someone that didn’t come from a lot of money, as someone that the first race that I ever ran, you could only get… I would get for eight years, $100 in the off election years. That’s the maximum you could get from any contributor and $500 in the election year. That made me reach out to a lot of people and get small contributions for a jurisdiction that included over a million people. And then when I start running for the U.S. Senate, that’s a whole different game, but at least there’s limits, and that was before all the outside money came flooding in. At least I felt, I responsible for the ads that I ran and my opponent was responsible for the ads that he ran, and I could respond to them on an even playing field. That’s being taken away from us. And when that gets taken away from us, we lose the power.
Senator Klobuchar: (04:35:02)
So how I look at this bill is that it takes the best practices that have been identified by a number of our witnesses, things that we know are in place across the country that worked in red states and blue states, that resulted in this high voter turnout and, according to Chris Krebs, who for a significant period of time was the head of the section of Homeland Security under the Trump administration, that was in charge of making sure we had safe elections, that both Democrat and Republican senators praised, both while he was in his job and when he was, unfortunately, forced to resign from his job. But before he did that, he said it was the safest election in the history of America. That happened while we found new ways to expand, while we didn’t require these notary publics to sign off, while we were able to use vote by mail, and in some states, register people early.
Senator Klobuchar: (04:36:04)
And if I look at, I kept hearing that word “chaos”, if I look at the chaos, some of it was because after the election was done and it was clear who won on the presidential level, it was lawsuit after lawsuit, after lawsuit. That created the appearance of chaos, but it wasn’t actually chaos. It was just votes being counted. And one of the cool things about this bill to get at some of the concerns raised to me by Republican senators during that time period, is that it actually says that the states have to start counting those ballots, processing those ballots when they get them. Because we know we have some states, blue states, red states, whatever, who wait till afterward and that creates some confusion, I think.
Senator Klobuchar: (04:36:50)
So I look at this bill and I just think when you go through it, step-by-step, there are a number of really good things in this that would make things easier, reduce the chaos as people look at elections, so they can believe in democracy. And we know, no one knows better than the people that work in this building, the staff that work in this building, what it means to have people try to undermine an election. No one knows better than former Vice President Pence, what it means to be trying to do your constitutional duty and simply count the votes and be there to do your job and have a angry mob come in, basically trying to kill you. That’s what happened in this place.
Senator Klobuchar: (04:37:32)
So I get back to this word “chaos”. Talk about being able to turn something on its head, because what we’re trying to do with this bill, by putting in some simple workable standards across the country, and you heard from the Michigan Secretary of State, who said she implemented this in a very short period of time in her state, that didn’t have the Minnesota-like ability to make it easier for people to vote. And she didn’t have chaos. She had more people vote. That’s what this hearing is about.
Senator Klobuchar: (04:38:03)
And I do want to thank you, Mr. Wertheimer, for 50 years of testifying and working on this issue. I’m sure it is cathartic to finally be able to testify in the Senate, in this room, on this bill, which you’ve worked on provisions with regard to this bill for so long. And you so well quoted former Justice Scalia about the need for transparency, the need to figure out what’s going on in this country, that’s essential part of democracy. And I just want us to take from this, especially in the words of former FEC Republican chair, Potter, that in fact, this, in the end, is not a partisan bill. As he said, this bill does not give power to any particular party over another. It gives power back to the voters. So protecting the right to vote, ridding our politics of dark money spending, and strengthening our ethics laws, will only strengthen the voice of all voters, regardless of where they live or which party they belong to, and require people in this building and people elected throughout the country, to act for the people.
Senator Klobuchar: (04:39:25)
The record will remain open until 5:00 PM on Wednesday, March 31st. I think Senator Blunt, my friend, for helping chair this hearing. I thank all the senators who participated. I thank every senator participated in this hearing that’s on this committee. We also are going to continue our bipartisan work on… coming up with a very clear direction of recommendations of what we should be doing in this place to protect our staff and ourselves and our frontline workers and Capitol police from what happened on January 6. And I thank Senator Blunt and Senator Peters and Senator Portman, over in Homeland Security, for working with us as we finish that investigation and oversight. And that’s been a very meaningful part of our work so far on this committee this year. Thank you. And the committee is adjourned.