Power Grab

by Jason Chaffetz

  Since the beginning of 2017, donors in states Clinton won have given $157 million to support House and Senate candidates running in states Trump won. That’s more than five times the amount of cash flowing from Trump states to Clinton states.

  Donors in California and New York combined to contribute roughly one-third of the dollars that have flowed through ActBlue to House and Senate candidates since the beginning of 2017.

  Fifty-seven percent of dollars directed to congressional candidates via ActBlue went to out-of-state races.

  The study went on to identify hundreds of donors who had contributed more than 500 times during one election cycle, with some contributing thousands of times. Instead of making large donations to local candidates, coastal elites in the Democratic archipelago that runs from urban New England through America’s large coastal cities and over to the Pacific Coast are dividing their donations into smaller amounts to create the illusion of broad support from the little guy. Under H.R. 1, each of those donations would be matched 6-to-1 from the Freedom from Influence Fund, giving Democrats a huge advantage.

  For their part, Republicans are far behind the curve on technology to facilitate small-donor contributions. It’s no secret that technology entrepreneurs overwhelmingly lean left. Academic research backs that up, with one study finding more than 75 percent voted for Hillary Clinton in 2016. Democrats have long had the advantage in deploying cutting-edge technology.

  The Republican alternative to ActBlue, reportedly called Patriot Pass, is expected to be up and running in 2019. President Trump himself has shattered records for small-dollar donors, but 2020 is expected to be the first cycle in which the Republican Party will embrace a one-click donation platform.

  For all the talk about reducing the influence of big donors in elections, the real motivation for public campaign financing provisions in H.R. 1 is to stack the deck in favor of Democrats and ensure their permanent hold on power.

  The DISCLOSE Act

  Now we get to the part where Democrats manage to go so far that they even lose the ACLU. Perhaps confident in their ability to rely on small-dollar donors and the corresponding 6-to-1 match from financial institutions through the payment of federal fines, they decided to include language in this bill exposing the dark money donors of nonprofits like the ACLU. They incorporate the provisions of a previous bill known as the DISCLOSE Act (Democracy Is Strengthened by Casting Light on Spending in Elections Act), which imposes mandatory disclosure of private associations.

  They even went a step further, according to the ACLU’s letter to lawmakers opposing the bill. They expanded the definition of campaign-related disbursements covered by the disclosure requirement to include communications that “support or promote or attack or oppose” the election of a candidate, without regard to whether the communication expressly advocates the election or defeat of a candidate. Remember, the ACLU’s home page is all about fighting (not defeating, but fighting) Donald Trump. By this standard, that home page would subject the ACLU to disclosure requirements they currently don’t have to worry about.

  Now, I’m actually with the ACLU on this one. In fact, they end up making the very argument Republicans have used to defend the Citizens United decision and the use of undisclosed donors (what Democrats derisively refer to as dark money). In their letter, the ACLU passionately defends the very free speech Democrats are seeking to jeopardize, writing:

  Should the DISCLOSE Act, as currently constituted, become law, it will have one of two effects. First, donors could choose not to give to organizations, even if they support their messages, or could be forced to give less than they otherwise might. Second, organizations, especially small organizations that either cannot afford the compliance costs or simply refuse to breach the trust that donors expecting anonymity have placed in them, could choose to refrain from speaking at all. Either way, the public discourse and the First Amendment lose.

  The FEC as a Partisan Weapon

  There are many more troubling provisions in this one bill, much less the next nine bills that round out the Democrats’ legislative priority list. But we’ll conclude our analysis with one final unnecessary and baffling provision. That is the partisan weaponization of the currently nonpartisan Federal Election Commission (FEC). Weaponizing federal agencies like the Internal Revenue Service and the Department of Justice is certainly not new. But never have we seen Democrats do it so boldly and so openly.

  Since 1974, the six-member FEC has operated as a bipartisan commission, with Democrats and Republicans each more or less controlling three seats. Four votes are needed to initiate an investigation or prosecute an FEC violation, thus always depending on bipartisan support before the body can proceed with an action.

  This legislation changes the FEC to a five-member commission that can proceed with a simple majority vote, making it possible for the party holding the majority to steamroll the minority. Democrats tried to hide this reality by dictating that no more than two members may belong to any one political party. The Institute for Free Speech points out that this requirement would not be a barrier to partisan control, explaining that “under this criteria, Senator Bernie Sanders, who nearly gained the 2016 Democratic presidential nomination, would not count as a Democrat on the Commission (technically, Sanders remains an ‘independent’), allowing him to join two other Democrats in a Commission majority. The same would be true for Angus King, the Maine senator elected as an independent, but who caucuses with Democrats.”

  H.R. 1 goes even further, allowing the president to appoint a powerful chairman of the FEC to serve as a sort of Speech Czar, with vast powers to appoint staff, control budgets, issue subpoenas, and compel testimony. This person is required to consult with the commission, but has no limitations on his own authority to act.

  Finally, the bill is timed to ensure Democrats will be the ones to control the commission. The Institute for Free Speech analysis found that while most provisions of H.R. 1 (the ones that favor Democrats in the election) are effective in 2020, this provision does not take effect until 2021—when Democrats hope Donald Trump will have been replaced with a president from their party. That person will appoint all five commissioners and choose the first chair. Those appointments will last through 2027, regardless of whether the next president serves a second term, and that chair will be able to appoint the staff director and general counsel for the FEC. Ultimately, the Institute for Free Speech wrote:

  That means that all the new regulations required under other provisions of H.R. 1 will be written by the initial appointing president’s team of the Chair, supportive commissioners, and their appointed General Counsel, and can be written (and if necessary re-written) with a specific eye to the 2022 midterms and the 2024 and 2028 presidential races. That same group would also respond to Advisory Opinion Requests and approve or disapprove of all enforcement actions.

  Working with these potential advantages, if that president is re-elected in 2024, he or she could appoint a Commission majority through 2033.

  It’s a big gamble that rests upon the assumption that President Trump loses in 2020. Should that happen, Democrats will get the short-term results they seek. But at what cost? They will have completely undermined any credibility the FEC once had. When the FEC becomes a partisan attack dog, who will police the side in power? No one. The institution that had traditionally played that role will have been sacrificed on the altar of Democratic power grabbing.

  Beyond the many provisions of this bill that provide advantages to Democrats, the real casualty of this power grab is the institutions that have to be sacrificed to give Democrats what they want. The bill is riddled with constitutional violations that undermine natural rights. One could fill a book with the list of ways H.R. 1 violates the Constitution, but for our purposes, we’ll conclude our analysis of this bill by looking at just a few of them.

  Violating the Constitution

  You don’t have to spend too many minutes on your browser’s search engine to find a reference to Do
nald Trump as an authoritarian who is a threat to our institutions. Nicholas Kristoff in a January 2019 New York Time piece reiterated the old criticisms of President Trump as someone who is “unraveling democratic norms” and who seeks to “undermine institutions and referees of our political system.”

  Don’t look now, but the Democrats made unraveling our democratic norms and undermining our institutions their top priority in the 116th Congress. The first institution on the chopping block: the Constitution. More specifically, the Bill of Rights. H.R. 1 runs afoul of many constitutional provisions, including federalism (the Tenth Amendment), voting rights (the Fourteenth Amendment), free speech (the First Amendment), and the separation of powers set forth in Article III. In addition to usurping local control of elections, the bill restores voting rights to convicted felons, a move that illegally abridges the authority of states explicitly granted in the Fourteenth Amendment. It forces taxpayers to fund campaigns, imposes restrictions on political speech, and empowers Washington, D.C., judges to decide state redistricting conflicts.

  H.R. 1 would be more aptly named the “From the People Act” because that’s what it is. It takes power away from the people—from the representatives in their communities whom they know and interact with—and invests that power in decision makers who are completely inaccessible to the average American.

  Federalism, the constitutional innovation that created a division of power among federal, state, and local governments, enables diverse communities to self-govern. As a result, communities holding very different values can still be part of a larger whole without compromising their priorities. The process of transferring power away from state and local governments and into the hands of the federal government is a process of taking power from the people.

  The advantages of an approach that allows California voters to tax themselves into oblivion without harming nearby Utah voters who overwhelmingly support smaller government are many. Federalism is a far better tool for promoting diversity than identity politics could ever hope to be because it does not impose the values and policies of one group over another. It disperses power, which protects against tyranny. It allows government to be more responsive to local issues and problems in a more efficient way than a slow and unwieldy federal bureaucracy. And federalism creates an environment in which more people can interact with the policy makers who represent them, even as more policy makers can be drawn from local communities.

  Federalism has been under attack since Alexander Hamilton first proposed the formation of a national bank in 1791. Politicians have been at work trying to grow the federal government ever since. Let’s look at how the “For the People Act” actually takes power from the people.

  Wresting control of local elections seems to top the Democratic wish list in this bill. The bill seeks to penalize routine voter list maintenance, micromanage online registration and voting processes, dictate the use of no-fault absentee ballots, and neutralize the impact of voter ID laws.

  Democrats justify this power grab with wild claims that states are deliberately attempting to suppress votes. But research from the left-wing Brennan Center for Justice at New York University contradicts that narrative. They report, “More broadly, 31 states have filed or pre-filed at least 230 bills that would expand voting access. That far surpasses the 14 states, at least, where lawmakers have filed or pre-filed at least 24 bills thus far that would restrict voting access.” The Brennan Center considers any bill that requires photo ID to be a bill that restricts voting access.

  In reality, states are working hard to find solutions that expand ballot access without damaging election integrity. This is exactly the process by which such issues should be addressed. States have long been the laboratory of ideas in which new solutions can be tried and shared.

  Democrats love to invoke the Fourteenth Amendment and the Voting Rights Act when trying to make the case that election security measures are equivalent to voter suppression. They seem to believe secure elections are a threat to them politically. But what about provisions of the Fourteenth Amendment that don’t cut their way at the ballot box? Section 2 of the Fourteenth Amendment explicitly grants to states the ability to abridge voting rights “for participation in rebellion, or other crime” as long as they do not discriminate. Yet this H.R. 1 legislation tries to do by statute what can only be done by constitutional amendment. It imposes a federal mandate restoring voting rights to all felons upon their release. This is not only unconstitutional, but it is a direct assault on states’ rights and in some cases, directly violates state constitutions. Why are Democrats so interested in forcing this policy from the top down?

  Coincidentally, studies show that the vast majority of convicted felons identify as Democrats. A 2013 study published by professors from the University of Pennsylvania and Stanford University offered more recent confirmation of what earlier studies have often shown. Democrats benefit when felons vote. This massive pool of voters—about 2.5 percent of the national voting age population—overwhelmingly register as Democrats. In New York, the study found 61.5 percent register Democrat to 9 percent Republican. In swing state North Carolina, 54.6 percent register Democrat and 10.2 percent Republican.

  Our policies on felon voting rights should not be dictated based on political fortunes. States retain the power to enact policies that reflect the will of their voters. Those voters have a great deal more influence at the state level than at the federal level. Thorny questions involving whether criminals should have voting rights restored, which criminals, and at what point are not federal decisions.

  The priority bill for Democrats in the 116th Congress has absolutely no chance of becoming law so long as Donald Trump remains president of the United States. But it does provide a useful road map of the power grab Democrats have in mind when they do return to power. More important, it shows us the institutions that will be sacrificed. The FEC will never function objectively once Democrats are finished reorganizing it.

  Infringements on free speech and federalism in this bill are just the beginning. H.R. 1 is just the first of ten priority bills Democrats will introduce—many of which follow the same formula of sacrificing long-term institutions, rights, and credibility for short-term political gains. Let’s look at what else is on the Democrats’ priority list. H.R. 3 addresses high prescription drugs prices by imposing market-distorting price controls on drugs, a move that will lower prices in the short term but cripple innovation in the long term, and put government bureaucrats in charge of health care. H.R. 4 addresses voting rights. It is expected to impose even more (politicized) federal control over local elections. H.R. 5, the Equality Act, imposes criminal penalties on religious dissent and overrides the rights of states to dictate who can be in the public restroom with our sons and daughters. H.R. 6, the DREAM Act, undermines the rule of law by doubling down on our system of rewarding citizenship to lawbreakers while continuing to penalize with long delays and high fees any who attempt to come here legally. The bill is anticipated to offer citizenship not only to a greatly expanded category of children of illegal immigrants, but to immigrants with Temporary Protected Status from El Salvador, Haiti, Nicaragua, Sudan, and Liberia at a minimum. H.R. 8, a background checks bill that further restricts Second Amendment rights, was passed by the House in February. H.R. 9 is expected to be a climate bill that will almost certainly restrict rights as well as markets.

  The legislative agenda of House Democrats will undoubtedly go nowhere this time. But that won’t stop Democrats from attempting to insert various provisions into must-pass budget legislation. In the Senate, Minority Leader Schumer demanded that “election security” measures be added to the defense spending bill. This implies that Schumer wants to protect elections from Russian interference. But when he talks about election security measures, he isn’t talking about voter ID, voter list maintenance, or other measures that might potentially ferret out voter fraud. He’s talking about the provisions of H.R. 1, which do just the opposite.

  Given the
heavy reliance of Democrats on small-donor contributions from deep Blue states, we can likely expect legislative efforts to function as a marketing campaign to draw donations from the left’s wealthy coastal enclaves. Those donors don’t get excited by bipartisanship or problem solving. They open their checkbooks when they see their policy prescriptions imposed on everyone. But legislation is not the only way to draw the attention of potential donors. Newly won control of House committee chairmanships gives Democrats a new platform for stoking anger and raising funds for 2020 campaigns.

  Democrats have shown that they have little regard for constitutional norms when short-term partisan wins are at stake. While Republican policy tracks closely to the things people actually want, Democrats are more concerned with preserving the conditions that have kept them in power. How do you recognize the swamp? The swamp always protects itself first.

  Chapter 7

  Oversight Without Government Reform

  The transformation of congressional oversight from its function as a government watchdog to an anti-Trump opposition research function happened fast. Suddenly the imperative to root out waste, fraud, and abuse became an imperative to root out a sitting president. Democrats are not even trying to make a pretense of pursuing government reform. Instead of addressing government corruption, they are fully focused on politically motivated investigations into the president’s personal and professional life.

  During each of the eight years Barack Obama was president, I was a member of the House Oversight Committee. Never once did we attempt to target the president personally. We certainly never went after his family. We never delved into his personal financial records or his or his family’s business dealings, never targeted his legal counsel or spiritual leaders, nor asked them to testify. Not because there were no scandals. But because we were there to identify and solve systemic executive branch problems.