If Democrats Lose Congress, It Won’t Be Because H.R. 1 Didn’t Pass

As we head into the midterm elections, Democrats are lamenting their almost certain fate: loss of control of Congress. Many Democrats point to the laws passed by Republicans at the state level aimed at paring back the more accommodating standards for voting during the pandemic, suggesting that these laws, or the lack of federal legislation to protect American elections, is why they’re in dire straits.

This is not the case.

Don’t get me wrong: Much of what the GOP has done on voting rights and redistricting has been bad. And there is plenty of room for reforms enacted at the national level.

But Democrats are in trouble because they have basically no cushion. If they lose five House seats in the fall elections, they’re back in the minority in that chamber. Redistricting—the redrawing of congressional maps after each decennial census—seems to have tilted things in the GOP’s favor, too, although somewhat less than some analysts had predicted. Historically, though, the party in power tends to get the crap beat out of them during the first midterm election. And five seats in the House is by historical standards a low threshold: In three of the last four midterms elections under a president in his first (or only) term, the opposition party gained dozens of seats: 54 seats in the “Republican Revolution” under Clinton in 1994, 63 seats in the “Republican wave” under Obama in 2010, and 41 seats for the Democrats’ “blue wave” under Trump in 2018. (The exception to this pattern came in 2002, when public support for Bush, a wartime president, translated into a surprising gain of 8 seats for the GOP.)

In the Senate this year, of course, it’s even tighter: The division is 50-50. There may be some surprises in the Senate results in November, but looking ahead we can already say that the races in Georgia, Arizona, Nevada, and Pennsylvania are going to be hotly contested. All the GOP needs is one seat to flip and Mitch McConnell will be Senate majority leader again.

So while it’s not unthinkable (though unlikely) that Democrats could retain the House and Senate in the fall, the usual electoral dynamics are not in their favor, and their inability to settle on a strategy is not helping.

There is an irony in the insistence of some Democrats that a failure to pass federal election reform is the reason for their party’s grim prospects in November: The major election-reform bill in the House includes some dumb provisions, including one that would likely advantage Republicans.

I’m talking about H.R. 1, the For the People Act, which pretty much every House Democrat has signed on to as a cosponsor. We’ve written a fair bit about H.R. 1 here at The Bulwark, including a supportive analysis, as well as critiques from Charlie Sykes and Mona Charen. I want to focus on just one provision of the bill, relating to campaign finance. The bill sets forth a plan for “Small Dollar Financing of Congressional Election Campaigns.” Here is how that provision is described by the nonpartisan analysts at the Congressional Budget Office:

H.R. 1 also would create a program, starting in the 2028 election cycle, to match certain qualifying campaign contributions with federal funds for candidates running for the House of Representatives who choose to comply with the program’s requirements. Generally, candidates who accept campaign contributions of $200 or less from individual donors would be eligible to receive federal matching funds at a rate of up to $6 for every $1 raised from donors.

On its face it doesn’t sound horrible. We’re trying to fix the bad parts of money in politics! What could go wrong? And I’ll concede that there is even a clever sort of contrivance in place to at least give the appearance that taxpayer dollars aren’t being used to fund this program (and the bill’s other campaign-finance provisions): a special “Freedom From Influence Fund” set up within the Treasury that would specifically get its money from corporate penalties and financial settlements instead of taxpayer dollars.

The problem with that scheme is that dollars are fungible—once the money goes into the Treasury, it doesn’t really matter where it comes from—so this attempt to create a less controversial source of funding campaign-finance schemes is just hand-waving. The $1.6 billion (!) that this program is likely to cost over its first ten years (that’s the CBO estimate) might in the most blandly literal sense come from penalties and settlements instead of taxes, but that just means that another $1.6 billion in taxes will have to make up a budgeting shortfall elsewhere.

The bigger problem with this proposal, though, is not its cost but its likely effects: Millions of federal dollars going to some of the worst politicians. Marjorie Taylor Greene. Lauren Boebert. Madison Cawthorn.

To qualify for matching under this provision, a candidate has to raise at least $50,000 in contributions of $200 or less from at least a thousand individuals during the qualifying period. But as NYU law professor Richard Pildes noted in the New York Times last year:

[T]here is a risk that making public funding proportional to small donations will accelerate polarization and extremism even further. Research suggests small donors are more ideologically extreme than average citizens and donate to ideologically more extreme candidates. . . . Numerous studies have shown that in general, individual donors (large and small) are the most ideological source of money in politics.

So not just Greene, Boebert, and Cawthorn, but the next Greene, Boebert, and Cawthorn. And all the accompanying baneful effects on our politics.

It won’t happen, of course. H.R. 1 is not going to become law. And it shouldn’t. But it’s worth having this in mind next time you hear a Democrat intoning mournfully about November and how unfortunate it is H.R. 1 didn’t pass.