Easter Eggs and Trojan Horses in the Democrats’ Flagship Bill, H.R. 1 (“For the People Act of 2019”)
HR1 (text here) was, symbolically, the first bill introduced in this session of the House, and it rapidly aqquired 227 co-sponsors — of whom not one was a Republican. The bill garnered a lot of positive coverage. From the Brennan Center for Justice:
The Brennan Center has long advocated for, and in many cases helped innovate, many of the reforms outlined in H.R. 1. “Perhaps more than ever, Americans understand the problems facing our democracy,” said Weiser. “They are hungry for bold and effective solutions to those problems — like those in H.R. 1 — and real action on those solutions.”
Weiser submitted written testimony in support of the Act in advance of Thursday’s hearing. In her comments on Thursday, she highlighted three of the reforms outlined in H.R. 1:
- Restoring the Voting Rights Act, a landmark civil rights law that was hobbled by the Supreme Court’s 2013 Shelby County decision;
- Automatic voter registration (AVR), which would streamline how Americans register to vote — and could add up to 50 million new voters to the rolls; and
- Small-donor public financing, which would amplify the voices of ordinary voters by providing public funds to match small donors.
Thursday marked the latest in a series of hearings on H.R. 1, which have focused on elements of the bill ranging from presidential ethics to election security. The bill marks the first time in decades that either major political party has made comprehensive reform of the systems of democracy a central priority.
(Let me pause to compliment the Brennan Center for not using the noxious phrase “our democracy.” As the old joke goes, “What do you mean, ‘we’?”) Democrat House organ The New Yorker:
[Last week,] a hearing on H.R. 1, the For the People Act, took place in the House of Representatives. Elijah Cummings, Democrat of Maryland, the new chair of the Committee on Oversight and Reform, referred to the bill, in his opening remarks, as “one of the boldest reform packages to be considered in the history of this body.” He added, “This sweeping legislation will clean up corruption in government, fight secret money in politics, and make it easier for American citizens across this great country to vote.” That statement was not partisan hyperbole. The bill is a broad, imaginative, and ambitious set of responses to the most pressing challenges facing American democracy, many of which preceded the 2016 election, but almost all of which were brought into sharper focus by it.
Implicit in the choice to take up an electoral-reform bill as the first act of the new Democratic majority in the House was the decision to confront not only these injustices but, more fundamentally, the forces that have allowed them to come into existence. The bill contains provisions to insure access to paper ballots, in order to verify the accuracy of voting results; to establish early voting in all states for federal elections; and to launch independent redistricting commissions, to address the problem of partisan gerrymandering.
(“Access” to paper ballots. Oh.) Meanwhile, Senate Majority Leader Mitch McConnell, in a scathing WaPo Op-Ed, dubbed it “the Democrat Politician Protection Act,” and given what we know about how the liberal Democrat establishment operates, it would be strange indeed if the bill did work in their favor, institutionally. Now, I have no doubt that there are good things in the bill; but it’s 600 pages long, and I don’t have time to go through it all to find them. I do think, however, that the bill presents four major problems: Two Easter Eggs, little hidden surprises, and two Trojan Horses, something seemingly benign that is in fact destructive (in this case, of democracy, ironically enough in a bill titled “For the People”). The two Easter Eggs are raised barriers to small parties and digital voting; the two Trojan Horses are a role for the intelligence community, and the nature of campaign contribututions.
Easter Egg: Barriers to Small Parties
HR 1 is surgically aimed to eliminate federal matching funds for Green Party candidates by raising the qualifying amount from its current level of $5,000 in each of 20 states to $25,000 in 20 states. HR 1 would cut funding for a Green presidential candidate in half, and by making ballot access for a Green presidential candidate impossible in several states it would also guarantee loss of the party’s ability to run for local offices.
SEC. 5202. ELIGIBILITY REQUIREMENTS FOR MATCHING PAYMENTS.
(a) Amount Of Aggregate Contributions Per State; Disregarding Of Amounts Contributed In Excess Of $200.—Section 9033(b)(3) of the Internal Revenue Code of 1986 is amended—
(1) by striking “$5,000” and inserting “$25,000”; and
(2) by striking “20 States” and inserting the following: “20 States (disregarding any amount of contributions from any such resident to the extent that the total of the amounts contributed by such resident for the election exceeds $200)”.
Easter Egg: Digital Voting
Program testing can be used to show the presence of bugs, but never to show their absence!–Edsger W. Dijkstra
In other words, digital must be removed everywhere in the voting and tabulating process, because otherwise the vote is vulnerable to hacking and election fraud. That’s why hand-marked paper ballots, hand-counted in public, are the world standard. To quote another programming proverb: “The cheapest, fastest, and components are those that aren’t there” (Gordon Bell).
From the Bill; I’ve helpfully underlined and noted in square brackets the problematic portions of the text:
SEC. 1502. PAPER BALLOT AND MANUAL COUNTING REQUIREMENTS.
(a) In General.—Section 301(a)(2) of the Help America Vote Act of 2002 (52 U.S.C. 21081(a)(2)) is amended to read as follows:
“(2) PAPER BALLOT REQUIREMENT.—
“(A) VOTER-VERIFIED PAPER BALLOTS.—
“(i) PAPER BALLOT REQUIREMENT.— (I) The voting system shall require the use of an individual, durable, voter-verified, paper ballot of the voter’s vote that shall [A] and made available for inspection and verification by the voter before the voter’s vote is cast and counted, and which shall be counted by hand [B]. For purposes of this subclause, the term ‘individual, durable, voter-verified, paper ballot’ means a paper ballot marked by the voter by hand [C], [D].
“(II) The voting system shall provide the voter with an opportunity to correct any error on the paper ballot before the permanent voter-verified paper ballot is preserved in accordance with clause (ii).
“(III) The voting system shall not preserve the voter-verified paper ballots in any manner that makes it possible, at any time after the ballot has been cast, to associate a voter with the record of the voter’s vote without the voter’s consent.
“(ii) PRESERVATION AS OFFICIAL RECORD.—The individual, durable, voter-verified, paper ballot used in accordance with clause (i) shall constitute the official ballot and shall be preserved and [E] or audit conducted with respect to any election for Federal office in which the voting system is used.
“(iii) MANUAL COUNTING REQUIREMENTS FOR RECOUNTS AND AUDITS.— (I) Each paper ballot used pursuant to clause (i) shall be suitable for a manual audit, and shall be counted by hand in any recount or audit conducted with respect to any election for Federal office.
[A] “be marked” leaves the agent doing the marking unspecified (see notes [C] and [D).
[B] “or read by an optical character recognition device or other counting device” means that the count need not be by hand, and need not be public.
[C] “marked through the use of a nontabulating ballot marking device or system,” for example, hackable touch screens.
[D] “shall have the option to mark his or her ballot by hand” means that voting machine vendors can use UI/UX “dark patterns” to discourage hand-marking.
[E] “used as the official ballot for purposes of any recount” means that the paper ballot is not the official ballot (!!) until a recount is performed. But how do we know to perform a recount if an election has been successfully hacked? Why not just make the paper ballot the official ballot to begin with, and get rid of all the digital cruft, as they do in Canada, Germany, and the UK?
Collectively, the notes show that the section title — “Subtitle F—Promoting Accuracy, Integrity, And Security Through Voter-Verified Permanent Paper Ballot” — is at best deceptive and at worse a bait-and-switch. This entire section is so sloppy and bad it might as well have been written by an e-voting lobbyist. For me, it calls the good faith of the entire bill into question. Anybody who thinks this bill advances the cause of paper ballots in any way is
a fool gravely mistaken.
Trojan Horse: Intelligence Community
From the Bill; I’ve helpfully underlined and noted in square brackets the problematic portions of the text:
SEC. 3201. NATIONAL STRATEGY TO PROTECT UNITED STATES DEMOCRATIC INSTITUTIONS.
(a) In General.—Not later than one year after the date of the enactment of this Act, the President, acting through the Secretary, in consultation with the Chairman, the Secretary of Defense, the Secretary of State, the Attorney General, the Secretary of Education, the [A] , the Chairman of the Federal Election Commission, and the heads of any other appropriate Federal agencies, shall issue [B] to protect against cyber attacks, influence operations, disinformation campaigns, and other activities that could undermine the security and integrity of United States democratic institutions.
(b) Considerations.—The national strategy required under subsection (a) shall include consideration of the following:
(1) The threat of a foreign state actor, foreign terrorist organization (as designated pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189)), or [C] cyber attack, influence operation, , or other activity aimed at undermining the security and integrity of United States democratic institutions.
(2) The extent to which United States democratic institutions are vulnerable to a cyber attack, influence operation, disinformation campaign, or other activity aimed at undermining the security and integrity of such democratic institutions.
(3) Potential consequences, such as an [D] or an undermining of the rule of law, that could result from a successful cyber attack, influence operation, disinformation campaign, or other activity aimed at undermining the security and integrity of United States democratic institutions.
(4) Lessons learned from other Western governments the institutions of which were subject to a cyber attack, influence operation, disinformation campaign, or other activity aimed at undermining the security and integrity of such institutions, as well as actions that could be taken by the United States Government to [E] .
(5) Potential impacts such as an erosion of public trust in democratic institutions as could be associated with a successful cyber breach or other activity negatively affecting election infrastructure.
(6) Roles and responsibilities of the Secretary, the Chairman, and the heads of other Federal entities and non-Federal entities, including chief State election officials and representatives of [F].
(7) Any findings, conclusions, and recommendations to strengthen protections for United States democratic institutions that have been agreed to by a majority of Commission members on the National Commission to Protect United States Democratic Institutions, authorized pursuant to section 32002.
(c) Implementation Plan.—Not later than 90 days after the issuance of the national strategy required under subsection (a), the President, acting through the Secretary, in coordination with the Chairman, shall issue an implementation plan for Federal efforts to implement such strategy that includes the following:
(1) Strategic objectives and corresponding tasks.
(2) Projected timelines and costs for the tasks referred to in paragraph (1).
(3) Metrics to evaluate performance of such tasks.
(d) Classification.—The national strategy required under subsection (a) shall be in unclassified form [G] .
[A] Awesome. Now we’ve got the intelligence community signing off on the health of our “democratic instiutions” (shot called here, December 2016).
[B] No doubt outsourced to the Atlantic Council, CrowdStrike, New Knowledge, or some other intelligence community cutout.
[D] Seems rather capacious. Does the notion of “public trust” even exist in law? Even so, it’s hard to imagine what actions any disinformation campaign could undertake that would undermine public trust more than Bush v. Gore, Bush’s subsequent WMD disinformation campaign that got us into Iraq, Obama’s grant of impunity to banksters, or many other actions performed by public men and women.
[E] As for example embedding foreign intelligence agents in domestic political campaigns?
[F] Not grammatical, but reminds me of “Fusion Centers.”
[G] Oh. Matt Taibbi summarizes:
Classified annexes are a legislative innovation that grew up after the Church-Pike congressional investigations in the 1970s into foreign assassinations and other unregulated behaviors of the intelligence agencies. Classified annexes basically allow for separate secret appropriations for personnel, costs, even directives. Though common, such a provision with this kind of bill would concern any rational observer.
To recap: A bill that’s ostensibly about promoting democracy would mandate the creation of a new, potentially classified Executive Branch directive targeting both foreign and domestic “disinformation” and “influence.” The president, the Defense Department and the security agencies would have a mandate to combat a broad range of activities deemed resultant in an “erosion of public trust” and/or a threat to “democracy.”… The only way a secret government strategy to prevent “an erosion of trust” wouldn’t be at least a little scary is if you have complete confidence the government knows the difference between legitimate dissent and improper “influence.”
[Excuse me a moment. I have to go take a shower]. In short, it’s hardly surprising the CIA Democrat Andy Kim has this to say:
— End Citizens United (@StopBigMoney) February 22, 2019
I’m dubious that giving the intelligence community any power over our voting process whatever returns us to a government “of, by, and for the People” but you do you, Andy! You do you!
Trojan Horse: Contributions
I can’t parse out the clauses under “TITLE V—SMALL DOLLAR FINANCING OF CONGRESSIONAL ELECTION CAMPAIGNS,” but here is The Intercept’s summary:
The first bill Democrats plan to move in January when they take control of the House will mark a major step forward on a longstanding progressive goal: public financing of congressional campaigns
The provision is a largely overlooked part of a sweeping anti-corruption bill Democrats plan to start the year with and will be bestowed with the symbolic designation of HR1. The program, based on Maryland Rep. John Sarbanes’s “Government By the People Act of 2017,” would offer subsidies for individuals who want to make small contributions to political candidates. And eligible candidates would qualify for matching contributions that vary based on a candidate’s agreement to restrictions on how they finance their campaigns.
Combined with the broad surge of small-dollar contributions — Democrats alone raised more than $1 billion that way in 2018 — the public financing system would dramatically reshape the political economy of federal politics.
Three years, or even two years ago, I would have said “Small contributions! Great!” Now, I am not so sure, and my doubts can be explained by referring to this chart:
(Please use the chart as a crude visual only; I know that this is rate of growth, not absolute numbers. But I feel that the shape of the chart will be much the same for absolute numbers, and will also show the 1% and the 10% pulling away.) Now, ask yourself who is best able to make a “small” contribution? Who is most likely to be able to give? Trivially, those at the 95th percentile, who are 1%-ers or aspirational 1%-ers, whose wages grew by 21.5%. Ditto, those at the 90th percentile, actual 10%-ers, most likely in the professional class that is the Democrat base. And who is less likely to be able give? Those struggling at the 70th percentile and below. In other words, “small contributions” (like small donors) conceals a class bias that looks a whole lot like the reintroduction of property rights as a qualification for voting. I think the real direction of reform lies elsewhere, with the elimination of yet another complex eligibility scheme (“matching”) and the introduction of complete public financing, greatly shortened campaigns, and other robust measures (like, say, eliminating campaign advertising in digital media, and encouraging it in local newspapers, who could use the subsidy).
In short, the critique that HR1 is designed to reinforce liberal Democrat institutional power, no matter the other virtues of the bill, is not without force. HR1 cripples small third parties like the Greens, continues to enable election theft by domestic actors, gives the intelligence community (Democrat allies, as events subsequent to November 8 show) power to pronounce on the heatlh of the country’s democratic institutions, and gives the Democrats’ professional base — very much opposed to the working class — more leverage over candidate funding. If any Democrat thinks this bill will arrest the “erosion of public trust,” this ain’t it, chief.
 If this were done, two entire sections — “Subtitle D—Promoting Cybersecurity Through Improvements In Election Administration” and “Subtitle E—Preventing Election Hacking” — could be eliminated, at least with respect to voting systems, greatly simplifying the bill and saving money and resources better deployed elsewhere.
 The least cynical answer is corruption of officials, by the voting machine vendors, at the state and local level where the machines are purchased and maintained (and where it’s cheapest). The most cynical answer — at least the most cynical I have been able to come up with — is that the both parties have a common interest in stealing elections, and hence wish to maintain the technical means to do so.
. Andy Kim([x] Asian) “was a war planner and civilian strategist, not a soldier. According to his campaign biography, ‘I worked at the White House on countering terrorism and protecting our country, advised the Secretary of Defense and the Pentagon on national security, and I served in Afghanistan as a strategic adviser to Generals David Petraeus and John Allen. When I served in Afghanistan, no one asked me if I was a Democrat or a Republican. We all worked together focused on the mission of keeping our nation safe.’ He does not detail his final position: two years as director for Iraq on Obama’s National Security Council.” And we all know how well that went.