Congressional Democrats have a golden opportunity to protect voting rights when the House of Representatives returns to session this week to lay the groundwork for approving two different infrastructure proposals: By taking a page from the GOP’s playbook, they should use the infrastructure measures to “defund” states that are suppressing voting and enacting laws that make it easier for Republican officials to overturn election results they don’t like.
When Republicans don’t like what a state or local government is doing — from Covid-19-related mask mandates to teaching critical race theory in schools — they have been known to cut off funding, or at least to threaten to do so. It’s time Democrats do the same for voting rights, which are the lifeblood of our republic.
Democrats should condition some parts of the proposed $3.5 trillion spending bill, which is still being drafted, on states’ agreeing to a national standard for federal elections. A road map for the types of measures that Democrats could require are laid out in the For the People Act, such as uniform standards for early voting days and automatic voter registration.
Republicans have wielded this very weapon in just the past few months: In Florida, GOP Gov. Ron DeSantis signed an executive order that withholds funds from any school district that mandates that students and teachers wear masks, even though experts like the American Academy of Pediatrics and 62 percent of Florida voters support such requirements.
In mid-July, Sen. Tom Cotton, R-Ark., introduced legislation that would “bar federal funds from being sent to K-12 schools that promote critical race theory.” And various GOP-controlled states have enacted laws over the past few months that bar state funding to any school that teaches about systemic racism or other race-related topics the GOP believes our children shouldn’t learn about.
Just two weeks ago, Sen. Joni Ernst, R-Iowa, introduced what she dubbed the “Cuomo amendment,” which would have withheld infrastructure funds from New York or any other state where there’s “a sitting governor who harasses and abuses women on his own staff.” While the amendment wasn’t approved, clearly the GOP is willing to punish millions — even an entire state — to achieve its political goals.
Let’s be blunt: Given the GOP’s holy war on voting, time is running out for our democracy. According to the Brennan Center for Justice, since January, 17 GOP-controlled states have enacted 28 laws that “restrict access to the vote,” from making it more challenging to vote in person and by mail to purging voter rolls — with many measures by design disproportionately affecting people of color. Alarmingly, at least for those who believe in democracy, some of these laws potentially allow Republican officials to overturn elections if they don’t agree with the results.
Republicans in Congress are also stonewalling efforts to enact voter protection laws. Two weeks ago, before the Senate went on summer recess, Senate Majority Leader Chuck Schumer, D-N.Y., noted that just the day before, “Republicans once again obstructed even debating voting rights legislation in the Senate.” Said Schumer: “Let me be clear. Republicans’ refusing to support anything on voting rights is not an excuse for Democrats to do nothing.”
One way to do something is to use Congress’ power of the purse to condition funding on enacting a national standard for federal elections. The exact language would have to comport with constitutional limitations, but there’s a long history of Congress’ doing this very thing.
Congress conditioned federal highway funding on states’ enacting certain laws, such as imposing a 55 mph speed limit or raising the minimum drinking age to 21. The latter was the subject of a Supreme Court decision upholding Congress’ power to do this very thing.
In fact, in 2009, Schumer proposed reducing federal highway funding by 25 percent for any state that didn’t enact laws to make it illegal to text while driving. While that provision ultimately wasn’t approved, it shows that Schumer understands the power of this weapon. And if it was important enough to use to address texting while driving, it’s certainly important enough to use to save our democracy.
I know some of my fellow Democrats may be pained at the idea that innocent people in states may suffer for the wrongs of their elected officials if their states lose funding. But the hope is that funding provided by the $3.5 trillion proposal would still be able to go to the most vulnerable people. No text has been drafted yet for this potentially transformative spending bill, so concerns like that can be addressed.
There’s also a possibility that President Joe Biden could by executive order withhold some federal funding already allocated to states unless they enact a federal voting standard. As a reminder, former President Donald Trump signed an executive order that withheld certain Justice Department funds from states that had what he dubbed “sanctuary cities.” This tactic, though, is less legally sound than Congress’ conditioning the aid, given that a federal appeals court upheld Trump’s executive order, while another found it improper.
Democratic leaders need to do more to protect voting rights than make a few speeches and hold news conferences. It’s time for Democrats go big and go bold. Biden and the Democrats owe this to everyone who believes in democracy, especially people in communities of color, who played such a big role in electing Biden, with nearly 90 percent of Black Americans and 65 percent of Latino voters casting ballots for him last year. These are the very communities most in the crosshairs of the GOP’s voter suppression efforts.
This may very well be the moment historians look at to see whether our nation continued as a democracy or whether the GOP was able to take another step in its march toward transforming the U.S. into an undemocratic, autocratic state. My hope is that when those books are written they tell the tale of Democrats’ saving our democracy by using every tactic possible.