Policy Analysis
Campaigning, Elections, and Voting: a Plethora of Policies
The Washington Office hosted a distinguished delegation of campaign experts in September. While discussions centered heavily on the Harris v. Trump debate and speculations on the outcome in November, key policies related to campaigning also shaped conversations of the week. Notable topics and policies the group touched upon were: voter registration, mail-in ballot policies, voter ID laws, early voting, campaign finance regulation, and the role of the Electoral College.
From Registration to the Ballot Box, Every Step of the Way There’s a Policy
The policies vary drastically from State to State every step of the way from the time someone registers to vote, to when they actually cast their ballot. The process for voter registration, oftentimes requires various forms of ID and the types of documents required vary from State to State. The process too, for registering takes many forms. In Michigan for example, there is automatic voter registration when someone obtains their driver’s license. In other States, you need to register separately.
Some States offer same day voter registration, which allows unregistered voters to be registered on the spot on Election Day. Other States require that you are registered prior to Election Day, with the cutoff day to do so varying from State to State.
The ability to vote by mail and the process for which to register and do so is another policy which depends on the State. Some States allow for people to request an absentee ballot without having to give a reason, on the other hand there are States that require a valid reason to request one. The policy for returning ballots is yet another policy that depends on the State. The date for which it needs to be post marked by and the date by which the ballot needs to be received, both vary by State.
The lack of uniformity on any policy related to voting in the United States oftentimes creates confusion. While the way in which States choose to conduct elections is within their right for self-governance, there are definitely ways in which the process in the United States can be improved.
There are very few pieces of enacted legislation that tackle voting, elections, campaign finance, and procedures surrounding them on a national level; however, a bill that cannot go without discussion is the Freedom to Vote: John R. Lewis Act. The bill was introduced in both chambers of Congress in 2021, but to this day is still stuck in the resolution stage. The bill expands voter registration by enacting automatic voter registration and allowing same-day registration across States. The bill also expands voting access by establishing vote-by-mail and early voting policies. An unprecedented voter protection that it would create is limits on State’s abilities to remove voters from voter rolls. This protection has become increasingly more necessary as there have been largescale attempts by States to disenfranchise legally registered voters just before the 2024 election.
The bill would also establish Election Day as a federal holiday, which would entitle many Americans to a day off of work, enabling more people to vote. By both establishing a national early voting policy and making Election Day a federal holiday, this would greatly increase access to the polls for many Americans who either cannot afford the time off from work, or who are unable to wait in the hours-long lines that typically occur on Election Day.
Furthermore the bill would put into place criminal offenses and set provisions related to election security, expand prohibitions on campaign spending by foreign nationals and establish an alternative campaign funding system, as well as establish new criteria determining preclearance. Preclearance is the process of receiving preapproval from the Department of Justice before making legal changes that would affect voting rights. These changes would be monumental for establishing voter protections and expanding access to voters. Many legal centers and think tanks in DC support this bill, positing it as historic, pro-voter legislation to strengthen our democracy.
Money Takes Center Stage
Another central point of conversation was the role of money in politics. Discussions touched upon campaign finance, campaign donation transparency, dark money, Super PACS, and public financing systems.
The importance of fundraising and the need for large sums of money for federal office campaigns in the United States was made apparent. In an effort to get a deeper look into this topic post study tour, we sat down with a forefront expert in the field, Commissioner Ellen Weintraub, Vice Chair of the Federal Election Commission. When asked about the expanding need for such amounts of money, she noted “The numbers never seem to go down, it goes up in a jagged line because presidential years always raise more money than the non-presidential years … but the trajectory is always up, more money is raised than the election before, and we break new records all the time for the most expensive Senate race or the most expensive House race.” The presence and influence of money in politics in the United States has increased drastically since the 2010 Supreme Court case Citizens United v. The Federal Election Commission. The case ruled that spending money on political campaigns falls under free speech and is therefore a protected First Amendment right, allowing for corporations to spend unlimited funds on candidates of their choosing.
The Citizens United ruling has allowed for the creation of Super PACS and facilitated the presence of dark money in campaign fundraising. PACS, otherwise known as Political Action Committees, take several forms. The most relevant being Super PACS, which are committees that may receive unlimited contributions from individuals, corporation, labor unions and other PACS for the purpose of financing independent expenditures and other political activity. Super PACS can raise unlimited money, meaning wealthy donors who wish to spend more than the maximum $6,600 individual contribution limit for a federal candidates may do so by donating to a Super PAC. Super PACS also allow for wealthy donors to donate an unlimited amount backing a candidate of their choice without having to disclose their donation publicly. This type of untraceable donation is referred to as dark money. It is virtually impossible to decipher who donated what portion of the funds a Super PAC uses to support candidates.
Super PACS collect millions of dollars and are largely responsible for many of the political ads put out during election season. Another facet of dark money and super PACS is their ability to easily conceal who is behind the political messaging. According to Commissioner Weintraub, “This is where dark money becomes more concerning, because if you don’t know where the money is coming from, you don’t know where the money is coming from, it could be coming from illicit sources. What we have seen is people who are trying to hide the source of the money go through very intricate plans of moving money from one pocket, to another pocket, to another pocket, so that it becomes very difficult to trace.” Although difficult to trace, it is no less serious an offense. This loophole and ability to conceal large amounts of money leaves open the possibility for foreign money to be put into elections in the United States. She goes on to say “The FEC takes the prospect of foreign money very seriously, even if the money is coming from a nominally domestic source, such as a domestic corporation, if there are foreign nationals who are controlling or having input into the decision of where that money is being spent, that is considered a violation of the law. And those have been some of the biggest penalties that the FEC has gotten, have been in foreign money cases.”
In addition to donation disclosure loopholes, there are very few regulations on the disclosure of sources for political ads. This is especially true of those posted on social media. As technology has changed, the laws have tried to keep up and there are a few bills circulating in Congress at the moment which aim to curb the digital secrecy. The Honest Ads Act, is a portion of the Freedom to Vote Act, which aims to enhance transparency and accountability for online political advertisements, by requiring those who purchase and publish political ads to disclose information about the advertisements to the public. This act has been introduced in the legislature but is still under review since 2022. Another bill aimed at creating transparency in political advertisement is the Consistent Labelling for Political Ads Act. The bill aims to amend the Federal Election Campaign Act of 1971 to require certain online platforms to display advertisements with a notice identifying the sponsor of the advertisement, and to ensure that the notice of the source will continue to be presented with the advertisement as it is shared across platforms. Both bills aim to increase transparency to voters on where the information and advertisements they’re presented with come from. Transparency allows voters to make a more informed decision about the candidates on their ballot. Access to reliable information about candidates and parties is necessary to have informed voters, and informed voters are key to a free and fair election.
The Electoral College
Lastly, one cannot discuss a Presidential Election in the United States without mentioning the Electoral College. The Electoral College is a process enshrined in the U.S. Constitution, which includes the selection of electors, the convening of electors to vote for their selection of President and Vice President, and the counting of the elector’s votes by Congress. Each State has a set number of Electors, which is determined by the number of members of Congress in each State. This totals 538 Electors today, which is why a Presidential candidate needs to receive a minimum of 270 electoral votes to win. The popular vote typically determines who will win the Electoral College vote, however that is not always the case, as is what happened in 2000 and 2016. This mismatch of popular vote and Electoral College vote outcome in recent decades has sparked increased scrutiny of the process.
The rationale behind this process originated as a compromise between large and small States at the conception of the Constitution. Another argument at the time in favor of this process, was the lack of trust in the general public to make a well informed decision for the best choice for the presidency.
Many civic engagement groups and think tanks today argue that the United States has evolved past the point of needing this process to guardrail presidential elections. Furthermore, some argue it’s anti-democratic. As there have been two instances of a mismatch between popular vote and Electoral College outcome in the last two decades, some argue that having a president who lost the popular vote undermines electoral legitimacy.
Although rare, there is also the possibility for electors to cast their vote for a different candidate than was chosen by the State’s popular vote. These “faithless electors” face virtually no repercussions, other than potential fines from the party, for voting contrary to their State’s pick. This opens the door for corruption. This flaw in the system is yet another reason why people call into question the electoral legitimacy of the system.
Efforts to amend or do away completely with the Electoral College have increased in recent years. The League of Women Voters have added their name to the list of organizations working to lobby a change.
As it stands, the Electoral College is enshrined in the Constitution, and would therefore need a Constitutional Amendment to change. The prospect of coordinating and actually passing the necessary motions for an Amendment is likely to be unfruitful.
Conclusion
In conclusion, the policies in place which dictate everything involved from voter registration to casting a vote, vary drastically from State to State. There are bills circulating Congress which aim to increase voter protections and access to the polls, however, the legislation has been stuck under review for years. There is growing consensus of the need for voter protections and equitable access to the polls. The role of money in U.S. politics cannot be understated. The upward trend of record-breaking amounts of money raised by campaign donations and the loopholes that exist which allow for secretive donations is a trend to keep an eye on. The process of the Electoral College too, is central to conversations on the electoral legitimacy of how the President and Vice President are chosen in the United States. There are several weak points to the democratic election system in the U.S. made apparent by these policy discussions. On the positive side, there are initiatives in the works and multitudes of advocates pushing for pro-voter reform.