Here is a bit of a paradox concerning H.R. 1, the sprawling House-passed omnibus bill that would assert federal control over dozens of areas related to elections, political speech, and topics yet further afield.
As reformers have charged (and I agree), many state legislatures have misused their power to draw district lines for seats in the U.S. House of Representatives, resulting in evils that in numerous states include extreme partisan gerrymandering. In hope of rectifying this, H.R.1 would require states to establish independent citizen volunteer redistricting commissions. It goes on to specify that the new bodies must observe a set format in which fifteen commission members are appointed divided into three categories: five persons each to be affiliated with the two biggest parties, and five persons not affiliated with either party. Moreover, for a commission majority to adopt a proposed map or indeed take action of any kind, “at least one member of the commission appointed from each of the categories” must vote affirmatively.
It’s easy to see the point of these provisions, which track those in a number of existing state-level reform plans. They are intended to make it difficult for members of one political party to control the work of a commission without persuading at least one member of the “other” party. I have myself worked on commissions that have followed rules like this, and I agree that they can make a difference for the good.
But then by contrast consider what a different section of H.R. 1 would do to the structure and format of the existing and highly powerful Federal Election Commission. H.R. 1 would replace the existing structure of the FEC — six evenly divided members, four votes needed for action — with a new five-member structure including one independent, and in which action could be taken by simple majority rule. The effect of the current structure is that in for the FEC to take any major actions requires convincing at least one member of the “out” party. The effect of the new structure is that so long as a president nominates a cooperative independent, decisions can be rammed through by 3–2 votes over minority party objections.
Nine former members of the FEC, representing a combined six decades of experience at the commission, wrote a letter to Congressional leadership expressing grave alarm at these provisions, which “would transform the FEC from a bipartisan, six-member body to a five-member body subject to, and indeed designed for, partisan control.” Other parts of the bill point in the same direction, as with provisions drastically expanding the powers of the commission chair, a presidentially appointed partisan, to take steps such as firing the agency’s staff director and its general counsel without so much as majority support. The Institute for Free Speech has more.
It is not hard to speculate about the dimensions of self-interest that might motivate Democratic leaders to gut nonpartisanship at an agency they hope to control outright, while installing elaborate safeguards for nonpartisanship for panels set up by (often Republican-run) states. Whether any more principled grounds can be cited for the discrepancy, I don’t know.
Walter Olson is a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and is known for his writing on law, public policy, and regulation. His first book, The Litigation Explosion, was one of the most widely discussed general‐audience books on law of its time. It led the Washington Post to dub him an “intellectual guru of tort reform.” His books since then have stirred discussion on topics ranging from workplace law to mass litigation to the state of the law schools. He is known as founder and principal writer of the longest‐running blog on law, Overlawyered, which ran from 1999 to 2020. He has advised many public officials from town councils to the White House and is active in civic affairs in his home state of Maryland, having been named by Gov. Larry Hogan as co‐chair of commissions aimed at ending the practice of gerrymandering. He is often interviewed for his expertise on elections and redistricting law.