SCOTUS Decisions Highlight Need for Democracy Reforms

FRED WERTHEIMER’S WEEKLY NOTE | July 1, 2021

“The bottom line from today’s Supreme Court decisions: Congressional inaction is not an option. A Senate rule to allow a filibuster is not more important than protecting our democracy against voter discrimination, voter suppression and the corruption of our government and officeholders.”

Today’s two Supreme Court decisions present a powerful case as to why it is essential for Congress to enact both the For the People Act and the John Lewis Voting Rights Act to protect the fundamental right to vote against new voter suppression and discrimination laws and to protect against corruption of our government and federal officeholders.

In Brnovich v. Democratic National Committee, the Supreme Court in a 6 to 3 decision made it much more difficult to use Section 2 of the Voting Rights Act to challenge discriminatory voting laws, like those being enacted by Republican-controlled state legislatures around the country.

Eight years ago, in Shelby County v. Holder, the Supreme Court effectively invalidated Section 5 of the Voting Rights Act, which had required new voting laws enacted by jurisdictions with a history of discrimination to be precleared by the Justice Department.

In today’s decision, by substantially weakening Section 2, the Court has seriously undermined the other core provision of the Voting Rights Act, a provision that has long served to protect minority voters from being disenfranchised. The combined effect of these decisions is to leave minority voters largely unprotected from the ongoing and increasingly aggressive efforts by Republican-controlled state legislatures to erect major barriers to voting – barriers which disproportionately burden racial minorities.

The For the People Act will establish fair rules for voting in federal elections that will override the state voter suppression and discrimination laws being passed around the country. The John Lewis Voting Rights Act will restore the Act to its original purpose and meaning.

Together, these new federal laws would restore protections to minority voters that have been stripped away by the Supreme Court and state legislatures.

In Americans for Prosperity Foundation (AFPF) v. Bonta, the Court in another 6 to 3 vote struck down a California law requiring nonprofit groups to confidentially submit certain donor information to the state Attorney General.

While the Court did not formally depart from applying the “exacting scrutiny” test that it had previously used to measure the constitutionality of disclosure laws, it did make that test harder to meet by requiring such laws to be “narrowly tailored,” a change in the test.

Today’s decision does not address the constitutionality of campaign finance disclosure laws, which the Court has long upheld because they serve compelling governmental anti-corruption interests.

But today’s decision does raise serious concerns about where the Court may be headed on the constitutionality of campaign finance disclosure laws.

Nevertheless, the AFPF decision must not impede the enactment of the DISCLOSE Act, included in the For the People Act, which would require disclosure of the billions of dollars in secret contributions that are being spent to influence federal elections.

Both Supreme Court decisions today increase the urgency for the Senate to promptly pass the For the People Act currently pending in the Senate and to later pass the John Lewis Voting Rights Act. In order to do that, Senators must once again, as they have often done in the past, bypass the Senate filibuster rules.

From 1969 to 2014, Senators passed 161 exceptions to the filibuster rules. Congress also routinely enacts massive reconciliation bills that only require a majority vote in the Senate.

When Senate Republic Majority Leader Mitch McConnell led his successful effort in 2017 to except the confirmation of Supreme Court Justices from the filibuster rules, McConnell said the “threatening filibuster cannot be allowed to succeed or continue–for the sake of the Senate, for the sake of the Court, and for the sake of our country.”

The McConnell standard exempting a Supreme Court confirmation from the filibuster rules – “for the sake of our country” – surely must apply to the For the People Act which will protect our democracy and the fundamental right to vote. It must also apply to the John Lewis Voting Rights Act, which will restore and revitalize the Voting Rights Act.

The bottom line from today’s Supreme Court decisions: Congressional inaction is not an option. A Senate rule to allow a filibuster is not more important than protecting our democracy against voter discrimination, voter suppression and the corruption of our government and officeholders.

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