Infrastructure: it’s wonderful. You can do so much with it. It’s one of those handy all-purposes excuses, perhaps someday to achieve the same universal-utility status in American law as the Commerce Clause.
Back in 2016, we expressed concern in these pages about then-Homeland Security Secretary Jeh Johnson’s relentless push to designate the U.S. voting apparatus – 50 state systems, laws, regulations, networks, machines – as critical national infrastructure. The concern was what the Obama administration, or any subsequent administration, especially a Democratic one, would have in mind to do with that.
Skepticism seemed well rewarded when we found out after the 2016 election that the Obama team had been aware of dozens of IT intrusions attempts by Russia against U.S. state voting administration systems during the campaign – and yet failed to notify the states of them.
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The Obama agencies didn’t need any infrastructure designations or additional authorities to do more about those attempts when they happened (some of them even before the primaries started).
Yet they didn’t take action at the time. Instead, the administration sent mixed signals: Obama soft-pedaled any threats to the election, while Johnson raised alarms and argued for an infrastructure designation, but seemed mostly to be reacting to media themes about Trump colluding with Russia by pilfering Democratic emails. (Which had nothing to do with state voting systems.)
In January 2017, about two weeks before leaving office, Team Obama conferred the “critical infrastructure” designation on the aggregate state voting apparatus. Congressional Republicans mounted an effort in 2017 to reverse that designation, in light of the existing mechanisms for federal assistance to the states in the realm of voting (much of it unified and freshly empowered by the Help America Vote Act of 2002), and the point that the Constitution puts the states in charge of administering the vote.
The effort fell short when a Trump administration under relentless siege didn’t consider it a priority to reverse the designation. With no push from the White House, and plenty of other work to do, Congress let that one go.
Fast-forward to 2021, with election systems now entering their fifth year as designated critical infrastructure. Take a moment to ponder that in both houses of Congress, Democrats are maneuvering every way they can to make it permanently easy to cheat in U.S. elections. In the last Congress, they did their level best to shoehorn vote-corruption arrangements into COVID-19 “relief” bills. In the current Congress, which was seated in January, they’ve pushed voting bills in both houses, and in the Senate they’re now working on a $1.2 trillion bipartisan infrastructure bill — but also pursuing a separate, partisan package sought by President Biden.
It was easy to predict that once state voting systems were designated as critical infrastructure, Congress would get busy addressing them under that heading. Technically, the critical infrastructure designation is supposed to be about infrastructure security, not “whatever Democrats want to fund to enforce their preferred voting arrangements in the states.” But there are ways of getting around that minor obstacle.
In an AP report from 18 July, the inevitable was reported. Senator Amy Klobuchar (D-MN) disclosed in an interview that the Senate Democrats are looking to leverage the bipartisan infrastructure bill to get at least some of their voting measures forced through over Republican objections.
The effort involves two backhanded approaches. Before getting to those, recall that the measures the Democrats have in view include “automatic and same-day voter registration, early voting and no-excuse absentee voting.” Although the AP report doesn’t mention it, a major push in 2020 – automatic mass mailing of by-mail ballots to voters – is likely to be part of the 2021 push as well. (It may not even be named in the bill; an obvious option, once you see how the Democrats want to do this.)
What are the backhanded approaches? One has to do with the fact that the “reforms” sought by the Democrats aren’t about improving election security. (They are, rather, the opposite.) The don’t meet the terms in law of the justification for homeland-security spending on critical infrastructure.
But the Democrats could include financial incentives to the states to adopt the measures in order to qualify for federal grant money.
In the end, Democrats would not achieve their goal of federal standards through the infrastructure bill alone but could incentivize some states to move in that direction.
“Money with incentives has passed before. So let’s see what we can get approved,” Klobuchar said. “But again, that is only part of it. Look, it’s not the whole thing, right? But it’s a tool you don’t want to let go.”
That was a method employed in 2020, and the infrastructure bill is an opportunity to employ it again. At least some Democrat-run states would be likely to take advantage of the incentives and alter voting practices – even, as several states did in 2020, altering them by executive fiat at the state or county level without approval from the legislatures.
The second backhanded approach is slipping the incentives into the infrastructure bill during reconciliation.
“Klobuchar,” says AP, “noted that Democrats could also use the process known as reconciliation to advance financial incentives for states to adopt certain [voting] reforms.”
It takes 60 votes to approve cloture and advance a bill to floor debate, and that’s where the minority can filibuster to stop legislation. But once cloture is approved, alterations to the bill can be voted up or down by a simple majority – the process of reconciliation – and the bill itself can be approved by a simple majority as well. All the Democrats need to get voting incentives into the infrastructure bill through reconciliation, and then pass the bill, is 51 votes.
That’s why there’s so much riding on the cloture vote Senator Schumer (D-NY) has scheduled for the infrastructure bill on Wednesday, 21 July. The Republicans don’t want to hold that vote until a bipartisan agreement on the Senate “gang” proposal has been finalized. But Schumer has scheduled it independent of the progress on the “gang” bill.
If you can muster the heart for it, please consider contacting your senators about this. The Republicans would almost certainly be making a grave mistake to agree to cloture on Wednesday. I’m not convinced there’s any real need to agree to cloture on an infrastructure bill at all in the current Congress. After the Dido the Democrats pulled when the bipartisan “gang” process was announced at the White House in June – and a second press conference was then held without the Republicans in which Biden and the Democrats vowed to push through all the things GOP negotiators had not agreed to – there’s no reason to trust the Senate Democrats to keep any promises during reconciliation.
Senate Republicans shouldn’t play Charlie Brown to the Democrats’ Lucy-with-the-football. Klobuchar has laid out exactly what they plan to do, and their plan for incentivizing a corrupted, unaccountable vote in 2022 is just more of what they did in 2020. Bribing more states to chuck vote-integrity safeguards overboard will make conditions worse, not better. There’s no upside to facilitating it.
The Democrats would have less of a “hook” for cramming voting incentives into the infrastructure bill if Jeh Johnson hadn’t gotten his critical infrastructure designation back in 2017. But an even bottom-er bottom line is that trust, for good reason, is at an all-time low in Congress. If there are genuinely necessary infrastructure expenditures – e.g., bridge and dam repairs – that need to be made immediately, Congress can pay for that without the comprehensive multi-trillion-dollar package the Biden White House wants. Everything else can wait 18 months.
