By Jack Rakove / Special to The Washington Post
The fate of the For the People Act is growing ever more precarious. It remains vulnerable to the whims of two Democratic senators, Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona; to the massive hurdle of the filibuster; and to its own sweeping purposes.
With its 10 titles and numerous subtitles, the bill offers the most ambitious program for comprehensive electoral and political reform that Americans have ever witnessed. It also marks a direct response to the turmoil that has disrupted the U.S. political system and a preemptive federal strike against the panoply of “securing the vote” laws that Republican-dominated state legislatures are considering; with the fate of American democracy seemingly resting on the outcome.
That ambition has made the legislation an easy target for criticism. (One recent example was George F. Will’s column denouncing the act as a case of “constitutional vandalism.”) In its opponents’ view, the bill encroaches too much on the legislative power of the states to comport with basic principles of federalism. The Constitution, by default, left most of the key decisions about national elections to the state legislatures. They would decide who could vote in federal elections, how members of the House and presidential electors would be selected, and how elections would be conducted.
There was one main exception to this devolution of authority: the Times, Places, and Manner Clause of Article I (or the TPM clause), which empowered Congress to “make or alter such Regulations” as the states enacted to govern congressional elections. Even that Clause could be read narrowly, though, to imply, say, that Congress might intervene when individual states failed to provide for the election of representatives, but not to design a universal scheme for the design of districts.
As a matter of historical fact, however, this tailored view does justice neither to the reasons the clause became part of the Constitution nor to the larger set of problems the framers were confronting. Looking at those factors, the argument for a robust historical view of the clause grows stronger; and also the argument that the sweeping reforms Congress is considering should pass constitutional muster.
The TPM Clause first appeared in the report that the Committee of Detail presented to the Constitutional Convention on Aug. 6, 1787. When the framers discussed it three days later, two South Carolina delegates moved to delete the provision authorizing Congress to alter whatever arrangements the states made. But their proposal earned few, if any, supporters. Four framers spoke against it, and the motion was rejected without even a roll call.
The most important opponent was James Madison, and his extended remarks merit our attention. Whether we describe Madison as the “father of the Constitution” or not, his agenda for reform did set the framework for the debates at the convention that he daily recorded. That agenda was dominated by his searching and acute criticisms of the shortcomings of the state legislatures. Those criticisms rested on the three-and-a-half uninterrupted years (1780-83) he had spent in the Continental Congress, which needed the state legislatures to implement most of its decisions, and another three years as the dominant figure in the Virginia House of Delegates (1784-86). Making sense of why the performance of the state legislatures was so disappointing — and indeed so threatening to the whole American experiment in creating republican governments — became the crucial problem Madison wrestled with in the mid-1780s. His answers to these questions, in turn, explain why he became America’s most creative constitutionalist.
Madison’s remarks on the TPM Clause fully reflected this critique. There were several reasons the state legislatures “ought not to have the uncontrolled right of regulating” congressional elections. “Times, places, and manner,” he argued, “were words of great latitude” that made it “impossible to foresee all the abuses that might be made of the discretionary power.” More important, creating any system of congressional elections would involve a host of complex decisions: “Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, should all vote for all the representatives [of a state] or all in a district vote for a number allotted to the district”; these points would all “depend on the Legislatures” and thus be open to partisan manipulation. “Whenever the State Legislatures had a favorite measure to carry, they would take care to mold their regulations as to favor the candidates they wished to succeed,” he wrote. Another bias would exist whenever there was an “inequality of the Representation in the Legislatures of particular States,” for then the existing population imbalances among communities would be replicated in the design of congressional districts.
In effect, Madison was offering an early vision of the one person, one vote rationale that has guided American thinking about representation since the landmark reapportionment case of the early 1960s.
This is a formidable list of objections and, given the lack of support the South Carolina motion received, it confirms that the scope of the TPM Clause should be interpreted broadly. The “manner” of holding elections is a capacious term, and it leaves ample room for a modern Congress to do everything possible to ensure access to the ballot.
Of course, many aspects of the For the People Act can certainly be disputed on their merits. But its underlying principle of using national legislative power to correct the political “vices” of the state legislatures is fully consistent with the original intentions of the framers.
Madison’s extended remarks offer other important insights into the original design of our election system. By defaulting the initial decisions to the states, the framers made the process of constituting the House into an ongoing political experiment. At the outset, states could have elections where voters could choose a whole slate of statewide candidates; vote only in their own district; or even vote for candidates residing in each district of their state. How a state designed its system would thus reflect a considered judgment on how the entire state or all of its constituents (and constituencies) would be represented.
This experiment was quickly reduced to two options: district elections where voters would choose only their own representative, or a statewide system preferred by a few small states. In 1842, Congress made its first and most notable application of the TMP Clause by requiring all states to apply a district mode of election. But that left open a nagging question that the framers of the Constitution did not answer and which later generations have never adequately resolved.
What, after all, is a congressional district? In England and its colonies, the rule of representation was to award seats in the House of Commons and the American assemblies to political communities — shires, counties, boroughs, cities, towns — and, in England, to chartered corporate bodies. In a sense, it was the communities and entities that were being represented, not their individual members. That notion of communal representation collapsed with the creation of the House. Neither in 1789 nor in 2021 could one describe a congressional district as a community. Few of us know the number of our congressional district, much less its boundaries. A district is simply an arbitrary entity imposed on a map, an artifact of political arithmetic and geography that has only one purpose. It is that arbitrary character that makes congressional districting so vulnerable to political manipulation, as state legislatures, armed with ever more refined information about their constituents, redesign districts for partisan ends. As commentators like to say, in the United States, voters do not choose their representatives; the representatives choose their voters.
Yet one pervasive belief from the founding era can still be deployed against this dispiriting situation. It was a commonplace of American thinking in the 1770s and 1780s — and a belief repeated at the Constitutional Convention — to hold that a representative assembly should be a “mirror,” “miniature,” “portrait” or “transcript” of the population. That metaphor was not an American invention. It originated in the great constitutional quarrels of the English civil war of the 1640s. But no one in his right mind would ever claim that the 18th-century House of Commons, with its rotten and pocket boroughs and its minuscule electorate, offered a true “mirror” of the English people. By contrast, Americans believed that their assemblies already were, or should soon become, accurate representations of the larger society.
By our democratic standards, their notions of who constituted the people still fall short of our egalitarian ideals. But the aspiration was sincere. The notion of an accurate and equal representation of the entire people remains the American ideal. Whatever its fate, that is the goal the For the People Act was designed to secure. Far from being a wanton assertion of “constitutional vandalism” against the state legislatures, the bill is consistent with the Madisonian idea that the national government has a duty to correct whatever vices of state politics distort or corrupt our electoral system.
Jack Rakove is the William Robertson Coe professor of history and American studies and a professor of political science emeritus at Stanford University. His book “Original Meanings: Politics and Ideas in the Making of the Constitution” received the 1997 Pulitzer Prize in history.