An Update on H.R. 1 from Rep. Mondaire Jones

This podcast is part of the Democracy Group. This is Larry Lessig. This is another episode of the podcast, Another Way. So I'm going to confess something. I'm going to talk to someone today who I thought was going to lose. Not because I had any real insight into what the politics of The New York 17th congressional district were going to be, but because when we spoke to him way back last year in the lead up to the primary for the Democratic party in that 2020 election, he told me something which when he told me, I just read as a clear signal of what was going to happen. Because remember, you know, this primary which occurred on June 23, 2020, was held in the middle of a pandemic and Mondaire Jones was running in a race where there were millionaires spending extraordinary amounts of money against him. Now, Mondaire is not one of the millionaires that was spending millions of dollars in that race. And so when I heard that, I just thought, well, you know, he's a great guy, he's got great ideas, he's really compelling and articulately focused on the really important issues, but it just doesn't work that way. But on July 14, three weeks after the primary in an eight way race, Mondaire was declared the winner because it took a long time to get a bunch of absentee ballots in and the primary was the race. And he obviously then was elected in the general election. And he is the new Congressman from the 17th congressional district in New York. And it was one of those wonderful moments of being wrong. I mean, I'm wrong a lot, but it's usually not a wonderful moment. It really doesn't feel great, but it felt really great because as I indicated when we spoke to him last year, Montair Jones is a leader not just because he's a young, articulate Democratic battler for ideas that are important and right, but because he's willing to push where it's not clear. Leadership would be excited to see him push. He has been the most articulate champion of HR1 in the New Congress and consistently arguing about the importance of the priority of HR1 over anything else. Not like he's against any of the other bills that are being pushed and considered. But he's had the priority clear from the very start. So I was really eager to get him back and to have more of a conversation with him about what we can expect and what the battle will look like and how he's come to understand this new institution. As you'll hear, I hadn't thought about this, but the striking event in the life of his experience with this new institution was a welcoming party that he received three days after being sworn in on January 6th. And, and I think that trauma of that will be with many members of Congress for many, many years. But, you know, if he were running for something right this minute, his campaign manager would say, you stayed precise and direct and on message in a most incredibly compelling way. And he did. This is an exciting episode because after this conversation, for the first time in a long time, I have a strong feeling there is the will in Washington to make this happen. Chuck Schumer has surprised me with the leadership in the Senate and Nancy Pelosi has surprised many people with the leadership in the House. And those surprises, I think, are going to lead to the biggest surprise in 50 years in Congress. HR1, by the end of August, will have been passed by both houses of Congress. Okay. Knock on wood. That is wood, I promise. Enjoy the conversation. So, Congressman, so great to have you back. Last time I couldn't call you Congressman, but I was pretty sure I would get that chance someday. I just didn't know it would be our first repeat podcast. So it's great to continue the conversation. So you've been now in Congress for, I guess, less than a year, less than half a year. What have you learned? What surprises you the most?

I am surprised by having to serve with people who nearly got me killed at the Capitol on January 6th and who have expressed welcome party and who have expressed no remorse for having done so. That is not the level of degradation of the body of Congress that I expected. But I also have the opportunity to serve with some really amazing people now.

It's clear they're amazing people. I wonder, when you try to understand what's going on on the other side, what's the most charitable way to read what you're seeing on the other side

as distortions of our democracy? The way that people like Marjorie Taylor Greene and Lauren Boebert, Louie Gohmert and others are even able to win general election contests is because of partisan gerrymandering of congressional districts that allow fringe views to win the day, unfortunately. And that is why we must pass the for the People act, which would create independent redistricting commissions in every single state for purposes of drawing congressional seats.

So those, so those extreme candidates. And you'll be surprised that I plan to talk about HR1, but let's hold it off for a second. Those extreme examples, I get it. But you know, there are a large there are 147 members of Congress who voted to reject the, the results of the election on that infamous day in January. And still, you know, they're enforcing the will of the ex president by kicking out my former student Liz Cheney from her leadership positions. If it's not, we're not thinking about the extremes, but just the kind of mainstream of that group. Have you had any chance to get to know them and understand like what explains what's going on there?

Well, they too are held captive by what we are seeing. I mean, most seats are safely Democratic or safely Republican. That will not be true in a world where independent redistricting commissions are in every state in the union. I've gotten to know Andrew Garberino of Long island, who on a personal level is a wonderful human being. He voted to certify the free and fair presidential election that occurred last November. But you know, he's got to do what presumably his party is requiring. And that's me speaking as an observer, not as anyone who has special insight into how he thinks about these things. I just noticed, for example, that not a single Republican voted for the American rescue plan despite the fact that 80% of the American people supported it. Supported it. And of course, not a single Republican will vote for the for the People act despite the fact that it is overwhelmingly popular with the American people. This bill that is of foundational importance to saving our democracy.

Yeah, so. So they're also challenged by the system that leaves them in districts where they're most afraid of the extremes. We're going to talk about that dynamic a little bit, but let's think even more practically. So, you know, I remember talking early on in the career of a number of members of Congress and hearing them describe their surprise at the things they had to pay attention to and things they didn't get a chance to pay attention to. So like what have you, have you, have you felt that with these first couple months here?

You know, if you're getting at our terrible system of financing congressional campaigns in this country, which requires members of Congress, especially frontline members, people who flip seats from red to blue, typically in 2018, but in the case of my colleague Carolyn Bordeaux in 2020, then that is certainly something that should not be occurring. But unfortunately we have a system where members spend a lot of their time dialing for dollars. As I mentioned the last time I was on your show speaking to typically wealthy people who typically have more conservative views on fiscal policy and some other policies than the median American voter in this country. And what results is you've got a lot of folks in Congress who are concerned with things that the donor class is concerned with. You know, you know, it's why you had a body where a lot of folks were questioning the need for $2,000 stimulus, or as I and Pramila Jaipur like to call them, survival checks in the midst of the worst economic crisis since the Great Depression. This is something that is intuitive for the everyday American. But because the donor class is so removed in many instances from the lived experiences of everyday Americans, our policy outcomes are not what they ought to be, are not, I should say, reflective of the views of the American people.

So I'm not going to name names, but one member of Congress showed me a document that they had gotten from the Democrats outlining their daily schedule, what their ideal schedule should look like. And it included four hours of call time every single day, not including like breakfasts and fundraising dinners and things like that. Has there been a lot of help, quote unquote, to get you into that lane and to keep you there? Because obviously the 17th is a district that needs to have a lot of support to continue to maintain control of that district. Right.

You know, I'm in a. What has now been upgraded to a D +9 district.

Okay.

But during redistricting, there's a real chance that, that the seat will become more competitive. And you know what? I'm willing to do that for the sake of our democracy, because I think that every state should have independent redistricting commissions. We need a country where people are choosing their representatives rather than representatives choosing their constituents. You know, I probably do less call time than many members of Congress, but it's not something, frankly that I should be doing much of any of. It's why a system of, in the case of HR1, matching dollars would be a dramatic improvement upon the status quo. Obviously you and I both support a voucher program which is even more Democratic, I think. But it is not pleasant when someone could be legislating or ideating around legislation or planning events and movement building, which is what we need right now to save our democracy.

Yeah. So let's shift to this. So one really striking piece that you've written calling for the third reconstruction. So the first reconstruction, of course, after the Civil War amendments was a really bold attempt by so called radical Republicans way back then to try to establish equality in America after the Civil war. And the second reconstruction, 1965 Voting Rights act and 1964 Civil Rights act was critically important in getting over Jim Crow and the effects of Jim Crow and voting. So what's really striking about your third call or your call for this third reconstruction is that race is indirectly implicated in this third reconstruction. The first reconstruction was expressly directed, 15th Amendment, expressly about race. Second reconstruction, similarly, what's striking here is the things you're pushing in that essay. You were talking about the need to empower all voters. Secondly, as you've discussed right here, ending partisan gerrymandering. Third, money in politics. Those are not precisely race based responses. So I mean, I get it, but help people who don't get it. Like why is that? Like, why isn't Reconstruction about continuing to end racism?

It is. Except the problem of voter suppression in this country, while oftentimes not explicitly racially motivated in terms of the rhetoric that people use to make it more difficult for Americans to vote, is certainly motivated by white supremacy. When you look at who bears the brunt of the voter suppression that has been enacted already in places like Georgia and Florida that is anticipated to be enacted by the end of May in Texas, and so on and so forth, the people who bear the brunt, the people who disproportionately and intentionally are disenfranchised, are black and brown people, young people and working class people. And the social science bears that out. So too the rhetoric used by some people who have moments of great honesty in their advocacy for these bills, or who are simply recorded saying things that they would never want the public to hear. There is no problem of mass voter fraud in this country. Have you ever seen a problem in this country that a large number of people have tried to solve that doesn't actually exist, Be an effort made in good faith, whether it is the so called war on drugs which resulted in what Michelle Alexander has called the new Jim Crow of mass incarceration, or or more recently the racist voter suppression that we are seeing in 43 and counting different states in the Union.

Right. But the response, so you know, HR1 is a combination of a bunch of bills and the first part is crafted by John Lewis. John Lewis also has, or had, I mean, he's now former, he's passed away obviously, but he, he also has the Voting Rights Restoration act bill. The Voting Rights Restoration act bill is targeted directly on race. But the first part here, automatic vote registration, protecting voter rolls from purges, universally accessible ballots for seniors, peoples with disabilities, anybody who needs accommodations. These are more general. Now, strategically, there might be a difference in pushing this, but it sounds like one thing you're saying is practically it's advancing the interests of African Americans just as much as the Voting Rights Act Restoration. Voting Rights Act Restoration bill would.

And the way that it would play out is that the for the People act would be of greater benefit. Candidly, by the time the John Lewis Voting Rights Advancement act is even introduced this year, these states will have already enacted their voter suppression and the John Lewis Voting Rights act will not have retroactive effect. It is a much needed piece of legislation, but it is a shield. HR1, the for the people act is the sword. Automatic voter registration to enfranchise an additional 50 million people nationally. An end to partisan gerrymandering of Congressional districts, which if we do not do, Democrats will not have majorities for the next decade, given the way that Republicans have a competitive advantage in terms of unified control of state governments in this country and of course, critically, public financing of Congressional elections so that working class people, including people of color and other marginalized community members are able to have a fighting chance in running for Congress. It is an exception to our experience in this country that I was elected to Congress having faced off in a wealthy Congressional district against a billionaire who spent $5.4 million largely of his own money, to attempt a perpetual purchase a Congressional seat and other very wealthy people who brought in a lot of money into their own campaigns.

So this is a subtle point which I want to emphasize because I think a lot of people who are pushing the Voting Rights Advancement act have missed it all that that does in restoring the Voting Rights Act. Section 5 of the Voting Rights act is set up a procedure for monitoring changes in voting rules in targeted districts. And so the point you're making, which I think is really important, is that if it's passed after those changes have already been made, it's not going to provide any protection. Now, one suggestion that's been made by Senator Manchin is that, you know, past that, but rather than just targeting certain districts, it'll be covering all 50 states. And it sounds like he's got some Republican support for that. Now this feels to me like the Greeks have rolled a pretty big horse up to the Gates of Troy and we're now wondering whether the Greeks have left and we should let the horse in. But I wonder whether you like the idea of a 50 state voting rights act here.

I love the Trojan horse metaphor here. Mitch McConnell is cackling somewhere that he has apparently succeeded in diverting Senator Manchin's attention to something that is the least constitutional in terms of what the Supreme Court will find when they go up to review the John Lewis Voting Rights Act. The Court, as you know, in 2013 and the Shelby v. Holder decision gutted the heart of the Voting Rights act, specifically the pre clearance provision contained in section, Section four. And it did so on what I believe to be disingenuous grounds. But if you just take Justice Roberts, who authored that opinion at his word, saying that things have changed in the south, that the formula for preclearance that took into account discrimination against black people primarily many decades ago is no longer a thing of today. And so this formula then is no longer constitutional under the 14th amendment. There's no way then that using that same rationale, the Court, more conservative than the one that decided Shelby beholder, which was a 54 decision, would uphold a nationwide preclearance provision subjecting all states to that level of scrutiny in the form of pre clearance. You know, having to go to the Justice Department before you enact any changes to your voting law or going to a judge before you enact any changes to your voting law. And then, of course, it is the secondary case that this Court is not reliant anymore on what Justice Roberts has to say. The conservative majority, now he's 6, 3, 4, far right majority, could strike down the John Lewis Voting Rights act for reasons different from what Chief Justice Roberts articulated in his majority opinion.

Yeah, it seems pretty clear. It's so. I mean, maybe Joe Manchin believes it, but is your view a common view? Does everybody kind of read this as you guys live in Troy and Greeks are playing with you again?

We've got a lot going on in Congress. We're trying to get a $15 minimum wage. We are trying to pass the George Boyd justice in Policing act, which I'm hopeful will happen in the coming weeks. And it is the case that if you don't have legal training in the way that you and I do or have not focused so much on this legislation compared to all the other things you're working on, that you simply don't know this information. And it's why I and three of my colleagues in the Congressional Black Caucus wrote a letter to the Democratic Caucus in the House yesterday explaining why the nationwide pre clearance proposal made by Senator Manchin is no substitute for HR1 and indeed is not a good substitute for the John Lewis Voting Rights act that was introduced last Congress.

Right, right. Let's talk a little bit more about gerrymandering. I mean, you've been a strong advocate of ending partisan gerrymandering. The Congressional Black Caucus has resisted that. And, you know, you get little rumblings out of the Congressional Black caucus even about HR1 because of that. Now, what explains that difference like why do you see it and what do they see that you don't?

Well, I want to be clear that the Congressional Black Caucus as a whole has not taken a formal position on independent redistricting commissions. And despite the debate that occurred it has now been publicly reported within the caucus. Every member of the Congressional Black caucus voted for HR1 before the people act with the exception of one person. And for that reason I want to give credit to members of the House for putting their stewardship of our democracy over whatever narrow self interest some people may have with respect to maintaining their district drawn specifically the way that it is, if not even more Democratic if these Republican legislatures have their way. Because the point by the way is that Republican controlled legislatures love to pack as many Democrats into one district as possible because limits the number of Democratic districts in their state and in the process dilutes the voting power of all of those peoples who they all those people who they pack into those typically majority minority districts.

So there's pretty strong support and it feels like the prediction Everybody had that HR1 was going to unravel, it's just not turning out to be true. I think Chuck Schumer is surprising everybody with his very equally as strong as Pelosi and forcing through consideration of the complete package. And are you optimistic they're going to find a way to jump the filibuster? Because obviously if that remains they're not going to get 60 votes.

A few days ago a Senator who I admire responded to a question about strategy moving forward with paraphrased the following. It's easy to say you oppose legislation, but when democracy is on the line and that legislation is called for a vote, it's much more difficult to stick with what you have said. And democracy really is on the line. It faces its greatest test since Jim Crow. As I mentioned in that Washington Post op ed, the insurrection at the Capitol made that clear. So too what ensued in terms of the voter suppression that we are seeing enacted or proposed all across the country. And so I remain very optimistic. I'm grateful foremost as a member of the House for the just incomparable leadership of Speaker Pelosi who despite all of the rumblings about what people didn't like about HR1 got every single member of the Democratic caucus to vote for this bill with the exception of one person and of course Senator Senate Majority Leader Chuck Schumer has been doing an incredible job of now saying that he wants a vote on the for the People act by August. And in the course of the amendments that were recently considered on or around May 11, when the Senate had its first hearing on the for the People act, keeping that legislation intact in terms of its paramount provisions. So I remain optimistic that certainly the American people are in support of this bill overwhelmingly. It's why Republicans are going crazy, including mega donors, as it has been reported.

I mean, it is striking to recognize, you know, America's always only ever been precariously majoritarian. I mean, usually the majority wins. I mean, you know, we've seen two examples where that hasn't happened with the President in the Senate, it can happen where more votes go to Democrats, but the Republicans control the Senate. In the House, it sometimes happens, but usually the winner of more votes wins. But if you don't pass HR1 and the 350 suppression bills that are in the states right now get implemented and gerrymandering gets implemented, we're going to move from a precariously majoritarian democracy to a predictably minoritarian like Iraq or Syria, where the party in power is clearly not the majority party, because they have succeeded in erecting structures that make it so the majority can't win. And I don't know what we do when we get to that place. So it's great to hear the feeling of urgency from you. And Chuck Schumer has been great. I just hope that more Democrats realize this is really an existential moment, not just for the Democratic Party. You know, I don't care about the Democratic Party as a party. I care about democracy, majoritarian democracy that's on the line. And the idea that to support majoritarianism you need a super majority in the Senate shows that we're already minoritarian. The idea that you need 60% of the Senate, you know, if you. If you add up the population, it's possible that 12% of America can be responsible for blocking legislation in the Senate. So, I mean, this is something deep and fundamental. And

the crisis, to your point, is already here. You know, Senator Sinema and others have talked about their concern for minority rights in connection with their support of the filibuster. But as the great Senator Raphael Warnock said, what about minority rights for people in this country? What about the rights of minorities who deserve to have their voting rights secured? What about the LGBTQ community, of which I'm a part, that deserves to have, finally, their right against discrimination enshrined in our federal laws through the Equality Act? What about workers rights and what I believe to be the human right of people in the richest nation in the history of the world to make a living wage as corporate profits have soared in an unprecedented way. And so, you know, there's something off about the way some people have been analyzing this issue. And I think we are slowly seeing a change in perspective because it was Lisa Murkowski, a Republican, and Senator Manchin who has said he's not going to get rid of the filibuster, writing about the importance of passing the Voting Rights Act. So I look forward to Chuck Schumer calling a vote on the for the People act, which we must pass along with the Voting Rights Act.

Well, Congressman, I hope we get a chance to check in regularly. You were a hero in that election. I was so happy to see you win and I'm so glad you've been so clear on these ideas. Really among the very best in Congress. Even though you've been there just a couple months now. I learned I hadn't even put this together, that, you know, you've got a pretty great staff. My former student Zach is, is, is standing with you. And so you can't go wrong. But, but we, we got a lot to do after we get over this hump of HR1. And it's going to be extraordinary to see you taking the lead on that. Thank you so much.

That means a lot coming from you. Thanks. And I'm happy to be back in the future.

That was Mondaire Jones, Democrat from the 17th district of New York, fighting for HR1, aggressively fighting for HR1, taking apart like a well trained lawyer. I didn't train him, but he had a pretty good legal education, a well trained lawyer, taking apart the resistance to HR1 and making completely clear exactly why this bill needs to pass and making it hopeful that it will pass. So what could get in its way? Well, as we spoke about in this episode, there continues to be the efforts of some to carve back on the scope of HR1, to give something, to deflect it. And the most recent example of that is the example of Joe Manchin's amended HR4, which we discussed in this episode and which will be the subject of a op ed in Slate next, I guess this week when this comes out that I wrote with Guy Charles, professor from Duke, about the obvious strategic game that's being played not so much by Joe Manchin. I'm sure Joe Manchin is acting in good faith, but certainly by leaders such as Mitch McConnell who've framed this beautiful Trojan horse as a way to suck momentum away from HR1. And his hope is this passes and there's no reason then in many people's minds to get HR1 passed as well. And the Supreme Court strikes this down, as they certainly would if amended the way Joe Manchin wants, wants to amend it, and then leaving us two years from now with nothing. That's an obvious strategic game that's being played. And it's encouraging that this idea was immediately rejected by Chuck Schumer, and we don't see much of a movement to push it beyond that. If, even though I got to say among my colleagues among the Chattarati and academics, for a long time we've had this battle about whether we ought to be pushing the narrower Voting Rights Advancement act or the. I'm sorry, the Voting Rights Restoration act or the. Or the HR1 equivalence. And I'm just so relieved that the temptation to do less has not overwhelmed Congress right now. So I remain hopeful, as you should. But you should join us in spreading the word of this as broadly as you can. So that's done by first spreading this podcast or this series, which you can do at the website, equals Citizens Us another way. Get five of your friends to join five of your friends to listen and to share. And as that sharing happens, more people are brought along to recognizing how close we are. Jesus, just think about it. How close we are to getting fundamental reform through Congress, something which literally was unimaginable five years ago, is now actually possible. We have to get over the filibuster. But I think the clue to that puzzle mondaire identified by saying when this is framed as a fight about democracy, then I think anything is possible. Spread this podcast. We've got a new series on the website Equal Citizens US called HR1 Stories, which is really the series of stories about the history of the fight for reform. And I've contributed three of these. But we're inviting everybody to contribute their stories. We'll look for, we'll scan anything tagged HR1 stories, as long as we're not being trolled. And we will continue to post those on the site and encourage others to post them wherever you want or submit them to us. And we'll wrap them in the same branding to make it clear this is part of a series. But this has been a long fight. A long, long fight. And it will be an amazing day if we can get over this line and succeed. But in getting over the line, I think we're motivated by thinking about everybody who has been fighting for this for so long. So watch the stories. I've got three One's about Doris Haddock, AKA Granny D. One's about my friend Arnie HYATT. And a difficult encounter he had with the former President Clinton about fundamental reform. And one is about Barack Obama is calling on us to take up that fight. But these three stories are, I hope, the first of 30 stories and I encourage anybody who has a bit in this past to just pick up an iPhone and just talk right into it and keep it relatively short. I worked hard and I failed. The last one's a little bit too long. Actually all of them should be half as long. But I'm a lawyer and a law professor, so it's really hard to speak briefly as this rambling ending events is. But pick up an iPhone, tell the story, post it, tag it, or send it to us and we'll be happy to post it and tag it and to spread it as broadly as we can. We need to build a recognition of how important this is and how important important the fight has been for so long. Think about Fred Wertheimer, Democracy 21. Fred Wertheimer was there when they passed the, the Campaign Finance act in 1970. I should know this one. And then amended after, after the Nixon scandals. He was there and he's been part of this fight for 50 years. And he's been a central part in pushing the public funding component of this as well as the other reforms, but really importantly, the public funding component of this. Fred Wertheimer deserves this victory. He deserves to be able to say his life work worked. And of course not for him, but for everybody who will suffer if we don't have a representative democracy. Finally, finally, and as you heard me say again and again, it's not something we can take for granted. It's not something we've ever had, guaranteed. We have been at best a precariously majoritarian nation. If we fail, we will become predictably minoritarian. This is Larry Lessig. Thanks for listening. Stay tuned for more in this series. I think the next will be a repeat of Question Time with our interns about HR1 and my book, they Don't Represent Us. So I look forward to that conversation and to more of these interviews. Thanks.