By Ben Weingarten, RealClearInvestigations
July 26, 2023
Cast as a civil rights measure issued as the nation marked the 1965 “Bloody Sunday” police beatings of voting-rights marchers outside Selma, Ala., the president's 2021 directive orders every federal agency, more than 600 in all, to register and mobilize voters – particularly “people of color” and others the White House says face “challenges to exercise their fundamental right to vote.” It further orders the agencies to collaborate with ostensibly nonpartisan nonprofits.
Since issuing the order, critics claim, the Biden administration has stonewalled efforts to scrutinize its implementation by often ignoring document requests and litigating to shield relevant records. The critics, including members of Congress, state officials, and government watchdog groups, say the executive branch is attempting to federalize elections with an end-run around constitutionally prescribed state control over voting – in many cases using the resources of agencies with missions unrelated to registering voters.
Some have labeled the president’s order “Bidenbucks,” evoking “Zuckbucks” – Meta CEO Mark Zuckerberg and wife Priscilla Chan’s funneling of some $400 million through two nonprofits into election offices across the country during the 2020 election. That money often flowed to left-leaning nonprofits managing critical aspects of election administration that were considered crucial to Biden's winning the White House.
In a notable recent defeat for conservatives, Judge Beryl Howell of the D.C. District Court, an Obama appointee to the generally liberal jurisdiction, on July 18 dismissed Freedom of Information Act requests from the America First Legal Foundation, siding with administration arguments that the records in question were exempt as privileged presidential communications. Trying to pry strategy documents loose, America First had sued nearly a dozen non-responsive agencies, ranging from the Departments of Agriculture, Education, and Health and Human Services to the Environmental Protection Agency.
Left-leaning think tank Demos, which in late 2020 drafted a blueprint for the order, estimates that if fully implemented, it could generate 3.5 million new or updated voter registrations annually. Even a far more modest increase could dramatically impact the 2024 presidential election, considering that recent contests have been decided by just thousands of votes in several states.
Critics say the order could violate laws including the Administrative Procedure Act, barring agency actions “in excess of statutory jurisdiction” and the Hatch Act, curbing political activities by federal employees.
Their concerns are driven in part by the fact that the directive appeared to be cribbed from the Demos white paper. Two ex-Demos executives – one of whom helped write the paper – departed for the Biden administration for roles positioning them to push for the order.
Republican House members raised the alarm about this issue in a January 2022 letter requesting documents from administration officials, calling the order “nearly identical to a federal election takeover plan crafted by the radical left-leaning group known as Demos.”
Months later, on the first anniversary of the order, Demos revealed it had worked extensively with federal agencies as well as state partners to implement the order, noting that it did so “in close partnership with the ACLU and other allies.”
In ongoing FOIA litigation against the Justice Department, the Foundation for Government Accountability obtained an email between the White House Counsel’s Office and numerous agency officials regarding a July 2021 “Agency Listening Session” apparently led by “Civil and Voting Rights Organizations.”
The email includes a roster of “advocates.” These include representatives from progressive groups such as the ACLU, the George Soros-affiliated Open Society Policy Center, and the Southern Poverty Law Center; labor unions including the AFL-CIO and AFSCME; and a coterie of identity-focused organizations such as the Arab American Association, Black Voters Matter, and UnidosUS.
RealClearInvestigations contacted over a dozen prominent private groups supporting the order, some of which were represented at that meeting, but only one responded to its queries. The Project on Government Oversight, a self-described “nonpartisan independent watchdog,” indicated it had not met with federal agencies regarding the executive order, undertaken any activities to advance it, nor planned to do so during this election cycle. It publicly supported the executive order, according to a spokesperson, because “access to voting is a critical way to hold public officials accountable.”
The organizations that did not respond ranged from the Center for American Progress to politically powerful public-sector unions, including the American Federation for Teachers, the National Education Association, and AFSCME. Also not responding were Fair Fight Action, founded by unsuccessful Georgia Democratic gubernatorial candidate Stacey Abrams, and the Planned Parenthood Action Fund.
RCI also posed a series of questions to Demos centering on concerns expressed by lawmakers and others about its involvement in the order – including a report that it helped the Indian Health Service register and mobilize voters. It did not respond.
“Promoting voter registration and participation – i.e., mobilizing voters – is an inherently political act for a partisan president,” Tarren Bragdon and Stewart Whitson of the Foundation for Government Accountability wrote in a recent Wall Street Journal Op-Ed. “The resulting efforts can be directed at groups expected to vote for the president’s party and may take the form of pressure to support the party or its policies.”
Likewise, Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative and a former member of the Federal Election Commission, recently submitted congressional testimony indicating that the kinds of activities contemplated under the Biden administration’s executive order “risk confusing and intimidating vulnerable members of the public who are applying for federal benefits into thinking they have to register and vote for the political party in control of the White House to ensure their applications for benefits are not declined.”
In addition to its largely successful efforts in court to date to stave off greater disclosure, the Biden administration has rebuffed Republican lawmakers’ numerous oversight inquiries into the order.
The administration has refused to produce agency-specific strategic plans that would comprehensively capture the order’s scope and has remained largely silent about which third-party groups agencies are coordinating with to execute the order, and on what grounds – a key area of concern among the directive’s critics.
RCI asked a White House spokesperson why the administration was withholding the strategic plans. RCI also asked if the Biden administration would share details about agencies’ coordination with third-party groups, and how the administration would respond to concerns raised by critics that the order codifies a de facto Democrat get-out-the-vote effort. The White House did not respond.
What is clear, based on the details that have emerged about the order, is that the Biden administration is proceeding with its implementation, undeterred by critics.
In March, near the two-year anniversary of the order, the administration released a characteristic summary statement noting that agencies as diverse as the Department of Education, Defense, and the Indian Health Service have carried out efforts ranging from making voter registration information and materials more readily available on agency websites, in documents, and across their offices, to successfully designating themselves as voter registration agencies.
Previously, agencies from the Departments of Labor, Housing and Urban Development, and Agriculture disclosed generally some of the ways they were working to comply with the order, including seeking to drive voter registration via job training centers, public housing authorities, and child nutrition programs.
The Equal Employment Opportunity Commission, the Department of Education, and the Department of Agriculture are exceptions in having provided cursory responses to the many questions posed by lawmakers regarding the order.
Much of what little is known publicly about the directive has been captured in “progress reports” released by its left-leaning champions aimed at persuading the administration to accelerate and broaden its efforts to implement it.
Myriad left-leaning organizations are urging the administration to more fully implement it in the run-up to the 2024 election. They propose, for example, that the U.S. Marshals Service provide eligible individuals in federal pre-trial detention “access to high-quality voter registration services and assistance voting”; that the Department of Education incorporate voter registration opportunities into the federal student aid process; and that U.S. Citizenship and Immigration Services offer voter registration services “at or immediately after all naturalization ceremonies.”
Republicans have recently advanced legislation to combat the executive order. The Republican-led House is seeking to neuter the executive order via appropriations.
As currently drafted, the Financial Services and General Government appropriations bill would defund the order. Perhaps more significantly, the House Administration Committee recently introduced the American Confidence in Elections (ACE) Act, which it touts as “the most conservative election bill to be seriously considered in the House in a generation.”
Among the almost 50 bills contained in the legislation is the Promoting Free and Fair Elections Act. That bill, sponsored by New York GOP Rep. Claudia Tenney, co-chair of the Election Integrity Caucus, would nullify the Biden executive order.
Progressive supporters of the directive panned the provision. The Leadership Conference on Civil and Human Rights wrote that it “strongly object[s] to the ACE Act’s attempt to thwart implementation” of the Biden executive order.
“Voter registration remains a hurdle for many eligible voters, particularly people of color,” the group said. “Real confidence in elections comes from ensuring that all Americans have the freedom to vote unimpeded by discriminatory rules.”
Notwithstanding such opposition, the ACE Act would seem poised to pass the House given the support shown by leadership, including its sponsorship by Speaker Kevin McCarthy and its more than one hundred other co-sponsors. But, as Roll Call noted, “its outlook is bleak in the Democrat-controlled Senate.”
There, Republican Sen. Ted Budd or North Carolina has introduced companion legislation to Rep. Tenney’s. Any such efforts are likely to prove fraught in a divided government. Republicans’ majority in the House, however, does arm them with subpoena powers. RCI asked several relevant committees whether they might use such authority to compel the executive branch to respond to their requests.
Wisconsin GOP Rep. Bryan Steil, Chairman of the Committee on House Administration, which has jurisdiction over federal elections, told RCI that he “will continue to demand answers from the agencies on how they are implementing the [executive order]” while touting the ACE Act.
A spokesperson for the committee told RCI its members were “not satisfied with the responses [to oversight requests] we’ve received so far” – noting that in some instances it had not received responses from agencies at all – and that the committee was planning to send a battery of follow-up requests in the near-term.
Whitson believes that such oversight efforts could hold the key to halting the executive order irrespective of what happens with pending litigation. He argues that “Congress should use its subpoena and oversight power to gather evidence, including sworn testimony and documents” that can be leveraged by state attorneys general – many red state officials having already indicated their aversion to the order – to sue the Biden administration and seek a permanent injunction blocking it. “[I]t’s up to the states and Congress to work together to stop this unprecedented scheme before time runs out,” Whitson says.