Breakthrough: Senate close to deal on reforming Electoral Count Act?

AP Photo/Hans Pennink

We’ve heard this before.

In fact, we’ve been teased with the prospect of bipartisan ECA reform since the first week of 2022.

If you believe Susan Collins and Joe Manchin, the “gang” of Democrats and Republicans that’s been working on a bill are closer than they’ve ever been to sending their draft to Senate committees for review. In fact, Collins expects there’ll be legislation to look at as soon as next week.

The ECA is the nineteenth-century law that governs how Congress counts the electoral votes on January 6. That law is … problematic, for reasons you’re well aware of. Senate centrists in both parties have been tinkering with it this year in hopes of “Trump-proofing” the next election. Technically, Congress has close to six months to pass a new bill that would clarify and reform the ECA before the new Congress is seated in early January. But lame-duck sessions are unpredictable and are likely to be especially so following an election in which control of the House and/or Senate changes hands. So, realistically, the gang has just three and a half months to get their bill passed and signed by Biden.

If they don’t, no biggie. Just the potential end of American democracy in 2024.

The one thing all sides agree on is making clear that the vice president’s role on January 6 is purely ceremonial, with no power to reject certain electors. Mike Pence should thus be the last vice president in U.S. history to have a rabid crowd calling on him to be hanged on January 6.

“We’re very close. We’ve got a few technical issues that we need to iron out, and I’m very hopeful that we’ll have a bill early next week — or bills,” Sen. Susan Collins, R-Maine, told reporters Wednesday. “That’s one of the issues that we’re deciding: whether it’s better to introduce more than one bill or one bill.”

The working group met Wednesday afternoon to hash out the remaining issues and are close to a deal they hope both parties can support. Senate Majority Leader Chuck Schumer, D-N.Y., and Minority Leader Mitch McConnell, R-Ky., have both blessed the bipartisan talks aimed at closing loopholes in election law. And Collins anticipates broad support for what they introduce, saying the group has gotten input from the transition councils of both former President Donald Trump and former President Barack Obama’s administrations…

The Senate election group has agreed to clarify the law to make clear the vice president cannot unilaterally reject electors and to raise the threshold for members of Congress to object from the current rule of one member of the House and Senate. They also plan to amend the presidential transition rules to provide essential resources to both major candidates in cases of a close or contested election. The group has also discussed including other provisions.

Clarifying the VP’s role is the lowest-hanging fruit in the debate. The trickier parts are what to do about potential congressional and state-level attempts to thwart the will of voters by contriving excuses to overturn the results. In 2020, state officials like Brad Raffensperger, Brian Kemp, and Doug Ducey did their jobs. It was an eleventh-hour bid by Trump toadies in Congress, like Ted Cruz and the Freedom Caucus, to block certification that momentarily threw the transfer of power into doubt. Matters will be more complicated in 2024, notes Yuval Levin, because the good faith of state officials can no longer be taken for granted. Election truthers like Doug Mastriano in Pennsylvania, Kari Lake in Arizona, and various Trump-approved candidates for secretary of state may be in office by then and prepared to assist with “stop the steal” 2.0.

The new ECA drafted by the gang can certainly set rules for how Congress processes electoral votes. But setting rules for corrupt state officials will be dodgier, Levin notes:

The Klobuchar-Durbin-King proposal earlier this year sought to square that circle by simultaneously contracting the role of Congress and the vice president in the process of finalizing presidential election results and expanding the role of the federal courts in that process. In essence, Congress’s role would be narrowed in light of some lessons of 2020, but federal judges would be given significant new direct oversight over state election administration in light of concerns about 2024.

This is a clever way to resolve the contradiction, but it faces some enormous problems. Giving federal courts original jurisdiction over disputes that basically involve how state officials enforce state laws is constitutionally dubious at best and could easily create more problems and uncertainty than it would resolve. Republicans open to reforms of the ECA have been getting conflicting advice on this front from the election-law experts they trust, but on the whole they don’t seem very open to this approach.

If the forthcoming bill fails to meaningfully constrain state officials, Congress may end up “Trump-proofed” in the next election but the states won’t be. Per Politico, there is some attempt in the bill to limit how far states can go in throwing their electoral votes to the loser of the popular vote, as the legislation reportedly will “specify who can submit a slate of electors from any particular state.” That’s the gang’s attempt to head off any John-Eastman-style crooked efforts by Trump allies in a state’s legislature to designate his electors as official on some fraudulent grounds.

Whether the bill will pass constitutional muster if/when SCOTUS embraces the “independent state legislature” theory next year, God only knows.

Whatever’s in the bill, they had better move fast with it to compete with other Democratic priorities like Build Back Manchin and, maybe, USICA. They’re competing with the January 6 committee, too, which is preparing to issue its own recommendations about how to prevent the next insurrection. The Senate gang is reportedly worried that if they wait until after the committee has spoken, their legislation may be sidelined — and may even be tarred by association with Liz Cheney’s panel, which is radioactive to most Republican voters. It seems insane, yet also totally predictable, that a matter as clearly urgent as reforming the ECA will end up being a cliffhanger for Congress as time runs out on the Democratic majority.

Exit question: Is there any similar effort happening anywhere to reform the Vacancies Reform Act? That’s another law which Trump abused by repeatedly appointing acting directors at executive departments without submitting them to the Senate for confirmation. If he’s elected again in 2024, it’s a cinch that many of his nominees next time will be so shady that even a Republican-controlled Senate will have trouble confirming them. Yet Congress seems to be doing nothing to prevent him from simply ignoring the “advise and consent” requirement and sidestepping the Senate by naming acting directors instead. He did it before. Why wouldn’t he do it again?

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