Can Electoral Count Act Reform Happen in This Congress? Yuval Levin
In an election year, Congress basically shuts down by the beginning of the fall. Given summer recess schedules in both houses, that means the next few weeks offer pretty much the final stretch of real legislative days. Looking at the plausible to-do list for that period, there are three significant items that stand some chance of passage: a much-trimmed reconciliation bill advancing some Democratic priorities, a bicameral compromise version of the U.S. Innovation and Competition Act (different forms of which have passed both houses), and reforms of the Electoral Count Act.
The first two are on a collision course with one another at this point. Chuck Schumer and Joe Machin have been working toward a reconciliation bill to salvage something of the Build Back Better package that went nowhere this year. It would let Medicare “negotiate” drug prices, and then would include some modest energy and climate provisions and some kind of tax increase. There is broad support among Democrats for the Medicare provisions, but the rest is still up in the air. Many Republicans seem dismissive of the prospects for this measure, and it certainly makes sense to be skeptical about Schumer’s ability to pull it off. He has done an awful job managing intra-Democratic legislative negotiations in this Congress. But my sense, alas, is that this one has real legs, and the Democrats may well come together on a measure they can pass.
Meanwhile, the two parties continue to try to work out differences over the USICA — a bill that began as a series of major investments in federal support for strategically significant scientific R&D but is gradually devolving into a set of subsidies for the American semiconductor industry. The House and Senate have passed different versions of the bill (with the Senate version getting a fair bit of bipartisan support), and have been negotiating toward a stripped-down version that might pass in both houses.
Ever sensitive to pressure points in the Democrats’ efforts, Republican leader Mitch McConnell declared on Twitter on June 30 that “there will be no bipartisan USICA as long as Democrats are pursuing a partisan reconciliation bill.” He seems to have his conference behind him on that threat, and so it’s now up to Schumer to decide how to prioritize and juggle these bills, neither of which is quite cooked yet anyway. The coming week may tell the tale of whether the Democrats can get their act together on one or both of these measures.
But the third item on the remaining to do list, reforming the Electoral Count Act, has the potential to move independently of the battle over a reconciliation bill. It’s not a spending package, and while it has only modest Republican support, it has something like the profile of the infrastructure and gun bills that have passed in this Congress — with a Senate “gang” working to patch together a coalition. Yet for all its promise, and all the need for it, this process has stalled out in recent months, and will need to be actively spurred back to life very soon if it is to achieve anything.
It’s worth remembering that the ECA-reform process began as a fallback, especially for Democrats. The Democrats started the year eager for very aggressive and partisan election reforms — a kind of partial nationalization of election rules and some facets of election administration. You could hardly conjure a better argument for the filibuster than the prospect of the narrowest congressional majority in living memory pushing through changes in election procedures in every state on a party-line vote in Washington, and it was indeed the filibuster that ended up averting the civic disaster that would have resulted.
The Democrats’ effort was also focused on the wrong goals: It would have dealt largely with access to the voting booth, rather than with the integrity of post-election administration and certification. Access and turnout are crucial, of course, but are in decent shape — despite some misguided and needless partisan measures in a number of Republican-led state legislatures. The real danger in the Trump and post-Trump era has to do with making sure that votes are counted and results are honored.
Having failed to advance their more radical measures, then, Democrats were open to changes in the Electoral Count Act, the federal law that governs the procedures for electing the president and vice president. And a number of Republicans — enough to get a bill to 60 votes in the Senate — were open to that conversation too, in part to neutralize the Democrats’ threats to blow up the filibuster to push their more radical changes, and in part out of a desire to apply some of the lessons of 2020.
The effort has proceeded on two tracks from the outset. Senator Amy Klobuchar, who chairs the Rules Committee, has worked with Judiciary Committee chairman Dick Durbin and Senator Angus King to draft legislation, releasing a preliminary draft back in February. At the same time, a bipartisan group of senators led by Susan Collins and Joe Manchin have been working on their own proposed changes. The fact that the latter group involves both Republicans and Democrats — including many of the senators who have worked together successfully on infrastructure and on gun legislation this year — has always meant that the Collins-Manchin group’s work is more likely to bear fruit. But that work seemed to stall after an early burst of energy this winter.
That early energy was never well focused. The Democrats involved in the group hadn’t altogether given up their broader ambitions to reform election procedures across the country, and from the beginning the bipartisan group tried handle that by dividing its work into several sub-groups, most of which (because they were assigned matters outside the scope of the Electoral Count Act) never had a chance of producing proposals that could actually garner bipartisan backing. As a result, unlike the earlier efforts on infrastructure and guns, the group’s work did not begin with a clear agreed-upon framework but has been hazy and free-wheeling. This has meant that it has not managed to put the core contested questions in front of the senators involved in a clear way.
Some Republicans have also wanted to avoid taking positions on any election-reform proposal before the conclusion of this year’s primary season, and so have had an incentive to drag their feet. The prospect of the January 6 Commission proposing specific reforms to the ECA has also been a concern for Republicans — ideas that become associated with the commission in their voters’ minds will be less likely to win Republican support, not more.
The result of all this has been a palpable loss of momentum. Senator Collins has made efforts recently to get her colleagues focused on the substance of potential reforms again, and the constraints of the legislative schedule will create some pressure too. But the nature of the process so far has meant that senators could claim agreement in the abstract about the need to reform the ECA while actually avoiding the key concrete questions that need to be resolved before legislation can take shape.
The foremost of these questions, which is likely to divide Republicans and Democrats more than they have so far acknowledged, is whether reforms should focus on the potential for misbehavior by Congress and the vice president or the potential for misbehavior by state officials charged with certifying election results. There is ample reason to worry about both, but in terms of changes to the ECA those two sets of worries point roughly in opposite directions.
Averting shenanigans in Congress would mean constraining the role of Congress and the vice president and leaving the substantive work of finalizing election results more clearly and fully up to the states. But averting shenanigans in the states would mean giving Congress more of an oversight or corrective role over the outcomes of state certifications. You can’t really do both at the same time.
In 2020, the problem was in Congress. The states all did their jobs, despite immense pressure by Donald Trump on some state officials to behave corruptly. Every state submitted a certified slate of electors in line with its election results. It was only when it came time for Congress to count those votes that some members of Congress made the cynical decision to challenge several state results, and that the president tried to pressure the vice president to do so. That revealed some risks inherent in the looseness and ambiguity of the Electoral Count Act. It suggested, for instance, that the threshold for congressional objections is too low and undefined, and that the limits on the vice president’s role could be spelled out more clearly.
But looking to 2024, there is reason to worry about the potential for misbehavior by state officials. In several states, there are candidates for positions with authority over election administration who falsely insist the last election was stolen and who might be open to using their power to corrupt the counting and certification of election results next time. That kind of worry would argue for Congress setting more prescriptive requirements for certification and exercising more substantive judgment about state results.
Broadly speaking, Republicans involved in the ECA-reform effort want to see changes that would constrain the role of Congress, while Democrats want to see greater oversight over state officials. 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.
That would suggest that the prospects for ECA reform depend upon the willingness of Democrats to restrict those reforms to addressing potential congressional misbehavior and clarifying the limits on the vice president’s role in the process or on the willingness of Republicans to give the federal courts a new and questionable role in election oversight. Neither party seems particularly close to coming to terms with this, and there isn’t much time for them to get there.
Perhaps the worst sign of all is that more and more of the people involved now suggest that ECA reform will need to be a lame-duck agenda item — that is, one only taken up after the November elections. There’s a certain logic to this view, of course, since that would make it possible to avoid making these reforms an election issue, especially for Republicans. But lame-duck sessions of Congress never go as planned. The feeling, the atmosphere, that follows an election, particularly an election where power changes hands in one or both houses, is never what people expect in advance, and the idea of just getting back to work on what seemed like a plausible agenda before the transformative election never quite makes sense in its wake. If ECA reform is left to the lame-duck session, it will almost certainly not happen at all. And the chances that a Republican House, let alone a Republican House and Senate, would take up the issue in the next Congress has got to be approaching zero.
That means now is the time to revive the effort if it is going to bear any fruit. There will surely be an attempt to do so. Even if it ultimately fails, ECA reform won’t just fade away. There will be some effort to take it up in the next few weeks — a moment of action or decision. It is very important that the members involved are prepared for that moment, that they understand what questions are likely to be in front of them when it comes, and that they know how they want to proceed and what bargains they’re willing to contemplate.
There’s still a real chance that Electoral Count Act reform will happen in this Congress. But its prospects have diminished a lot in the course of this year.
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