Election Reform Through the Back Door

Electoral Count Act reforms are "hidden" in the bipartisan budget bill.

My earlier post “Omnibus Bill Has Everything But the Kitchen Sink” mentioned this in passing but it’s worth calling out in a standalone post.

NBC News (“Congress releases major spending bill with election reforms to prevent another Jan. 6“):

The election legislation attached to the funding bill would close loopholes in federal law that Trump and his allies sought to exploit on Jan. 6, 2021, to stay in power despite his election loss to Biden.

It would revise the 1887 Electoral Count Act to clarify that the vice president’s role is simply to count votes, and it would raise the threshold to force a vote to object to a state’s electoral votes from one member of the House and Senate to one-fifth of each chamber. It would also beef up laws involving state certification of elections, in an attempt to avoid future competing slates of electors, and smooth the presidential transition process.

The election measure was announced in July by a bipartisan group led by Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va. It has 38 sponsors in the Senate, including 16 Republicans. It is backed by McConnell, who said in September that the “chaos that came to a head on Jan. 6 of last year certainly underscored the need for an update” to the 1887 law. It passed committee with some revisions by a vote of 14-1 this fall, opposed only by Sen. Ted Cruz, R-Texas.

“The Electoral Count process was never meant to be a trigger point for an insurrection and that is why we are reforming it,” Sen. Amy Klobuchar, D-Minn., the chair of the Rules Committee, said Tuesday.

Sen. Brian Schatz, D-Hawaii, said the election overhaul measure was “good” and represents “progress.” But he warned that protecting American democracy will require more than just a new law.

“We just need to understand that there is a movement of people, and they’re well-financed, and they will not be troubled by a new statute,” Schatz said. “So we just have to remain vigilant, even if we pass the Electoral Count Act because these people were already trying to figure out how to circumvent the Constitution and federal law. And so they’ll keep doing that.”

Another NBC News report (“Government funding bill would give DOJ extra money for Jan. 6 prosecutions“) adds:

The $1.7 trillion government funding bill released Tuesday includes extra money for the Justice Department to prosecute Jan. 6 cases. Congress hopes to pass it this week.

The package would give U.S. attorneys a budget of $2.63 billion for the coming fiscal year, a $212.1 million boost above current levels. One reason for the additional money is “to further support prosecutions related to the Jan. 6 attack on the Capitol and domestic terrorism cases,” according to a summary provided by the House Appropriations Committee.

NBC News reported in October that the Justice Department said it was in critical need of additional resources for its investigation into the Capitol attack in 2021; more than a dozen sources familiar with the probe expressed concerns about the resources available for the investigation.

The Justice Department had requested $34 million from Congress specifically to carry on the investigation. “The cases are unprecedented in scale and [it] is expected to be among the most complex investigations prosecuted by the Department of Justice,” the Justice Department previously told Congress, adding that the funding was “necessary for the continued prosecutions of the growing number of cases related to this breach of the U.S. Capitol that has left the Department with an immense task of finding and charging those responsible for the attacks.”

[…]

In addition, the FBI would receive $11.33 billion, “an increase of $569.6 million above the fiscal year 2022 enacted level and $524 million above the President’s budget request, including for efforts to investigate extremist violence and domestic terrorism,” the Appropriations Committee summary said.

The FBI has arrested about 900 people in connection with the Jan. 6 attack, and it has the identities of hundreds more who have not been arrested. The total number of people who could be charged in connection with storming the Capitol on Jan. 6 — either with unlawfully entering the building or with attacking law enforcement outside — is roughly 3,000.

This is all good news. We’ll see how much Republican support we get for this when the floor votes are taken but the flip side of my objections to lumping non-budgetary measures into spending bills is that it gives politicians cover for doing the right thing. Voting for these measures in a standalone bill would be political suicide in MAGA districts.

WaPo’s Greg Sargent goes further, arguing “The GOP is quietly ‘Trump-proofing’ our system behind his back.

Nobody tell Donald Trump, but Republicans in the Senate appear poised to join Democrats in protecting our democracy from exactly the election subversion he attempted in 2020 — and would surely attempt again in 2024 if given the chance.

The omnibus spending bill has been released, and buried inside it are provisions that would reform the Electoral Count Act of 1887, which governs how Congress counts presidential electors. Trump’s effort to subvert his presidential reelection loss exploited many weaknesses in the ECA that would be fixed if the omnibus passes, as expected.

Strikingly, all this is happening with little noise from right-wing media or MAGA-loyal lawmakers. A bipartisan group of senators negotiated these reforms for months with the support of Senate Minority Leader Mitch McConnell (R-Ky.), and they will likely be backed by many or even most GOP senators. Trump himself has been surprisingly mute.

Yet the fact remains: GOP senators who support these ECA reforms are implicitly acknowledging the ugliest realities of what Trump attempted in 2020. They are acknowledging the true nature of the threat that Trump or an imitator might pose in 2024.

Just about every main ECA reform in the omnibus responds directly to what Trump did. It would clarify that the vice president’s role in counting electors is ceremonial. (Trump pressured his vice president to halt the count.) It would raise the threshold for Congress to nullify legitimate electors. (Trump got dozens of Republicans to object to Joe Biden’s electors.)

Reform would also combat state-level subversion. Trump pressured GOP state legislators to appoint sham electors for himself, so reform would essentially require governors to certify electors in keeping with state popular vote outcomes. It would create new avenues to legally challenge fraudulent electors and require Congress to count electors that are validated by the courts.

It is often said that reformers must avoid fighting the last war. But these reforms also fight the next one. If a GOP state legislature appoints a losing candidate’s electors in 2024, and the GOP-controlled House counts them, under current law that could produce a stolen election or serious crisis. ECA reform will make that much harder to pull off. MSNBC’s Ari Melber has described the need to legislatively “Trump-proof” our system, and here the description is apt.

Why is all this happening? One reason: This is an easy way for Republicans to do something about the Trump threat. It’s highly technical and doesn’t require direct condemnation of Trump himself. Attaching reform to the omnibus avoids a stand-alone vote on it, which could subject Republicans supporting it to more attacks.

Republicans also have a way to explain it to voters. In a key tell, Sen. Rand Paul (R-Ky.) argued in the Louisville Courier Journal this week that reform would disarm the secret liberal plot to dismantle the electoral college, which would be easier to do (he claimed) if liberals can show the electoral count is prone to exploitation.

In short, Republicans can argue that ECA reform will Own The Libs. Similarly, in coming days you will hear Republicans insist that it will prevent Vice President Harris from subverting the next electoral count and helping steal the 2024 election from Republicans.

Republicans can also plausibly cite self-interest here. Reform will make it less likely that a rerun of Trump’s coup is attempted, which means Republicans (on the state or federal level) are unlikely to face pressure to help steal a future election. It helps in this regard that many Republicans who ran on an explicit willingness to nullify future losses have been defeated.

There are surely a significant number of non-MAGA Republicans who deplore Trump’s attempts to subvert democracy but are too cowardly to call him out. This gives them a way to go against Trump without actually taking a stand. It’s less than ideal, to be sure, but better than the alternative of not doing it at all.

I haven’t studied the specifics of the reforms enough to know whether I support each and every one of them or whether Sargent is too optimistic about their impact in the event of a 2020 repeat. On the main, though, they codify what had since time immemorial been understood to be obvious: that Congress’ counting of the Electoral College votes is a ceremonial act, not an opportunity to decide the outcome of the election. Beyond that, standardizing the process for certifying Electors and the like seems long-overdue.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. just nutha says:

    Apparently, Sen. Paul’s sales pitch has fallen on deaf ears among the newly-elected House MAGAts. Just yesterday, 13 new house members released a letter warning Mitch of the dangers of invoking their wrath by helping to pass the bill. I was wondering why–I mean, crippling Social Security and slashing the remaining safety net are important and all, but there’s plenty of time in the future for that. Now I hear the other shoe dropping. I should probably read more political news.

  2. MarkedMan says:

    Fortunately, for the most part trumpers are too stupid to understand what happened. This is a case where a Washington Cabal actually did work behind their backs to thwart them. Thank god.