January 6 Committee Divided on Which Non-Starter Recommendations to Make

They're taking their eye off the ball.

AP Photo/J. Scott Applewhite

Jonathan Swan and Hans Nichols have a “Scoop” for Axios on the “Jan. 6 committee’s private divide.”

The House’s Jan. 6 committee has split behind the scenes over what actions to take after the public hearings: Some members want big changes on voting rights — and even to abolish the Electoral College — while others are resisting proposals to overhaul the U.S. election system, Axios has learned.

I, too, would prefer to abolish the Electoral College. But that would require amending the Constitution, which is simply a non-starter. I would also like to standardize voting procedures across the country for elections to federal office, which could be accomplished by legislation. Neither of these, however, are reasonably within the remit of a committee investigating the Capitol Riots and the broader Stop the Steal plot.

Why it matters: Televised hearings begin Thursday night. Committee members are in lockstep about capturing Americans’ attention by unfurling a mountain of evidence connecting former President Trump and those close to him with the attack on the Capitol.

But the committee’s legacy depends in large part on what reforms it pursues after those hearings to prevent another Jan. 6 from happening — and that’s where the united front breaks down.

So, I fundamentally disagree. It’s actually very important to establish once and for all that the 2020 election was, in fact, not stolen. That former President Trump not only lost fair and square but that he then tried to subvert the democratic process and the rule of law in order to retain power despite the will of the people. Everything else is a distraction.

The big picture: Disagreements arise whenever proposals are raised such as abolishing the Electoral College, vastly expanding voting rights like same-day registration or tightening the Insurrection Act to make it harder for a president to deploy the military domestically for use on civilians.

Behind the scenes: Nobody on the House select committee is more committed than Rep. Liz Cheney (R-Wyo.) to pursuing Trump for inciting the attack on the Capitol. But she flatly opposes some of the more sweeping election law reforms backed by several committee Democrats.

The broadest differences are between Cheney and Rep. Jamie Raskin (D-Md.), according to three sources familiar with the committee’s private discussions. The two have a warm personal relationship but fundamentally disagree on what needs to be done to reform America’s election laws.

Raskin, a former constitutional law scholar, is by far the committee’s most outspoken member during its private discussions about voting rights.

“Liz is much more conservative, as far as what kinds of changes she wants to see done,” said a source with direct knowledge of their conversations.

And this is vitally important: a relative handful of Republican Congressmen and Senators had the fortitude to stand up against Trump, at great risk to their political futures. Cheney, in particular, has been all but ousted from the party that has defined her over this. That she believes in the rule of law and puts loyalty to the country over that to her party and her personal ambitions should be applauded. It doesn’t, however, mean that she has to be on board with the Democratic agenda.

And, again, the role of the Committee should be to meticulously record what happened between Election Day and Inauguration Day, not put together a series of proposals that have no hope of being passed into law, anyway. Even Joe Manchin isn’t going to vote for this stuff.

Between the lines: Committee members know it’s going to be extremely hard to get unanimous agreement on the legislative recommendations in their final report. So they’ve deferred those decisions.

They’ve focused instead on completing the investigation and preparing for the public hearings beginning Thursday at 8pm ET.

A source with direct knowledge said the committee is “trying to preserve the unanimity that we’ve had to date, so that we can go into the hearings and just get through the hearings, and then tackle the hard stuff on the other side.”

“We do recognize that there are significant differences [in legislative recommendations] that we’re going to have to work through because everybody has to sign the final report,” the source added.
In multiple conversations among committee members, Raskin has argued that the Electoral College should be abolished — that if presidents were elected by a popular vote, this would protect future presidential elections against the subversion that Trump and his allies tried to pull off in 2020.

Trump and some of his lawyers, including Rudy Giuliani, pressured Republican lawmakers in closely contested states to send alternate slates of electors to Washington, in their failed effort to overturn Joe Biden’s victory.

We have had Presidential elections every four years going back to 1789, albeit George Washington was unopposed in the first two. And the popular vote didn’t really matter much before the 1824 election. Still, that’s a whole lot of contests in which no sitting President tried to steal the election. (Which isn’t to say that there wasn’t some serious chicanery. The 1876 election in particular stands out.)

The problem with the Electoral College, at least as currently operated, is that it has produced five Presidents, two of them in recent memory, who got fewer votes than their chief opponent. While there are those who argue that’s a good thing—why, we don’t want a handful of cities to choose who runs this vast country of ours—it’s wildly undemocratic and an anachronism of a completely different era. But, again, there is zero support for its direct abolition. (It’s possible that the National Popular Vote compact could eventually pass but Congress will have little say in that and the Supreme Court may will rule it unconstitutional.)

Cheney thinks the committee will burn its credibility if it pushes for radical changes like abolishing the Electoral College, according to a source with direct knowledge.

She also has joked to her colleagues on the committee that there’s no way the single at-large representative for the tiny state of Wyoming would support abolishing the Electoral College, according to another source with direct knowledge of the internal committee deliberations.

I came to support ending the Electoral College even when I was regularly voting Republican. But the fact of the matter is that, because the current construct so obviously advantages rural voters, and thus the Republican Party, a recommendation from a committee that’s mostly Democratic to abolish it will be seized upon as proof that this is all about partisan advantage. (Then again, to reiterate a point I’ve made since the beginning of the process, while I think the work here is vital, I think it’ll have little short-term impact. Most Republicans will see any outcome that doesn’t validate Trump’s claims as illegitimate.)

Rep. Adam Schiff (D-Calif.) has spoken up in the committee to concur with Raskin on the problems with the Electoral College, that same source added. However, Schiff is far more focused on changes to the Electoral Count Act — a reform that is much more likely for the committee members to agree upon.
Raskin also has pushed for the committee to endorse “federal legislation to oppose voter suppression tactics and gerrymandering,” according to a source familiar with his comments to his committee colleagues.

He has been an outspoken supporter of the Democratic Party’s major voting rights bills — the For the People Act and the John Lewis Voting Rights Act.

Cheney is open to discussing reforms to the Electoral Count Act — the law that Trump tried to exploit to pressure former Vice President Mike Pence to illegally overturn the election — but has no interest in the Democratic Party’s sweeping voting rights bills.

I’m for clarifying the role of the Vice President in the process. The Electoral Count Act was passed in 1887, decades before women could vote and there were only 37 states in the Union. Whether the Committee needs to recommend it is another thing.

Cheney has also discussed enhancing criminal penalties for “supreme dereliction of duty” and other types of activities Trump engaged in, such as pressuring state officials, according to a source with direct knowledge.

I’d have to see the details of the bill to have an opinion on it.

Other Democrats on the committee agree with Raskin on much of the substance of this legislation. All committee Democrats, for example, voted for the For the People Act in the House.

But again, like it or not, those bills are seen by Republicans as a brazen attempt to subvert the power of state legislatures in order to stack the deck in favor of Democrats.

Rep. Stephanie Murphy (D-Fla.) has argued for legislation to improve coordination among intelligence and security agencies, similar to what happened after 9/11, according to a source with direct knowledge. Murphy has also argued the committee should explore strengthening sentencing and punishment for seditious conspiracy and insurrection.

Again, I’d have to see the details. But, yes, one thing that has become clear in the wake of the Riots is that, absent secession and the raising of a literal army against the United States government, the law as it stands makes it really hard to charge insurrection.

Cheney and Rep. Zoe Lofgren (D-Calif.) have been collaborating on reforms to the Electoral Count Act, according to a House aide familiar with the details.

For the committee to be successful, “it has to look at all the ways in which somebody with the will can subvert the law,” said a source familiar with the committee’s internal conversations, because “our Constitution and our laws … depend on people of good integrity seeking public office and being unwilling to go there.”

“We have to identify all the areas in which … there are loopholes” that a future president with the same motives as Trump might try exploiting to overturn an election, the source said.

I think that’s right.

The bottom line: The longer the Jan. 6 committee postpones making legislative recommendations, the less likely those recommendations are to pass.

There’s a finite number of days on the Senate calendar, and if Rep. Kevin McCarthy (R-Calif.) becomes speaker next year, he’s not going to do anything this committee recommends.

That’s for sure. But Joe Manchin and Kyrsten Sinema are unlikely to vote for them even if they were to be on the docket next week.

FILED UNDER: Campaign 2020, Democracy, US Constitution, US Politics, , , , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Just nutha ignint cracker says:

    So, I fundamentally disagree. It’s actually very important to establish once and for all that the 2020 election was, in fact, not stolen.

    In whose eyes? I suspect that everybody who’s going to believe that the election was not stolen already does. And how will Congress declaring that to be true make any difference anyway?

    Remember Kathy’s joke from a few days ago. A man in heaven, being told by God himself that Lee Harvey Oswald shot Kennedy replies that the conspiracy reaches higher than he realized. Fifty years from now, the joke will be about the 1/6 Commission.

    6
  2. James Joyner says:

    @Just nutha ignint cracker:

    In whose eyes?

    History’s.

    We’re in agreement that nothing is going to change the minds of Trumpers in the near term. I’ve been saying that since the Commission was launched. But we need to have the facts documented in exhaustive detail. The ability to force people to testify under oath was significant. One hopes that, at some point, the cult of personality will lift and we’ll get back to simply having our own opinions but not our own facts.

    9
  3. Sleeping Dog says:

    The chief and only responsibilities for the 1/6 committee is to document what happened and to make criminal referrals to the DoJ as appropriate. Getting into recommendations for changes in the process is but a return to mounting their favorite hobby horses and that will only allow those who don’t like the committees report on the facts to change the subject.

    What’s truly amazing though, is that a group of legislators, known for having the attentions spans of flash bulbs, were able to focus on the task as long as they did.

    2
  4. Fortunato says:

    So, I fundamentally disagree. It’s actually very important to establish once and for all that the 2020 election was, in fact, not stolen.. ..Everything else is a distraction.

    It is only the irredeemably distracted who aren’t already fully aware that the election was in fact, not stolen.
    Only the hopelessly deluded continue to embrace Trump’s Big Lie and remain oblivious to the fact that Trump’s own officials say 2020 was America’s most secure election in history

    Jonathan Swan and Hans Nichols are correct:
    “the committee’s legacy depends in large part on what reforms it pursues after those hearings to prevent another Jan. 6 from happening.”.

    If we’re to save our Democracy, the January 6th committee must to succeed in achieving real, tangible, reform.
    The newly lawless, wholly malevolent, morally bankrupt GOP has been feverishly working to undermine our electoral system and Constitutional Republic since before the 2020 election. It’s an effort that started months prior to the 2020 election, when Trump & Minions were laying the groundwork for – ‘a rigged election’, for their electoral skullduggery and ultimate coup attempt.
    For at least the next dozen or so years, the Republican party WILL continue to openly assault and seek to undermine ANY and ALL elections they lose.
    Americans can expect violence and even bloodshed when a prominent Republican loses a in a free and fair election.
    For this reason, Raskin and Cheney are both fully aware, they must do more than tell a story.

    From the day he descended down that escalator Trump has fomented, nursed and applauded violence. His words of ‘Stand Back and Stand By’ became an inspiring motto for the ultra violent Proud Boys. David Duke openly heralded Trump’s rise to power. “Second Amendment Remedies” has become a rallying cry for the modern, White Nationalist, Autocratic GOP.
    Hell, Trump even recently endorsed Civil War.

    If the efforts of the Jan 6th committee fail to raise a degree of alarm sufficient to garner real, tangible reforms aimed at blunting the GOP’s ongoing malicious electoral efforts, expect the blood to flow when a Republican loses at the ballot box.

    2
  5. gVOR08 says:

    The point to a congressional committee is to consider changes to law. Even if they intend other things, they have to maintain a legislative interest to make their existence legitimate and have any hope of enforcing subpoenas. One would think they could agree on at least a minimal package of enhanced security. Beyond that, it would seem the role of the VP should be clarified. But even this gets complicated, and partisan, when you consider the likelihood that Kamal Harris will be handed blatantly ratfracked red state election certifications in 2024.

    2
  6. Daryl and his brother Darryl says:

    I’ll just add that the January 6th Committee is the biggest waste of time and effort ever.
    It took six months for them to even form???
    Now – 18 months later – they are going to have some hearings? Six I think?
    Watergate had 51 days of televised hearings. I know; I was in the hospital at the time and they were the most captivating thing on TV – even for a 15 year old.
    My prediction…we will hear a bunch of blah, blah, blah, which will be counterprogrammed by the right wing echo chamber, and the needle will move not at all.

    2
  7. Just nutha ignint cracker says:

    @James Joyner:

    History’s.

    Really??? In that case, come back in a generation or so (as I suggested to begin with).

    But I don’t think “history” needed any convincing to begin with.

  8. Fortunato says:

    @Daryl and his brother Darryl: Hard not to agree with each and every word.

    You point to an especially harsh reality, something I struggle with constantly:
    “the most captivating thing on TV – even for a 15 year old.”

    Wtf happened to that America?!
    That’s the very same one I grew up in.
    An America where even a 15 year old had the attention span and capacity for critical thought that could keep him/her captivated by an event such as Watergate.
    A time when a nation could tune into a program and every viewer recognize and embrace a common reality.
    Is that America.. gone?

    Jamie Raskin and Lynn Cheney will put on a compelling event. Just like Adam Schiff was truly masterful throughout the impeachment process, Raskin and Cheney will shine.
    The committee will present to the American people fact, upon fact, upon irrefutable fact, laying bear the craven skullduggery and debauchery of DOZENS of Republicans who eagerly and KNOWINGLY joined in a plot to overthrow a presidential election. To engage in a coup.

    And none of it will matter.
    With each and every irrefutable fact presented to them, ten’s of millions of our fellow Americans – each and every one a pie-eyed, paste eating, spittle flecked MAGAt – will chuckle and mock the proceedings. They’ll guffaw and call it all ‘Fake News’ and a Deep State plot.
    And Byron York will take up his pen to disdainfully write about how the Democrats have failed, yet again. He’ll imagine Jamie Raskin to be inept. He’ll bemoan ‘the fall’ of the great Cheney name in Republican politics. He’ll declare that the Dems were foolish to even take on such an improvident effort.
    Each and every f–g word ignoring entirely the morally bankrupt, brazen criminality that is now the Republican party. Oblivious to the fact that these people continue to remain fully engaged in their skullduggery, frothing at the mouth to finally consummate their quest of drowning government, our Democracy, in the bathtub.

    It’s Roger Ailes who did this.
    Roger Ailes, Richard Viguerie, Phyliss Shlafly, Tom Delay. Jim DeMint, New Gingrich, the NRA, the Koch’s and their ilk.
    Trump is just toxic turd who at the last moment glommed onto a passing train headed toward Despotism.

    4
  9. Scott F. says:

    @James Joyner:

    One hopes that, at some point, the cult of personality will lift and we’ll get back to simply having our own opinions but not our own facts.

    Oh dear, I wouldn’t pin my hopes there. There is way too much power and way too much profit to be had in having one’s own facts. The “personality” behind the “cult of personality” we’re talking about here could disappear tomorrow. The market for the alternate facts and the profiteers in the market will remain. (See DeSantis, Ron.)

    5
  10. DAllenABQ says:

    I agree with Dr. Taylor on this one. The most important job for the J6 Committee is to document what happened on Jan 6. I suspect (hope) the evidence of an active effort to overthrow the Nov 2020 election will be overwhelming. Hell it already is but the hearings will put it into a tidy package that will serve as the narrative from which history will be written.

    Legislative efforts/goals are secondary save for amending the Electoral Count Act, and if the hearings produce what I think they will produce, amending the ECA should follow.

    1
  11. Ken_L says:

    But Joe Manchin and Kyrsten Sinema are unlikely to vote for them even if they were to be on the docket next week.

    That’s not the case. The Voting Rights Act got all 50 Democratic Senate votes. What Manchin and Sinema refused to support was a carve-out of the filibuster rule that would have allowed the bill to to pass with a simple majority.