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Electoral Count Act reform waiting in wings as Congress ticks toward adjournment

The Hill logo The Hill 9/19/2022 Don Wolfensberger, opinion contributor
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As the 117th Congress inches toward a conclusion sometime in early December, the unfinished business continues to pile-up. All pending bills and their sponsors cry-out for action before the final gavel falls.   

The most obvious undone deed is funding the federal government for the fiscal year 2023 which begins on Oct. 1. So far, the House has passed six of the 12 regular appropriations measures and the Senate, none. While a continuing resolution (CR) is anticipated to tide things over until early December, even that tried-and-true fallback device is hung-up on a sticking point from West Virginia. 

Sen. Joe Manchin (D-W.Va.), in return for his support for the deficit reduction/climate change bill earlier this year, had been promised by Senate Majority Leader Chuck Schumer (D-N.Y.) a vote before the clock runs out on legislation to expedite the approval of energy infrastructure projects. The CR is his vehicle of choice as the only must-pass measure in plain sight. Meanwhile, some 70 House members have signed a letter to Speaker Nancy Pelosi (D-Calif.) vowing to oppose the CR if the Manchin-Schumer deal is attached. Other rumbles of dissent have emanated from a handful of senators. Stay tuned.   

One piece of unfinished business that, so far, is not on a fast-track but probably should be, is the so-called “electoral count reform act” — legislation to tighten-up the cracks and loopholes in the antiquated 1887 electoral count law. Those flaws came to light after the chaotic and violent breach of the Capitol during the counting of electoral votes in the House chamber on Jan. 6, 2021, and in inquiries into events leading-up to it.  

While the tendency in Congress, under the pressures of an adjournment deadline is to put-off those things that are not considered urgently imperative — after all, the 2024 presidential election is still two-years off — that attitude is fraught with peril. Given the prospect that control of one or both chambers of Congress could well flip to Republicans in November’s midterm elections, the climate for statutory tinkering with how the next presidential election is handled would likely not be as welcoming, under a GOP majority.    

One of the factors holding-up action today on reforming the Electoral Count Act is competing views on how far such reforms should go. The Senate is approaching the task in a bipartisan manner, with Sens. Manchin and Susan Collins (R-Maine) leading the way, along with 16 co-sponsors, after months of negotiations across the aisle. A House companion bill was introduced Sept. 15 by moderate Reps. Josh Gottenheimer (D-N.J.) and Fred Upton (R-Mich.).  In the House a split is already developing between moderate and progressives Democrats — the latter wanting to use the occasion for expanding and facilitating citizen voting through amendments to the Voting Rights Act.   

This dispute will come to a head with the final report and recommendations of the House Select Committee to Investigate the January 6 Attack on the Capitol. The select committee has been specifically tasked with making recommendations to prevent the recurrence of another disruption of a presidential election. Rep. Jamie Raskin (D-Md.), a member of the select committee, opined on a recent Sunday talk show that the Senate approach is too narrowly focused on the role of the vice president in counting electoral votes, and that a broader, overall reform effort is needed.   

That characterization greatly misrepresents the Collins-Manchin proposal, which also contains provisions that: (a) ensures Congress can identify a single, conclusive slate of electors from each state; (b) provides for expedited judicial review of certain claims relating to a state’s certificate identifying its electors; (c) raises the threshold in Congress to lodge an objection to electors to at least one-fifth of the members of each Chamber instead of a single member from each; and (d) strikes a provision from an archaic 1845 law that would enable state legislatures to override the popular vote in their state by declaring a “failed election.” Other tweaks may be necessary and possible without throwing the entire enterprise into its own year-end intra-party crackup at session’s end. 

The old saw in Congress is, “The perfect is the enemy of the good.” At this point, broaching additional remedies not directly implicated in tabulating and certifying electoral votes may well be ideally desirable (even close to “perfect”), but they could introduce new complications that will require more deliberation and fine-tuning than time allows. With the House due to be out all of October for a “District Work Period” (aka, midterm election campaigning), time is of the essence for the sake of future elections’ stability and security, to act quickly, concisely, and decisively (doing “good”).     

Don Wolfensberger is a Congress scholar at the Woodrow Wilson International Center for Scholars, former chief-of-staff of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own. 

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