With the elections (mostly) in the rearview mirror, Congress returned to Washington on Monday to address some of its unfinished business in the weeks remaining in the current session. One agenda item that still stands a chance is an update to the Electoral Count Act.
The 1887 law covers the process by which Congress, with an assist from the vice president, counts the Electoral College votes, thereby completing the process of electing a president. In late 2020, allies of Donald Trump attempted to exploit vague language in the law to keep him in office even though Joe Biden won the electoral vote. In response, lawmakers have been working in a bipartisan fashion to close loopholes and firm up the process.
While the window is narrow, those lawmakers seem to have the votes needed to pass the updates.
The House passed its bill to update the ECA in September with every Democrat and nine Republicans voting in favor of the bill. Soon after, the Senate Rules and Administration Committee approved a similar bill with just one Republican in opposition. The next step in the process is a vote on that bill by the full Senate.
Even though legislation only requires a majority for passage, Senate rules permit lawmakers to block bills through a filibuster. That procedural roadblock can be overcome with a 60-vote supermajority, making it very difficult for the Senate to pass many bills. But advocates for the bill do not think the filibuster will be an issue.
“Based on the briefings we’ve done with more than 20 Senate offices, it is likely the Senate bill will attract more than 75 votes,” said Keith Allred, executive director of the National Institute for Civil Discourse.
But with a packed agenda that includes a government spending bill, protections for same-sex marriage, a defense authorization package and a measure raising the debt ceiling, the timing and procedure for ECA reform remains a mystery.
“The exact process for passing the Senate version is not yet clear. Given how few weeks are left for the 118th Congress and other pressing matters, it’s more likely that it will be included with another must-pass bill than that it passes separately,” Allred said. “If it does pass separately, it is most likely that the Senate passes it by a wide margin and then the House agrees to take up and pass that version.”
Protect Democracy, a nonpartisan group fighting authoritarianism, believes it’s more likely ECA reform moves forward as an attachment to another bill.
“The most likely pathway for the [Senate’s Electoral Count Reform Act] to become law is inclusion in omnibus appropriations legislation after any adjustments to reconcile it with similar House-passed legislation,” said Blake Jelley, the group’s communications and advocacy strategist.
The House bill, which was sponsored by Democrat Zoe Lofgren and Republican Liz Cheney affirms that the vice president’s role in presiding over the count is purely ceremonial, changes the threshold for challenging a state’s electors from one member of each chamber to one-third of each, creates safeguards to prevent states from blocking Congress’ vote-counting, and prevents states from changing the rules after the election.
The Senate bill, introduced by Republican Susan Collins and Democrat Joe Manchin, is the result of a more collaborative approach than the House proposal. Collins and Manchin have picked up 36 additional co-sponsors, including 15 other Republicans. It is similar to the House bill, although the Senate bill would require one-fifth of each chamber to object to a slate in order for the votes to be contested.
NICD conducted research on ECA reform, finding more support for the Senate version.
“We find a 20-point preference for the Senate threshold (74 percent versus 54 percent) in our informed opinion poll of now more than 5,000 Americans,” Allred said. “We find close to the same margin of preference for Democrats, Republicans and independents. Among Republicans, 63 percent oppose the one-third threshold, but 55 percent support the one-fifth threshold.”
(Allred invited The Fulcrum’s readers to join the research project.)
The top senators, Majority Leader Chuck Schumer and Minority Leader Mitch McConnell, have publicly expressed their support for the Collins-Manchin bill. To date, no House Republican leader has signed on to either version.
“Speaker [Nancy] Pelosi will likely be heavily influenced by Representatives Lofgren and Cheney, the House bill’s co-sponsors. If they signal they are open to it, and I believe they will, then Speaker Pelosi is likely to support the Senate version,” Allred said. “It will be interesting to see where Minority Leader [Kevin] McCarthy comes out on this as he contends with who will lead his party in the House in the next Congress.”
If for some reason, the bill fails to become law and Republicans take control of the House , ECA likely would not stand a chance next year.
“Everyone understands that it must pass this year or not at all,” Allred said.
Jelley agreed on the need for the bill to pass.
“With the 2024 presidential campaign already looming, the stakes couldn’t be higher for Congress to help safeguard the presidential transition process and remove dangerous loopholes in the Electoral Count Act (ECA). Former Senate Majority Leader and Republican Senator from Tennessee, Bill Frist, recently underscored the stakes of passing ECA reform by the year's end, saying, “the stability and longevity of our democracy may depend on it,” he wrote.