Heading Off a Future Constitutional Calamity

As Congress prepared to leave town for the now-concluded summer recess—and the bulk of political news coverage largely focused on legislative maneuvering surrounding the massive budget reconciliation bill—the Senate Rules and Administration Committee held a hearing on what is arguably the most important legislation of the soon-to-be-adjourned 117^th Congress.

I don’t typically recommend congressional hearings as preferred viewing to anyone but my fellow C-SPAN nerds, but this one, on the Electoral Count Reform and Presidential Transition Improvement Act (ECRA), is worth a watch, if only for a few minutes. Granted, for most, listening to constitutional experts delve into the history of the 1876 Hayes versus Tilden presidential contest and the intricacies of expedited judicial procedures is about as alluring as watching paint dry. But there was more to the hearing than the legislation itself. If you’re like most Americans, your faith in institutions is as low, or lower, than it has ever been. Obviously, no single event can remedy that, but the hearing offers an exceptional display, in today’s terms, of real bipartisan progress being made on a truly critical issue.

The story of the 2020 election and its aftermath has been retold daily in the mass media for nearly two years, so a detailed recitation of it again here would be superfluous. That a candidate would question the results of a presidential contest is actually nothing new. It’s happened before—several times, in fact. Federal statutes can’t prevent candidates from denying election results, but they should stop losing candidates from operationalizing that denial with the force of law. The events of early 2021 laid bare the reality that what most assumed was a rock-solid protective firewall against such action was not as airtight as they thought, and that without changes, a future constitutional crisis could threaten the existence of the republic.

ECRA aims to shore up that firewall with new safeguards. Among other changes, it

• specifies that a single official in each state, usually the governor, is the only person empowered to certify the slate of electors put forward to Congress for the formal counting of Electoral College ballots. This would prevent what happened in 2020, when allies of President Donald Trump attempted to put forward “alternate electors” who would have cast ballots at odds with the results of their states’ popular vote.
• establishes a speedy process for courts to review these certifications, and requires Congress to defer to the courts’ judgment, helping thwart a future scenario in which a governor might send to Congress electors who would cast their ballots in favor of a candidate who lost the state’s popular vote.
• removes a provision in federal law that allows states to appoint electors independent of the popular vote by declaring a “failed election.”
• makes it significantly harder for members of Congress to sow public doubt regarding election results by objecting to the slates of electors put forward by the states. Currently, only one member of both the House and Senate is required to formally challenge electors, which enabled disputes seen during the counting process in 2021 as well as in 2005. The ECRA’s changes would raise that challenge threshold to one-fifth of both the House and Senate.
• makes clear the vice president has “no power to solely” accept or reject electors. Perhaps the most important provision given our recent history, this effectively short-circuits the kind of scheme that nearly came to came to pass on January 6 when President Trump and his supporters insisted that then Vice President Mike Pence had the power to invalidate the 2020 election.

At the ECRA hearing, Chairwoman Amy Klobuchar (D-MN) and ranking member Roy Blunt (R-MO)—far from ideological kindred spirits—each sang the praises of not just the legislation, but also of one another’s work on the endeavor. They also lauded the ECRA “gang,” led by Senators Joe Manchin (D-WV) and Susan Collins (R-ME), that wrote the bill—a group encompassing a remarkably broad ideological swath of senators, from liberal Chris Murphy (D-CT) to conservative Lindsey Graham (R-SC). Witness testimony was largely confined to pointing out technical issues, which committee members on both sides of the aisle indicated they were willing to examine and resolve. As Klobuchar gaveled the hearing to a close, one was left with a sense that the legislation could actually move forward, and beyond that, a sense that Congress may not be as irreparably broken as it sometimes seems.

ECRA could become law before the end of the year. But in Congress, there are always headwinds. Two stand out.

The first is time. While it’s true that we’re still more than fifty days out from the November elections, the congressional schedule is designed to ensure that members of Congress get as much time as possible with their constituents as the elections loom larger on the horizon. Consequently, the House is slated to have just eleven voting days between now and November 8. The Senate is scheduled to have more, but some of those will likely fall away as Election Day draws near. And with a full plate of post-recess priorities on the congressional to-do list, competition for action on the floor will be fierce.

The second is support. Senator Chuck Grassley (R-IA) recently became the tenth Republican cosponsor of ECRA, effectively eliminating the threat that it could be held up by a filibuster, assuming that all fifty Senate Democrats are supportive. The Democratically controlled House might be eager to pass legislation blocking the methods Trump used to undermine the 2020 election and transition, but a couple of wildcards remain in the deck. Some Democrats believe ECRA fails to go far enough. They could insist on including voting access provisions similar to those the House passed last year in the “For the People Act,” which is dead in the Senate. Another challenge is that Representatives Zoe Lofgren (D-CA) and Liz Cheney (R-WY) have indicated that the January 6 Select Committee plans to offer its own changes to the Electoral Count Act as part of a broader package of yet-to-be-announced reforms. That move could complicate the prospects for the ECRA’s passage.

Though the outlook for November appears to be shifting, Republicans, for now, still appear on track to take control of the House of Representatives in 2023. The prospect of a House Republican majority moving ahead on reforms to the Electoral Count Act is tenuous, at best.

So, this is a “now or never” moment for members in both chambers, and the stakes could not be higher. They can take up and pass the low-hanging bipartisan fruit presented by the ECRA, or the nation can continue living under the specter of a future constitutional crisis. Congress seldom has the real opportunity to address a potentially existential national security threat with a relatively small number of keystrokes revising the U.S. Code. They should seize it.