It’s a tale as old as time: The House has one version of a bill, the Senate has another, and both are convinced that their legislation is the better of the two. In the latest iteration of this story, each chamber is currently considering a measure to reform the Electoral Count Act, or ECA, the confusing nineteenth-century statute that no lawmakers really thought about until it was nearly used as an instrument to subvert democracy on January 6, 2021.
The House passed its version of the bill on Wednesday, with almost universal Republican opposition. GOP leadership whipped against the bill, and some Republicans bristled that it did not go through the committee markup process. The nine Republicans who voted in favor of the measure all share something in common—whether through retirement or a primary loss, none will be returning to Congress next term. The Senate bill also showed increasing momentum on Wednesday, with three more Democrats signing on: Senators Alex Padilla, John Hickenlooper, and Michael Bennet.
Both houses—and many in both parties—agree that some kind of update to what’s regarded as a poorly written law is critical ahead of a contentious presidential election that could make 2020 look like friendly gameplay. J. Michael Luttig, a former judge and conservative legal scholar who had previously advised the January 6 committee on the importance of reforming the ECA, expressed enthusiasm on Twitter that there was now “not only bipartisan, but bicameral support” for the idea. He went on to “urge the Senate and the House to quickly conference and resolve their differences in a law that will ensure there will never again be another January 6 in America.”
The potential rivalry between the bills highlights their importance: If Republicans retake one or both chambers of Congress in the midterm elections, as is widely expected, this is likely the last opportunity to approve either bill before the next presidential election. What is less certain is which bill will prevail: the more moderate Senate bill, painstakingly negotiated with sufficient bipartisan support to overcome a filibuster, or the detailed House measure influenced by the findings of the select committee investigating January 6. The bills are largely similar, but if the key differences hinder progress on either bill, it could spell trouble for passing any kind of reform this year.
“If we don’t pass any reforms to the Electoral Count Act, we could see a repeat of some of the wild legal theories that led to January 6, and another effort driven by members of Congress to overturn the valid results of a presidential election,” said Alex Tausanovitch, the director of campaign finance and electoral reform at the Center for American Progress. “To put it more succinctly, not passing Electoral Count Act reform puts our democracy in very real danger.”
In July, a bipartisan group of senators unveiled the Electoral Count Reform Act, the product of months of negotiations. The bill includes changes that clarify the convoluted law, written and implemented in 1888, in the wake of the contested presidential election of 1886. It has been broadly praised by constitutional experts across the ideological spectrum. However, this week, Representatives Liz Cheney and Zoe Lofgren introduced the Presidential Election Reform Act, born from their work serving on the select committee investigating the insurrection. Lofgren is also chair of the House administration committee.
“The committee will have more to say in the months to come about the full extent of Mr. Trump’s plans to overturn the 2020 election, but we also have an obligation to recommend legislation to make sure such an attack never happens again,” Cheney and Lofgren said in a strategically placed op-ed in The Wall Street Journal on Sunday.
Many experts had met the Senate’s legislation with a sigh of relief, pleased that it would address a critical threat to democracy—although some worried that it left too much leeway for rogue actors to subvert an electoral outcome. Critically, the bill has 10 Republican co-sponsors: the requisite number to reach the 60-vote threshold to overcome a filibuster. The Senate Rules Committee will be holding a markup of the bill next week, with a manager’s amendment to be introduced by committee Chair Amy Klobuchar and ranking member Roy Blunt. The committee previously held a hearing last month to analyze the bill and discuss potential improvements.
The House and Senate bills are substantially similar, but there are a few critical differences. Both measures would clarify that the vice president has only a ministerial role on January 6, rather than unilateral power to accept or reject state-certified electoral votes. It was Trump attorney John Eastman who suggested that the vice president has such broad power to alter the certification of a presidential election—a suggestion that then–Vice President Mike Pence ultimately opted against heeding, much to the consternation of his running mate. Each bill also includes provisions establishing that only a governor or top state official can submit slates of electors to Congress, and creates an expedited judicial review to challenge a governor’s certification. Both would further ensure that state election laws could not be changed after the election.
“There’s maybe three inches of difference between those bills, and there’s about a thousand miles of difference between those two bills and the status quo,” said Matthew Seligman, a fellow at the Constitutional Law Center at Stanford University and an expert on the Electoral Count Act.
Those three inches are not inconsequential: The House bill would require that any congressional challenges to a slate of electors would require support from at least one-third of lawmakers—compared to the Senate bill, which has a threshold of one-fifth of members in both chambers. However, as Seligman contended, whether the threshold is at 20 percent or 30 percent of members would not significantly change the outcome of a hypothetical objection, which would likely fail regardless. The House bill would also require any objections to be related to constitutional eligibility requirements about candidates and electors, while the Senate bill has different conditions for bringing a challenge forward. The House bill would further impose a hefty penalty on a candidate who filed a lawsuit to challenge the election results without a “good-faith basis.”
“What Donald Trump tried to convince the vice president to do was illegal under existing laws, we begin by affirming that. But we need to take steps to make sure that another January 6 is something that never happens again,” Cheney told reporters in a press call on Tuesday.
Both bills address what Seligman has called the “rogue governor” scenario, in which a governor refuses to certify the slate of electors chosen by the voters. Such an action would be subject to judicial review. The House bill further addresses what Seligman named the “rogue recalcitrant governor,” in which a governor would ignore a court order and risk criminal contempt. At that point, the House bill would allow a judge to tap the top state election official to certify the slate of electors to send to Congress.
While the Senate bill does not define the “catastrophic” events that would permit a state to extend its voting period, the House does include categories of covered events, such as terrorist attacks or national disasters. Moreover, it includes a provision that is stirring some controversy, stating that a member of Congress can raise an objection to a state’s electors if they were cast for a presidential or vice presidential candidate deemed ineligible under Section 3 of the Fourteenth Amendment—which disqualifies candidates who have “engaged in insurrection or rebellion.” A judge in New Mexico recently ruled a candidate who had participated in the January 6 insurrection disqualified for office.
But experts are quick to emphasize that the similarities between the two bills far outweigh the differences. Tausanovitch predicted that some elements of the House bill would ultimately be absorbed into the Senate measure. “In general, there are a few areas where the House bill is a little bit more expansive, and there’s some good ideas there,” Tausanovitch told me. “But I think—because the most important thing is to pass a bill which can overcome the Senate filibuster, which has bipartisan support—that means that the focus is likely to shift to whether or not the proposals in the House bill can be added to what’s already in the Senate compromise.”
The introduction of the House bill was not met with unmitigated joy from the senators who had signed onto their own version of the bill. Senator Susan Collins, the lead GOP sponsor of the Senate bill, said that she believed parts of the two bills were “complementary” but expressed a preference for the legislation she helped to produce.
“I’m more focused on our Senate bill, which has been in the works since January. It has gone through regular order, it has had a thorough hearing before the Rules Committee, and will be marked up next week,” Collins told me on Tuesday.
Senator Mitt Romney grumbled that the new House bill complicated efforts to pass the bipartisan bill in the Senate. “They really should have taken our bill,” Romney told reporters on Tuesday, frustrated that Senate Majority Leader Chuck Schumer had not yet brought a vote on the Electoral Count Reform Act.
Members of the lower house had gripes with the House bill as well. “This legislation should be coming from House Administration. We’re the ones that are given the charge over federal elections, not the January 6 committee,” Representative Barry Loudermilk told reporters on Tuesday. Loudermilk is a member of the House Administration Committee who has been a target of the select committee for giving a tour on January 5, 2021, which included a participant who marched to the Capitol the following day.
Cheney’s involvement is also a mark against the bill—the Wyoming Republican, who was recently defeated by a primary challenger, has become a pariah in her party for her participation in the select committee and her criticism of Trump. Representative Jim Banks, the conservative Republican Study Committee chair, told Politico that Cheney’s sponsorship made him take the bill “a lot less seriously.” Representative Tom Cole told reporters Tuesday that he would not support the House bill but “would probably be inclined to vote for” the Senate bill.
Nonetheless, Cheney insisted that this is a nonpartisan issue. “I think that taking steps to make sure that we’re protecting the rule of law, and protecting future elections, is something that we ought to all be able to agree upon, regardless of party,” Cheney said during the Tuesday press call.
Lofgren told me on Tuesday that she had spoken with senators about the bill, and that those discussions had gone “very well.” “It’s just the legislative process,” she said.
The Senate may or may not vote on its version of the bill before the election; the chamber may punt it until the lame-duck session after the midterm outcomes are known but before the new Congress takes office in January. That leaves a compressed timeline for passing a finalized bill amenable to all before the end of the year. Put simply, experts believe it’s now or never—or, at the very least, now or much later.
“Realistically, if it doesn’t pass in this Congress, it doesn’t pass before 2024,” Seligman told me.
