This week: Lofgren and Cheney to introduce Electoral Count Act reform

Reps. Zoe Lofgren (D-Calif.) and Liz Cheney (R-Wyo.), both members of the House Jan. 6 select committee, will introduce legislation this week to reform the Electoral Count Act, an 1887 law that outlines how electoral votes are cast and counted following presidential elections.

The legislation has been highly anticipated since the panel began its work investigating the Jan. 6, 2021, Capitol attack, but details on the bill have not yet been released.

The bipartisan duo said they will introduce reforms this week, and House Majority Leader Steny Hoyer (D-Md.) said the lower chamber “may also consider” the legislation in the coming days.

On the Senate side, lawmakers are continuing talks on government funding as Congress inches closer to the Sept. 30 deadline. Negotiations are currently focused on an energy permitting reform measure that is causing a fissure in the Democratic Party.

In addition to voting on a number of judicial nominations, the Senate will also move on legislation to phase down the use of hydrofluorocarbons, which contribute to global warming.

Electoral Count Act reform

Lofgren and Cheney announced in an op-ed published in The Wall Street Journal on Sunday that they will propose their reforms to the Electoral Count Act this week, capping off months of speculation regarding the Jan. 6 panel’s plan to revise the 135-year-old law.

The House Rules Committee is scheduled to meet on the bill on Tuesday, and it could hit the floor after that.

The Jan. 6 select committee, which has been probing the Capitol attack for more than a year, has planned to release a number of legislative recommendations to help prevent a similar event from happening again — one of them being an update to the 1887 Electoral Count Act.

The law outlines the procedure for casting and counting Electoral College votes as part of the presidential election process. Former President Trump and those close to him attempted to use the arcane statute to block the certification of the 2020 presidential election.

In their Sunday op-ed, Lofgren and Cheney said they will propose reforms “to protect the rule of law and ensure that future efforts to attack the integrity of presidential elections can’t succeed.”

The pair said their proposal is based on four principles, two being reaffirming that the vice president does not have the authority to reject or delay the counting of electoral slates from a presidential election, and raising the threshold for objecting to a state’s electors from one House lawmaker and senator to one-third of both chambers.

Objections, however, could only be on the grounds of constitutional requirements for candidate and elector eligibility and the 12th Amendment’s elector balloting requirements.

Thirdly, Lofgren and Cheney’s bill will require that governors transmit election results to Congress and give presidential candidates the ability to sue in federal court if a governor fails to carry out his or her duty, or if an official prevents the transmission from taking place.

“These suits would occur before Congress counts electoral votes, and should ensure, in all cases where one candidate has the majority of electoral votes, that Congress’s proceeding on Jan. 6 is purely ministerial,” the pair wrote in their op-ed.

The fourth tenet of the Lofgren and Cheney bill will clarify “that the rules governing an election can’t change after the election has occurred,” according to the op-ed.

A bipartisan group of senators released their own update to the Electoral Count Act in July, and Reps. Josh Gottheimer (D-N.J.) and Fred Upton (R-Mich.) introduced a companion bill in the House last week.

That legislation, like the Lofgren-Cheney bill, clarifies the vice president’s role in the counting of electoral votes, gives governors authority over submitting electoral certificates and increases the threshold for objecting to a state’s electors — though only to one-fifth of each chamber rather than one-third.

Government funding talks

Senators this week are expected to continue talks on government funding as the Sept. 30 deadline nears.

Congress is looking to pass a continuing resolution by the end of the month, which will allow the government to remain funded at last year’s spending levels and give the chambers more time to strike a spending deal. The continuing resolution would likely remain in effect past the midterms and into December.

But lawmakers are currently held up in negotiations over a measure on energy permitting reform, which is expected to expedite the development of fossil fuel and other energy products by implementing maximum timelines for environmental reviews, among other provisions.

Democratic leaders promised Sen. Joe Manchin (D-W.Va.) that the legislation would be tacked on to the continuing resolution in order to secure his vote for the Inflation Reduction Act, which Congress passed and President Biden signed into law last month.

But the August deal on permitting reform is now fracturing the Democratic Party, with some progressives refusing to get behind the continuing resolution — and threatening a shutdown — if the environmental review measure remains in the stopgap funding bill.

Sen. Ed Markey (D-Mass.) joined Sen. Bernie Sanders (I-Vt.) last week in objecting to the push for permitting reform, writing in a statement that Congress “should not attach the permitting overhaul package to the must-pass government funding legislation.”

Sanders railed against the permitting reform measure earlier this month, calling it “a huge giveaway to the fossil fuel industry.”

There is also significant opposition in the House, where more than 70 Democratic lawmakers sent a letter to leaders in the party requesting that permitting reform be kept out of the continuing resolution.

At least 60 votes are needed to pass a continuing resolution in the Senate. Text for the permitting reform measure has not yet been released, though a broad outline is available.

If permitting reform remains in the bill and Markey and Sanders vote “no,” at least 12 Republicans will have to support the stopgap legislation, assuming all other Democrats are on board. While some Republicans have pushed for similar reforms in the past, it is possible that some in the party will be unwilling to support the stopgap as a rebuke to Manchin backing the Inflation Reduction Act.

Hydrofluorocarbons legislation

The Senate this week is scheduled to move on a measure that aims to lessen the use of hydrofluorocarbons (HFCs), which are greenhouse gasses commonly used for refrigeration, air conditioning and in aerosols.

Senate Majority Leader Charles Schumer (D-N.Y.) filed cloture on the Kigali Amendment to the Montreal Protocol last week, kicking off the process to bring the measure up for a vote in the upper chamber.

The Kigali Amendment is an international agreement that aims to phase down HFCs by reducing their production and consumption.

The Montreal Protocol was enacted in 1987 to phase out the creation and use of ozone-depleting substances, including chlorofluorocarbons and hydrochlorofluorocarbons. HFCs were commonly used as an alternative, which helped lessen ozone depletion.

HFCs, however, are a large driver of climate change.

In October 2016, countries party to the Montreal Protocol adopted the Kigali Amendment. More than 120 countries have already ratified the amendment, according to Inside Climate News, but the U.S. has not formally adopted it. The U.S. has, however, passed legislation that has the same reduction requirements as the amendment.

In remarks on the Senate floor last week, Schumer said the amendment will affirm the U.S.’s commitment to decreasing the use of HFCs.

“This important amendment, which already has been agreed to by 120 countries, will affirm our nation’s commitment to curb the use of dangerous hydrofluorocarbons — HFCs. These hypertoxic chemicals are regularly found, unfortunately, in everyday appliances, from air conditioners to refrigerators,” he said.

“HFCs need to be dealt with as soon as possible because they are thousands—thousands—of times more damaging to our atmosphere than carbon dioxide. So this is a very important opportunity for the Senate to make official America’s intention to phase these dangerous chemicals out of use,” he added.

Updated at 5:10 p.m.

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