Momentum is growing for making changes to an archaic election law after former President Trump and his allies tried to overturn the Electoral College results.
Multiple groups on Capitol Hill are working on reforms to the Electoral Count Act, which lays out how the Electoral College results are counted. And in a rare area of overlap, GOP leaders in both chambers and President Biden are opening the door to changes to the 1887 law.
Though talks on the law have been quietly happening behind the scenes on Capitol Hill for weeks, they are moving to the forefront as lawmakers try to figure out what, if anything, can be done in the election space after a separate, Democratic attempt to pass a sweeping voting rights bill unraveled.
“It’s a good win there, I mean my goodness, that’s what caused the insurrection. That’s exactly what we should be doing,” said Sen. Joe Manchin (D-W.Va.), referring to the Jan. 6, 2021, attack on the Capitol by Trump supporters who hoped to stop the formal Electoral College count.
Members involved in a bipartisan Senate group, spearheaded by Sen. Susan Collins (R-Maine) and Manchin, say they will meet by Zoom over the upcoming weeklong break, when they will all be back in their home states.
The group’s talks are still in the early stages, with staff-level talks also happening. They don’t yet have a proposal and aren’t publicly putting a timeline on when they’ll get there. Instead, members have exchanged ideas on what they wanted included in potential legislation.
“We’re going to be meeting by Zoom over the break to go through each of the items on each other’s list and see where we have agreements and where we don’t,” said Sen. Mitt Romney (R-Utah), a member of the bipartisan group.
Manchin and Collins, who held court with reporters together in the Senate basement so they could talk up their efforts, expressed optimism about the chances for a bipartisan agreement. The group includes some of the same senators who formed the so-called G-20, which helped break a stalemate on coronavirus relief at the end of the Trump administration and negotiated last year’s infrastructure deal.
“The model for coming up with an election reform bill that is truly bipartisan, that would address many of the problems that arose on January 6 and that would help restore confidence in our elections is the approach that we used with the bipartisan infrastructure bill. That’s what worked,” Collins said.
The timing of the basement press conference with Collins and Manchin was notable. It came less than a day after Democrats hit a wall with their sweeping election bill after Manchin and Sen. Kyrsten Sinema (D-Ariz.) sided with Republicans against nixing the 60-vote filibuster for the legislation.
The Democratic effort ramped up tension in the Senate, with Collins and Manchin appearing to be actively trying to turn the page by talking up the bipartisan interest in their own effort.
“We never give up on bipartisanship. We never give up on making the Senate work. This Senate can work and is working,” Manchin said.
And while Democratic leaders and the White House were previously reluctant to give oxygen to questions about the Electoral Count Act over concerns that it would be viewed as a substitute for trying on the broader voting rights bill, Biden pointed to it this week as a potential area of compromise.
“We’ll get something done on the electoral reform side of this,” Biden said during his first press conference of the year.
White House press secretary Jen Psaki added that the White House hadn’t been against making changes to the Electoral Count Act but that they “always wanted to be clear that it was not a substitute for voting rights legislation.”
Manchin and Biden spoke about the issue when they met at the White House last week, with the Democratic senator telling reporters, “The president feels as strong about this as we’re feeling about it.”
The Senate group’s efforts aren’t just limited to the Electoral Count Act. They are also looking at making it a federal crime to threaten election officials and poll workers, as well as potentially providing grants to states to beef up their elections.
But potential changes to the Electoral Count Act have gotten the most attention because Trump publicly and privately led a pressure campaign to try to get his vice president, Mike Pence, to reject the Electoral College results from key states Trump lost. Pence refused to do so, saying that the Constitution tied his hands.
Trump’s closest allies in Congress also made unsuccessful bids to challenge battleground states while Congress was formally counting the results on Jan. 6 — an event that was interrupted for hours when a pro-Trump mob breached the Capitol. Though GOP lawmakers were able to force the House and Senate to vote on challenges to the results in Arizona and Pennsylvania, both of those efforts fell short.
To force a vote, one member of the House and one member of the Senate have to sign on to an objection to a state’s count. Last year was the third time the Electoral College results have been challenged and voted on since 1887.
Among the changes being floated by senators includes increasing that threshold and clarifying the vice president’s role.
“There are so many ambiguities in a law that is nearly 150 years old. We need to clarify what is the role of the vice president is precisely — make it clear that it’s ministerial,” Collins said.
Aside from the bipartisan group, Sen. Angus King (I-Maine), Senate Rules Committee Chairwoman Amy Klobuchar (D-Minn.) and Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) are working on legislation to reform the Electoral Count Act. The House Administration Committee has also released a report with suggestions for reforms, with overlapping areas of interest to what’s being discussed in the Senate.
Those two Senate efforts have, so far, been separate, but Durbin indicated that he wanted to see if they could be simpatico.
“We’ll be talking about that … whether there’s a way, any way, to discuss the two together,” Durbin said, while adding that he thought he, King and Klobuchar had a “good proposal.”
Durbin added that while he hadn’t spoken to Collins, he was “open to their suggestions. I’m hoping we can have a constructive conversation.”
On the surface, the issue could be politically tricky. Republicans have been eager to move on from anything related to Jan. 6, and Trump frequently lashes out at allies if they break from his false claim that the election was “stolen.”
Romney, however, floated that the changes, particularly limiting the power of the vice president, could work for Republicans because Vice President Harris will be the next person to preside over a formal counting of the Electoral College vote after the 2024 presidential election.
“I think the advantage of this moment is that the vice president is a Democrat, so hopefully Republicans recognize that clarifying the role of the vice president is in our interest as well as in the other party’s interest,” he said.
Senate Minority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.) are also leaving the door open to reforming the law.
“Just like any bill out there, in every Congress, we look at an old piece of law. So you can always modernize it and others,” said McCarthy, who objected to certifying election results on Jan. 6. “There’s nothing wrong with looking at any piece of legislation. I would think we’d look at a lot of things and make things accountable.”
McConnell, who previously said the issue was worth discussing, blessed the bipartisan talks.
“I wish them well, and I’d be happy to take a look at whatever they come up with,” McConnell said. “I just encourage the discussion because I think it clearly is flawed. This is directly related to what happened on Jan. 6, and we ought to figure out a bipartisan way to fix this.”