Members of Congress have objected to the counting of the electoral votes in four of the past six presidential elections. Interestingly, House members are much more likely to object than members of the Senate.
In 2001 and 2017, House Democrats tried to get a Democratic senator to sign off on an objection to the counting of the electoral votes, but none did. In 2005, 31 House Democrats along with Senator Barbara Boxer voted to object to the counting of Ohio’s electoral votes. In 2021, well over 100 Republican representatives and 13 Republican senators announced beforehand that they planned to object to the counting of the electoral votes of Arizona, Pennsylvania, and a number of other states. When order was restored after the deadly riot of a pro-Trump mob disrupted the count, the discrepancy between the House and Senate became even more stark: Six Republican senators ultimately voted to sustain the objection to Arizona’s votes, compared to 121 Republican House members; seven Republican senators voted to sustain the objection to Pennsylvania’s votes, compared to 138 Republican House members. (House Republican challenges to the electoral votes of Michigan, Nevada, Wisconsin, and Georgia went undebated when they failed to attract any senator’s support.)
The different identities of the House and Senate might help explain some of this difference in behavior.
Electoral College controversies, even more than most political controversies, are battles in which raw power is the prize, so partisan interest obviously plays an important role in resolving them. (There’s a reason why some Republicans argued that in some states, the 2021 presidential race was tainted but GOP-won congressional races were not.) And we live in a time of increased partisan intensity. But a number of institutional differences still play a big part in allowing senators more freedom to resist partisan passions when they believe the moment demands it.
For one thing, by virtue of their six-year terms, senators are more insulated than representatives from the consequences of voting in a way that might upset their political bases. Representatives go up for reelection every two years, so they undoubtedly face more pressure to gratify their core voters.
For another, senators tend to represent more diverse electorates than representatives. Many House districts have a strong partisan lean, which makes the demands of their constituents more uniform. Senators represent whole states, and while some states tilt toward one party, states in general contain a broader array of political interests and perspectives than House districts. This electoral diversity creates certain incentives for senators to limit the appearance of scorched-earth political warfare, whereas representatives often face the opposite pressure: Particularly in districts gerrymandered to heavily favor one party, they live in constant fear of being primaried by their own parties’ hard-liners.
And finally, there is the institution of the Senate itself. The individual powers and privileges of each senator under the body’s standing rules (including, but not limited to, the rights to unlimited debate and to offer amendments) make for a chamber that operates on consensus to a much greater degree than the House. In most circumstances, a disciplined partisan majority can block legislative action in the Senate, but actually taking legislative action requires forging alliances across factions. Having become accustomed to that kind of cooperative give-and-take, longer-serving senators might be more averse to the existential partisan conflict involved in trying to nullify a presidential election.
(Indeed, by and large, objections to counting the electoral votes last week came from those senators least habituated to the chamber’s procedural norms. Only one of the eight Senate Republicans who voted to sustain objections to the electoral votes of Arizona and/or Pennsylvania has served in the Senate for more than one term: Ted Cruz. Three of the eight had just been elected in 2020: Tommy Tuberville, Roger Marshall, and Cindy Lummis.)
The limits the Senate places on partisan majorities have positive practical and normative effects. For instance, increasing the power of partisan majorities in the chamber by, say, eliminating the filibuster would allow such majorities to revise the Electoral Count Act to make it easier for electoral votes to be nullified. It would also weaken those of the chamber’s norms that cut against partisanship.
Those norms have, over the years, made the Senate into our system’s cooling saucer, an institution that helps temper partisan passions and the conflicts they spark. At such divisive times in American political life, the virtues of that institutional character — and the imperative to protect it — grow clearer.