Mitch McConnell appears to realize the advantages of Electoral Count Act reform.
Mitch McConnell appears to realize the advantages of Electoral Count Act reform.
R eforming the Electoral Count Act of 1887 is not just good policy, it would be excellent politics for Republicans. That is why I have argued previously for ECA reform, and why National Review has editorialized in favor of it. The behavior this week of Chuck Schumer and his party’s chief lawyer, Marc Elias, shows that leading Democrats understand that a bipartisan ECA-reform bill would be bad news for them. Now, Mitch McConnell and John Thune are beginning to sound as if they grasp this reality, too. Senate Republicans should seize this opportunity, promote a standalone ECA-reform bill, and watch Democrats squirm.
The ECA and January 6
The ECA’s current language represents the chief point of vulnerability that turned Donald Trump’s campaign against the 2020 election into a riot at the Capitol last January 6. The two most alarming aspects of the aftermath of the 2020 election were closely related. One was Trump’s effort to pressure state governors, state legislatures, Mike Pence, and members of Congress to reject Biden electors chosen by statewide popular vote and substitute Trump electors chosen by state legislatures. Peter Navarro’s new book details how he and Steve Bannon planned for this “Green Bay Sweep” to go down. The other was the riot at the Capitol, which flowed from that effort and sought to add to the pressure on Pence and Congress during the January 6 joint session.
A revised ECA could address this particular danger and avoid a repeat of last January 6 in future elections. It would do so by clarifying that the vice president cannot unilaterally reject electors; by precluding states that select electors by popular vote from refusing after the fact to recognize the electors chosen by that vote; and by raising the vote thresholds to make objections to electors and to reject slates of electors certified by a state governor. Each of these changes would target the particular problems that January 6 revealed.
Schumer’s Bait and Switch
The Democrats, however, have preferred a bait-and-switch strategy: talk about January 6 and threats to the counting of votes, but then only devote legitimate energy to other election-law changes they proposed long before the 2020 election. While commentators across the political spectrum have been talking for months about ECA reform, discussion of the ECA in Washington has mostly been overshadowed and sidelined by the Democrats’ cynical effort to use January 6 as an excuse to pass their preexisting wish-list of radical overhauls to voting, elections, redistricting, and campaign finance in America. Those bills — currently labeled the “Freedom to Vote Act” and the “John Lewis Advancement Act” — are mostly aimed at subjects wholly unrelated to the vote-counting process, and include all sorts of bad policy ranging from federalization and executive-branch supervision of state election law to the suppression of political speech.
Unsurprisingly, Republicans are united in opposing these bills, and some moderate Senate Democrats such as Joe Manchin have balked at aspects of them. That means that they stand no chance of passage unless Senate Democrats blow up the filibuster — either by using “voting rights” as an excuse to do so, or at least by creating an “exception” for election-law bills. Indeed, progressives have argued since before last January 6 that Democrats should use the emotive power of voting rights as the justification to end the filibuster once and for all.
Manchin and Kyrsten Sinema have been unimpressed so far, but a vocal segment of the Democratic base wants to force the issue, and Schumer and Democratic leaders have faced a series of political setbacks: the failure of the Build Back Better Act (so far), Joe Biden’s cratering approval ratings, the bleeding of Democratic support with Hispanic voters, the loss of the Virginia governor’s race, and a wave of Democratic retirements in the House. That has only increased the pressure on Schumer to do something dramatic to fire up his base.
The strategy Schumer has settled upon is to use the January 6 anniversary to put pressure on Manchin and Sinema to end the filibuster in order to pass the Freedom to Vote Act and the John Lewis Advancement Act. The strategy is out in the open. Rachael Bade and Ryan Lizza in Politico Playbook:
Dems to use Jan. 6 anniversary to supercharge voting rights push. . . . Democrats are hoping that Thursday will be more than just a day of remembrance. In the Senate, we hear from well-positioned sources, there’s a desire to take the opportunity to supercharge the party’s long-stalled voting rights legislation — possibly even using the anniversary to try to get Sens. KYRSTEN SINEMA (D-Ariz.) and JOE MANCHIN (D-W.Va.) to go nuclear on the filibuster or embrace rules changes.
Jordain Carney in The Hill:
Senate Majority Leader Charles Schumer (D-N.Y.) is leaning into a fight on changing the Senate’s legislative filibuster as Democrats try to use the anniversary of the Jan. 6 attack to inject new momentum into their quest to change the chamber’s rules.
This strategy has not been working, in part because it is so openly cynical and in part because Manchin and Sinema were not born yesterday. Manchin was blunt and folksy Tuesday in explaining why he would not support a “carveout” to the filibuster rules for voting and election bills: “Anytime there’s a carveout, you eat the whole turkey.” Sinema followed at the Democratic lunch meeting by reiterating that her opposition to changing the filibuster has not budged.
Schumer and Elias Panic, McConnell and Thune Prepare to Pounce
Up until now, despite the support of many conservative writers for ECA revision, the commentariat’s assumption has been that, when push came to shove, Democrats would be willing to pass ECA reform even if it meant decoupling the issue from the rest of their agenda, while Republicans — who have tended to simply dig in and say “no” — would refuse any offer to fix the ECA.
That assumption has driven arguments by writers such as Greg Sargent of the Washington Post, who has written in multiple columns that Republican intransigence on ECA reform may offer its own justification for Democrats blowing up the filibuster, or at least give Democrats a talking point in their project to paint the GOP as enemies of democracy pining for a replay of January 6. Here is how Sargent framed the issue in a June 2021 column titled, “How to call the GOP’s bluff on its ‘election integrity’ talking point”:
If Republicans are so concerned about “election integrity” and “voter confidence,” isn’t this something they should support? . . . Republicans swear up and down that their escalating voter suppression efforts are really just about restoring “election integrity” via cracking down on (nonexistent) voter fraud, to reinforce voter “confidence” in election results. If so, supporting revisions to the ECA should fit the bill perfectly. . . . As we debate how to protect democracy, Democrats should pursue this reform in Congress. Most importantly, it needs to happen to avert disaster. But in addition, it will call Republicans’ bluff. Isn’t a revised ECA something Republicans worried about election integrity and voter confidence should want?
In December, Steve Benen of MSNBC wrote, “In the House, progress appears likely — with at least some modicum of bipartisan backing. . . . The problem — and you surely knew this was coming — is the inevitable Republican filibuster.” As recently as Tuesday, Sahil Kapur of MSNBC framed ECA revision as a noble cause promoted by Adam Schiff that could come to grief because “one challenge facing any new bill is that it would be subject to a Republican filibuster in the Senate.”
So did Sargent, who penned a column with Paul Waldman titled “How Republicans benefit from being united against protecting democracy” that asked, “shouldn’t the bulk of questioning be directed at Republican senators to determine why they won’t support doing reform at all?”
The events of this week, however, have turned the tables on that conventional wisdom.
Schumer’s response was to strip bare any pretense that Democrats care about constructive bipartisan work on the ECA. After the meeting with Sinema, he told the press when asked whether Democrats may focus on an ECA bill that isn’t linked to passage of the rest of the Democrats’ voting and election changes: “That makes no sense. If you’re going to rig the game and say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?”
(We pause this column momentarily for the sound of Schumer being widely denounced for calling American elections a “rigged game.” I would not recommend holding your breath. Democrats will resume their long-standing habit of attacking the legitimacy of American elections shortly.)
The Democratic Party’s chief election lawyer Marc Elias, for his part, has flipped out at the possibility of passing a clean ECA bill that would deflate the campaign to tie the voting and elections bills to January 6. As he warned in a series of tweets:
If anyone tells you that our democracy will be protected, and election subversion prevented, simply by “fixing” the Electoral Count Act they are either uninformed or acting in bad faith. Don’t be fooled, Congress must pass the Freedom to Vote Act and John Lewis Advancement Act.
Media–do not treat the Electoral Count Act as the primary tool to prevent election subversion. The most dangerous subversion takes place at the local and state level, not in Congress counting presidential ballots . . .
I have a suspicion that at some point soon a cynical Mitch McConnell will offer to pass Electoral Count Act reform if Democrats drop the rest of the Freedom to Vote Act. Every Democrat should reject it. The ECA alone is not the problem. GOP suppression and subversion is.
Elias even denounced a characteristically sober pro-ECA-reform column by Yuval Levin in the New York Times as so “irresponsible” that he refused to link to it other than to endorse NAACP Legal Defense and Education Fund president Sherrilyn Ifill’s characterization of Yuval’s column as a “transparent ploy.”
Elias, of course, has more than just a partisan interest here; he is talking his book. Fixing the ECA addresses a process that is handled once every four years in the halls of the Capitol; it does not generate the legal fees that Elias earns from representing Democratic candidates across the country in lawsuits challenging voting and election laws and fighting over the outcomes of elections.
Even some progressives were aghast at the idea that Democrats should refuse to pass ECA reform unless it could be linked to their broader agenda. As Dylan Matthews put it, “I can’t believe the dominant election reformer take on this is ‘we shouldn’t reform the law that enabled Trump’s coup and should instead hold out for two bills that were obviously dead months ago.’”
Are Republicans shrewd enough to see the political opportunity here to expose Schumer and the Democrats for the cynical opportunism of their January 6 rhetoric? There are signs that they are warming to that view. Lizza and Bade noted, in Monday’s Playbook, how Republican support for ECA revision would not just call Schumer’s bluff, but could also harden Manchin and Sinema in their view that filibuster reform was not necessary in order to get genuinely productive bipartisan deals done:
There’s a movement afoot on the intellectual right to get congressional Republicans to back some narrow but important reforms. And Schumer will have to make some tough decisions if McConnell embraces them over the next two weeks. . . . If Senate Republicans united in favor of ECA reform as their main alternative to Schumer’s legislation, it could complicate the majority leader’s plan. If the Senate passed a narrow ECA reform bill, would it take the air out of the push for filibuster reform?
Sophie Cai of Axios reported yesterday: “Senate Minority Whip John Thune (R-S.D.) told Axios there’s ‘some interest’ among Senate Republicans in reforming the Electoral Count Act of 1887. . . . ‘With the Electoral Count Act, as we saw last time around, there are some things there that, I think, could be corrected.’”
Today, Burgess Everett of Politico reported that “Mitch McConnell is signaling he’s open to reforming the Electoral Count Act,” noting McConnell’s comment that “It obviously has some flaws. And it is worth, I think, discussing.” Everett quoted further interest by Thune: “The role of the vice president needs to be codified, so it’s clear what that is. . . . There’s some question about how many senators or House members it ought to take to object before it triggers a vote.” But “Schumer scoffed at the possibility of a small-ball deal on Wednesday, the day before the Jan. 6 anniversary. ‘The Electoral Count Act [reform] says you can rig the elections anyway you want and then we’ll count it accurately.’”
Jennifer Rubin of the Washington Post greeted McConnell’s remarks with maximum alarm:
McConnell knows well that Manchin will take any out when it comes to challenging the filibuster and moving forward with substantive reform to prevent voter suppression and election subversion. Doing so would allow Manchin to avoid upsetting his right-wing backers and red-state voters. So long as he thinks there is something bipartisan to be done, he is even less likely to move on anything Republicans object to. . . . Democrats must be emphatic with Manchin that reforming the ECA is no substitute for addressing the myriad threats to elections, as the Freedom to Vote Act would do.
Joe Biden has added his own voice to support Schumer’s view that “there is no substitute” for passing the Democrats’ two big voting and elections bills, which places the White House, at least for now, against a standalone Electoral Count Act reform bill.
Support for a standalone ECA bill from McConnell and Thune would be a win-win: If Democrats join them, they can enact good policy, outflank Schumer’s strategy of painting them as anti-democratic obstructionists, and kneecap the arguments for tearing down the filibuster. If Democrats refuse, Republicans can deflect the blame to the other side of the aisle for not actually wanting to address the signal vulnerability in our system.
Either way, McConnell and Thune get the upper hand, if they are bold enough to seize it. The reactions of Schumer, Elias, and Ifill should be a signal that offering Republican support for a standalone ECA bill is a winning move that has the other side’s partisans running scared.