electoral count act of 1887

House Democrats Better Take the Final Chance to Fix the Law That Led to Jan. 6

Who will prevail on the rules governing electoral vote counts? The House? The Senate? Or this dude…. Photo: Manuel Balce Ceneta/AP/Shutterstock

In a very short period of time, the window for a congressional fix of the Electoral Count Act of 1887 — the dusty, convoluted statute that made the events of January 6 possible — will probably close. That’s because Republicans deeply beholden to Donald Trump and his nefarious plans will probably gain control of the House, and they are as likely to want a statutory fix that limits MAGA options for 2024 as they are likely to back the imaginary Liz Cheney for President campaign.

So for the foreseeable future, and most definitely for the period before MAGA forces have the chance to consider another coup, there is one and only one chance to make the counting of presidential electors the uneventful chore it was always intended to be. The Senate has come up with a bipartisan ECA fix, and there appear to be enough votes behind it to avoid a filibuster. Time ran out to enact the fix during the regular congressional session, so it will have to be done briskly and with minimum controversy during a post-election lame duck session, in which Republicans if they do flip the House will not be eager to do anything significant.

So House Democrats understand this and are moving quickly to bless the Senate’s handiwork, whatever its minor imperfections, right? Wrong, I’m afraid. Two members of the House committee investigating January 6, Cheney and Zoe Lofgren, are about to introduce their own fix.

Yes, there are some minor differences between the House and Senate bills. Most notably, the Senate bill would raise the threshold of one-fifth of the members of both chambers to trigger a debate and vote on challenges to certified electoral votes, while the House bill would raise that threshold to one-third of the members. More to the point, the threshold will likely remain at one member of each chamber if a fix is not enacted by the end of this Congress.

Exasperated by Chuck Schumer’s delay in the vote on the Senate fix in the wake of this House action, Mitt Romney, part of the core group working on ECA reform, lashed out at Democrats, alleging partisanship. “I presume [Schumer] is looking for a messaging bill to show that Republicans are unwilling to protect our elections process,” Romney told National Review. “In fact, quite the opposite is true…. I’m afraid that our Democrat friends these days are more interested in messaging than they are in legislating.”

Actually, Mitt, this isn’t about differences between Ds and Rs. It’s about differences between House and Senate, a problem that dates back to the later Federalist Papers. The chambers really do mistrust and even more often just ignore each other. But Romney did embed the relevant point in the partisan vitriol, saying the House “really should have taken our bill because it’s bipartisan. It has support from enough Republicans and Democrats to actually become law.”

Bingo. Yes, it’s unfair the Senate gets to call the shots on issues like this, but they’re the ones with the arcane rules and the still-rampant filibuster, which aren’t going to be fixed in this Congress. So if House reformers want to reform the ECA, they really absolutely have to swallow their pride and take the Senate bill with whatever minor changes can be negotiated quickly. Such a “surrender” would obviously pale next to the concessions the House has had to make to the Senate on virtually every other piece of legislation this year – most notably the massive package that ended life as the Inflation Reduction Act after nearly being throttled altogether.

So please, House Democrats, you really need this legislation. The country really needs this legislation. Take what you can get before it’s too late.

Dems Better Fix the Electoral Count Act Before It’s Too Late