Update 594 — Beyond Voting Rights:
Bills So We Don’t Get Trumped Again
Since January 6, 2021, Democrats have been clamoring to protect democratic practices and institutions with federal legislation. Eager to whitewash themselves of the shame of that date, some Republicans are supporting the Electoral Count Act. The bill’s reforms propose a narrow set of fixes, insufficient for the many problems in the voting system, but they have merit.
With Ukraine reminding us how dear democracy is and how dire its challenges are, the United States urgently needs to defend democracy here at home. Today, we look at viable political reforms on the table in Congress — which would need to act quickly since the 2022 elections have already begun — the Electoral Count Act reform, the Protecting Our Democracy Act, the January 6th Committee, and the stakes.
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Good weekends all…
After an unfortunate defeat in the Senate in January for comprehensive federal democracy reform legislation, the fight moves on. We may not see anything as monumental as the Freedom to Vote: John R. Lewis Act, but the need to secure our elections and protect the right to vote remains. Texas, the first midterm primary of the cycle, saw 23,000 mail ballots rejected. While comprehensive legislation would be the best tool to deal with attacks on democracy, there are still opportunities for this Congress to make meaningful, albeit gradual, reform.
Attacks on democracy in Eastern Europe and rising authoritarianism around the world only solidify the imperative for the United States to demonstrate its leadership and strengthen its democracy. There are several potential paths forward for Congress to address this issue.
ECA: Cleaning the Count
There is bipartisan interest in reforming the Electoral Count Act (ECA). While many knew this 19th-century law was outdated, it was not abundantly clear until this past election when the law directly contributed to the January 6 attack on the Capitol. Senator Angus King, along with Senators Amy Klobuchar and Dick Durbin, released a draft proposal to update the legislation.
Following the 2020 election, Trump attempted to exploit ambiguities in the law in a bid to overturn some states’ election results and win reelection. Trump and his allies used vague provisions of the law to incorrectly claim the Vice President had the power to overturn state election results, instead of fulfilling the merely ceremonial role in overseeing the Electoral College count. As a result of this and other problems, a bipartisan working group is considering updating this law and the Electoral Count process. Although ECA reform may have been seen at first as a tool to distract from comprehensive legislation, ECA efforts are a concrete opportunity for some real and important change.
The bipartisan Senate group, similar to the one formed for the Bipartisan Infrastructure Law, has convened over a dozen members from both sides of the aisle, with Senators Susan Collins and Joe Manchin leading the effort. Through informal discussions they are reported to be considering the following categories of possible reforms in the legislation:
- Electoral Count Act reform
- Protecting election workers and officials
- Voting practices
- Reauthorizing Election Assistance Commission (EAC) and Help America Vote Act grants
- Presidential transitions
While some have questioned the urgency of ECA reform since this isn’t a presidential election year, advocates for ECA reform feel it is important to address the issue this year before the 2024 presidential campaigns get underway. With the opportunity to address issues like protecting election workers, funding for the EAC, and voting practices, having legislation passed before November’s midterm elections is critical. We can expect formal legislation from this group sometime later this year, but there isn’t a concrete timeline.
Manchin expressed his confidence that this reform bill will receive bipartisan support and pass the Senate. His unsuccessful attempts to get Republican support for the Freedom to Vote Act underscores the difficulty of that task. Now that members from both parties are working on this effort, it may be able to get bipartisan support on a narrower set of reforms. The result might not fully address the serious needs facing our democracy.
Limits on Executive: PODA
Another piece of legislation more developed and with a broader focus than ECA reform is the Protecting Our Democracy Act (PODA). PODA is a package of pro-democracy reforms that protects against abuses of executive power. It would ensure no president is above the law. It responds to abuses of power during the Trump presidency in a similar fashion to reforms after Watergate. The bill includes common-sense anti-corruption reforms that should receive support from both parties.
PODA will root out corruption, prevent abuses of power, and increase transparency in the executive branch through the following measures:
- Prevent the abuses of the pardon power
- Strengthen congressional oversight of presidential emergency declarations
- Reassert Congress’s power of the purse
- Require DOJ and White House to keep a communications log to prevent political interference
- Promote efficient presidential transitions
- Presidential and Vice Presidential tax transparency
- Enforce the emoluments clause
- Enforce congressional subpoenas
- Strengthen Hatch Act enforcement
- Protect whistleblowers
- Limit the tenure of acting officials
- Protect Inspector General independence and provide for-cause removal protections
- Prevent foreign interference in elections
The bill was reintroduced in September by Rep. Adam Schiff and had 168 cosponsors in the House, all Democrats. It passed the House back in December with a “bipartisan” vote of 220-208. Only one Republican, Rep. Adam Kinzinger, voted for the legislation. Now the bill moves to the Senate Homeland Security and Governmental Affairs Committee. Senator Klobuchar is the sponsor in the Senate with nine Democratic cosponsors.
While the bill as a whole faces obstacles in the Senate, some provisions within PODA have already passed the Senate and been signed into law. The Consolidated Appropriations Act included two provisions similar to parts of PODA that would require the Office of Management and Budget to make apportionments of appropriations public and require agencies to notify Congress if delays or conditions on apportionment would prevent funding from being spent according to Congress’s intent. It also included a provision that clarifies the authority of the inspectors general of the Intelligence Community to decide which whistleblower reports are of urgent concern and should be shared with Congress.
Shadow of January 6
The Select Committee on January 6th has been hard at work making progress on its investigation behind the scenes. In the past week, the RNC blocked a subpoena that sought to access Republican fundraising records on Salesforce from the select committee. The subpoena seeks fundraising records on the Salesforce platform that demonstrate evidence of fundraising predicated on falsehoods about the election.
Earlier this month, the committee’s lawyers filed a civil case in California against Trump’s lawyer, John Eastman, that laid out the evidence that Trump and his allies conspired to commit fraud and obstruct the 2020 election. The argument is that since Trump had been told he did not win the election, he perpetuated fraud in his insistence to overturn it. This evidence was compiled partly from the over 500 interviews the committee conducted with state officials, DOJ officials, and Trump aides. The copious amount of information collected from the work of the committee creates a well-established record of the former president’s attempt to overturn the 2020 election. These developments give more insight into whether the committee will recommend criminal charges against Trump and his allies.
We can expect more news to surface about the committee’s activities. The committee will release its first report later this year with another to come before the midterm elections containing policy recommendations. The select committee is also expected to hold more hearings starting at the end of this month to gather further evidence.
Hope in Congress
Given the nature of the filibuster, slim Democratic majorities, and lack of Republican support for bold reform, Congress is turning to bipartisan, incremental reform. Though the primary goal — no pun intended — is to stop the voting rights restrictions proliferating and now being implemented in the states, and to enact comprehensive campaign finance reform, ECA and PODA hold promise for as much political reform as we are likely to see this Congress.
If smaller reforms can address the attacks on election security and integrity from Trump and his allies with substantive reforms, they are worthwhile. An open amendment process alongside these bills could at least put all members of Congress on the record as supporting or opposing larger reforms, such as ending “dark” political money and restricting partisan gerrymandering, which would allow candidates to use these issues in the upcoming elections.
As the year goes on and midterms get closer, both Congress and the President will continue to seek democracy reform with increased fervency as voting gets underway. Much of the federal democracy reform effort has been motivated by the 2020 election and the ensuing attacks on elections and voting rights in the states. Trump’s effort to obstruct and overturn the presidential election, along with the January 6th insurrection, proved how fragile our democracy is. At a time when democracy is threatened at home and abroad, it is critical we protect the federal right to vote and reduce corruption, even at a more incremental level.