Political Reform in the 117th Congress

Update 640 — Political Reform Bills
Mostly Miss, not Meet the Moment

With the midterm elections in 33 days, Americans are ready to cast their ballot to return verdicts on President Biden, the Supreme Court, the economy, their representatives in Congress, and just by deciding to vote, threats to democracy itself. Will voters return the nation to a Congress divided — read divisive — or is there promise for progress?

Today we cover the efforts of this Congress to address reforms to a political system beset by problems and doubts, starting with reforms to the Electoral Count Act intended to eliminate the ambiguities in the 1887 law exploited in the 2020 election electoral count process. We also look at the record of the 117th Congress on comprehensive measures to reform campaign finance, voting rights, and conflicts of interest — problems that challenge Americans’ faith in democracy but are inspiring some to vote and to get out the vote.

Best,

Dana

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Still-Actionable ECA — House vs. Senate Bills

Two weeks ago, the House passed the Presidential Election Reform Act (PERA) to reform the Electoral Count Act. The original 1887 law is now seen as vague and in need of updating after the events of January 6. After months of bipartisan work in the Senate and a report from the House Administration Committee, Representatives Lofgren and Cheney — members of the January 6 Committee — released their bill text before holding a floor vote later that week. The bill passed 229-203, with nine Republicans joining Democrats in favor. All nine Republicans are leaving Congress after this term.

Meanwhile the Senate bill, the Electoral Count Reform and Presidential Transition Improvement Act (ECRA), which we covered in a previous update, has passed out of committee 14-1 with the sole no vote from Senator Ted Cruz. The two bills are very similar, but have some technical differences detailed below:

• Clarifying the Vice President’s role
  • Both bills clarify the Vice President’s role as ministerial – the Vice President cannot resolve disputes about contested electors.

• Congressional objections to elector slate
  • The Senate bill only requires one-fifth support from each chamber to object to a state’s electors; currently only one member in each chamber is needed.
  • The House bill requires one-third of each chamber.

• Congressional objections on January 6 grounds
  • ECRA gives two grounds for objection — 1) a state’s electors were not lawfully certified and 2) the vote of at least one elector was not regularly given.
  • PERA prescribes five grounds for objection — 1) the state was not validly a state, 2) a state submitted more votes than entitled to, 3) electors were constitutionally ineligible, 4) electoral votes were cast for an ineligible candidate, and 5) electors failed to vote on the day required.

• Catastrophic events and an extension of the voting period
  • PERA allows voting to be extended in a limited geographic area for up to five days in response to a “catastrophic event” that could disrupt elections. PERA defines “catastrophic events” as “a major natural disaster, an act of terrorism, or a widespread power outage.” To get a voting extension, candidates would need to get approval from a federal three-judge panel that the event potentially affects the outcome of the vote in that state.
  • The ECRA allows a more flexible extension of the voting period in response to “extraordinary and catastrophic” events but limits any extension to “force majeure” events (when events are unforeseen and outside control).

• Certification of election results
  • The Senate bill requires states to certify election results six days before the Electoral College meets to cast its vote for president in mid-December and identifies the governor as the official responsible to certify the election unless state law provides otherwise.
  • The House bill requires states to certify results no later than December 14th with the Electoral College meeting day December 23 and identifies the governor as solely responsible for certifying the results.

• Judicial Review
  • Both bills provide for expedited review from a three-judge federal district court if a candidate challenges a state’s certification. And both bind Congress to the decisions of state and federal courts and specify that there is no preemption of existing causes of action in state and federal court.

Lame Duck Logistics

The Senate Rules Committee amended the ECRA last week and voted to advance the bill to the Senate floor. Both Majority Leader Schumer and Minority Leader McConnell are now cosponsors of the Electoral Count Reform Act, bringing the total to 32 cosponsors. The forward momentum suggests the likelihood of a Senate vote shortly after the midterm elections.

Once the Senate passes ECRA, there will be several differences to iron out between the chambers before a final bill can go to the president. Due to the quick turnaround in the House from text to floor and the insular process of crafting the bill, in comparison to the broad working group in the Senate, many House Republicans felt left out of the process. The Senate bill will likely be the vehicle taken, or closer to the final product since it has, and needs, strong bipartisan support.

Reforming the electoral count process is important to prevent ambiguities around the presidential election. Trump took advantage of these vague guidelines in his attempt to overturn the 2020 election. Claims that the Vice President could change the results and frivolous objections to several state’s results would no longer have grounds. It will be critical for Congress to get this done between November and January, before the next presidential election cycle starts, or the country could be left vulnerable with another constitutional crisis.

Real Democracy Reform

While reforming the Electoral Count Act is an important step forward, it is not a substitute for comprehensive reform. This election reform is very technical and specific to the electoral college process. If anything, the electoral college is an undemocratic institution – a national popular vote would eliminate the need for many of these reforms. Regardless, this reform does not touch on the broad problems that affect all federal elections. As we enter the 2022 midterm elections without strong federal democracy reform, many Americans will face barriers to the voting process and struggle to have their voices heard. 

Congress was close to passing broad based reform with the Freedom to Vote: John R. Lewis Act (FTVA) earlier this year, which would have addressed the following critical priorities:

• Voting rights – FTVA would have expanded voter access, standardized election processes, and strengthened the voting rights act.
• Campaign finance – The campaign finance title would target dark money and create small donor public financing for House elections. 
• Gerrymandering – FTVA would have prohibited partisan gerrymandering.
• Ethics reform – The original For the People Act addressed ethics reform across the three branches, but was not included in FTVA.

Yet when faced with the need to create an exception to the filibuster, the filibuster took precedence. The Senate took up the DISCLOSE Act, an important campaign finance reform from the Freedom to Vote Act that would shine a light on the dark money fueling our elections. Unfortunately, even the DISCLOSE Act fell prey to the filibuster and is not itself a reform. It might not be possible with the Congress we have, but popular support and institutional frailty argue for comprehensive reform that includes the above priorities. Electing candidates who support voting rights and filibuster abolition will be critical in continuing this fight. 

Protecting the freedom to vote, ensuring fair elections, and making sure everyone’s voice is counted should be a priority. The Republican party has instead sown division and mistrust, while constructing barriers to the democratic process. Despite bipartisan appetite to address technical reforms, protecting access to the ballot has now become a partisan issue. Congress needs more champions of democracy in its ranks and should build on efforts that resulted in the For the People Act and the Freedom to Vote Act. Progressives need to elect future champions — candidates who know what is at stake in this election when only one party is defending democracy and upholding the rule of law.