And … it’s a bill. A bipartisan Senate group working on revising the poorly written and badly outdated 19th century rules for how the Electoral College functions in presidential elections has reached agreement on legislative language. Greg Sargent and Paul Waldman of the Washington Post have an excellent summary of what the new bill would do. A group of election law experts are already giving it high marks.
What former President Donald Trump’s attempts to overturn the 2020 election revealed was something that experts had already been aware of: The law governing how presidents are chosen, the Electoral Count Act of 1887, is a terrible law. It contains all sorts of ambiguities, loopholes and other opportunities for mischief between the counting of votes in the states all the way up to the final presentation of the electoral votes to a joint session of Congress on Jan. 6.
It’s true that Trump and his allies also pushed beyond plausible interpretations of the law. As every legitimate expert explained at the time, there isn’t any open question about whether the vice president, who presides over that joint session, can just toss out votes he or she doesn’t like. But other provisions are cloudy enough to give plenty of cover to those who want to cause trouble. A poorly drafted election statute puts unnecessary and destructive pressure on partisan officials, in the states and in Congress, who want to respect the law but also want to do whatever they can legally to give advantages to their own side.
Well constructed laws are not going to stop a party that is bent on subverting the law, even to the extent of fomenting violence. If such a party wins control of the government, good laws aren’t going to dislodge it. But for those who are not comfortable going that far but consider constitutional hardball — efforts to fully exploit ambiguity — fair game? Better laws can deter them.
I’ve noted before that while we do know how many Republicans voted in the House of Representatives against accepting the legitimate electors in 2020, we don’t know how many would have voted the same way had their votes really mattered.
It’s possible that some of the votes against those electors were basically protest votes — similar to the protests that small numbers of Democrats made in 2000, 2004 and 2016; efforts meant to signal they were upset with what they perceived as unfairness, rather than serious efforts to overturn the election. (In all three cases, the Democratic nominee had rapidly conceded the election once it was decided and made no effort to overturn it, so efforts to challenge electors were nothing beyond protest).
It’s also possible, however, that some of those who voted against the challenges might have been tempted to do so if their votes might have actually reversed the election; after all, with a Democratic majority in the House, Republicans knew that they didn’t have the votes even if they were united.
Good laws can’t guarantee good results, but it should never be easy to overturn legitimate elections. The proposed reforms of the Electoral Count Act would make it a lot harder.
There’s no guarantee that it will pass. There will be a Senate filibuster — all bills are filibustered nowadays — and so it will need at least 10 Republicans to beat that filibuster, more than were involved in the working group that drafted the measure, which was led by Maine Republican Susan Collins and West Virginia Democrat Joe Manchin. Still, Minority Leader Mitch McConnell has supported the effort, in principle at least, and while strong opposition from Trump allies would be no surprise, there’s an excellent chance of passage.
If so, it will add to the surprisingly large group of bipartisan laws passed by the current Congress. Or at least laws that Democrats strongly supported along with a significant minority of Republicans. Just this week, along with the rollout of a new Electoral Count Act, the Senate has moved ahead on a bill to support the US semiconductor industry and fund scientific research, while the House passed a bill to protect same-sex marriage rights, in both cases with a fair amount of Republican support.
Practically no one expected the current Congress to be marked by cooperation between the parties. But if all three of these bills do pass, it will be hard to escape that conclusion.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.
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