Momentum on ECA Reform Builds in the Senate

Plus: Will Republicans keep backing Ukraine aid?

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Though this week’s House vote on legislation to overhaul how Congress certifies election results turned contentious, the Senate version won new supporters, with other Republicans saying they could sign onto it in the future.

Pennsylvania Sen. Pat Toomey became the 11th Republican to back the Senate Electoral Count Act reform. If all Democrats support it, that’s more than enough to overcome a filibuster. Toomey told reporters Thursday the original Electoral Count Act “was badly drafted when it was written back in the 19th century, literally.”

“We should clean it up and tighten it up and make it clear that Congress isn’t here to opine on the validity of particular electors and the vice president does not have the discretion to accept or reject,” Toomey added.

Kentucky Sen. Rand Paul also said he is “open to the concept of the bill.” Whether that turns into real support later remains to be seen.

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  1. Avatar photo
    Bill Dyer (aka Beldar)

    Regarding Ukraine: I am confident that Sen. Rand Paul (R-KY) will once again take the opportunity to stampede the cameras to prove that as a statesman and senator, he is among the very finest of ophthalmologists.

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    Bill Dyer (aka Beldar)

    Re this: "Lawmakers hope to pass the changes before the end of the year, intended to prevent the events of January 6, 2021, from recurring."

    No one can prevent crazies from being crazy, and when we're dealing with someone as crazy as Trump, nothing that is ever said, or written down, or signed in blood with an oath witnessed by the Pope, can ever keep the crazies from making crazy arguments.

    If you actually parse through the existing Electoral Count Act in its entirety, you will confirm, after considerable pain and effort, that indeed it does not permit bogus objections of the sort that Trump's supporters made on January 6, 2021. Their objections were not made pursuant to, but rather, contrary to, the existing ECA, because the tallies from every state had indeed been certified, and there was no doubt that they had come from the duly constituted state institutional structures to whom that certification process is entrusted, and they were reported within the safe harbor deadline that even further shielded them from objection or debate.

    Pence, as presiding officer, could have ruled all of the objections "out of order" as being contrary to the act, rather than the sort of objections permitted by it. But this being a joint session of Congress rather than an Article III judicial forum, such a ruling by Pence would inevitably have been challenged and each chamber could have overruled him by simple majority vote -- which made the politically challenging step of declaring the objections out of order something of a waste of time, because the two chambers were going to end up debating and voting REGARDLESS of what the presiding officer said.

    And that's actually the constitutional rub here, friends and neighbors: No Congress can bind a later Congress, and per section 5 of Article I, "Each House may determine the rules of its proceedings." As recently demonstrated by the nuking of the judicial filibuster, a simple majority can change either chamber's rules pretty much at the drop of a hat. And neither the Executive nor Judicial Branches of government have any say in the matter, which raises the possibility that an amended ECA might be unconstitutional (as beyond the power of any particular Congress to bind any future one) — but without any effective or practical remedy for that. If you're beginning to feel like you might rather be stabbed in the eyeball with an icepick rather than ever reading another word about the Electoral Count Act now, you're not alone.

    Don't mistake me for a defender of the current act. It is indeed a ghastly botch-job of legal draftsmanship, not because it's ambiguous or internally inconsistent — it's actually neither — but just because it is so DAMNED CONSTIPATED.

    Even if there are no substantive changes made — and imposing a minimum number of sponsors for any objection would be a VERY substantive change indeed, one whose constitutionality requires some pondering and chin-rubbing — there would be a great value in simply RE-CODIFYING in plain and readable modern English the substantive terms of the current act.

    We don't really NEED to amend current law to establish that the VPOTUS has no more than a ceremonial role. But we could and should indeed make the statute simpler to read and understand. And since one of the particularly stupid moles which popped up on January 6, 2021, was the notion that Mike Pence could somehow block Congress' certification of Biden as the President-Elect, then we ought to whack that mole a resounding blow, indeed a fatal blow, while we're whacking.

    Just don't be misled into thinking that there won't be other moles. Recall that when Donald Trump defaulted in his (by then rare) personal guarantee of a portion of the construction loans for the Trump International Hotel & Tower in Chicago, he shamelessly, baselessly, contemptuously asserted that the 2008 real estate downturn was "an Act of God" that excused him from his guarantee. There are no words that can contain his level of irrepressible craziness.

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    PJ

    The ECA needs to happen sooner rather than later. As for the republicans whining about no discussion, how is someone supposed to work with a party that will not work with you with leaders like Dr. No McConnell?

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  4. Natty Bumpo

    Get the ECA done ASAP. It seems there is enough agreement and that differences can be worked out.

    Failure by the Republicans to continue aid to Ukraine would likely influence my voting decisions for the House, Senate and Presidency. It is imperative that the US continues with financial and material support to Ukraine.

    I am sure that Jayapal would agree that Republicans need not address the latest inanities/insanities from their Three Amigos (MTG, Gaetz and Bobert) as I am sure that the Republicans would not want to focus on things that divide them. (well, maybe they do sometimes...)

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    Phil H

    Thank you for the update on the ECA. I hope the Senate version of the bill is substantially the same as the House bill, not just including a higher threshold (one-fifth of each chamber is entirely adequate) but also the crucial requirement that the electors are chose according to state laws passed *before* Election Day.
    Attempts to change the rules and electoral slates post-election by state governments need to be quashed. Some states may well try to do so in 2024.

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    BrettH

    Enjoyed the read, thanks. Fingers crossed the clowns in Congress get the ECA over the finish line.

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    Marty Allday

    House version of ECA Reform requiring 1/3 from each chamber to object is better than the Senate’s 1/5 requirement, but 1/5 is FAR better than 1 Senator.

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  8. Avatar photo
    Rob.Kandell

    Ultimately, criticism of the state of Israel, up to and including pointing out it's racially motivated settler colonialism (admittedly hypocritical for Americans and Canadians) is no more anti-Semitic than criticizing Trumpistas is anti-American.

    The analogy is deliberate to make a point.

    I'm not advocating one way or the other, as I don't have the energy to care anymore. But the questioning of Israel is valid.

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  9. Avatar photo
    Rob.Kandell

    1. We need the ECA to protect our Democracy. I spent many a long discussion with my parents during the previous administration asking if things ever got *this* bad. (I was born in 1970 and remember gas being cheaper in Canada, the Iranian Hostage Crisis, and the Hunt Brothers silver shenanigans.) The answer was always no, until January 6. I was avoiding the American News outlets by this time and heard about it reading "El Norte". (I am attempting to learn Spanish. I still use translation software a lot.) I also witnessed the creation of new Spanish word. ("Trumpista") I've never heard my mother (a Republican all my life who until 2016 hadn't voted Democrat since 1964) so terrified in all my life.

    2. Procedural considerations aside, only a Trumpista "Republican" will not see Putin for what he is and abandon support for this proxy war which is allowing Russia to destroy itself. Please don't disappoint my faith in humanity further.

    3. I may get crucified for this, but the Israeli/Palestinian issue is one this country needs to take a good, hard look at. I'm not going to opine further, but my expressing concern was a major reason for me leaving the Christian faith. We need to remember that 40% of Palestinians are Roman Catholic.

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    1. Avatar photo
      Phil H

      January 6, 2021 and the related coup attempt is totally unique in our history.

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        Rob.Kandell

        I'm pondering that. At the national level, not since 1860. There has been political violence at the state level dating back to Reconstruction, but *this*… no, you're right. Not this.

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  10. Learnin4life

    Good background on interesting topics Haley. Appreciate the insight.

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