Lawmakers Could Actually Safeguard Against Another January 6 — Will They Do It?

The good news: Chuck Schumer appears confident that reforms to the Electoral Count Act, the notoriously-vague 1887 law that Donald Trump and his allies attempted to exploit to overturn the 2020 election, will make it into the must-pass omnibus appropriations bill lawmakers plan to send to the president’s desk before they break for Christmas. The bad news: It’s going to be a nail-biter. The Senate measure, an urgently-needed safeguard against another January 6 meltdown, still needs to be reconciled with a version that already passed the House, and the whole effort is dangerously coming down to the wire. 

“The support is there,” Republican Senator Susan Collins, a sponsor of the bipartisan bill in the upper chamber, told the Bulwark on Wednesday. “So it’s a matter of finding the right vehicle for it — or getting floor time. Floor time is going to be hard to get.”

While there’s good reason to be optimistic that the Electoral Count Reform Act will ultimately pass in the government funding bill in the coming days, it’s frustrating that this is so close: The need for ECA reform has been plain for nearly two years now, after Trump attempted to pressure Mike Pence to throw out some states’ results to overturn Joe Biden‘s 2020 victory. But, despite significant progress toward reform in September, lawmakers are scrambling in the final days of the lame-duck to get it done. “The clock is ticking towards midnight,” as ECA expert Matthew Seligman told the Washington Post’s Greg Sargent this week. “Congress seems poised to pull us back from the brink, at a moment when the extreme wing of the GOP House seems more eager than ever to trigger a crisis.”

The Senate reform, led by Collins and Democrat Joe Manchin, would clarify that the vice president’s role in certifying presidential electors is purely ceremonial. It would also guard against efforts by state officials to submit alternate electors for certification, something Trump allies in states like Wisconsin schemed to do in 2020, and raise the bar for Congress to consider objections to electors. It doesn’t go quite as far as a House-approved Presidential Election Reform Act put forth by Democrat Zoe Lofgren and Republican Liz Cheney, two members of the January 6 committee, which is expected to issue criminal referrals and its final report in the coming days; the representatives sent a letter to top Senate colleagues last week, seeking technical changes to the ECRA. But it seems likely the Senate bill will make it through, given its significant bipartisan support, including from Senate Minority Leader Mitch McConnell. 

“The chaos that came to a head on January 6 of last year certainly underscored the need for an update,” McConnell said in September. “It’s clear the country needs a more predictable path.”

And soon. Come January, the House of Representatives will be flooded with election deniers, who expanded their caucus in the 2022 midterms — despite an otherwise underwhelming performance by the GOP. The Republican House, likely to be led by Kevin McCarthy, who continues to carry water for Trump, and steered by far-right politicians like Marjorie Taylor Greene and Jim Jordan, is not expected to have much interest in collaborating with Democrats on much of anything, least of all reforms made necessary by the very coup attempt they helped incite and, in some cases, openly celebrate. “If Steve Bannon and I had organized that, we would’ve won,” Greene told Young Republicans in New York last week, referring to the January 6 attack on the Capitol. (She later tried to brush off her comments as “sarcasm.”)

ECA reform alone obviously won’t stop Greene and others from pushing dangerous conspiracies and election lies, nor would it address other threats to the democratic process that have sprung from Trump’s Big Lie. But it would shore up a major vulnerability in the system — if Democrats can carry this legislation over the finish line in time, as they expect to do. “It will be great to get that done,” Schumer said Tuesday.