The Jan. 6 committee shares one major goal with a handful of GOP senators: modernizing the 135-year-old law that governs the transition of presidential power. Except those Republicans aren’t looking to the select panel for help.
Politically speaking, their task is hard enough as it is. Working with a small group of Democrats, the GOP senators are aiming to get a filibuster-proof majority in their chamber backing an update to the 1887 law that Donald Trump’s allies used to pressure then-Vice President Mike Pence to block certification of the 2020 election.
Senators involved in the months-long effort say they’re getting close to a deal. Their goal is passing legislation on the Electoral Count Act by the end of the year, well in advance of the 2024 campaign — and before House Republicans are poised to take power with little interest in addressing the topic. But any standalone bill they can get through the Senate could compete for attention and floor time with the Jan. 6 committee’s still-unreleased legislative recommendations.
Republican senators emphasized in interviews that the select panel’s work had little influence on their separate negotiations. Asked whether the House committee’s interest in reforming the Electoral Count Act affects the bipartisan talks she’s leading, Sen. Susan Collins (R-Maine) replied simply: “Not really.”
“We’ve been working for months on this issue and have really done a deep dive into the problems and ambiguities that exist in this 1887 law,” Collins said. “My hope is that we will wrap up our work shortly … I suspect we will introduce a bill within the coming days.”
Senate negotiators on the proposal, led on the Democratic side by West Virginia’s Sen. Joe Manchin, are seeking to clarify that the vice president’s role in the certification of electoral votes is simply ministerial. In other words, their final product would effectively cut off the argument that Trump backers used to try to overturn his loss to Joe Biden.
Collins said the bipartisan group circulated text three weeks ago and expects the Senate Rules Committee to take up the bill. Their plan also seeks to raise the threshold required for members of Congress to challenge election results; clarify arcane language in the law related to a “failed election”; direct the Postal Service to develop best practices for handling absentee ballots; and specify who can submit a slate of electors from any particular state.
Even if the group can finalize language in the coming days — it held a pivotal meeting Wednesday evening — the timing for final passage of their bill is far from clear. Much of the Senate’s floor time this month is expected to be devoted to nominations and Democrats’ push for a party-line package addressing prescription drugs, tax reform and climate. The proposal could be divided into two bills, to speed up the process. And there’s always the possibility it could get folded into a must-pass bill at the end of the year.
“My personal sense on this is, we need to move on this pretty quickly and certainly we need to get it done this year, if not this month,” said Sen. Roy Blunt (R-Mo.), the top Republican on the Rules Committee, who is working with the bipartisan group. “I just don’t see any reason to carry this discussion into the presidential cycle itself.”
While the Jan. 6 select committee is expected to make legislative recommendations in their final report this fall, including potentially reforming the Electoral Count Act, they likely won’t do so until September at the earliest. When asked Wednesday about changing that 19th-century law, Rep. Jamie Raskin (D-Md.) said the committee is “not there yet but we’re almost there.”
Collins, meanwhile, said she wasn’t aware the Jan. 6 panel was looking at specific reforms to the Electoral Count Act.
“I fully expected that they’d probably come out with some recommendations and one of them would be to clarify the vice president’s role which all of us are focused on,” she said. “But there’s a lot more complexity to the law, and we’ve tried to tackle those issues as well.”
Some Senate Republicans involved in the Electoral Count Act negotiations would rather have the Jan. 6 committee consider their bipartisan product, if it chooses to provide a recommendation on the topic.
Sen. Todd Young (R-Ind.) said the bipartisan group is in a “pretty good spot” and doesn’t “require additional attention on the issue.” Asked if increased select committee focus on the law would give the Senate’s bipartisan effort momentum, Sen. Thom Tillis (R-N.C.) said it could “run the risk of making what has been a fairly good bipartisan effort be more politically charged than it needs to be.”
As the bipartisan group seeks to finalize legislative text, across the Capitol the select committee has gathered evidence showing that Trump sought to exploit little-tested mechanisms in the Electoral Count Act to subvert the 2020 election.
The then-president assembled a team of lawyers who pushed a fringe theory that Pence could disregard portions of the law by refusing to count some of Biden’s electors. Trump and his team also embarked on a frenetic effort to convince certain state legislatures — in places where Biden won the popular vote — to appoint “alternative” pro-Trump electors, manufacturing a conflict they hoped Pence would exploit to forestall a transition.
Trump’s effort was led by attorneys John Eastman and Ken Chesebro, who pushed the strategy even as state legislatures continued to reject the effort. Eastman leaned on Pence even as violence wracked the Capitol, urging him to delay the Jan. 6 certification session — a violation of the Electoral Count Act and part of what a federal judge has ruled likely amounted to a criminal conspiracy to subvert the election.
The select panel also heard testimony last month from Pence’s top lawyer Greg Jacob, who helped the then-VP fend off the last-ditch pressure campaign. Perhaps most importantly for any potential overlap with the Senate negotiations, select panel member and House Administration Committee Chair Rep. Zoe Lofgren (D-Calif.) has proposed recommendations for reforms to the 1887 law.
Regardless of which chamber takes the first step toward overhauling that antique statute, Democrats are clearly interested in pursuing the matter this year.
Sen. Chris Murphy (D-Conn.), a member of the bipartisan group, said the work of the Jan. 6 committee “raises the stakes for getting the Electoral Count Act right.”
“Evidence is mounting that the threat to democracy is more serious than anybody thought … we’ve got some potential big problems coming,” Murphy said.
Kyle Cheney and Nicholas Wu contributed.