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Top One Magazine

Congress’ latest House-Senate wrangle: Preventing the next Jan. 6

Efforts to reform an obscure 135-year-old election law, which Donald Trump tried to utilize to subvert the 2020 election, are reviving a classic congressional rivalry: the House vs. the Senate.

After signaling for months that they wanted to go further than the Senate’s proposed adjustments to the law, House members could vote as early as Wednesday on legislation to update the Electoral Count Act, the 1887 statute that Trump and his allies distorted in an attempt to seize a second term he didn’t win.

Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.), members of the Jan. 6 select committee, on Monday outlined a proposal aimed at preventing rogue state officials and members of Congress from any future attempt at subversion of the transfer of presidential power. That plan is likely to set up an intense period of wrangling with the Senate, which in July teed up a competing bill that boasts bipartisan support, including the 10 GOP co-sponsors necessary to overcome a filibuster.

Their proposal reforms the 19th-century law, which sets out deadlines for states to certify their own presidential contests and a process to deliver electors to Washington. The Electoral Count Act then sets out a process for the vice president — acting as president of the Senate — to preside over the count, and outlines a procedure for lawmakers to challenge any electors they deem invalid.

The House version is substantially similar to the Senate bill, though it proposes slight variations and lays out certain processes in more detail. House members’ insistence on releasing their own bill is the latest episode in the simmering tensions between the two chambers as they enter their final stretch of legislating in this Congress, with lower-chamber Democrats hoping to go from bill text to passage within a week and the Senate moving more slowly, expecting to hold a markup of their legislation — while retaining GOP support — next week.

Utah Sen. Mitt Romney, one of the GOP co-sponsors of the Senate bill, said he’d review the House bill and noted “there were a number of similar points.” But Romney called on Majority Leader Chuck Schumer (D-N.Y.) to hold a vote on the Senate’s version.

“Our proposal, we thought, would be met with the greatest degree of support and actually become law and not just a message,” Romney said.

House lawmakers, on the other hand, were optimistic they could close the gap between the two chambers’ bills.

“Let’s see what they produce,” said Jan. 6 panel member Rep. Pete Aguilar (D-Calif.), of the Senate bill. “We may be closer than we think.”

The new House bill would clarify that the vice president has only ministerial duties during the counting of electoral votes — not sweeping power to approve or reject votes certified by the states, as Trump asserted then-Vice President Mike Pence could do in 2021. Any challenges brought by lawmakers would need to have the support of at least one-third of Congress, and those challenges would need to strictly relate to constitutional requirements about the eligibility of electors and candidates.

Currently, challenges only require the support from one member of each chamber to force the full Congress to vote on whether to object to a state’s election results.

The House bill also explicitly defines the “catastrophic” events that would permit a state to prolong its voting period, including terrorist attacks, natural disasters, power outages or any other major event that would prevent a large number of people from voting. Plus, it more clearly defines the rules for Congress’ Jan. 6 counting of electoral votes.

Additionally, the House measure provides a specific process for candidates to sue state election officials if they believe a state has abused its authority to alter the election. However, the proposal would permit a court to impose steep fines on a candidate who filed a lawsuit without a “good-faith basis” for their challenge.

Both the House and Senate versions of the bill make clear that the vice president’s role is ministerial, indicate that only a governor or other top official can submit slates of electors to Congress and create an expedited judicial review to challenge a governor’s certification of electors. However, the Senate bill only requires one-fifth support in both chambers in order to force a vote on an objection, compared to the House’s proposed one-third.

“The 20 percent that we chose was not plucked out of the air. It is the amount of votes that is necessary for a roll-call vote in the Senate,” said Maine Sen. Susan Collins, the lead GOP co-sponsor of the bipartisan Senate bill.

Asked if the House could accept a lower threshold for objections as set out by the Senate’s bill, Lofgren allowed that “it’s not my way or the highway.” She added that she’d talked over the weekend with Senate Rules Committee Chair Amy Klobuchar (D-Minn.) and the panel’s top Republican, Missouri’s Roy Blunt (R-Mo.), and hoped for “a collaborative, useful process.”

Klobuchar acknowledged the delicate balance Senate negotiators had struck by saying that while she would “be happy” with the higher threshold for launching an objection, the upper chamber’s bill “is a compromise, a coalition, and we have to respect that.”

The Senate bill provides different categories for what constitutes a valid challenge, namely that electors weren’t “lawfully certified” or if the “vote of one or more electors has not been regularly given.”

But the House bill outlines several more categories, such as a state’s submission of more electors than it lawfully has, ineligibility of electors or an elector’s attempted vote for a candidate who would violate the 14th Amendment by having “engaged in insurrection or rebellion.” A New Mexico state judge ruled earlier this month that a county commissioner who was at the Capitol on Jan. 6 was disbarred from holding office under the same provision.

The split reflects fundamental differences in the internal politics of both chambers. The House, driven by the Jan. 6 committee’s probe, has made the focus of its legislative efforts explicitly about preventing a Trumpian sequel to last year’s siege. The Senate, on the other hand, has cast its effort as a bipartisan buffing-up of a rusty law at the heart of the democratic process.

One difference that underscores the divide: The House’s bill includes a section of “findings” describing the basis for the proposal as rooted in Trump’s efforts on Jan. 6; the Senate version has nothing similar.

Blunt said that language was a bridge too far for his party, quipping that it wouldn’t be “somewhere we would have gone.” Though, he added, it was still “appropriate” for senators to see if they could incorporate anything in the House proposal.

Though, he added, it was still “appropriate” for senators to see if they could incorporate anything in the House proposal.

With time running short before the end of the year, one option would be for the Senate to insert acceptable provisions of the House bill into their proposal. The two chambers could also start formal talks to resolve differences, though it’s unlikely they could finish in time.

Klobuchar and Blunt, as well as the Senate’s bipartisan group, are already negotiating potential changes to their version of the legislation. Among those potential technical tweaks, based on last month’s committee hearing, are judicial review of a governor’s certification of electors and a guarantee that expedited judicial review doesn’t interfere with the power of state courts when it comes to election disputes.

Katherine Tully-McManus contributed to this report. 

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