Changing a Law That Trump Exploited

OPINION - THE EDITORIAL BOARD - New York Times

There’s a Lot Congress Can Do Now, and It Starts With Changing a Law That Trump Exploited

Nov. 11, 2022

Voters in multiple states acted to protect the integrity of American democracy in Tuesday’s elections by rejecting some of the most prominent candidates who embraced lies about the 2020 election and threatened to ignore the will of the electorate.

These are crucial and heartening results, but urgent work remains to be done.

Congress now should do its part and act, in its final weeks in session, to clarify and strengthen the federal law governing the counting and certifying of electoral votes in presidential elections. It needs to do this before control of the House passes, in all likelihood, to a Republican majority.

The 135-year-old law, known as the Electoral Count Act, is chock-full of confusing and ambiguous provisions, and legal scholars have long warned that it could trigger a crisis. That’s exactly what happened after the 2020 election, when Donald Trump and his associates exploited the law’s vague and arcane language to claim that they could overturn the will of the voters. That exploitation led directly to the violence on Jan. 6, 2021.

Since then, several Republicans have joined Democrats in agreeing that a major reform to the law is necessary — a rare point of bipartisanship. The Senate introduced reform legislation over the summer, and the House passed its bill in September. While the bills contain minor differences, either would be a huge improvement over the status quo.

The most significant changes to the law would make it far harder, if not impossible, to pull off the schemes that Mr. Trump and his allies tried to use to overturn the 2020 election and hold on to power.

For example, the law currently makes it very easy for members of Congress to obstruct and delay the final count of electoral votes on Jan. 6; any objection lodged by one representative and one senator will do the trick. Republicans took advantage of this after the 2020 election, including when Senators Ted Cruz and Josh Hawley introduced meritless objections simply to slow the process. The new bills would raise the bar, by requiring at least one-fifth of both houses of Congress to sign on before an objection can be lodged, and by strictly limiting the grounds for any objection.

The reform bills would also clarify that the vice president’s role on Jan. 6 is purely ministerial, and that, despite Mr. Trump’s claims, the vice president has no authority to throw out electoral votes or accept a slate different from the one a state has already certified.

Congress can also do more to protect the integrity of a presidential election before the electoral votes arrive in Washington. What happens in the states, after the ballots are counted, is just as important, if not more so. The 2022 midterms featured multiple Republican candidates for governor and secretary of state, like Mark Finchem in Arizona, who have suggested they would reject the will of their own voters.

The verdict of Arizona voters on Mr. Finchem’s bid for secretary of state is not yet final. Similarly extreme Republican candidates for secretary of state have lost in states including Michigan, New Mexico and Minnesota, and Republican gubernatorial candidates who engaged in election denial lost in the key swing states of Pennsylvania, Michigan and Wisconsin.

Election deniers, however, remain a potent force on the right: More than 220 candidates who questioned the 2020 election have won state or federal office, and about 30 of those have said the election was stolen or rigged.

The reforms proposed in the bills address this threat by making clear that state officials must count their votes according to the state laws in place on Election Day. They may not change the result after the fact simply because they don’t like it. Critically, the new bills also steer disputes over vote tallies to the courts, where judges — not partisan officials — have the final say.

Even if these reforms pass, they are, like any other law, only words on paper. In order to work, they need to be upheld by those in positions of power, who are committed to acting in the interests of American democracy and the rule of law. Still, both the Senate and House bills are far better than what we have right now, and either one would go a long way to ensuring that the electoral-count law cannot be used as a tool for subverting the election in 2024 or beyond. Congress needs to pass the overhaul now, when it has willing majorities in both houses and well before anyone casts a ballot in 2024.

Democrats also should move quickly on the debt ceiling and on immigration.

They should act before the end of this legislative session to ensure that the federal government can borrow the money it needs to meet its obligations over the next two years — including recent and important increases in federal funding for expanding the production of renewable energy; investing in roads, high-speed internet, unleaded pipes and other infrastructure; and supporting local government, including money for law enforcement. Congress agreed to those measures after months of negotiation and compromise, and Democrats should do everything they can to defend the achievement.

The government is expected to reach the limit of its congressionally authorized borrowing capacity, known as the debt ceiling, at some point in 2023. For the government to pay its bills, Congress must raise that limit — but House Republicans have made clear that if the vote is deferred until the next Congress, they will threaten to withhold consent, risking a global financial crisis to compel the White House to accept reductions in federal spending.

It’s a serious threat: Republicans have engaged in similar brinkmanship repeatedly in recent years, most notably in 2011, when the possibility that the government might fail to meet its obligations produced a measurable increase in the interest rates the government must pay to borrow money, costing taxpayers an estimated $1.3 billion. That standoff also imposed limits on federal spending that delayed the recovery from the 2008 financial crisis.

Democrats could avert the immediate danger by raising the debt ceiling high enough to permit necessary federal borrowing until after the next presidential election. But there is no reason to preserve the debt ceiling as a problem for future Congresses. Democrats can end this dangerous game by passing the legislation to eliminate the debt ceiling that has been introduced by Senator Michael Bennet of Colorado. There is simply no reason for Congress to vote again on spending that already has been authorized.

Some Democrats worry that eliminating the debt ceiling would expose them to charges of fiscal recklessness. And not just from Republicans. President Biden just last month described the proposed elimination of the debt ceiling as “irresponsible.” The president’s choice of words was misguided and deeply counterproductive. Preserving the debt ceiling is a reckless and dangerous policy cloaked in the appearance of responsibility.

Finally, the broken state of the nation’s immigration system is an issue urgently in need of congressional action, and one on which there is a plausible path forward. In the closing weeks of the current Congress, members from both parties should restart negotiations on legislation to fix one particular piece of the immigration system: The process by which migrants claim asylum.

This board has endorsed the framework of a deal put forward last year by Republicans, including Senator John Cornyn of Texas, and Democrats, including Senator Kyrsten Sinema of Arizona. The core of the bill would significantly increase the government’s capacity to process asylum claims, by allowing those with a legitimate fear of persecution to settle safely in the United States and by making it more difficult for those without legitimate claims to enter or remain in the country.

The bill also offers a road map for cooperation on other issues over the next two years. It is narrowly focused on a specific problem; the solutions it puts forward would require significant compromise on both sides, and for both sides, it improves on the status quo. Even as the current Congress wraps up its work, those who will remain, and those who will soon be joining them, can start looking for other issues on which progress may still be possible.

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