The House committee hearings on the Jan. 6, 2021, invasion of the Capitol performed a useful educational service by detailing how former President Donald Trump incited the insurrection and rejected pleas to stop it.
But its extensive disclosures will go largely for naught unless they lead to meaningful reforms in the situation that prompted the failed effort by Trump’s allies to keep Congress from certifying Joe Biden’s election.
Fortunately, both the House and Senate are making serious legislative efforts to clarify the ambiguities in the existing law and make it far harder for future election losers to prevent what was supposed to be a routine certification procedure.
The House passed its version on Sept. 21 on a largely partisan vote. More significantly, the Senate Rules Committee had bipartisan support that included both top Senate leaders, Democrat Chuck Schumer and Republican Mitch McConnell, when it approved a slightly different version last week.
The legislation already had 11 Republican co-sponsors before that, and the number has risen since then. That means the Senate will likely pass it when it reconvenes for the “lame duck” session after the Nov. 8 election. Final enactment by year’s end seems virtually certain.
Though there are differences in the two chambers’ measures, both deal with the principal problems that emerged last year.
They would resolve the ambiguity of the vice president’s presiding role that prompted Trump to think he could pressure Mike Pence to reverse the outcome, raise the number of lawmakers required to force a debate on any state’s result and close a loophole that could allow a state legislature to substitute its judgment for that of a state’s voters.
“The President of the Senate (the Vice President) shall have no power to solely determine, accept, reject or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors,” the Senate bill reads.
Similarly, the House bill says, “The presiding officer (the Vice President) shall not have any power to determine or otherwise resolve disputes concerning the proper list of electors for a State, the validity of electors for a State, or the votes of electors of a State.”
Both bills establish judicial procedures to resolve challenges to a state’s electoral votes, specifying governors have the sole authority to submit them to Congress. The House bill would increase the number of objections required to force a debate and vote on any state’s electors from a single member of each house to one-third of both. The Senate bill sets the level slightly lower, at one-fifth of each House.
Both bills say appropriate state officials can only extend an election because of a “catastrophic event,” though the House bill defines that far more explicitly.
“The term ‘catastrophic event’ means a major natural disaster, an act of terrorism, or a widespread power outage, so long as such an event is on a scale sufficient to prevent a substantial portion of a state’s electorate from casting a ballot on the day fixed” for the election “or such event causes a substantial number of ballots already cast in a state to be destroyed or rendered unreadable,” it reads.
The Senate bill adds transition provisions to ensure successful presidential candidates get federal support, a reaction to the Trump’s administration’s refusal to assist Biden’s team for some weeks after the 2020 election.
Beyond the differences in their specific provisions, the most significant contrast in the two pending bills is the extent of Republican support in the evenly divided Senate. That’s necessary to reach the 60-vote level required for most legislation and virtually guarantees the final bill will be the Senate version.
In the House, the only Republicans joining all the Democrats on the 229-203 vote that passed the bill were nine who are leaving Congress after this year, either voluntarily or involuntarily.
Top House Republicans accused the Democrats of ramming through a partisan solution, though its two main sponsors were Rep. Zoe Lofgren, D-Calif., and Liz Cheney, R-Wyo., both members of the Jan. 6 panel.
One likely factor in the nearly solid House GOP opposition was the fact that Cheney was one of the sponsors. She has been a Republican pariah since her outspoken rejection of Trump’s unfounded claims of widespread fraud in the 2020 election led colleagues to oust her as House GOP Conference chair.
By contrast, the Senate version, crafted primarily by Republican Sen. Susan Collins of Maine and Democratic Sen. Joe Manchin of West Virginia, received a near-unanimous bipartisan vote in the Rules Committee with only Texas Republican Ted Cruz opposed.
Supporters on both sides say the votes are there for approval by the full Senate. And, given the need to maintain that GOP support, some blatantly political language in the House bill is unlikely to survive.
“On January 6, 2021,” it states, “a mob professing support for then-President Trump violently attacked the United States Capitol in an effort to prevent a Joint Session of Congress from certifying the electoral college votes designating Joseph R. Biden the 46th President of the United States.”
It's easy to see why Senate Republicans would prefer a bill without that language.
The final measure probably won’t solve every past or potential election problem. But it will fix some of the major issues that arose in 2021, and that is an important step forward.
