A sensible reform.

July 21, 2022

          Trump’s effort to overturn the 2020 election nearly succeeded because of arcane and outdated provisions of the Electoral Count Act of 1887 (the “ECA”). The Act supplements the provisions of the Twelfth Amendment, which prescribes how electors cast ballots for president, how Congress counts those ballots, and what happens if a candidate does not receive a majority of electoral ballots. Trump’s attorney, John Eastman, drafted an infamous memo that sought to exploit gaps and ambiguities in the ECA to force a “contingent election” in which the president is elected by the House of Representatives. Because each state’s House delegation gets one vote in a contingent election, Trump would have won in 2020 if Eastman’s illegal scheme succeeded.

          The weaknesses of the ECA may be exacerbated by the so-called “independent state legislature” theory, which wrongly asserts that state legislatures have unfettered authority to appoint electors of the legislators’ choosing. One aspect of the independent state legislature theory is before the Supreme Court in the case of Moore v. Harper, which will be decided in the Court’s 2023 term. In short, there is an urgent need to reform the ECA to prevent a second coup attempt that follows the plot outlined in the Eastman memo.

          Fortunately, a bipartisan group of Senators supports legislation to provide much-needed clarifications to the ECA. Under the leadership of Susan Collins and Joe Manchin—and with the blessing of Chuck Schumer and Mitch McConnell—negotiators have agreed on outlines of a bill that would do the following (per WaPo):

Collins and Manchin’s proposal is expected to set a deadline for when states can change their rules, clarify that states cannot choose their electors after Election Day, create more stringent requirements for Congress to object to the certification of a state’s electors, and clarify that the vice president’s role is ceremonial with no power to reject electors.

          The simple expedient of requiring states to choose electors on Election Day—not thereafter—will defang one aspect of the poisonous independent state legislature theory. Requiring a numerical threshold for objecting to a state’s electoral slate will eliminate the prospect of a single rogue legislator (looking at you Josh Hawley) forcing a debate and vote on objections to every electoral slate. And clarifying that the Vice President merely “counts” the votes rather than “certifying” the votes will remove one of Trump’s main coup arguments in 2020.

          Could more be done? Yes. But the reforms, however modest, will remove many of the ambiguities and gaps that fueled Trump’s 2020 coup attempt. Jennifer Rubin of WaPo urges Democrats to “take yes” as an answer in this instance. See Washington Post, Opinion | Democrats should take yes for an answer on Electoral Count Act reform.

          So, if the proposed reforms to the ECA seem sensible, who would oppose the bill? Possible opposition may emerge from the genesis of the bill. In January 2022, Democrats attempted to pass the John Lewis Voting Rights Act. Joe Manchin and several Republicans objected to the proposed voting rights bill and offered a vastly smaller bill that addressed only the Electoral Count Act. See Vox (1/20/22), Why reforming the Electoral Count Act isn’t enough to stop election subversion and protect voting rights.

          Compared to the John Lewis Voting Rights Act, the proposed reform to the Electoral Count Act borders on insulting. But compared to nothing—and compared to a possible repeat of the attempted coup in 2020—the proposed bill is a sensible reform that deserves the support of every Democrat. Although there is no guarantee that the bill will garner sufficient support from the GOP to pass, there is some reason to believe that it will. If so, it will be a welcome development, indeed.

Trump’s ongoing coup efforts.

          In the last week, we have learned of two actions by Trump to continue his 2020 coup. A legislator from Wisconsin revealed that Trump called him “last week” urging the legislator to cause the Wisconsin legislature to overturn the 2020 election. See WaPo, Trump called ‘within the last week’ to overturn Wis. election results, Speaker Robin Vos says.

          During Liz Cheney’s closing comments of the January 6th hearing last week, she warned that Trump had called a witness expected to testify this week. As reported by MSNBC, Trump did not have a “telephone relationship” with the witness, so the call was “highly unusual” according to Chair Bennie Thompson. The strong implication is that Trump is attempting to tamper with witness testimony in the January 6th hearings.

          Trump’s ongoing efforts to promote his 2020 attempt to overturn the election and to interfere with the January 6th hearing illustrate why urgency is needed in DOJ efforts to investigate and prosecute Trump.

Biden says climate is an “emergency,” but not a “national emergency.”

          Biden gave a speech on Wednesday promising to use the full extent of his executive power to fight the climate crisis. He said that the situation was an “emergency,” but stopped short of declaring a “national emergency” under the National Emergencies Act of 1976, as urged by many of his critics. Despite the impressive sounding title of the National Emergencies Act, the president’s powers under the Act are limited and subject to termination by Congress.

          In the event of a national emergency, the president can exercise 136 additional powers expressly granted by statute. In other words, the declaration of a national emergency doesn’t give the president any powers beyond those already delegated to him by Congress. The Brennan Center has created a spreadsheet of those powers: A Guide to Emergency Powers and Their Use | Brennan Center for Justice.

Few, if any, of those emergency powers relate to climate, energy, or emissions. Indeed, one of the few provisions relating to emissions allows the president to suspend provisions of the Clean Air Act. For a more complete discussion of this topic, see Vox, Biden’s steps on “climate emergency” after Congress fails to act.

          So, despite the pressure on Biden to declare a “national climate emergency,” Biden’s authority to act is effectively limited to his power to issue executive orders. Despite all of the above, Biden should declare a “national climate emergency” and put the full force of the presidency behind administrative actions to reduce climate emissions. In other words, he should do all he can, given that Joe Manchin and fifty Republicans killed Biden’s climate bill earlier this week.

Merrick Garland Statement to USA Today

          In apparent response to Rachel Maddow’s reporting on Merrick Garland’s internal cautionary memo on indicting a presidential candidate, the Attorney General made statements to USA Today about the scope of his investigation. See USA Today, Merrick Garland: Nothing prevents investigating Trump for Jan 6. Garland said,

No person is above the law in this country. I can’t say it any more clearly than that. There is nothing in the principles of prosecution and any other factors which prevent us from investigating anyone – anyone – who is criminally responsible for an attempt to undo a democratic election.

          The above statement is welcome—as far as it goes. It is (or should be) a truism that no one is above the law in America. But the timing of Garland’s statement suggests it was intended to assure anxious Americans that investigating Trump is not “off limits.” If so, good!

Concluding Thoughts.

          It is easy to hear the latest story about an extreme Big Lie proponent winning a Republican primary and feel a twinge of despair. How can it be that the entire GOP is caught in a delusional contagion of lies? What does that mean for our future? As usual, there is some component of media bias at play—as well as cognitive biases that cause us to overinterpret bad news and minimize good news. The truth is that Trump’s “true-believers” had very mixed results in the 2022 primary season. In some states, Republicans are moving towards more moderate candidates, while in others they are electing candidates so extreme that they have little chance of winning in the general election.

          Aaron Blake has written an illuminating article on the state of play for Trumpian candidates. See the Washington Post, State GOPs split on whether to nominate hard-line Trump candidates. One takeaway is that the GOP is at war with itself within states and between states. It remains to be seen how that war will resolve, but it provides an opening for Democrats during a challenging moment. We should exploit that opening for all it is worth.

          If you are under the misimpression that Trump’s grip on the GOP is ironclad, I urge you to read Blake’s article. The GOP is trying find a way to separate from Trump when many of its most loyal voters want to continue that relationship. In a tightly divided electorate, even marginal defections or “stay at home” voters can swing elections in favor of Democrats.

          Here’s my point: Like all bullies, Trump has succeeded in creating an image of himself that is larger and more fearsome than reality. Trump is a weak, injured, divisive candidate whose ego will inflict significant damage on the GOP in 2022 and 2024. Don’t attribute to Trump—or his radical followers—superpowers they do not have. They had a spotty record in the 2022 primaries when they were competing against other Republicans. We should be able to best many of them in November. So, don’t spend a lot of time fretting over the question of why Big Lie proponents succeed in the GOP. Instead, spend your time helping to elect Democrats. The rest will sort itself out.

          Talk to you tomorrow!