The Lessons of the Electoral Count Reform Act: Next Steps in Reform

The Electoral Count Reform Act (ECRA), which President Biden signed into law on Dec. 29, 2022, is nothing short of a miracle in the annals of democracy reform. It would merit that recognition at any time. But that it found a path through the highly polarized politics and pressures of the times makes the achievement all the more remarkable. Already we have seen retrospectives that rightly note key factors contributing to its success, such as strong congressional leadership and the constructive use of bipartisan expertise on complex technical and constitutional questions. There is much credit to go around.

The ECRA experience also presents a possible model for thinking about what might be feasible in the next phase of federal-level democracy reform. Of course, the divided 118th Congress will make for much tougher sledding for all such endeavors. In the best of times, reform is caught up in party and other politics. This is even more true in a presidential election cycle in this sharply divided polity. But what worked in the Electoral Count Act case may help shape the reform agenda for the near future.

First, nobody seriously disputed the merits of Electoral Count Act reform. The 1887 statute was a shambles in desperate need of fixing. Its weaknesses were papered over by widespread observance of norms governing the congressional vote count for over a century. Then the times caught up with it. The calamitous Jan. 6-7, 2021, session left no doubt that failure to amend the statute before the next presidential election posed unacceptable risks. 

Second, and this strength is not to be underestimated, the case on the merits was entirely compatible with common sense intuitions. By and large, there was agreement that Congress should not be able, on the whim of a partisan majority, to simply chuck out votes for president that they wish had been cast differently, and that the states should not be able to change the outcome of an election by changing the law after Election Day. There were a few voices here and there to suggest that perhaps the vice president did have the unilateral authority to reject election results or suspend the proceedings. But this was always a distinctly minority view on both sides of the aisle.

Third, nobody could argue that reform of the Electoral Count Act would have the effect of advantaging one party over the other. Each party understands perfectly well that control of Congress will shift, as will the identity of the vice president. And the same is true of control of state legislatures that might be preparing “alternative slates of electors” to substitute for the ones approved by the voters. So the ECRA was blessedly free of the perceived danger of political engineering that would somehow sculpt the competitive landscape favorably for one party or the other into the future.

Fourth, the ECRA was not part of an ambitious package of electoral reforms (like the sprawling and ill-fated Protecting Our Democracy Act) that linked the success of any one type of relatively uncontroversial reform to the fate of many other somewhat more controversial reforms. To be sure, the ECRA was in the same Senate bill as presidential transition reform, but the latter discrete reform was related to the ECRA and relatively uncontroversial. When the fate of one reform is tied to a much more ambitious, controversial, and disconnected set of other reforms, reaching consensus obviously becomes much harder. 

Fifth, the issues that needed to be worked through for passage of the ECRA lent themselves to the constructive support and participation of a bipartisan community of legal experts. The aim of reform was to work with baseline agreements, such as the need to raise the thresholds for objections or clarify the role of the vice president, and then tackle more controversial questions, such as the role for the courts in resolving disputes over the actions of state legislatures and officials.

This could be done—and was done—without igniting the fatal objection that Congress was somehow radically altering institutional roles within the federalist structure. In testimony before Congress, and on call to support the outstanding congressional staff in the drafting process, legal experts of different backgrounds, party affiliations, and ideological orientations could help work through these details. In the end, for example, the federal courts were afforded a significant role, but within existing authorities, in hearing cases brought by presidential and vice presidential candidates. A meaningful reform that would not draw fire as “radical” in design stood the best chance of maintaining bipartisan support.

Many of these criteria, by the way, were the key to other governance reforms late last year—on presidential transitions, inspectors general, and presidential transparency about international agreements. In our view, these criteria for reform suggest the potential for agreement in the next Congress on reform in at least three areas: emergency powers, vacancies reform, and war powers.

Emergency Powers

The need for emergency powers reform has been explained in detail elsewhere, including by us. In a nutshell, the problem is that Congress has authorized a wide array of presidential emergency powers that presidents of both parties have invoked aggressively in situations that are not real emergencies—and that presidents can renew indefinitely under the National Emergencies Act, subject only to veto-overriding supermajorities in Congress. (Congress originally sought to control emergency powers in the National Emergencies Act with legislative vetoes, but the Supreme Court’s invalidation of such vetoes shifted emergency power enormously to the president.)

The good news is that emergency powers reform has bipartisan support in both houses of Congress. There is even bipartisan agreement on the shape such reform should take. National emergency powers reform with bipartisan support came close to passage last year. The consensus position, in brief, is that new presidential assertions of emergency powers should terminate after 30 or so legislative days unless Congress approves the emergency using expedited procedures. The emergency could then last one year, subject to renewals by the president that are approved by Congress using the same expedited procedures. The consensus proposals exempted the president’s most vital emergency power—the International Emergency Economic Powers Act.

This sensible reform is teed up to succeed. No one seriously doubts that the president’s array of emergency powers, as they have come to be practiced, are too excessive and undisciplined. Common sense dictates that emergency powers should be limited to real emergencies and not confer timeless power. The reform is neutral in the sense that it would impact the practices of presidents of both parties. And, as noted, there is a sensible consensus on what reform should look like.

Vacancies Reform

We described the problems with the current law of presidential vacancies in detail in “After Trump.” In brief, the 1998 Federal Vacancies Reform Act (FVRA) has allowed presidents of both parties to exercise broad discretion to skirt the Senate confirmation process by filling vacant senior executive branch slots with “acting” officials who can serve for 200 days and sometimes longer. Any sensible reform here must have two elements. First, it must curb the president’s authority to fill vacant senior executive branch positions in a way that skirts the Senate’s check and other public accountability mechanisms. We proposed a scheme to do so in “After Trump,” but there are many options here. 

Second, and just as important, Congress must give the executive branch something in return. The flip side of presidential abuse of vacancies is that a recalcitrant Senate controlled by a party that opposes the president can block effective governance through its refusal to confirm nominees. As we explained in “After Trump,” there are good reasons to think that Congress requires confirmation of way too many executive branch officials, and that the Senate could use this power over confirmations to hamstring the executive if the latter’s power over vacancies is narrowed. There needs to be some compromise on this question. In “After Trump” we proposed reducing the number of Senate-confirmed appointments, but there may be other solutions.

This reform in theory can satisfy the ECRA model for success. The current legal regime on vacancies is obviously suboptimal. Common sense dictates that the president must be able to fill a vacant position when the Senate refuses to confirm a candidate, but that the president’s discretion should be channeled more compared to the current FVRA baseline. And a reform like this should be able to attract bipartisan support in Congress since it responds to past excesses by presidents of both parties and will apply going forward with equal force to presidents of both parties.

War Powers

There are three basic elements of war powers reform: abrogating the 2002 Authorization for Use of Military Force related to Iraq, updating the 2001 Authorization for Use of Military Force, and amending the War Powers Resolution. The first reform is easiest to achieve and has come close to happening several times in the past few years. It meets all of the criteria that made Electoral Count Act reform possible. The second reform is harder. But there is a consensus across the parties and the political branches that some reform here is needed. Success here will depend on leadership in Congress and the White House. War Powers Resolution reform will be much harder because there are stark differences within Congress and between Congress and the White House.

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The passage of the ECRA suggests there are achievable goals of democracy reform even as polarization retains its grip, we now have a divided government, and a presidential election is less than two years away. The way forward will not, of course, be easy, and a broad agenda like the one for which we argued in “After Trump” will have to be trimmed as these circumstances require. But the narrowing of these objectives in the near term does not mean that they are somehow less consequential. And the success of any one reform invites consideration of the next steps. It keeps the entire reform enterprise going.