Congress faces limits on preventing Trump-style attacks on presidential certification

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And Congress has spent 134 years avoiding the subject.

Instead, it agreed to abide by the Electoral Count Act every four years, even though, as a matter of constitution, the law could be more of a glorified proposition. In fact, Congress vehemently brushed aside the debate by passing resolutions linking itself to the rules of law-a nod to the notion that it may not be mandatory.

Unanswered questions leave Congress today in a dangerous position. Democrats, along with two House GOP members of the select committee on Jan. 6, want to thwart future efforts by Trump or any defeated candidate to attack the transfer of power during certification. That makes the reform of the Electoral Count Act a central part of the mandate of the select committee.

But before the panel can propose a change in the law, it must at least try to resolve a question that has annoyed generations of constitutional scholars: Can the basic provisions of the Electoral Count Act be implemented, or can a bad Congress in future – in a league with a losing presidential candidate – just ignore it?

Rep. Said. Jamie Raskin (D-Md.), A Jan. 6 panel member and a professor of constitutional law, said any reforms the panel passes will be more dependent on the “honor system.”

Future Congresses “will have to decide to abide by the Constitution and rule of law,” Raskin said.

Across the aisle, Jan. 6 select committee vice chair Rep. Liz Cheney (R-Wyo.)-who has denounced Trump since the Jan. 6 attacks-acknowledged the “huge debate” on the constitutionality of the Electoral Count Act in a memo before the insurgency to colleagues urging them to prove the success of Joe Biden.

Experts are divided on whether any Congress can pass a law that will dictate how its successors validate presidential elections. Typically, the House and Senate have the constitutional power to set their own rules, which can be changed at will. Attempting to legislate against it is unconstitutional. But Electoral College certification is so important that many constitutional scholars say it goes beyond that prerogative of congress.

However, their view is, roughly speaking, irrelevant. Most important is how Congressional leaders behave in 2024 and the coming years of the presidency. They do not seek to accept the prevailing view of the scholarly community, and often congressional leaders do not.

Members of Congress applauded as Electoral College ballot boxes arrived at a joint session of Congress in January. 6, 2021. | Erin Scott – Pool/Getty Images

Some of Trump’s closest allies, including some lawmakers, spent months after his defeat in 2020 developing legal theories that the Electoral Count Act was unconstitutional, urging the then Vice President Mike Pence to ignore it in a bid to keep Biden in the presidency. If a future Congress decides that the Electoral Count Act cannot govern Jan. 6 certification, these fringe theories will serve as a blueprint-and there is little way to overrule them.

So far, the Jan. 6 panel appears to be moving forward without a firm response, deciding that doing something to prevent any future collapse of democracy is better than doing nothing. In fact, aides said the simple act of putting in place reforms in the law could serve as a deterrent.

“If a future Congress can deviate from [Electoral Count Act] is an open question, ”said a House aide familiar with efforts to reform the law, addressing the unfinished work on condition of anonymity. “By putting [changes] in law, they get a status that makes it difficult to break away from, and that’s probably why Congress hasn’t done that yet. ”

That argument bears striking resemblance to the debate that erupted in Congress in 1887, a decade after the disputed presidential election that nearly ruined the republic.

“[T]or these congressmen, an unenforceable law is better than no agreement at all, ”DePaul University constitutional law professor Stephen Siegel wrote in a widely cited 2004 review of the Electoral Count Act. Legislators in the 19th century considered an unenforceable law worthwhile, Siegel added, because of “the ability to bind the conscience of Congress and create a moral obligation to abide by its rules.”

Whether modern Congress will continue to adhere to moral obligation, of course, remains to be seen. Many experts are convinced that the Electoral Count Act can bind Congress, because competing constitutional principles – such as Congress ’power to“ make all Laws necessary and appropriate ” – justify the enactment of something. which is as critical as the transfer of power.

Ned Foley, a constitutional scholar at Ohio State University, acknowledged the “differences of opinion” even as he insisted that subsequent Congresses would have to abide by a revised Electoral Count Act. But, he warns: “No rules can completely impede a set of people who, if they want to do something out of pure political desire… can ignore the rules.”

Despite pleas by scholars that Congress try to overhaul the Electoral Count Act regardless of political hurdles, it is far clear that anything can pass Congress before the 2024. Senate GOP filibuster of a bipartisan House-passed bill that created an independent commission on Jan. 6.

There is also the unfortunate possibility that the courts will avoid weighing a dispute over the Electoral Count Act in the future. Judges have long been hesitant to cross over to internal Congressional decisions, and may be even more reluctant to act-in the shadow of Bush v. Gore – in a way that can be seen as determining the outcome of the presidency.

Until the Electoral Count Act, the only requirement for counting Electoral College votes came out in the Twelfth Amendment, which required the House and Senate to meet in the presence of the vice president and count the ballots delivered by the states. If no candidate gets a majority, the amendment will send the election to the House.

The Electoral Count Act seeks to fill in the gaps, set a process and deadlines for states to verify their election results and requires a joint session of Congress to be held in Jan. 6 after each presidential election. It asks the vice president to preside over and read returns from each state, while empowering lawmakers to challenge the validity of certain voters.

Trump, drawing on ambiguities in the law, forced Pence to refuse to count dozens of Biden voters. The then president also assigned allies in Congress to file as many challenges as possible, to try to delay certification of Biden’s victory. Pence’s refusal to join turned Trump supporters against the vice president: some of the mob shouted “Hang Mike Pence” during the insurgency.

A year later, the Electoral Count Act reform remains a low-profile pillar of the selected panel’s mission on Jan. 6, with Rep. Zoe Lofgren (D-Calif.), Leading the effort. Lofgren, who heads the separate House committee that oversees the elections, and his colleagues hope to specifically address loopholes in the law that Trump and his allies seek to exploit.

Deborah Pearlstein, a professor of constitutional law at Yeshiva University’s Cardozo Law School, has suggested some “low -fruit” changes to lawmakers that include raising the standard for major challenges in electoral votes and establishing remedies if the House and Senate do not agree on how to resolve a disputed set of voters.

“I’m worried about Big Lie 2.0,” said Foley, the constitutional scholar, who noted that the law has been virtually unstoppable amid baseless claims of Trump’s fraud. “The system needs to be prepared for a scenario where the issue is not fictional.”

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