Why is Pelosi still wasting time on trying to pass H.R. 1?

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I read Joe Manchin’s op-ed and spoke to him about it, she told CNN this morning, and I think there’s a real chance he might change his mind. Yeah? Go read Manchin’s op-ed for yourself. His point was that it would be nutty in a bitterly partisan age to reform voting laws on a party-line vote in the Senate. Half the country would regard the changes as an attempt by the majority to game future elections. We need Republican buy-in as a matter of basic legitimacy, he insisted.

And there’ll be no Republican buy-in on H.R. 1. Not a single vote.

There’s also no reason to think Manchin would be the only Senate Democrat to oppose H.R. 1 if the filibuster magically disappeared and Schumer forced a gut-check vote on the bill. Manchin frequently acts as a “heat shield” for other centrist-leaning Dems in the caucus, stating objections to liberal priorities that would be too risky for politicians from bluer states to articulate. A progressive wish-list bill as bloated and aggressive as H.R. 1 would be destined to lose a few Democratic moderates. There may not be 45 votes for it. Heck, there may not be 40.

So why is Pelosi still yammering on about it? It’s not even useful as a political cudgel now that Manchin has joined the GOP in opposing it. More importantly, why isn’t she focused on the real threat to the 2024 election, which has nothing to do with “voter suppression”? Watch, then read on.

Democrats may have become prisoners of their own bullsh*t. Pelosi knows there’s no hope for H.R. 1 but she and the rest of the liberal establishment have spent so much time this year screeching about “Jim Crow” in response to election changes in red states that they can’t give up on it yet. When you spend months lying to your base to convince them that Georgia and Texas have now all but banned black people from voting, they’re going to expect a certain amount of effort in Congress to undo that. Throwing up her hands and saying “oh well” after a single op-ed by a single Dem senator ain’t gonna hack it for Pelosi. If her party had been more honest about the mild changes made in Georgia and Texas, she wouldn’t be under as much pressure to persevere.

But I suspect she’s okay with that. H.R. 1 may be bad legislation with no hope of passing but it’s dynamite fundraising material, I’m sure. And potentially solid turnout fodder for the midterms, assuming lefties don’t end up demoralized when the Senate finally drops it. “We need to elect more Democratic senators and make Manchin’s vote irrelevant” is one way to get progressives jazzed to vote in 2022.

The peril in having Democrats drone on about doomed legislation is that it’s sucking energy away from working on a bill to avert the real nightmare scenario in 2024, which might — might — have a chance of passing. The GOP isn’t going to voter-suppress its way to victory next time via the modest changes made in Texas and Georgia. The greater risk is that they’ll try to game the election on the back end, after the votes have been counted, by intervening to overturn narrow Democratic victories in swing states. The process of filling influential state election offices with Trump loyalists is already in motion in states like Georgia, with Jody Hice challenging Brad Raffensperger for secretary of state. If Stop The Steal 2.0 happens in 2024, the pieces will be in place to make it work next time. Democrats should be thinking about how to prevent state legislatures from tossing out the results of their elections on “fraud” pretenses and how the House and Senate will handle certifiying the election if they do. H.R. 1 does nothing to address that.

But amending the Electoral Count Act of 1887 would. The ECA governs the procedures that Congress should follow on certification. It’s infamous for its inscrutable language, which partly explains how we ended up in suspense about what Mike Pence could and would do on January 6. Ed Kilgore proposed some changes to the statute a few months ago that would discourage the sort of partisan bad-faith objections to certification that were made by the House GOP at Trump’s behest. Mona Charen seconded his recommendations in a piece last week and added an important one of her own:

The Electoral Count Act decrees that if one representative and one senator object, in writing, to the counting of any state’s electoral votes, the bodies must adjourn to their chambers to debate the matter…

As Ed Kilgore has recommended, congress should amend the Electoral Count Act to clarify that only electoral votes certified by individual states will be counted and that the vice-president’s role is purely ceremonial. Further, the threshold for objections to state electoral vote counts should be much higher than two.

I would add that a supermajority should be required to decertify any state’s electoral votes, not just a simple majority as the law now permits. Additionally, the law should be amended to eliminate the “failed election” section that empowers legislatures to substitute their preference for that of the voters.

It’s insane that federal law currently allows a simple majority of both chambers to decertify a state’s electoral votes knowing how that power might be abused by a congressional majority willing to throw the election to their party’s nominee irrespective of the cost to his and the country’s legitimacy. A supermajority standard would require some buy-in from the minority to make it happen. There’s potential for abuse there too — the minority wouldn’t want to decertify the results of a truly dubious state election that was won by their party’s candidate — but given what we just went through in January, the risk of the majority throwing out legitimately won electoral votes is obviously a greater concern.

Congress’s certification of the election is only half the problem, though. The other half is GOP-controlled state legislatures being pressured by Trump and Republican voters to overturn the results in their state in the first place. That’s not a hypothetical fear after 2020, notes Dan McLaughlin, correctly. He has additional suggestions for what Congress might do to prevent state legislatures from going full coup in 2024:

Today, the principal remedy for grave, provable voter fraud or voter suppression would come in the state or federal courts. The ECA should be amended to clarify that Congress must treat a certified slate of electors as “regularly given” if an argument to the contrary could have been presented to a court (whether or not it was). It should additionally specify what grounds exist for finding that electoral votes were not “regularly given,” the most obvious being bribery or extortion of the electors…

[I]t should take a very, very high bar for a state legislature to pick electors if the state actually already held a popular vote and there exists some workable method of figuring out who legitimately won it. (A state still has the power to choose electors by the legislature instead of holding a popular vote, and while it may be prudent to eliminate that power as well, nobody has tried it since 1876.) Here, too, states that chose in advance to hold a popular vote should be barred from claiming that they “failed to make a choice” simply on the basis of challenging the integrity of their own elections, so long as some contest procedure exists by which the courts can resolve those arguments.

If a state legislature opts to let voters decide who should receive its electoral votes by holding an election, it’s stuck with the results of that election. There’s no mechanism outside a courtroom for throwing out the results and appointing a second slate of electors.

Democrats should drop H.R. 1 and get cracking on a bill incorporating all of the changes just mentioned to the Electoral Count Act. There’s no downside to prioritizing it. It might actually pass. Seven Senate Republicans voted to convict Trump at his second impeachment trial and Rob Portman, who’s retiring, recently voted for a January 6 commission. Roy Blunt is also retiring and would have nothing to lose by supporting it. That’s nine of the 10 votes Schumer would need. Maybe even Mitch McConnell, who excoriated Trump for his role in inciting the insurrection in his floor speech after the impeachment vote, would see some virtue in passing it in order to avert another crisis and ensuing party meltdown in 2024.

Although I doubt it. If Schumer put a revised ECA bill on the floor, Trump would inevitably weigh in to say that any Senate Republican who votes for it is a traitor by making it easier for Democrats to “cheat” next time. That might be enough to maintain a Republican filibuster; McConnell would worry that if the bill passed with GOP support, Trump might declare that he was leaving the party and taking his fans with him. Still, even if Republicans filibustered, Dems would get a political win from showing that the GOP is already preparing to try to overturn the next election by staving off a legislative effort to prevent them from doing it. And, as I say, it might spark a nasty intraparty war between Trumpists who want a do-over of January 6 next time if a Democrat wins and establishmentarians who are looking to avoid that.

If nothing else, Senate Dems should be able to get all 50 in their caucus behind this one. And if they’re really lucky, having Republicans block the bill might convince Manchin to lower the filibuster threshold to, say, 55 if there are five Republicans willing to support it. Either way, it’s total malpractice by Schumer and Pelosi that they’re not thinking about this after the “stop the steal” debacle. But then, it wouldn’t be the first time they’ve whiffed on an obviously badly needed reform.