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Why two Democratic lawyers are concerned about the Electoral Count bill

The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

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In today’s edition … Your guide to the week ahead in Congress … The Post's Hannah Knowles looks at how Sen. Catherine Cortez Masto (D-Nev.) is trying to fend off GOP momentum on the economy … Poorer nations could suffer from U.S. efforts to slow inflation, The Post's Jeff Stein reports … but first …

On the Hill

Why two Democratic lawyers are concerned about the bill to revise the Electoral Count Act

The Senate will hold a hearing Aug. 3 on the bill that Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) unveiled last week to address the vulnerabilities in the law revealed by former president Donald Trump’s failed attempts to remain in power after he lost the 2020 election.

The long-awaited legislation would update the Electoral Count Act, the ambiguous and confusing 1887 law that governs the process of certifying presidential elections. It’s a compromise between nine Republicans and seven Democrats that its backers hope will win enough support to overcome a filibuster.

But not everyone is on board.

Two leading Democratic lawyers have raised concerns about the bills since its text was made public on Friday.

Both of them — Marc Elias, a leading Democratic election lawyer, and Norm Eisen, a former White House ethics lawyer in the Obama administration who advised House Democrats during Trump’s first impeachment — said in interviews on Friday that they support efforts to reform the ECA. But Elias said the current bill is flawed enough that passing it as is might not be worth it.

“I’m not sure it’s better than nothing,” Elias said. “I’m not sure. I hope it doesn’t come to that.”

Elias’ concerns are rooted in the part of the bill that lays out how governors certify which candidate won the state. The bill states that the certificate of ascertainment naming the candidate's electors to the electoral college “shall be treated as conclusive.”

“When something is conclusive, it means that there is no room for contesting it,” Elias said. “The Supreme Court has said that in other contexts in the past.”

Consider Pennsylvania, where Doug Mastriano, the Republican nominee for governor, attended Trump's “Stop the Steal” rally and later hired one of the lawyers who tried to help Trump overturn the 2020 election to work on his campaign.

“If he wins, then he alone in 2024 will have the authority to issue a certificate of ascertainment as to which candidates’ electors go to the electoral college,” Elias said. “And that means that even if Joe Biden gets more votes than his opponent in 2024, Doug Mastriano could just certify the Republican candidate as the winner.”

Eisen, meanwhile, worries that the bill doesn’t define the “extraordinary and catastrophic events” that would allow states to change voting hours or delay Election Day, among other concerns.

“I’m not suggesting that [the bill] was not a thoughtful effort,” Eisen said. “But I think some of these changes are not quite correctly executed and actually could create more uncertainty in the counting process and the risk of manipulation.”

Legitimate worry, or “outlandish” interpretation?

There are plenty of election lawyers who don’t share Elias and Eisen’s concerns.

Bob Bauer, a former White House counsel in the Obama administration, has praised the draft bill. Five law professors who specialize in election law wrote that the bill “would be a major improvement over the antiquated Electoral Count Act.” And Benjamin Ginsberg, a longtime Republican election lawyer who served as counsel to George W. Bush’s campaign during the Florida recount in 2000, said he has some minor issues with the bill but that it’s a “consensus bill that moves the legislative process forward.”

He urged Congress to pass it before another presidential election strains the system.

“Whenever the ECA comes to play again, it will be, by definition, a time of great national uncertainty,” Ginsberg said. “So you need a coherent law to guide the process.”

Matthew Seligman, a Yale Law School fellow who’s spent years studying the ECA, said he agreed with Elias that the bill doesn’t allot enough time — only six days — to litigate challenges to a governor’s determination of which candidate won his or her state. But he said some of Elias and Eisen’s concerns were overblown.

Elias, for instance, argued that federal courts might be reluctant to overturn governor’s certifications because the bill describes them as “conclusive.”

“The statutory interpretation that Marc is worried about is so outlandish that it would lose unanimously, I think, in every federal court in the country,” Seligman said.

Waiting for the House bill

The Senate bill won’t be the last word on the matter.

Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.), both of whom sit on the committee investigating the Jan. 6 attack, have been working on their own bill updating the ECA. And the House Administration Committee, which oversees federal elections and which Lofgren chairs, has been looking at the ECA since Trump tried to take advantage of the vagueness of the law in 2020. 

After senators released their proposal last week, Cheney and Lofgren put out a statement suggesting that they’d put forward their own proposal rather than just accepting the Senate’s. 

Down to the wire in the Senate

In Congress this week, most of the action is in the Senate, where the agenda includes passing the chips manufacturing bill, a drug pricing proposal, an updated treaty with NATO and federal protections for same-sex marriage. 

Chips

The latest version of the chips bill — which includes $52 billion for manufacturing subsidies, tax credits for semiconductor factory expansion, improvement or creation, and billions of dollars for the National Science Foundation — is expected to pass the Senate on Wednesday.

But first, the Senate will hold a cloture vote Monday night, which will need the support of 60 senators. Since the first procedural vote on the measure won 64 votes, the bill's advancement is not in question. 

Programming note: Leigh Ann will interview Sens. Todd C. Young (R-Ind.) and Kyrsten Sinema (D-Ariz.) for Across the Aisle on Washington Post Live Tuesday at 4:10 p.m. 

Same-sex marriage

Senate Democrats want to hold a vote on the House-passed bill that would offer protections for same sex marriage, interracial marriages and repeal of the Defense of Marriage Act, a 1996 law that defined marriage as a union between a man and a woman.

Sen. Tammy Baldwin (D-Wis.) and Sinema worked over the weekend with Senate Majority Leader Chuck Schumer (D-N.Y.) to secure the votes to pass the measure, according to an aide familiar the negotiations. 

The question is if there are 10 Republicans who will vote for the bill. Five have indicated they would: Sens. Thom Tillis (R-N.C.), Susan Collins (R-Maine) (who co-sponsored the bill with Baldwin), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio) (who is working on gaining Republican support) and Ron Johnson (R-Wis.). 

Pass or fail, it's good politics for Democrats. If it doesn't gain the support of enough Republicans, the GOP will be blamed for blocking it, and if it passes, Democrats can celebrate a bipartisan win on an issue that is very important to the base.

Prescription drug pricing

Senate Democrats are also hoping to move on their bill that would allow the government to negotiate drug prices in Medicare and extend Affordable Care Act subsidies for two more years in a very-scaled down version of the once-sweeping Build Back Better legislation. 

Democrats hope to hear from the Senate parliamentarian Monday on whether the drug pricing part of the bill complies with the Senate's reconciliation rules.

If they can move forward, the parameters of the debate were previewed in a closed-door meeting with the parliamentarian last Thursday when Republicans, according to a senior Democratic aide, argued against capping drug price increases to inflation and imposing an excise tax on drug companies that refuse to negotiate. 

“Senate Dems believe [these components] are politically popular and dangerous for Republicans to attack,” the aide said.

NATO

The Senate is working to move quickly to vote on an updated NATO treaty that would allow Finland and Sweden to join the alliance, a direct response to Russia's invasion of Ukraine. The measure will win the support of nearly all senators once it is on the floor — but first it must get to the floor, which just one senator can slow down. 

We are also watching a number of hearings this week. The Senate Judiciary Committee will hold a hearing on the decriminalization of marijuana. As we reported last week, Senate Democrats unveiled comprehensive legislation

The House Oversight and Reform Committee is also expected to hold a hearing on the gun manufacturing industry. It was rescheduled from last Wednesday. 

The Senate Commerce Committee is expected to mark up bipartisan legislation on Wednesday by Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.), a politically odd couple, on protecting children online. This is much anticipated legislation as social media companies have come under scrutiny for targeting young children. 

The House Administration Committee will hold a hearing Thursday on what Democrats view as another threat to elections and democracy: the independent state legislature doctrine.

  • The Supreme Court agreed last month to hear a case involving the doctrine, which posits that state legislatures have “sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats,” as our colleague Robert Barnes wrote at the time. The case “could have enormous impact on the 2024 election.”

The campaign

Sen. Cortez Masto is trying to fend off GOP momentum on the economy

The economy vs. abortion rights: “With large numbers of working-class voters, a fragile tourist ecosystem and some of the highest inflation rates in the country, Nevada will be a stark test of Democrats’ efforts to counter the GOP’s overriding economic message, especially among Latino voters,” our colleague Hannah Knowles reports.

  • “Nearly a fifth of Nevadans who cast ballots in 2020 were Hispanic or Latino, and Republicans are hoping to further cut into Democrats’ advantage with that group. The contest pits Democratic Sen. Catherine Cortez Masto, the first Latina elected to the Senate, against Republican nominee Adam Laxalt, who comes from a prominent political family.”
  • The Democratic Strategy: Cortez Masto is trying to highlight other issues — among them, abortion. “The word ‘inflation’ does not appear on the senator’s campaign website. Asked what she thinks of the White House’s efforts to address people’s economic woes, Cortez Masto neither praised nor criticized, and focused on Republicans.”
  • The Republican Strategy: Meanwhile, “Laxalt’s platform promises to boost supply chains and ‘restore fiscal sanity by stopping the spending spree.’ In a statement to The Post, Laxalt called Nevada ‘ground zero’ for ‘Bideninflation.’”

At the White House

Poorer nations could suffer from U.S. efforts to slow inflation

Global consequences: “U.S. officials are still scrambling to contain the highest inflation the United States has seen in decades,” our colleague Jeff Stein writes. “But the world’s leading economic policymakers see another reason to worry ahead: Poorer economies could be swamped as the Federal Reserve tries to rein in U.S. prices.

  • “Emerging market countries already faced mounting economic distress from the large amounts of spending required to fight the pandemic and, later, price spikes for food and fuel caused by Russia’s invasion of Ukraine. But tighter U.S. monetary policy will worsen those problems, because rising interest rates in the United States can push up the cost of financing debt for the dozens of low-income countries that borrow in dollars.”
  • “How U.S. and other Western policymakers respond could have major political and economic consequences, internationally and domestically. American exports could be imperiled if foreign markets deteriorate, and a global economic slowdown would threaten the U.S. recovery.”

It's not just emerging economies: In an opinion piece in today's Wall Street Journal, Sen. Elizabeth Warren (D-Mass.) castigates Federal Reserve Chairman Jerome Powell for threatening America's “surprisingly strong economic recovery” in his drive to bring down inflation.

  • “Higher interest rates won’t end skyrocketing energy prices caused by Vladimir Putin’s war on Ukraine," Warren writes. “They won’t fix supply chains still reeling from the pandemic. And they won’t break up the corporate monopolies that Mr. Powell admitted in January could be ‘raising prices because they can.”

The Media

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