Reforms to Electoral Count Act Included in $1.7 Trillion Omnibus Bill

The House floor convenes before a joint session of the House and Senate convenes to confirm the Electoral College votes cast in November's election, at the Capitol in Washington, D.C., on Jan. 6, 2021. Graeme Jennings/Pool/AFP via Getty Images

Republicans and Democrats have attached a bill revising the Electoral Count Act to their $1.7 trillion omnibus spending package, contending that the new law would prevent a repeat of the Jan. 6 Capitol breach from occurring in the future.

The bill would clarify the role of the vice president in counting Electoral College votes after a presidential election.

“Recent elections uncovered defects in Congress’s interaction with the Electoral College,” Sen. Rand Paul (R-Ky.) noted on Dec. 19 in an op-ed in the Courier Journal. “Federal law currently leaves ambiguous the role of the Vice President in counting electoral votes and allows an incredibly low threshold—just one member of the House and Senate—to object to a state’s election results.”

Enacted by Congress in 1887, the Electoral Count Act (pdf) was designed to address problems that had arisen in some past presidential elections by adding to the procedures laid out in the Constitution for the counting of Electoral College votes.

In 2021, then-President Donald Trump and his supporters asserted that the law allowed the vice president to reject electors from states that they alleged experienced voting irregularities. Others, however, including then-Vice President Mike Pence, believed that the vice president’s role was only ceremonial.

Holding that the protests of the 2020 election results “went too far” and endangered the entire Electoral College system, Paul argued that reforming the Electoral Count Act was necessary to prevent the abolition of the Electoral College altogether.

The bipartisan Electoral Count Reform and Presidential Transition Improvement Act, introduced in July, designates the certification of presidential electors to the governor of each state unless another official is specified under state law.

The bill further specifies that the role of the vice president in counting electoral votes is to be only ceremonial, and raises the threshold for congressional debate on objections to a state’s results to one-fifth of the House and one-fifth of the Senate. Under the current law, only one House member and one Senate member need to raise an objection to force Congress to consider a challenge.

Trump’s Response

On Dec. 12, Rep. John Sarbanes (D-Md.) also spoke out in support of the bill, stating, “Reforming the Electoral Count Act is necessary to prevent it from being manipulated to subvert, rather than support, the peaceful transfer of power.”

Responding to news of the bill on Dec. 20, Trump wondered why the law would need to be changed if it had been clear in the first place—as some had maintained in 2021—that the vice president had no authority to reject electoral votes.

“I don’t care whether they change The Electoral Count Act or not, probably better to leave it the way it is so that it can be adjusted in case of Fraud, but what I don’t like are the lies and ‘disinformation’ put out by the Democrats and RINOS,” he stated via Truth Social. “They said the Vice President has ‘absolutely no choice,’ it was carved in ‘steel,’ but if he has no choice, why are they changing the law saying he has no choice?”

The reason, Trump contended, was because then-Vice President Mike Pence “did have a choice, and looking back at it now, the 2020 Voting Fraud was far greater than anyone thought possible, with even our Government, through the FBI, changing the results of the Election by millions and millions of votes.

Looming Shutdown

With government funding set to expire Dec. 23 at midnight, the text of the 4,155-page omnibus bill (pdf) was revealed Monday by Senate Appropriations Committee Chairman Patrick Leahy (D-Vt.), who requested that members of the House and Senate take it up “without delay” to prevent a partial government shutdown.

Included among the bill’s appropriations is the allocation of $772.5 billion for non-defense discretionary programs, $858 billion in defense funding, and $44.9 billion in emergency assistance to Ukraine and NATO allies.

Both Republicans and Democrats have claimed legislative wins in the bill. For Democrats, those victories include increases in funding for clean energy, nutrition and child care programs, and homeless and housing initiatives. Meanwhile, Republicans—including Senate Majority Leader Mitch McConnell (Ky.)—have touted an increase in defense spending as a win, as well as the retention of restrictions on federal funding of abortion, and a $275 million decrease in appropriations for the Internal Revenue Service.

Despite that bipartisan support, a coalition of 13 current and incoming House Republicans warned Senate Republicans on Monday that approving the package would result in the “new political reality” of a divided GOP.

“[W]e are obliged to inform you that if any omnibus passes in the remaining days of this Congress, we will oppose and whip opposition to any legislative priority of those senators who vote for this bill – including the Republican leader,” the congress members cautioned in a Dec. 19 letter.

“We will oppose any rule, any consent request, suspension voice vote, or roll call vote of any such Senate bill, and will otherwise do everything in our power to thwart even the smallest legislative and policy efforts of those senators,” they added.

The bill is expected to be taken up by the Senate on Thursday. From there, it will advance to the House and then to the desk of President Joe Biden for signing by the Friday deadline.