As a liberal Democrat and one of the younger members of the U.S. Senate, Chris Murphy of Connecticut seems an unlikely source of angst over the retirements of older Republicans like Rob Portman of Ohio, a negotiating partner over how to preserve America’s peaceful transfers of presidential power.
But Murphy says that the impending departure of “thoughtful, moderate Republicans” like Portman underscores the urgency of reforming the Electoral Count Act of 1887, the law that Donald J. Trump insists could have allowed Mike Pence to unilaterally deny Joe Biden the White House on Jan. 6, 2021.
Murphy spent the afternoon of Jan. 6 sheltering with other senators while a mob egged on by Trump rampaged in the Capitol, assaulting police officers and interrupting what usually has been a ceremonial act: The vice president presiding over the acceptance of Electoral College votes certified and cast by the states for president.
In recent weeks, Murphy and Portman have been among a working group of Democrats and Republicans negotiating how to clarify what already was clear to most legal scholars and Trump’s vice president: The Electoral Count Act is not a license to undo an election.
But the 135-year-old law, among its other flaws in the view of the working group, offers an invitation to insurrection: Without any standard for objections, it requires a debate on accepting a state’s electoral votes at the insistence of a single senator and a single representative.
“The very fact that it was so easy for Trump’s backers in Congress to force a debate and a vote is part of the story as to what led to January 6,” Murphy said. “All those people were storming the Capitol, because we were having a debate about certifying Biden’s electors.”
The working group is talking about raising the bar to force a debate on certification, perhaps a quarter or third of each chamber of Congress. Editorialists have suggested that sustaining an objection to any state’s electors require a super majority.
“If we make it harder for that debate to happen, if we require there to be more than just two members of the Congress, then it gives less chance for that kind of popular mischief to happen,” Murphy said.
There is political risk for the members of the working group, most obviously for Republicans. Their participation draws the scorn of Trump, still the dominant personality in the GOP and its possible presidential nominee in 2024. Lisa Murkowski of Alaska is the only Republican in the group running in 2022, and Trump already was backing Murkowski’s opponent for the GOP nomination.
Like Murkowski, two others in the group, Mitt Romney of Utah and Susan Collins of Maine, also were Trump targets.
Trump has used the bipartisan effort to both isolate the GOP participants as dreaded RINOs (Republicans in name only) and as evidence Pence could have refused certification.
“If the Vice President had ‘absolutely no right’ to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election?” Trump said.
For a Democrat like Murphy, the risk is more subtle — associating himself with a compromise that may prove unsatisfying.
With the failure of the evenly divided Senate to advance a new voting rights law, one named for the late civil rights leader and congressman John R. Lewis, there is a push among Democrats for the Electoral Count Act reforms to go beyond clarification.
Democrats in the working group include Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, both bitterly resented by progressives for blocking elements of Biden’s agenda, including the John R. Lewis Voting Rights Advancement Act of 2021.
“This feels to me like one of these bills will have both Republicans and Democrats voting for it and both Republicans and Democrats voting against it,” Murphy said. “I’m heartbroken over our failure to get the voting rights act passed. But I’ve never been a believer that the perfect should be the enemy of the good, especially when it comes to protecting our democracy from attack.”
On CNN last week, Murkowski said the group was seeking not-too-much, not-too-little reforms that can attract senators from both parties. Like Murphy, she acknowledged the compromise will leave some unhappy.
“I kind of have said, we’re going to take the Goldilocks approach here. We’re gonna try to find what’s just right,” Murkowski told CNN. “And it’s not going to be just right for everybody, but will it be a step ahead? Will it be important for the country? Yeah.”
Senate Majority Leader Chuck Schumer, D-N.Y., initially scoffed at the effort as a Republican ploy to distract from their opposition to the John Lewis Act. But he has since signaled support, as has Senate Minority Leader Mitch McConnell, R-Ky.
McConnell, who strongly objected on Jan. 6, 2021 to the efforts by Trump and congressional allies to reject Biden’s victory, criticized the Republican National Committee’s recent censure of Liz Cheney and Adam Kinzinger, the two House Republicans on the select committee investigating the Jan. 6 uprising.
Pence has been resolute, affirming his position in a recent speech. “Our former president said I had the right to ‘overturn the election.’ President Trump is wrong,” Pence said. “I had no right to overturn the election. The presidency belongs to the American people and the American people alone.”
Two of Connecticut’s three representatives to the RNC opposed the resolution. Leora Levy, a candidate for Senate, supported it, though she says she does not question the legitimacy of Biden’s election. The resolution also characterized the attack on the Capitol as “legitimate political discourse.”
“Right now, the Republican Party is controlled by Donald Trump and his crowd that puts power over democracy,” Murphy said. “That’s incredibly worrying. But there is a sizable group of Republicans who see Trump and his movement as a growing threat to democracy. And they are speaking up more often.”
But Murphy said he also sees worrying evidence that the newer generation of congressional Republicans are more aligned with Trump and Sens. Ted Cruz of Texas and Josh Hawley of Missouri, who led the effort to stop the certification of Biden’s win.
“What’s interesting to me is there were 12 Republicans that signed that letter supporting Cruz and Hawley’s effort to overturn the election, “ Murphy said. “Every single freshmen Senate Republican was a member of that 12, that group of 12, which tells you the way the Senate is turning.”