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Jabin Botsford

New statements from former president Donald Trump insisting that his vice president, Mike Pence, could have “overturned” the 2020 presidential election have jolted a congressional debate over potentially changing the 135-year-old federal law under which Trump and his allies sought to reverse Joe Biden’s victory.

A bipartisan group of senators has met in recent weeks to discuss revisions to the 1887 Electoral Count Act, which governs the congressional certification for the election of the president and vice president. On Tuesday, a group of prominent Democrats issued their own rewrite proposal just days after Trump made the claim — which is heavily disputed by legal scholars and officials from both parties — that a vice president is empowered under the law to summarily reject states’ electoral votes.

By exploring revisions to the 1887 law, Trump said in a Sunday statement, “what [members of Congress] are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!”

On Jan. 6, 2021, after Pence gaveled the count into order, a violent pro-Trump mob raided the Capitol, destroying property, injuring police officers and delaying the proceeding for hours. Some of the marauders chanted “Hang Mike Pence” after the vice president publicly announced that morning that he had no power to overturn electoral votes, defying the legal interpretation pushed by Trump and some of his close allies.

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What is the Electoral Count Act, and why are people calling for it to be revised?

In another statement Tuesday, released through his political action committee, Trump again insisted the discussions about changing the law vindicated his interpretation that Pence “could have sent the votes back to various legislators for reassessment after so much fraud and irregularities were found.”

The comments — which were Trump’s most direct public acknowledgment to date of his intentions surrounding the Jan. 6 proceeding — roiled Capitol Hill, where lawmakers of both parties sought to keep the discussions on track even as questions arose about whether Republicans would ultimately agree to buck the former president and revise the law.

“I think everybody knows this law needs to be clarified, except perhaps the former president,” said Sen. Angus King (I-Maine). “I think his comments only underline the fact that it needs to be clarified.”

Top Republicans said they remained open to the discussions. Senate Minority Leader Mitch McConnell (R-Ky.) told reporters the law is “clearly flawed and needs to be updated,” while Minority Whip John Thune (R-S.D.) suggested Trump’s comments could actually help forge a deal.

“Clarifying it makes sense,” Thune said, adding that Trump’s comments “perhaps add additional arguments in favor of trying to fix this and slam the door shut on this once and for all.”

Trump suggests Pence should have ‘overturned’ the election on Jan. 6

But it remains to be seen whether Republicans and Democrats can come to an accord on precisely how the law should be modified. For one, the bipartisan group is looking at a broader range of election-related proposals, including federal funding for election agencies and protections for state and local administrators who have faced harassment and intimidation. Some Republicans are privately warning that a more expansive bill could become difficult to pass, with any Senate legislation needing at least 60 votes to vault a potential filibuster.

Democrats were loath to enter any discussion about the vote-counting law while they were pursuing a much broader suite of voting rights bills. But after that legislation effectively died in the Senate last month, top Democrats have been more open to discussions, and the White House — which previously ruled out stand-alone Electoral Count Act changes — is monitoring the negotiations.

Sen. Susan Collins (R-Maine), a leader of the bipartisan group, said she spoke to senior Biden aide Steve Ricchetti in recent days about the talks. “It’s clear that they’re interested,” she said.

Democrats see Trump’s remarks — which they said amounted to a stark admission that he was seeking to reverse President Biden’s election — as cutting both ways for Republicans. Amid the GOP assurances that a deal was possible, some recalled prior instances, on issues such as immigration and federal spending, where Trump’s comments upended potential bipartisan deals.

“There’ll be some Republicans that will see a heightened need to fix the infirmities in the Electoral Count Act, and there’ll be others that will not want to break with the president, but I still see a path to 60,” said Sen. Chris Murphy (D-Conn.).

GOP floats tweaks to vote-counting law targeted by Trump as Democrats make voting rights push

Sen. Shelley Moore Capito (R-W.Va.), who like Murphy is involved in the bipartisan working group, also said she had seen no evidence that Trump’s remarks had negatively affected the talks. “Clarifications are going to be good,” she said. “We’re just looking forward and trying to find consensus, realizing that there are areas that need some tightening up.”

The bipartisan group has set no firm timeline for its work, though some members have discussed releasing outlines of proposals as soon as this month. The Democratic proposal released Tuesday — a “discussion draft” issued by Sens. Richard J. Durbin (Ill.),  King  and Amy Klobuchar (Minn.) — tackles some of the issues that the bipartisan group is weighing, and highlights areas where the two parties could be in conflict.

The Democrats’ plan would significantly raise the threshold to challenge a state’s electoral votes from the status quo, where just one member each from the House and Senate can force a congressional debate and vote. The new proposal would require one-third of the members of each chamber to raise an objection, and a three-fifths vote of both chambers to sustain it. The proposal would also change the vice president’s role in process, providing for the Senate president pro tempore to preside over the Jan. 6 count instead.

The ideas of making it harder for Congress to intervene and to clarify the vice president’s role have some degree of GOP support, but another proposal — to ban state legislatures from appointing substitute presidential electors after voters cast ballots — is likely to be more controversial.

Why Democrats spent a year on a failed voting rights push

J. Michael Luttig, a former federal appeals judge who has studied the Electoral Count Act and is advising Republican Senate offices on potential revisions, said he was encouraged by many aspects of the Democratic plan — such as raising the bar for congressional action and narrowing the grounds for objection. But he said he had constitutional concerns about handcuffing state legislatures and eliminating the vice president’s role in presiding over the count.

The 12th Amendment provides that the vice president, in his or her capacity as president of the Senate, “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”

“It’s a good start,” Luttig said, “but it’s going to require much more work if the Congress is going to legislate constitutionally and prevent another Jan. 6.”

Among the Republicans echoing those concerns Tuesday was Sen. Kevin Cramer (N.D.), who said he was open to clarifying the vice president’s role in the electoral vote count but that any attempt to limit state legislatures’ powers “would go further than I’m comfortable with.”

“I don’t think the Constitution gives us that authority,” Cramer said. “To me, this is a solution looking for a problem.”

<i>Seung Min Kim contributed to this report.</i>

Georgetown University, AB in Russian, 2004

Mike DeBonis covered Congress for The Washington Post from 2015 to 2022. He previously covered D.C. politics and government from 2007 to 2015.

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