The Morning Dispatch: Bipartisan Senate Group Unveils Electoral Count Act Reform

Happy Wednesday! Klondike is discontinuing the Choco Taco after nearly 40 years, citing “tough decisions” that were made to “ensure availability of [its] full portfolio nationwide.” 

We thought the Founding Fathers fought a war so that their descendants wouldn’t have to make any tough decisions about ice cream.

Quick Hits: Today’s Top Stories

• The Washington Post reported last night that the Justice Department’s criminal probe of efforts to overturn the 2020 election has expanded its investigation to include former President Donald Trump’s own actions, not just those of known associates like John Eastman and Rudy Giuliani. Federal prosecutors have reportedly questioned witnesses before a grand jury in recent days—including top aides to former Vice President Mike Pence—about conversations and meetings with Trump, Trump’s efforts to pressure Pence, and Trump’s involvement in a fake-electors scheme. In an interview with NBC News that aired on Tuesday, Attorney General Merrick Garland did not rule out the possibility of prosecuting Trump.

• European Commission President Ursula von der Leyen announced Tuesday European Union member states formally agreed to voluntarily cut their natural gas use by 15 percent between now and next April in an effort to stockpile fuel as Russia winds down its exports to the bloc. “The impact on GDP will be significantly smaller if we start saving now and don’t wait until Russia forces us to do so,” EC Energy Commissioner Kadri Simson said. The voluntary cuts could become mandatory—with a handful of exceptions—if there is a more severe supply shock this winter.

• Yuri Borisov—leader of the Russian space agency, Roscosmos—announced Tuesday Russia will pull out of the International Space Station (ISS) after current international operations agreements end in 2024 and will start building its own orbiting facility. The United States, European Union, and other partners hope to continue using the ISS until 2030, and NASA officials said yesterday they hadn’t received official notice of Russia’s decision.

• The Biden administration announced Tuesday it will make an additional 20 million barrels of oil from the Strategic Petroleum Reserve available for sale, building on the approximately 125 million barrels that have already been sold in recent months. And in an effort to incentivize increased oil production in the near term, the Department of Energy will propose a new rule this week allowing the agency to enter into purchase contracts with oil companies at a fixed price to replenish the Strategic Petroleum Reserve after fiscal year 2023. There are currently just 475 million barrels in the SPR, the lowest level since mid-1985.

• An investigation conducted by Republicans on the Senate Committee on Homeland Security and Governmental Affairs found that the Chinese Communist Party has engaged in a sustained effort over the past decade to “gain influence” over the Federal Reserve and that the Fed has proven “unable” to effectively counter this influence campaign. The report—which Fed Chair Jerome Powell labeled “unfair” and “unsubstantiated”—alleges Chinese officials detained a Federal Reserve employee during a 2019 trip to Shanghai and threatened the individual’s family in an effort to extract information about the U.S. economy. Chinese officials have also allegedly offered Federal Reserve employees jobs for similar reasons.

• U.S. home prices were 19.7 percent higher in May 2022 than May 2021, according to the latest S&P CoreLogic Case-Shiller National Home Price Index data released Tuesday. The measure represents a slight decrease from April’s record 20.6 percent year-over-year growth, but it operates on a two-month lag. Home prices have begun to level off or fall in recent months as increased interest rates put a damper on consumer demand.

Electoral Count Act Reform

The Major League Baseball and National Football League rulebooks are notoriously comprehensive—MLB’s Rule 5.04(b)(4)(B) dictates how quickly a hitter should walk up to home plate from the on-deck circle—but every once in a while, a player will uncover a loophole so disruptive it requires the league to step in with a new regulation. MLB Rule 6.04(c)—the so-called “Eddie Stanky Rule”—was added in 1950 after the New York Giants second baseman realized he could distract the opposing team’s batter by doing jumping jacks directly in his line of vision. The NFL’s “Ricky Williams Rule” determined that a player’s hair is an extension of his uniform, and therefore can be grabbed by a defender to make a tackle. 

Late last week, a bipartisan group of senators unveiled what future generations may refer to as the “Donald Trump Rule,” clarifying that a sitting president cannot exploit ambiguities in a 133-year-old statute to overturn the results of an election he or she lost.

Officially, the legislation is called the Electoral Count Reform and Presidential Transition Improvement Act—ECRPTIA for short—and it would update the Electoral Count Act (ECA) of 1887. As we wrote to you back in December, the ECA was passed in response to the disputed 1876 election between Rutherford B. Hayes and Samuel Tilden, in which multiple states submitted dual slates of electors to Congress, allowing both the Republican and the Democrat to declare victory. Unfortunately, the resulting statute—which includes run-on sentences 183 and 275 words in length—was incredibly vague, providing Trump and his lawyers enough of an opening to pursue their plan to reject electors from seven states Joe Biden won and theoretically usher in a second Trump term.

Led by Sens. Susan Collins and Joe Manchin, a bipartisan group of 16 senators have been in talks since the start of the year on how best to avoid a repeat of January 6, consulting with election experts and legal scholars to develop a bill that “establishes clear guidelines for our system of certifying and counting electoral votes for President and Vice President.” Lawmakers on both sides of the working group seem pleased with where the legislation ended up. 

Sen. Ben Sasse, a Republican, labeled it a “good bill” that “cleans up some ambiguity in the ECA that was dishonestly exploited on January 6,” and Democratic Sen. Chris Murphy defended the compromise on the Senate floor. “I’m proud of the effort between Republicans and Democrats to put aside our differences on other issues,” Murphy said. “[We were] able to put before this body a proposal that will assure that the votes that are cast all across this country for president in 2024 result in the winner of that election sitting in the Oval Office.”

How, exactly, would it do that? For starters, the legislation accounts for performative grandstanding by raising the threshold to lodge objections to a state’s electors, from just one senator and one representative to at least 20 percent of both chambers. It also makes clear that the vice president’s role on January 6 is purely “ministerial,” and that he or she is unable to “solely determine, accept, reject, or otherwise adjudicate disputes over electors.” To avoid competing slates of electors, the legislation designates each state’s governor as the official responsible for submitting that ascertainment to Congress—unless otherwise specified in the state’s laws or constitution—and prevents state legislatures from retroactively changing how electors are selected after the voting has taken place. It also would grant presidential candidates access to expedited judicial review; challenges to a state’s slate of electors would be heard by a three-judge panel, and that panel’s ruling could be appealed directly to the Supreme Court.

Another aspect of the legislation would allow more than one presidential candidate to (at least temporarily) access federal transition materials in the post-election period if neither candidate has conceded the race five days after Election Day. A separate but related bill released by the working group last week would increase the criminal penalties associated with threatening or intimidating election officials, attempt to improve the U.S. Postal Service’s handling of election mail, and reauthorize the Election Assistance Commission—a federal agency that provides election administration and cybersecurity best practices to states—for five additional years.

The proposal has generally been well received by legal scholars, elections officials, and policy commentators on both sides of the aisle. It’s been endorsed by both Bob Bauer, President Barack Obama’s White House cvounsel, and Jack Goldsmith, an assistant attorney general in the George W. Bush administration. Former President Jimmy Carter supports it, as does former Treasury Secretary and Secretary of State James Baker III. Progressive law professor Rick Hasen argued in Slate this week Democrats would be crazy not to pass the legislation, and National Review ran a staff editorial yesterday arguing the reform “deserves support.”

“Somehow they’ve come out of the kitchen with something that actually looks as if it is correctly prepared in almost every respect,” said Walter Olson, senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. “Now I’m just holding my breath that someone doesn’t trip and spill the tray.”

Despite the bipartisan praise—and ostensibly enough Republican support in the Senate to overcome a filibuster—proponents of the legislation aren’t out of the woods yet, as House Democrats have begun voicing complaints the bill doesn’t do enough to address their concerns about voting rights in Republican-led states across the country. 

Rep. Jamie Raskin—a Democrat on the January 6 select committee—told Politico yesterday the Senate’s compromise was “fine and necessary,” but “not remotely sufficient to meet the magnitude of the threat against democracy now.” Another member of the January 6 Committee, Rep. Zoe Lofgren, said she didn’t want to be “overly critical,” but claimed the panel’s forthcoming recommendations “might be superior.” Marc Elias, a prominent Democratic election lawyer, penned a blog post last week arguing the reforms “miss the mark.” 

Multiple Senate GOP sources familiar with the working group’s negotiations over the past six months told The Dispatch this week that Republicans have had to push back repeatedly against Democratic efforts to broaden the scope of the bills, despite Sen. Mitt Romney saying early in the group’s talks the lawmakers should aim for the resulting legislation to pass with 40 Democratic votes and 40 Republican ones, rather than 50 Democratic votes and 10 Republican ones.

“It’s [been] an attempt to use the ECA working group as an opportunity for H.R.1 stuff,” one source said, referring to the federal overhaul of state election administration Democrats have failed to advance. “But Republicans on the working group made it clear from the beginning that the only way to get something into law is to keep it narrowly focused on the ECA.”

For now, Democratic senators generally seem resigned to the fact that any broader reforms will need to be split off from ECA reform, even as they continue to pay lip service to a legislative push that is destined to fail. “We make important progress in this bipartisan election reform package,” Sen. Ben Cardin said. “[But] Congress’ work will not be complete when we pass this bipartisan proposal. We still must take up and pass voting rights legislation in order to safeguard the right to vote.” 

It’s unclear whether a majority of House Democrats will exhibit the same pragmatic approach or if enough will hold up ECA reform in protest, but Murphy—the Democratic senator from Connecticut who helped shepherd last month’s gun reform legislation through Congress—has begun rallying his side to the cause. “We need to recognize the moments when the threats to that experiment are new and novel and more grave than normal and be nimble enough to respond,” he said on the Senate floor last week. “I would argue that this is one of those moments.”

Lawmakers supporting the push hope to send the legislation to President Biden’s desk before this year’s midterm elections, but several sources expect negotiations between the Senate and House to drag into the lame-duck session between November and January, when a new Congress less amenable to Electoral Count Act reforms is likely to be sworn in. The Senate Rules Committee—led by Sens. Amy Klobuchar and Roy Blunt—is scheduled to hold a hearing on the legislation next week.

Pelosi’s Rumored Taiwan Trip Sparks Uproar

It’s hard enough these days to plan a summer getaway without national security officials, President Joe Biden, and the Chinese government all getting in line to tell you it’s a bad idea.

After canceling a rumored April trip thanks to a COVID-19 diagnosis, House Speaker Nancy Pelosi plans to visit Taiwan in August, according to a report in the Financial Times last week. She has declined to confirm her travel plans, but she would be the highest ranking United States official to visit the island nation in 25 years—and the alleged trip is making waves.

China is upset by anything that smacks of official diplomatic relations between Taiwan and the U.S., since it considers the self-ruling island a province it seeks to reunite with the mainland. “Should the U.S. side insist on making the visit, China will act strongly to resolutely respond to it and take countermeasures,” Foreign Ministry spokesman Wang Wenbin said Thursday. “We mean what we say.” 

“China demands the US take concrete actions to fulfill its commitment not to support ‘Taiwan independence’ and not to arrange for Pelosi to visit Taiwan,” Ministry of Defense Spokesperson Tan Kefei added Tuesday.

The U.S. doesn’t officially support Taiwanese independence—though the 1979 Taiwan Relations Act requires it to provide Taiwan with the means to defend itself, including from a Chinese invasion—and officials, including Pelosi, have reiterated that her trip wouldn’t change that stance. But Biden told reporters last week “the military thinks it’s not a good idea right now” for Pelosi to visit Taiwan, and the Financial Times reported that National Security Adviser Jake Sullivan opposes the trip. Informed about Biden’s comments, Pelosi told reporters—tongue-in-cheek?—that the military might be worried the Chinese would shoot down her plane.

“I mean, she has to go,” Stanford University and American Enterprise Institute fellow Oriana Skylar Mastro told The Dispatch—if only because backing out at this point would look like capitulation to China’s threats and provide ammunition for China’s claims that the president controls Congress. Hawkish lawmakers—including Republicans rarely on board with the Speaker’s actions—agree. “Speaker Pelosi should go to Taiwan and President Biden should make it abundantly clear to Chairman Xi that there’s not a damn thing the Chinese Communist Party can do about it,” Nebraska Sen. Ben Sasse said. “No more feebleness and self-deterrence.”

It’s highly unlikely that China would do anything so outrageously escalatory as firing on Pelosi’s plane. But, Mastro said, the White House’s public hints against the trip have given China cover to take other steps—practice amphibious assaults, for example, or move a weapons system to more directly threaten Taiwan—under the guise of a necessary response to Pelosi’s visit. “The United States has warned her not to go,” Mastro said. “So if China responds, then what—is President Biden going to criticize China after he basically said this would be hurtful?”

Pelosi’s rumored visit and the resulting kerfuffle come at a sensitive time. Biden has a call scheduled for Thursday with Chinese President Xi Jinping that will likely include discussion of Taiwan, whose military is currently completing annual days-long military exercises. Xi seems to be laying the groundwork to seek an unprecedented third term this fall, making this a potentially vulnerable political moment that could incentivize him to react strongly to any perceived escalation from the U.S. And Biden has repeatedly raised Chinese hackles by saying the U.S. would defend Taiwan militarily before walking back his statements.

But these days, is it ever not a sensitive time between the U.S., China, and Taiwan? Joint Chiefs of Staff Chairman Gen. Mark Milley said on Sunday that the Chinese military’s behavior in the Indo-Pacific has grown “significantly more and noticeably more aggressive” over the last five years. Chinese planes have ramped up their incursions into Taiwan’s declared air defense identification zone and dogged U.S. vessels in the region. Defense Secretary Lloyd Austin said last month there’s been an “alarming increase” in Chinese vessels coming dangerously close to U.S. and allied aircraft and ships. Each close encounter raises tensions and risks accidental conflict.

Despite its hesitations, the Biden administration insists Pelosi’s visit needn’t be a spark to the powder keg. “None of this has to devolve into conflict,” National Security Council spokesman John Kirby told CNN’s “New Day.” “There’s no reason for this to be escalated, even in just rhetoric.”

But an entire Congress-worth of controversial and supportive visits to Taiwan don’t matter if the island isn’t prepared to defend itself and the U.S. military can’t deter Chinese use of force, Mastro argued. “U.S. military capabilities—relative capabilities—have atrophied compared to China, which creates incentives for China to use force,” Mastro said. “All of these types of things, whether it’s visits and delegations and statements—none of it is doing anything to fix that picture.”

Worth Your Time

• Republican presidential campaigns in 2024 are going to look a whole lot different than they did in 2016: They (think they) have no use for the mainstream press. “I just don’t even see what the point is anymore,’ an adviser to one likely GOP presidential aspirant told New York Magazine’s David Freedlander. “We know reporters always disagreed with the Republican Party, but it used to be you thought you could get a fair shake. Now every reporter, and every outlet, is just chasing resistance rage-clicks.” The result? “Sitting down with the mainstream press has come to be seen by Republican primary voters as consorting with the enemy, and approval by the enemy is the political kiss of death,” Freedlander writes. “Dave Carney, a longtime GOP strategist, said that, according to his team’s research, getting endorsed by a newspaper editorial board, even a local one, hurts Republicans in primaries rather than helps them. ‘No one gives a f— what the New York Times writes,’ he said. ‘In fact, it would be good if you criticize us so that we can say that even the liberal New York Times hates us.’”

• Majority Leader Chuck Schumer has reportedly been telling donors there aren’t enough votes in the Senate to pass long-debated antitrust legislation aimed at the United States’ largest tech companies. In a piece for National Review earlier this week, Kevin Williamson pointed to Facebook’s fall from grace to argue that such regulation is almost always unnecessary. “Before there was Facebook, there was MySpace, which was the largest social-networking site in the world as recently as 2009. It became a minor division within NewsCorp and then was owned by Justin Timberlake for a while, and today is part of the portfolio of a technology holding company you’ve never heard of that doesn’t even have a Wikipedia page. Past is prologue,” he writes. “Facebook will get better or die without any need for intervention by regulators in Washington or in Brussels … Silicon Valley is full of hungry young things.”

Presented Without Comment 

Presented Without Comment 

Presented Without Comment 

Toeing the Company Line

• After months of negotiations, the Senate is poised to approve $52 billion in spending to boost American semiconductor manufacturing—and Haley has the details in Tuesday’s Uphill (🔒). “Supporters of the bill argue it will jumpstart American competitiveness and enable breakthroughs in fields ranging from biometrics and artificial intelligence to fusion energy and high intensity laser research,” she reports.

• And in this week’s Sweep (🔒), Sarah dives into the partisan education gap, Democrats’ small-dollar fundraising advantage, Joe Biden’s unpopularity, and how to think about party affiliation and voter registration data. “It’s very helpful for political scientists to study voter trends over decades,” she concludes. “It’s not that helpful for campaign operatives who want to know who is going to win in a few months.”

• For more on the moral imperative lawmakers have to reform the Electoral Count Act, look no further than David’s latest French Press (🔒). “Failure could be catastrophic,” he writes. “It would leave in place the very structure that could empower a congressional coup at the same time that Trump could very well run for office enjoying both House and Senate GOP majorities, including a majority of members who already challenged an election once. We should not doubt they’d do so again.”

• Klon Kitchen returns to The Remnant today to talk with Jonah about the threat of Chinese espionage and the prospect of a geopolitical confrontation between China and the U.S. Plus: The latest out of Ukraine, the morality of Edward Snowden and Julian Assange, the nature of quantum computing, and his case against TikTok.

• Sarah, Steve, Jonah, and David were back on Dispatch Live last night for a riveting conversation about 2024 and whether criminal investigations will foil Donald Trump’s comeback attempt. Dispatch members who missed the conversation—or want to tune in—again can access a video or audio recording by clicking here.

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If there were a rule named after you, what would it prohibit?