The past few days have seen a flurry of advocacy and media coverage about calls to fix the Electoral Count Act. Scholars and experts across the political spectrum have joined the push to update the 19th century statute which outlines the process for casting and counting Electoral College votes. It is this law which governs, among other things, the joint session of Congress to certify the winner of each presidential election. Understandably, that’s on everyone’s mind as we approach the first anniversary of the attack on the Capitol, the tragic and grotesque culmination of the former president’s attempts to overturn his electoral defeat.
It’s a welcome development. At Cato, we’ve been making the case that the Electoral Count Act should be at the top of the agenda, both in response to what happened in the 2020 election and to avoid a similar crisis in the future. My colleague Walter Olson has addressed it more than once, and recently I made the case for why ECA reform should garner Republican support.
Other think tanks and commentators have also been making the case. The conservative American Enterprise Institute has held forums and published reports, and David French put it bluntly in a recent piece headlined “Stop Screwing Around and Fix the Electoral Count Act.” The liberal Center for American Progress just released their own report on the threats to free and fair elections, which prominently includes ECA reform among its recommendations.
On Monday, the Wall Street Journal editorial board chimed in with a piece cataloging the practical and constitutional problems with the ECA, repeating their past calls to adopt some sort of a fix. The next day in the Washington Post, an impressive bipartisan quartet of experts, including former FEC chairman Bradley Smith, authored an op-ed making their case. Also in the Post, liberal columnist Eugene Robinson cited Cato among others in urging ECA legislation to begin making its way to Biden’s desk.
And that’s just some of the ECA reform advocacy being published. What began as a trickle over the past twelve months is now a veritable torrent.
The New York Times reported last month that congressional Democrats are eyeing the ECA as part of the actions they might take in response to the January 6th attack, and Politico reports now that there is also increasing talk of interest on the Republican side of the aisle. On Wednesday, Senate Minority Leader Mitch McConnell seemed to confirm that, saying the ECA “obviously has some flaws. And it is worth, I think, discussing.”
This unusual outpouring of agreement reflects two things about the need to fix the Electoral Count Act. First, it is important. Nobody wants a repeat of the 2020 crisis or worse. That’s why the policy community is near-unanimous in treating it like a five-alarm fire, regardless of our disagreements on anything else. Second, there is very little substantive disagreement or partisan angle about what needs to be done. There are no hard irreconcilable conflicts about what the law should be, from any ideological perspective.
The law needs to make clear that Congress can only hear objections under narrow circumstances and with a high hurdle, by enumerating an exhaustive list of valid reasons and increasing the number of senators and representatives needed to trigger a debate. The role of the vice president should be spelled out to leave no doubt that his or her job is purely ceremonial. The finality of decisions made by the states and by the Electoral College itself must be respected, in line with the intent of the Framers and the text of the Constitution. The proper role of the courts, which are entirely absent from the ECA even though they will hear and decide most disputes long before they get to Congress, must be taken into account. The timeline of key dates could probably also use some consideration, including clarification of the “safe harbor” deadline intended to put electoral votes beyond congressional dispute.
To the degree there’s been any pushback, it has come not from supporters of Donald Trump but rather from some Democrats who are worried that ECA reform might distract from their own partisan election law bills. That worry is entirely misplaced. Passing ECA reform would have no effect on the chances of passing a party line “voting rights” bill, which is not looking very likely anyway. And whatever the merits of adopting new federal laws about voting procedures and elections administration, they matter for little if a narrow partisan majority in Congress or bad-faith actors at the state level can throw out any result they don’t like. The ECA is both more doable and, frankly, more important.
The ECA is a ticking time bomb at the heart of American democracy. Sooner or later, if left untouched, it will blow up in our faces. The consequences could be catastrophic. The routine clockwork of free and fair elections, the great American innovation of finite terms of office with the regular and peaceful transfer of power, can not be left hanging on a knife’s edge every four years. The Constitution and all it protects, individual rights and the rule of law, depend on getting this right. Limits on government power count for little if there isn’t even agreement on who is the real president, with the violent disputation such a scenario invites.
At Cato, we’re used to being skeptical of bipartisan consensus. We’re often opposed to the policies that result when both parties are in agreement. But in this case, Republicans and Democrats can provide a much-needed moment of unity by doing the right thing. Fixing the Electoral Count Act is one of the most important things Congress could do to pull us back from the cliff heading into the next presidential election. From the aftermath of one of America’s most shameful moments of partisan division and mutual distrust, Congress can earn a bit more faith in the system by fixing this pressing problem before it’s too late.
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Government and Politics
Will Joe Manchin Switch Parties?
After Sen. Joe Manchin’s bitter exchange with the Biden White House on Sunday, there’s increasing talk of Manchin leaving the Democratic Party. Mitch McConnell invites him to the GOP, but Axios reports that it’s more likely he’d become an independent but still caucus with the Democrats. How much difference would that make to the Senate? Would liberal Democrats still just be one or two votes short on party priorities like Build Back Better and voting rights?
Back in 2009 when Sen. Arlen Specter (R‑PA) switched parties, I did some research on the impact of modern party switching. There aren’t all that many examples, especially in the Senate.
The day after Republicans won control of the Senate in 1994, Sen. Richard Shelby of Alabama switched to the Republican Party. He had been a relatively conservative Democrat and had high‐profile conflicts with President Bill Clinton, so the switch wasn’t a great surprise. But observers might be surprised to look back at what happened to Shelby’s voting record. According to the American Conservative Union, for the past eight years Shelby’s conservative voting percentage had ranged between 43 and 76. Even in 1994, as Shelby often found himself opposing the Clinton administration, the ACU gave him only a 55. But from 1995 to 2000, his ACU rating only once dipped below 90, and he scored a perfectly conservative 100 in 2000 and 2001 (even though Citizens Against Government Waste dubbed him the “King of Pork”). Meanwhile, the liberal Americans for Democratic Action had rated the Democratic Shelby 35 percent liberal in most years. As a Republican, however, ADA rarely found him more than 10 percent liberal. Shelby’s voting clearly changed when his party label did.
A few months after Shelby, Colorado Sen. Ben Nighthorse Campbell also switched from Democrat to Republican. He underwent a similar ideological migration. ACU rated him 12 and 25 in his first two years as a Democrat in the Senate, then 96 in the year of his switch. After that, his conservative score ranged from 72 to 96 until his retirement in 2005. His ADA score fell almost like stair steps — from 75 percent liberal in 1993 to an unusually low 30 the year he switched, then 45, 25, 25, 15, 5. According to Michael Barone, co‐author of The Almanac of American Politics, Campbell switched his stands on partial‐birth abortion, oil drilling in Alaska and assault weapons.
In 2001, Sen. Jim Jeffords of Vermont left the Republican Party and became an independent. Conservatives said he was already voting like a liberal Democrat. But that wasn’t quite right. Since he entered the Senate in 1989, his average ACU rating had been 27 — definitely the most liberal Republican, but not Ted Kennedy country. His ADA average was 58 — liberal for a Republican, but a long way from Vermont Democrat Pat Leahy. After the switch, Jeffords’ ACU rating plummeted: from 40 in 1999 and 36 in 2000 to 29 in the year of the switch to 6, 10, 4, 8 and 4 during the rest of his tenure. He and Leahy became twins.
And what about Specter, whose course I was trying predict in 2009? In 2008, as he prepared to face Pat Toomey in the Republican primary, Specter scored 45 on the ADA rating, lower than Susan Collins and Olympia Snowe of Maine. In 2010 Specter scored 90 on the ADA rating, the same as fellow Pennsylvanian Bob Casey, Rhode Island’s Jack Reed and Sheldon Whitehouse, and other liberal Democrats. His ACU ratings were even more revealing: between 40 and 43 in the three years before he switched, then 20 in 2009 and a perfect 0 in 2010. That was his last year in the Senate, as he lost the Democratic primary.
So it seems clear that party switchers do change their voting behavior. Why?
First, the pressures from the party caucus obviously change. Surrounded by new colleagues, pressured to help the party deliver on its promises, the new guy finds himself going along with his new team. Of course, the real point here may be that the party‐switcher has been liberated from the pressures in his former caucus that kept him from voting as he would have preferred.
Second, when an elected official switches parties in Washington, he also switches constituencies back home. Campbell’s political challenge as a Democrat was to persuade some 60 percent of the voters of Colorado, ranging from center to left, to support him. As a Republican, his goal became to get some 60 percent of Coloradans ranging from center to right to back him. It apparently worked: he won his 1998 reelection in a landslide.
If Manchin becomes a Republican, and if he runs for reelection in 2024 at 77, he can assume he’ll lose many of the 30 percent of West Virginians who voted for Biden. But he would likely win by a larger margin than he did in 2018 as the last Democrat holding statewide office in the state.
How would that change his voting? Manchin is not all that conservative. His last three ACU ratings were 36, 32, and 26. His 2020 ADA rating was 75. That may reflect his real views as a lifelong Democrat from a Democratic family. But it may also be influenced by his being part of the Senate Democratic caucus, and thus likely to change if he switched parties.
But note: If Manchin declares himself an independent but remains a member of the Democratic caucus, then we may not see much change in his voting. After Sen. Joe Lieberman lost the Democratic primary in 2006 and ran as an independent, he stayed in the Democratic caucus, and his voting didn’t change much. It’s not clear what benefit Manchin would see in simply calling himself an independent. Becoming a Republican, though, would shake up the Senate. Biden and Sen. Chuck Schumer would no longer have even nominal control of the Senate, and Republicans would chair all the committees, presumably including Manchin at Energy and Natural Resources. One imagines that both parties are offering strong inducements to Manchin this week. Move the Pentagon to West Virginia, anyone?
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Republicans Should Support Electoral Count Act Reform
Recent reports indicate that, after mostly ignoring it for a year, members of Congress are moving forward with exploring possible reforms to the antiquated 19th century statute which was at the heart of the controversy over the 2020 election.
The Electoral Count Act, passed as a belated response to the disputed Hayes-Tilden election in 1876, is the federal law which lays out the procedures for how members of the Electoral College are certified, cast their votes, and the votes are then counted. It fills in the details in the Constitution’s sparse description of how the United States elects a chief executive.
It was under this law that a majority of House Republicans, and a small minority of Senate Republicans, objected to the results of several states in the 2020 election. Under the procedure that allows any one representative together with any one senator to object to a state’s votes, the House and Senate adjourned from their joint session to consider objections to the votes of two states, Arizona and then Pennsylvania. It was during the debate over Arizona that Congress was interrupted by rioters storming the building. Another four states saw objections from House members but no senator joined them.
The Electoral Count Act is a mess of ambiguities and contradictions, as Cato’s Walter Olson has noted, among many others across the political spectrum. It’s unclear on what constitutes a proper basis for objections, offering only the maddeningly imprecise phrase “not … regularly given.” It’s vague and even contradictory on how and when states can submit their votes with finality. It doesn’t take cognizance of the role of the courts in adjudicating disputes. It’s unclear on how much, if any, discretion is given to the vice president as president of the Senate. It opens the door for Congress to effectively decide the results of an election, something the Framers specifically rejected at the Constitutional Convention. And the whole edifice arguably exceeds Congress’s constitutional powers by permitting the rejection of constitutionally valid and binding electoral votes.
In the aftermath of the 2020 fiasco, it’s understandable why Democrats would take interest in the law. The ECA has also long been subject to academic criticism from legal scholars and election experts. But even with majorities in both chambers and control of the White House, the ability of Democrats to act without bipartisan support is tightly constrained. There’s no credible argument that Electoral Count Act reform falls under the budget reconciliation process, which allows things to be passed by simple majorities in the upper chamber. In the Senate, at least ten Republicans must join with the Democrats’ slim majority to advance any substantive legislation over the procedural hurdle of a filibuster.
It would be a mistake, on both sides, to make Electoral Count Act reform into a partisan affair. It’s in the interest of both parties–and even Republicans who supported Trump’s objections in 2020–to put the process of presidential elections on a firmer foundation. Here are a few of the reasons why Republicans should embrace the cause of ECA reform:
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In Final Weeks, Trump White House Searched For Excuses To Overturn Election Results
“Mr. Bond, they have a saying in Chicago: ‘Once is happenstance. Twice is coincidence. The third time it’s enemy action’.”
That Ian Fleming line (from Goldfinger) came to mind with news that not one or two but multiple efforts to rationalize setting aside the results of the November election were circulating in the Trump White House in the weeks leading up to January 6.
We already knew about the most putatively respectable of these, the John Eastman memos. As law professor Jonathan Adler, a member of the academic advisory board of the Cato Supreme Court Review, has written, this memo in both its versions relies “on the false claim that there were ‘dual slates of electors’ transmitted to the Senate, adopts an expansive (and unjustified) interpretation of the Vice President’s authority under the Twelfth Amendment, and urged Vice President Pence to unilaterally disregard the Electoral Count Act and reject slates of electors certified and transmitted by seven states on the grounds that such a move would avert a ‘constitutional crisis.’”
But there’s more. On Friday Politico reported that Trump campaign lawyer Jenna Ellis “wrote two legal memos in the week before the Jan. 6 Capitol attack that claimed then-Vice President Mike Pence had the authority to refuse to count presidential electors from states that delivered Joe Biden the White House.” While the quality of Ellis’s work on the memos may leave much to be desired, Jonathan Karl in his book Betrayal reports that one of them (to quote Politico) “was delivered to Trump’s office by Mark Meadows, then White House chief of staff.” That is among what appear to have been numerous steps by the chief of staff to circulate theories within the executive office that might justify overturning the election results.
Yet another document to surface in recent days is a slide deck based on wacky theories of imagined foreign interference and urging ways to nullify state results. A retired colonel who promoted the theories appears to have been given considerable access to and by the White House, Trump campaign lawyers, and members of Congress.
It’s all getting to look like more than happenstance, no?
That doings of this sort were afoot is not exactly a surprise. On Dec. 29, 2020, I published a post in this space marching through the logic of why President Trump could not, in fact, keep himself in office following his electoral defeat by declaring martial law or invoking the Insurrection Act. That such a piece was relevant at all was only due to such options’ having become a part of the conversation in TrumpWorld in the weeks after the election. Michael Flynn, Trump’s first national security advisor, declared in an interview with Newsmax that his former boss could “take military capabilities, and he could place them in those [swing states], and basically re‐run an election” in those states.
Flynn’s former boss did little, we might say, to discourage such talk. Trump throughout his career has denounced his own losses and setbacks as the result of fraud and rigging, even including Ted Cruz’s victory in the 2016 Iowa Republican caucuses. Before beating Hillary Clinton he had prepared the way for claims that his expected loss was the result of fraud, and so forth.
Political scientists who study irregular power successions have a Spanish term I find fascinating, pronunciamiento. It can refer to a coup itself (typically by the military) but it can also mean the detailed explanation (or “pronouncement”) put out for wider consumption – read aloud in public squares, for example – of why an unexpected person was now occupying the presidential palace, or why an incumbent was still there despite the expiration of his term. Part of the idea here was that some gesture of persuasion was needed to paper over the raw exercise of power, even if its only effect was to confuse the issues sufficiently that relevant constituencies could shrug and go along, saying no one is really sure who’s right.
It doesn’t seem like coincidence that the Trump administration in its closing weeks had multiple pots of prospective pronunciamiento simmering away on the stove.
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Keeping the Poor in Their Place
California Assemblywoman Cristina Garcia has introduced legislation forbidding the state department of transportation from building or expanding freeways in poor neighborhoods. She noted research showing that freeway expansions allowed more people to travel more, and apparently she doesn’t want to extend such mobility options to low-income people.
Another legislator, state Senator Sydney Kamlager, agreed that the state should focus on “alternative modes of transportation” such as public transit in poor neighborhoods. Transit can’t reach as many places as automobiles and only goes during certain hours of the day, so encouraging poor people to use transit allows more control over when and where they travel.
Don’t tell Garcia and Kamlager that the 2019 American Community Survey found that more than 80 percent of California workers earning less than $25,000 per year took automobiles to work while only 5 percent took transit. The thought of poor people having all of that mobility would probably be downright frightening to them.
Seriously, what kind of a sick society do we live in when people who call themselves progressives think that the right thing to do is limit the mobility of the people who need it most? Someone needs to start a social justice movement demanding that low-income people and minorities have the same access to automobiles and highways as middle-class whites.
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Give the Gift of P. J. O’Rourke
The Cato Institute offers lots of great Christmas gifts — Pocket Constitutions (also a good gift for Bill of Rights Day!), books, even Cato-branded Lands’ End merchandise. But I have my own holiday recommendations that I’ve made before.
![Media Name: PJ3.jpg](/sites/cato.org/files/styles/pubs_2x/public/wp-content/uploads/201009_blog_boaz301.jpg?itok=ZjUGsOdJ)
I decided one year to give a young colleague a post-graduate course in political science and economics — P. J. O’Rourke’s books Parliament of Whores and Eat the Rich. So I went to my local Barnes & Noble to search for them. Not in Current Affairs. Not in Economics. No separate section called Politics. I decided to try Borders (RIP). But first — to avoid yet more driving around — I went online to see if my local Borders stores had them in stock. Sure enough, they did, in a couple of stores just blocks from the Cato Institute. Checking to see where in the store I would find them, I discovered that they would both be shelved under “Humor–Humorous Writing.” Oh, right, I thought, they’re not books on economics or current affairs, they’re humor.
Yes, P.J. is one of the funniest writers around. But what people often miss when they talk about his humor is what a good reporter and what an insightful analyst he is. Parliament of Whores is a very funny book, but it’s also a very perceptive analysis of politics in a modern mixed-economy democracy. And if you read Eat the Rich, you’ll learn more about how countries get rich — and why they don’t — than in a whole year of econ at most colleges. In fact, I’ve decided that the best answer to the question “What’s the best book to start learning economics?” is Eat the Rich.
On page 1, P.J. starts with the right question: “Why do some places prosper and thrive while others just suck?” Supply-and-demand curves are all well and good, but what we really want to know is how not to be mired in poverty. He writes that he tried returning to his college economics texts but quickly remembered why he hated them at the time–though he does attempt, for instance, to explain comparative advantage in terms of John Grisham and Courtney Love. Instead he decided to visit economically successful and unsuccessful societies and try to figure out what makes them work or not work. So he headed off to Sweden, Hong Kong, Albania, Cuba, Tanzania, Russia, China, and Wall Street.
In Tanzania he gapes at the magnificent natural beauty and the appalling human poverty. Why is Tanzania so poor? he asks people, and he gets a variety of answers. One answer, he notes, is that Tanzania is actually not poor by the standards of human history; it has a life expectancy about that of the United States in 1920, which is a lot better than humans in 1720, or 1220, or 20. But, he finally concludes, the real answer is the collective “ujamaa” policies pursued by the sainted post-colonial leader Julius Nyerere. The answer is “ujaama—they planned it. They planned it, and we paid for it. Rich countries underwrote Tanzanian economic idiocy.”
From Tanzania P.J. moves on to Hong Kong, where he finds “the best contemporary example of laissez-faire.…The British colonial government turned Hong Kong into an economic miracle by doing nothing.”
You could do worse than to take a semester-long course on political economy where the texts are Eat the Rich and Parliament of Whores. So, bookstore owners, leave them in the Humorous Writing section for sure, but also put copies in the Economics, Politics, and Current Affairs sections.
Still time to buy them for Christmas and educate all your family and friends while they think they’re just being entertained!
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How Much Will Biden’s Infrastructure Plan Eventually Cost? History Suggests Some Worrisome Answers
Here at Cato we’ve written many times about the record of big infrastructure projects and “megaprojects”:
- Cost overruns are rampant.
- “Here is a rule of thumb to remember when you hear about a proposed government project: If a politician says that it will cost $1, it will end up costing $2 or more.”
- “Contractors were essentially rewarded for delays and overruns with added cash and guaranteed profits.”
- “The ongoing saga of California’s high-speed bullet train may end up being as classic a story of Democratic politicians’ hubris as the Solyndra debacle.”
- “Linda Bilmes, coauthor with Nobel laureate Joseph Stiglitz of The Three Trillion Dollar War: The True Cost of the Iraq Conflict, analyzes the massive problems in three somewhat smaller government projects — the Iraqi reconstruction effort, Hurricane Katrina reconstruction, and the Big Dig artery construction in Boston — and finds that ‘in any organization that starts to increase spending very rapidly there are risks of waste, fraud and inefficiency.’ ”
- “In fact, as megaprojects expert Bent Flyvbjerg explains in the following article, these grandiose projects operate by an iron law: over budget, over time, over and over again.”
And now we welcome the New York Times to the beat with its impressive Monday story titled “Years of Delays, Billions in Overruns: The Dismal History of Big Infrastructure.” Ralph Vartabedian, who covered the “bullet train” fiasco for years at the Los Angeles Times, lays out problems across the country with big infrastructure projects, from a Honolulu transit line to the Long Island Railroad. Read the whole thing, but you can start here:
Honolulu’s tribulations are far from a lone cautionary tale. To the contrary, they signal the kind of cost overruns, engineering challenges and political obstacles that have made it all but impossible to complete a major, multibillion-dollar infrastructure project in the United States on budget and on schedule over the past decade.…
When California voters approved a bond in 2008 for a high-speed rail system from Los Angeles to San Francisco, the project was supposed to cost $33 billion and be completed by 2020. The job is now projected to finish in 2033 for $100 billion, though those estimates are dated and there is an $80 billion funding gap.…
Mr. Schofer said many projects are justified by estimating that future benefits will exceed costs, but when the costs go up astronomically, no one recalculates the ratio.
In a candid admission of how the political world operates, Willie Brown, the former mayor of San Francisco, once dismissed cost overruns on a transportation hub intended for the bullet train.
“In the world of civic projects, the first budget is really just a down payment,” he wrote in a guest newspaper column in 2013. “If people knew the real cost from the start, nothing would ever be approved. The idea is to get going. Start digging a hole and make it so big there’s no alternative to coming up with the money to fill it in.”
And this is, I suppose, no surprise:
U.S. Transportation Department officials declined to comment for this article.
It’s an excellent article. My only complaint is, as Cliff Asness and I both pointed out on Twitter, it would have been more useful to members of Congress and the public if it had been published during the many months that Congress was debating the Biden administration’s $1.2 trillion infrastructure plan. Maybe members of Congress should ponder it now as they consider another, even bigger — $1.75 trillion? $4.9 trillion? — “Build Back Better” infrastructure+more plan.