(CNN) — Members of the Jan. 6 committee are working on potential legislation to tighten the process of certifying a presidential election in an effort to eliminate contentious avenues that spurred the Jan. 6 riot.
The legislation would give the committee a focus on developing a law as part of the investigation, undercutting a legal argument that former President Donald Trump has made that the committee has no true legislative purpose for seeking his White House documents.
The effort is still in its early stages, but a proposed bill could offer more specific instructions for when Congress can overturn a state’s slate of electors, and more clearly define the role the vice president plays in counting the votes — after Trump and his allies pressured Mike Pence to try to block President Joe Biden’s win, the sources say.
Specifically, members are focused on making changes to a 19th Century law known as the Electoral Count Act that was intended to give Congress a process by which to certify the Electoral College votes submitted by the states. It’s a mundane but crucial part of the presidential election machinery, one that Trump and his allies attempted to exploit last year.
Election law experts and those urging reform warn that in light of Jan. 6, the 134-year-old law needs to be updated and strengthened to ensure that a losing party can never subvert the results of the Electoral College.
“The bigger fruit of the 2020 experience is that every phase of the presidential election process has been thrown into doubt and is now littered with boobytraps,” Rep. Jamie Raskin, a Maryland Democrat who is one of the select committee members involved in the discussion, said.
David Becker, executive director and founder of the nonpartisan Center for Election Innovation and Research, says changes are needed to “limit objections to a few valid issues, such as if a state fails to certify electors by the deadline, and make clear the purely ceremonial nature of the joint session,” adding such clarification would, “prevent a future VP from being pressured to subvert the states’ electoral choices.”
The effort to craft such a bill began in the House Administration Committee, which is chaired by Rep. Zoe Lofgren of California and vice chaired by Raskin. Both Democrats were named to the select committee, where the talks now also include Republican Rep. Liz Cheney of Wyoming.
Raskin said no decisions had yet been made on what any legislation coming out of the committee might entail.
“The Select Committee is working hard to uncover the facts about Jan. 6 and its causes, and we will consider many possible legislative and policy proposals as we craft our report,” the panel’s chairman, Rep. Bennie Thompson of Mississippi, said in a statement to CNN. “One of the most important parts of the select committee’s work is to help ensure that nothing like Jan. 6 ever happens again, and we take that mandate very seriously.”
Cheney, ostracized from the House GOP conference for joining the Democrats’ investigation, addressed the effort last week on a podcast with political strategist James Carville and political journalist Al Hunt.
“We’re looking at the 1887 Electoral Count Act and whether or not we need to make amendments to that in order to ensure that in the future this kind of objection to electors isn’t so subject to potential abuse.”
Congressional Republicans have roundly rejected Democrats’ push to pass voting rights legislation this year. By crafting a bill out of the House select committee investigating Jan. 6, Democrats may offer a narrower path to address at least election subversion.
While the discussions were already underway before Trump’s lawsuit, the effort could give the committee a defense against accusations from Trump and his allies that its subpoenas are invalid because it serves no legislative purpose.
Earlier this month, Trump filed a lawsuit to try to block the investigation from obtaining records from his presidency by claiming executive privilege, while also charging that the panel’s requests for documents from the Executive Branch “are unprecedented in their breadth and scope and are untethered from any legitimate legislative purpose.”
Addressing the Eastman memo
A new bill could also address the now infamous Eastman memo, drafted by conservative lawyer John Eastman, which laid out a six-step plan for how Pence could have certified the election in favor of Trump. The memo argued that the Electoral Count Act itself was unconstitutional. Eastman proposed Pence throwing out the votes of enough states that Biden won so that the presidential election would be decided by the House, where each state gets a single vote and Republicans controlled more state delegations.
Becker says changes to the Electoral Count Act could prevent such a coup attempt laid out by Eastman.
“The VP is not granted some extra-constitutional superpower to replace the judgment of the voters, of the states, with his or her own personal preference,” said Becker. “The ECA could be amended to make that clear.”
Raskin said the lawmakers would also look at whether they should raise the bar for lawmakers to object and make it harder for state legislatures to overturn the popular will of a state’s voters.
“Figuring out how to prevent this kind of derailment of the presidential election is extremely complicated,” Raskin said.
Any new legislation would likely come after the committee finishes its investigation, sources said, as the panel’s findings would likely influence how the bill is written. Thompson has said he wants the committee to move quickly, and they swiftly held Trump adviser Steve Bannon in contempt when he defied the panel’s subpoenas.
But the committee’s efforts to pry loose documents and testimony could still get tangled up in court battles, making it difficult for the committee to finish its probe. They’re also waiting to see what the Justice Department does with Bannon’s contempt citing.
Despite breaking with most House Republicans on Trump’s complicity in Jan. 6 and the need for a select committee to get to the bottom of it, Cheney has not shown any interest in joining House Democrats to pass their sweeping voting rights bill targeting new restrictions on voting in the states. Senate Republicans have blocked several Democratic bills this year.
It’s too soon to say if Cheney’s involvement could lead to a different outcome for a bill focused on election subversion. It would require 60 votes in the Senate, and the support of 10 Republicans could be difficult — especially if the effort is seen as a rebuke to Trump in the midst of the midterm campaign season.
Three days before the Jan. 6 congressional certification of Biden’s win and the attack on the Capitol, Cheney wrote a memo to her Republican colleagues arguing that their objections were at odds with the Constitution and “our core beliefs as Republicans.”
“By objecting to electoral slates, members are unavoidably asserting that Congress has the authority to overturn elections and overrule state and federal courts,” Cheney wrote. “Such objections set an exceptionally dangerous precedent, threatening to steal states’ explicit constitutional responsibility for choosing the President and bestowing it instead on Congress.”
Edward Foley, an election law professor at Ohio State University, has urged Congress to update the Electoral Count Act since before the 2020 election. He’s argued that the law should make it clearer that after a state properly affirms its slate of electors, Congress shouldn’t be able to easily intervene to throw them out.
Had the House and Senate supported the objections — if one party controlled both chambers of Congress and the other party had won the White House, for instance — it could have thrown out the electors and pushed the presidential election to the House, creating the potential for a constitutional crisis.
“In 2025, this kind of power grab and repudiation of the constitutional procedure could make a difference if the votes are there,” Foley told CNN.
Foley added: “What we’ve been through this year is evidence we need to fix it before next time.”