Where Things Stand: The Evolution Of The GOP’s New Electoral Count Act Talking Point

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WASHINGTON, DC - FEBRUARY 02: Vice President Kamala Harris delivers remarks during a Cancer Moonshot initiative event in the East Room of the White House on February 02, 2022 in Washington, DC. During the event, U.S.... WASHINGTON, DC - FEBRUARY 02: Vice President Kamala Harris delivers remarks during a Cancer Moonshot initiative event in the East Room of the White House on February 02, 2022 in Washington, DC. During the event, U.S. President Joe Biden announced the administration’s new goals for the initiative that includes reducing the death rate from cancer over the next 25 years and improving the quality of life for people who have survived cancer or are living with it. The initiative was started by Biden when he was the Vice President in 2016. (Photo by Anna Moneymaker/Getty Images) MORE LESS

February 7, 2022 6:53 p.m.

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What started as a messaging effort by activists and good government lobbyists pushing Congress to reform the Electoral Count Act has turned into a fairly common talking point for Republicans in a matter of months. It’s been a little surprising to witness.

Back in August, Trevor Potter of the Campaign Legal Center and Norm Ornstein of American Enterprise Institute wrote a Cafe piece for TPM advocating for lawmakers to rectify the outdated ECA, first passed in 1887, as a tangible step toward preventing another Jan. 6 attack. The law is vague, inviting confusion around Congress and the vice president’s role in certifying the Electoral College votes.

In the piece, the two presented an interesting point, baiting a Senate Republican to embrace the “real hero opportunity” of tackling this reform. They argued:

In fact, there is a real hero opportunity for a Republican Senator to take this on, since it’s a Democrat, Vice President Kamala Harris, who will preside over the joint session of Congress the next time we count the electoral college votes – in January 2025. It’s true that then-Vice President Mike Pence took the high road on Jan. 6 by correctly declaring he lacked authority to reject state electoral slates lawfully submitted to Congress. However, the American people can’t rely on future vice presidents to do the right thing. The stakes are too high to leave this to chance and the time for action is now, while there is still daylight before the looming 2024 campaign season.

Activists have taken a similar tone, acknowledging the fact that without filibuster reform in the Senate, the prospects of passing any substantial improvements to the ECA without Republican buy-in are unlikely. In November, former Tennessee Republican lawmaker and current co-chair of Issue One’s “ReFormers Caucus” Zach Wamp made that point to TPM, referencing Harris. Citing the fact that a vice president of either political party could very well be put in the same position that VP Mike Pence was in on Jan. 6, Wamp suggested that pointing to the current VP might be the best way to win Republicans over to the cause.

“They could have Vice President Harris sitting there, using the same kind of arguments to challenge the results of the next election,” he told TPM.

While I can’t say with any certainty that the message made its way down the pipeline from activists into the ears and mouths of Republicans and even some Trump allies in recent weeks, it appears GOPers are increasingly latching onto this kind of messaging in earnest: we must accept Electoral Count Act reform because of the threat posed by Kamala Harris!

The fact that a winning Republican talking point is again cloaked in criticism of Harris feels unsurprising, almost inevitable. But if it gets Republicans to vote yes on updating the 130-year-old law — which Trump lawyer John Eastman pointed to to try to get Pence to reject the results of the election on Jan. 6 — then, okay?

Regardless of the origins of the argument, it seems to be working on Republicans. Last month, TPM reported on the sudden shift in tone among Republicans as more and more GOP senators get on board with reforming the Electoral Count Act. And just this weekend we saw two shining examples of GOPers embracing this messaging — not necessarily to full-throatedly advocate for ECA reforms, but, rather, to argue that Pence was in the right when he certified President Biden’s win (which could be interpreted at subtle attempts to publicly push Trump to get off Pence’s back ahead of 2024) and, that GOPers can’t let this type of question linger when another party is in power.

Pence’s former chief of staff Marc Short — who recently spoke with the Jan. 6 committee — told MSNBC over the weekend that his former boss did the right thing, and that Pence was justified in pushing back against Trump’s latest calls for his former right-hand man to be investigated. He then started talking about Kamala Harris.

Of course there’s nothing in the 12th Amendment or the Electoral Count Act that would afford a vice president that authority. It’s why no vice president in 200 years has ever used that authority, and it’s certainly not one that I think conservatives or Republicans would want Kamala Harris the ability to say she’s going to reject votes from Texas or Wyoming or any other state heading into 2024.

And while he refused to criticize Trump in any way, another Republican, Sen. Marco Rubio (R-FL), made some similar claims on Sunday. Speaking to CBS, Rubio suggested that Harris may try to commit the same kind of Trumpian fraud in 2024 if Trump or another Republican were to beat her and Biden. And We Can’t Have That.

“Well, if President Trump runs for re-election, I believe he would defeat Joe Biden, and I don’t want Kamala Harris to have the power as vice president to overturn that election, and I don’t — that’s the same thing that I concluded back in January of 2021,” Rubio said. “You know, when that issue was raised, I looked at it, had analyzed it and came to the same conclusion that vice presidents can’t simply decide not to certify an election.”