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WASHINGTON D.C. – U.S. Senator Angus King (I-Maine), a member of the Senate Committee on Rules and Administration with oversight over federal elections, joined The Economist’s weekly “Check and Balances” podcast to discuss democratic protections that must be passed in the last month of the congressional session. During the episode, King explains why his top priority for the remainder of this Congress is the Electoral Count Reform and Presidential Transition Improvement Act – informed by his February reform proposal – to clarify ambiguous 19th century laws that spurred the January 6th insurrection. King also highlights the 2023 National Defense Authorization Act (NDAA) and annual omnibus appropriations package as two other key priorities.

Speaking about his priorities in the last month of the Congressional session, King lays out why “the infrastructure of democracy” is his top priority.

“I list[ed] the Electoral Count Act first because that goes to the infrastructure of democracy itself. And everything else in terms of budgets and marriage equality, all of those things are basically policy questions that are important. But if the structure of the system isn't working, nothing else works. So that's why I put Electoral Count Act at the top of the list.”

King continued by explaining the historical need for the proposed reforms in the Electoral Count Reform and Presidential Transition Improvement Act.

“I hope you'll allow me a bit of historical digression. It rests in the provision of the Constitution that establishes the Electoral College. And if you go back and read the Federalist 68 – which is Hamilton's justification for the Electoral College – I don't often disagree with Hamilton, but he got it wrong. The framers were of two minds. They liked the idea of public participation and democracy with a small d, but only so far. They were very concerned about what they called the mob. The only body in the US Constitution at the time of its adoption that was popularly elected directly by the people, was the House of Representatives. The Senators were elected by the state legislatures, and the President was elected by this thing called the Electoral College.

“Hamilton's theory – which looks naive in retrospect – was the Electoral College would be a kind of filter, a council of wise people who would be elected by the popular vote in their state, but then they would exercise some kind of independent judgment. As I see it now, we have the worst of both worlds. We have a system that intermediates between the people and the Presidency. But it's a system that's subject to manipulation and mischief.”

The Electoral Count Reform and Presidential Transition Improvement Act updates the outdated and vague 1887 Electoral Count Act to ensure that electoral votes tallied by Congress accurately reflect the will of the voters in each state. The bill replaces ambiguous provisions with clear procedures to ensure the counting of electoral votes can’t be exploited. Key provisions in the bill include:

• Clarifying the Role of the Vice President.
• Affirmatively states that the constitutional role of the Vice President in the counting of electoral votes is ceremonial, with no power to adjudicate conflicts that might arise.
• Raising the Objection Threshold.
• Raises the threshold to object to a state’s electors to at least one-fifth of the duly chosen and sworn members of both the House of Representatives and the Senate – up from one member of each chamber.
• Ensuring a Single, Accurate Slate of Electors.
• Designates each state’s governor as responsible for submitting a single slate of electors to Congress.
• Ensures a state’s executive can’t submit a slate of electors over the objections of the judiciary or in violation of state and federal law.
• Expediting Judicial Review.
• Provides an expedited review process, including a three-judge panel with appeal to the Supreme Court, of certain claims related to a state’s slate of electors.
• Preventing Moving or Canceling of Elections.
• Requires “extraordinary and catastrophic” events for a state to move their election, and removes a provision that allows states to declare failed elections.

Senator King has been a leader on reforming the Electoral Count Act (ECA) of 1887, and in February, released a discussion draft with Senators Amy Klobuchar (D-Minn.) and Dick Durbin (D-Ill.) to inform Senate-wide efforts to update the law reflecting 21st century threats. In a hearing of the Senate Rules and Administration Committee, King questioned election experts on ECA reform proposals and what provisions must be in any final bill to effectively protect America’s electoral process. This September, the legislation passed the Rules Committee in a 14-1 bipartisan vote.