Senate Hearing and Press Briefing on Critical Updates to the Electoral Count Act

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The U.S. Senate Committee on Rules and Administration will hold a hearing this morning at 10:30 a.m. ET on the need to update the Electoral Count Act (ECA), an outdated law from 1887 that outlines procedures for casting and counting Electoral College votes in presidential elections. 

Adav Noti, vice president and legal director of CLC, will participate in a press briefing at 3:00 p.m. ET today to discuss the hearing and answer reporters’ question about the ECA. RSVP here to attend.

WASHINGTON, D.C. – Trevor Potter, founder and president of Campaign Legal Center and Republican Former Chairman of the Federal Election Commission, issued the following statement ahead of today’s hearing: 

“We thank Chairwoman Amy Klobuchar  and Ranking Member Roy Blunt for holding today’s hearing on the urgent need to update the ECA to protect the will of the people. Our democracy cannot afford another presidential election plagued by the types of challenges we saw following the 2020 election—challenges that stem from the confusing way Congress receives and counts Electoral College votes.
Fortunately, bipartisan legislation has been introduced in the Senate to address the ECA’s most serious vulnerabilities. The Electoral Count Reform and Presidential Transition Improvement Act of 2022 (ECRA) would significantly improve the ECA to reduce opportunities for election sabotage and ensure that elections are decided by voters. While we know that there is still more work to be done to protect our freedom to vote, this bill is nevertheless a step in the right direction and provides critical safeguards for the results of presidential elections. 

“Following this hearing, members of Congress must come together to adopt the strongest possible checks and balances to prevent future attempts by bad actors to manipulate and undermine our presidential elections. We call on Congress, especially Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell, to act with the urgency that this moment demands.”  

Background on the ECA:

The Electoral Count Act of 1887 provides the primary legal framework for casting and counting electoral votes. The law is important because it sets a timeline for selecting electors and transmitting their votes to Congress. The ECA also establishes procedures for how Congress counts the electoral votes. However, it has not been updated since it was enacted more than 130 years ago. 

Following the 2020 presidential election, partisan actors attempted to exploit loopholes in the ECA as part of an organized attempt to overturn the results. While efforts to reject state-certified electoral votes and overrule the will of voters were unsuccessful, gaps and ambiguities remain in the ECA and are ripe for manipulation. 

In 2021, CLC convened constitutional experts from across the country and representing all political viewpoints to determine important updates to modernize the ECA. Some of the updates that these experts felt were necessary are included in the ECRA, a bill introduced by Sen. Susan Collins (R-ME) and Sen. Joe Manchin (D-WV), along with 14 cosponsors, last month:  

  • Prohibiting state legislatures from overruling their own voters. 
  • Resolving disputes about electors and electoral votes before they reach Congress. 
  • Strictly limiting opportunities for members of Congress to second guess electors and electoral votes. 
  • Clarifying the vice president’s ministerial role in the counting of electoral votes. 

A poll commissioned by Campaign Legal Center last year showed strong, bipartisan support among voters for updating the ECA. It also highlighted the serious concern held by a majority of voters (58%) that one party in Congress could try to overturn the results of an upcoming presidential election to put their own candidate in power.  
 

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Voting and Elections

Campaign Legal Center Files FEC Complaint Against WinRed, Seeking Increased Transparency into the Fundraising Conduit’s Operating Expenses

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Despite earning at least $114 million in fee-based revenue, the political fundraising conduit has reported spending less than $2,700 on operating expenditures. The complaint alleges that WinRed has violated campaign finance laws by not completely and accurately reporting its expenses.

WASHINGTON, D.C. - Today, Campaign Legal Center (CLC) filed a complaint with the Federal Election Commission (FEC) alleging that WinRed, a major fundraising conduit for candidates and committees affiliated with the Republican Party, has violated federal campaign finance laws by not completely and accurately reporting its operating expenditures.

Since being organized in January of 2019, WinRed has processed over $2.8 billion in earmarked contributions, earning at least $114 million in fee-based revenue by conservative estimates. Despite this sizable haul, WinRed has reported spending less than $2,700 on operating expenditures during this period, along with just $243,000 in “debt” to an affiliated company, WinRed Technical Services, for unpaid legal, consulting and insurance fees.

This reporting suggests that WinRed is either failing to report its operating expenditures or is failing to report “in-kind” contributions in the form of free goods and services.

“Voters have a right to know how political fundraising conduits like WinRed spend their money, so they can make an informed choice as to whether to support candidates and committees that use its service,” said Saurav Ghosh, director of federal reform at Campaign Legal Center. “As it stands now, all of us – from donors giving through WinRed, to the candidates who use its services, to those of us trying to follow the money – are in the dark about how WinRed operates. The FEC needs to investigate and set the record straight.”

WinRed is one of the the largest financial operations in our election system – offering a wide range of fundraising services to political candidates and committees. Yet it is currently concealing from the public how it is using the funds it earns from processing contributions, including who is providing the goods and services that allow WinRed to conduct its extensive operations, and how much WinRed is paying for those goods and services.

Transparency regarding the money raised and spent to influence our election system is essential to an open and inclusive democracy. The FEC must investigate WinRed. 

At Campaign Legal Center, we are advancing democracy through law. Learn more about our work.

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Campaign Finance

Defending a Proposed Wyoming Campaign Finance Disclosure Law — Buchanan v. Wyoming Gun Owners

At a Glance

CLC has joined a case defending a Wyoming law requiring political groups to disclose their “electioneering communications” in state elections — including the contributors who funded their campaign ads — to protect voters’ right to know which special interests are attempting to influence their votes and enable them to make informed decisions at the polls. 

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Campaign Finance
About This Case/Action

In June 2021, Wyoming Gun Owners (WyGO) filed suit to challenge Wyoming’s recently-enacted disclosure law requiring political groups to disclose their “electioneering communications” in state elections, including the contributors who funded their campaign ads. Wyoming’s law is meant to advance voters’ right to know which outside groups and special interests are attempting to influence their votes and enable voters to make informed decisions when they vote.

WyGO, a long-standing Wyoming gun rights organization, ran ads in the 2020 Wyoming State Senate primaries. After a complaint was filed against WyGO for failing to disclose this advertising, the Wyoming Secretary of State determined that WyGO had violated the disclosure law and fined the organization $500.

WyGO never filed the required report and instead sued in federal district court, challenging the disclosure law as an unconstitutional burden on its First Amendment rights. In particular, WyGO objected to the law’s requirement that groups running electioneering ads disclose their “contributions which relate to . . . electioneering communication[s],” arguing this provision was both overbroad and vague. In March 2022, while upholding other provisions of the law, the district court found that this contributor disclosure requirement did not meet exacting scrutiny and was void-for-vagueness.

The state defendants and WyGO cross-appealed to the 10th Circuit Court of Appeals. In July 2022, Campaign Legal Center (CLC) joined the case to help, defending the constitutionality of Wyoming’s “electioneering communications” disclosure law and urging the reversal of the lower court’s decision striking down important provisions.

What’s at Stake?

Publicizing information about the true sources of money spent to influence voters’ choices is the central purpose of electoral transparency laws, and the lower court’s decision to scale back donor disclosure thwarts this critical objective. As the U.S. Supreme Court has explained in earlier cases, refusal to follow such laws, “ignores the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace.” 

Plaintiffs

Buchanan

Defendant

Wyoming Gun Owners

BREAKING: Senate Introduces Bipartisan Legislation to Update the Electoral Count Act

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Sen. Susan Collins (R-ME), Sen. Joe Manchin (D-WV) and 14 cosponsors introduced the Electoral Count Reform and Presidential Transition Improvement Act of 2022, bipartisan legislation to update the outdated law from 1887 that outlines procedures for casting and counting Electoral College votes in presidential elections.  

WASHINGTON, D.C. – Trevor Potter, founder and president of Campaign Legal Center and Republican Former Chairman of the Federal Election Commission, issued the following statement:  

“We thank Sen. Collins and the bipartisan working group for introducing this vital proposal, and we urge Congress to pass it without delay. The introduction of this bipartisan legislation represents months of tireless work by experts spanning the political spectrum to develop necessary and commonsense updates to the Electoral Count Act. While there is much more work to be done to protect elections and voters at the state and federal level, this bill provides critical safeguards for the results of presidential elections.  

“The next presidential election could be one of the most contentious in history, and it should be decided by voters, not partisan politicians. As we saw following the 2020 election, bad actors egregiously attempted to exploit the old language in the Electoral Count Act to throw out key states’ certified presidential election results. This kind of blatant manipulation threatens the democracy we cherish as Americans. The good news is that Congress has the power to update the Electoral Count Act and bring it into the 21st century. CLC strongly urges Sens. Schumer and McConnell to move on this bipartisan proposal to protect the will of the people.” 

Background on the Electoral Count Act: 

Following the 2020 election, partisan actors attempted to exploit loopholes in the Electoral Count Act (ECA). While attempts to reject state-certified election results and overrule the will of voters were unsuccessful, gaps and ambiguities remain in the ECA and are ripe for manipulation.  

In 2021, CLC convened constitutional experts from across the country and representing all political viewpoints to determine important updates to modernize the ECA. Some of the updates that these experts felt were necessary are included in the bill introduced today:   

  1. Prohibiting state legislatures from overruling their own voters.

  2. Resolving disputes about electors and electoral votes before they reach Congress.

  3. Strictly limiting opportunities for members of Congress to second guess electors and electoral votes.  

  4. Clarifying the vice president’s ministerial role in the counting of electoral votes.  

A poll commissioned by Campaign Legal Center last year showed strong, bipartisan support among voters for updating the ECA. It also highlighted the serious concern held by a majority of voters (58%) that one party in Congress could try to overturn the results of an upcoming presidential election to put their own candidate in power.

Issues
Voting and Elections

Allen v. Milligan (Formerly Merrill v. Milligan)

At a Glance

Campaign Legal Center (CLC) is advocating to reinforce the role that Section 2 of the Voting Rights Act (VRA) plays in blocking redistricting plans that discriminatorily dilute the ability of voters of color to equally participate in the political process.

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Redistricting
About This Case/Action

In October 2022, the U.S. Supreme Court is scheduled to hear argument in a case involving Section 2 of the VRA — the strongest remaining federal statutory protection against racial discrimination in voting and redistricting.

Section 2 presents a limited but necessary constraint on jurisdictions, requiring that redistricting plans at any level — congressional, state legislative, county commission and more — cannot “abridge[]” minority voters’ equal “opportunity … to participate in the political process and to elect representatives of their choice.” For decades, courts have applied a demanding multi-part test to determine whether plaintiffs have established that a redistricting plan violates Section 2 under what is called a “vote dilution” claim.

In November 2021, multiple groups of voters and civil rights organizations filed lawsuits challenging Alabama’s newly enacted congressional redistricting plan. The groups argued that the new map violated the U.S. Constitution and Section 2 of the VRA because it packed Black Alabamians into a single district when an undiluted map would have created at least two districts. The trial court agreed that Alabama’s enacted congressional plan violated Section 2 of the VRA, and it did not decide the plaintiffs’ constitutional claims.

Alabama appealed to the U.S. Supreme Court. The state has attempted to argue that part of the long-settled evidentiary requirements that Section 2 plaintiffs must prove to establish a vote dilution violation makes the statute unconstitutional.

CLC filed an amicus brief in the U.S. Supreme Court, arguing that Alabama’s attacks against Section 2 are unfounded in part because Alabama has broad remedial flexibility to resolve a proven Section 2 violation. For example, CLC submitted numerous remedial options available to the State that will correct the vote dilution of Black Alabamians in the congressional map while satisfying Alabama’s other designated policy priorities even better than the enacted plan.

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