The Senate’s bipartisan working group on election law reforms, led by Sen. Susan Collins (R‑ME) and Joe Manchin (D‑WV), today unveiled their long-awaited deal on a variety of issues including the Electoral Count Act, the law at the center of the casting and counting of Electoral College votes every four years. 


In addition to Collins and Manchin, the working group also includes Rob Portman (R‑OH), Kyrsten Sinema (D‑AZ), Mitt Romney (R‑UT), Jeanne Shaheen (D‑NH), Lisa Murkowski (R‑AK), Mark Warner (D‑VA), Thom Tillis (R‑NC), Chris Murphy (D‑CT), Shelley Moore Capito (R‑WV), Ben Cardin (D‑MD), Todd Young (R‑IN), Chris Coons (D‑DE), Ben Sasse (R‑NE), and Lindsey Graham (R‑SC). 


At Cato, my colleagues and I have been working on the Electoral Count Act, including analysis of particular provisions, meetings with policymakers, and a recent policy analysis outlining our overall conclusions and providing a model template with a section by section set of recommendations.


From the description released, the proposed “Electoral Count Reform Act of 2022″ covers the most important points, and reflects broad consensus among the scholars and organizations across the political spectrum. These changes include a process for ensuring only a single conclusive set of votes is sent by each state, expedited judicial review by a three-judge panel to handle possible rogue state officials, a higher threshold to raise objections in Congress, and clarifying the “failed elections” provision to ensure that it only covers extreme natural disasters. Between concerns that this bill would be too narrow and only make cosmetic changes at the behest of Republicans, versus prior Democratic plans that went too far and were overcomplicated, this announcement strikes a happy medium: a bill that is broad in scope but simple and conservative in substance. 


The status quo Electoral Count Act, as we saw in 2020, is a ticking time bomb and an invitation to a constitutional crisis. This announcement is a major step forward in fixing that problem. It should be a top priority for every member of Congress who takes seriously their oath to defend the Constitution. 

In a recent post, I discussed the Securities & Exchange Commission’s stunning admission of a breach in “internal separation,” which is basically a firewall between the agency’s prosecution and judging teams that practice before the SEC’s in-house courts. As I explain in the post, this breakdown is concerning because “internal separation” is the legislative solution for the constitutional problems caused by regulatory agencies running their own courts. Put differently, it’s an affront to the separation of powers when the prosecutor and judge are mixing it up behind the scenes.

In this post, I’ll discuss the inefficiency of the SEC’s in-house courts. This is important because the sine qua non of these agency adjudications is their putative efficiency. Indeed, we’ve long tolerated the constitutional oddness inherent to executive branch trials in large part due to their (supposed) comparative advantage over Article III courts when it comes to getting things done in a timely manner. On paper, at least, there is every reason to expect that the administrative process would be streamlined. Discovery is limited; there is no jury. And the SEC’s very structure—where prosecutors and judges work for the same agency—is designed for efficiency, if not fairness. In practice, however, the agency’s sluggishness belies any pretensions to efficiency.

Before we get to that, let’s start with a brief history of SEC enforcement, from my last post:

Over the years, Congress has significantly expanded the SEC’s authority to prosecute on its home turf. During its first three decades of existence, the SEC could bring administrative enforcement actions only against businesses that had to register with the agency as a condition of doing business; furthermore, in terms of penalties, the commission was limited to denying or revoking the wrongdoer’s registration. Today, by contrast, the agency can bring home‐​court prosecutions against any person, regardless of whether they’re registered with the agency, and the agency can seek a spectrum of penalties, including disgorgement, professional bars, and steep civil penalties.

As Judge Jed Rakoff noted in a 2014 speech, “a claim of greater efficiency” has been the “stated rationale” for the growth of SEC’s adjudicative functions since the agency’s inception.

Turning to the agency’s docket of cases, it bears noting at the outset that the SEC prefers to settle and achieves this result for almost 98% of its enforcement actions. Of those cases that don’t settle, the agency commonly secures default judgments against defendants that don’t bother to participate in the proceedings. Even among non-settling, non-default proceedings, most are “follow on” actions, where the agency seeks additional penalties based on facts that already had been established by a civil or criminal action in a state or federal court. The upshot is that only a small fraction of agency enforcement actions entails adversarial litigation over facts and law. 

Here’s how the administrative process works. After an investigation, the SEC begins a prosecution by filing an Order Instituting Proceedings, which formally sets forth the charges against the alleged violator. Like most other agencies, the SEC conducts its adjudications in a two-step process. The parties first litigate before an inferior officer, known as an “administrative law judge” (ALJ), who renders an “initial decision.” The losing party can then appeal the ALJ’s initial decision to a principal officer—in this case, the five-member Commission that heads the SEC, who collectively make the final decision.

Under the SEC’s rules of procedure, the ALJs have approximately sixteen months to try contested cases. At the next step, the Commission has ten months to perform its appellate role, but the clock does not start until briefing is completed and the Commission has heard oral arguments (if any). Putting it all together, the SEC has about twenty-six months to conduct an administrative proceeding, in addition to however long the Commission takes to conduct a hearing and full briefing. These are generous targets that the SEC has set for itself. Even if the agency aced its deadlines, its adjudications would be no more efficient—and likely less so—than judgments obtained through a federal court proceeding culminating in a jury verdict, which average 771 days, or just over twenty-five months, in duration.

Still, the SEC has failed to meet even these permissive timelines. To be sure, the lion’s share of blame does not rest with the agency’s ALJs, who, for the most part, either meet or come close to meeting their target deadlines. The bottleneck instead occurs with the Commission’s appellate role. Over the last five years, the SEC has issued only three opinions involving agency enforcement actions. Meanwhile, the agency’s backlog has grown to thirteen cases, and the average pending proceeding is more than six years old. (For all the relevant citations, see our recent brief in SEC v. Cochran).

There are two takeaways. First, the SEC conducts at most a handful of these complex administrative proceedings in any given year. Second, when the agency does try complex cases on its home court, the SEC is terrible at timeliness. Given that efficiency is a major reason why the SEC has in-house courts to begin with, I think it’s fair to wonder whether these proceedings are worth the constitutional hassle.

By a 6–3 vote, the Supreme Court in West Virginia v. Environmental Protection Agency took an important step toward restoring constitutional balance to federal policymaking. Though Washington Post columnist George Will probably overstates the case in calling it the “term’s most momentous decision,” he is right that this is a big deal. As I discuss below, the Cato Institute perhaps played a role in this welcome result.

So, what happened? Setting aside the case’s backstory (explained here), the immediate result is that the EPA doesn’t have the power to impose a nationwide cap-and-trade climate policy based on an “ancillary” part of the law that no one had heard of before the Obama administration. The Biden administration is working on a significant climate rule based on the very statutory provision at issue in West Virginia v. EPA, so the Court’s holding provides guidance as to what the EPA cannot do.

But it’s how the Court reached this result that will have lasting consequences. In ruling against the government, Chief Justice Roberts’s majority opinion “announces the arrival of the ‘major questions doctrine,’ as put in a dissent by Justice Kagan.

And what is the “major questions doctrine”? It is, the Chief Justice explains, no more than “common sense” regarding how Congress works. Basically, it’s the Court’s belief that Congress will be clear when it assigns major policymaking authority to regulatory agencies. In practice, this means that “major” domestic policy must emanate from the votes of elected lawmakers rather than from expansive legal interpretations devised by unelected bureaucrats. Again, this is common-sense stuff. Under our Constitution, lawmakers are supposed to pass laws to make major policy.

Prior to yesterday, in a handful of decisions over the last 25 years, the Supreme Court had relied on reasoning that resembled what scholars came to call the “major questions doctrine.” But it was all circumspect and indirect. Indeed, no majority opinion even used the term “major questions doctrine.” As a result, this interpretive principle was inchoate. Regulated parties often invoked the concept in challenging agency rules, but lower courts had no idea how to identify a “major question.”

All that changed yesterday. Chief Justice Roberts didn’t just officially recognize and rely on the major questions doctrine to check the EPA’s (ludicrous) statutory interpretation. He also provided lower courts with guidance how to identify major questions. Of course, an agency’s rule must be economically and politically significant to trigger the doctrine. Also, the rule would have to be based on an expansive interpretation of ambiguous statutory text. Other red flags include whether the agency is doing something unprecedented, or if the agency is attempting to do something that Congress failed to do, or if the “nature” of the law doesn’t comport with the agency’s claims to power. Still another red flag is when the agency is operating outside its expertise. All these boxes were checked with the EPA’s climate rule at issue in West Virginia v. EPA.

Many commentators are up in arms about the decision; they claim it will take a wrecking ball to the administrative state. They are wrong. Just because the EPA can’t impose a nationwide cap-and-trade for climate change, it doesn’t mean the agency is “gutted.” As the Chief Justice noted, the EPA retains broad authority to regulate greenhouse gases. More generally, as noted by Chief Justice Roberts, the major questions doctrine will come into play only for those “extraordinary” regulations that evince the circumstances identified in the prior paragraph. In the past, agencies issued these sorts of “major” policies only a handful of times per presidential administration. Anyone who claims this decision would undermine the administrative state simply doesn’t know what they’re talking about.

That’s not to discount the decision’s effects! Even though there haven’t been many regulations that would run afoul of the major questions doctrine, it doesn’t mean those instances weren’t highly deleterious. After all, Congress only passes, at most, a handful of major laws during any given presidential administration. The practical problem with the executive branch interpreting vague old laws to make “major” policy is that there’s no permanency. What any one presidential administration can do, the next can undo. We saw this with the EPA’s climate rule at issue in West Virginia v. EPA. Obama ordered the EPA to issue the rule; Trump ordered the EPA to replace Obama’s rule; and then Biden ordered EPA to replace Trump’s rule. The electricity sector—a very important industry!—was caught in the spin cycle. Chief Justice Roberts just put a stop to the chaos engendered by the worst excesses of executive lawmaking.

Unlike regulations, laws endure. If Congress directs an agency to take on a major question, then the agency will perform that role, regardless of the president’s political orientation. From now on, when it comes to “major” policymaking, the ball is in Congress’s court, as the Constitution intended.

A couple final notes:

• Chief Justice Roberts’s majority’s opinion was masterful. In fact, the Chief Justice has a history of making important (and welcome) administrative law doctrine, as I explain at this Notice & Comment post.
• At the risk of sounding self-important, I believe that the Cato Institute might have influenced the Court’s thinking. While other parties argued that the EPA’s climate rule clearly implicated the major questions doctrine, our amicus briefs (joined by the Mountain States Legal Foundation) were the only ones to ask the Court to flesh out the doctrine to resolve confusion in the lower courts. To that end, we had pitched a framework for identifying major questions. And the majority opinion tracks our framework. The upshot is that we either contributed to the court’s thinking, or we predicted exactly what the Court would do. Regardless of whether our input was coincidental or influential, yesterday was a great day for liberty.

In a letter to the editor published by the Wall Street Journal, conservative academic John Eastman attempts to defend his advice to Vice President Mike Pence, which was at the heart of the scheme to overturn the 2020 election. Reacting to the January 6th committee hearings, Eastman objects to those who’ve described his theories about the vice president’s powers as historically and constitutionally baseless. He claims that instead, his advice was actually grounded in historical precedents and previously published scholarship. 



Eastman’s historical claims are seriously inflated and offer no persuasive precedent in support of his position. The Constitution assigns the vice president no job other than to open the envelopes received from the Electoral College. It does not even say that vice presidents are necessarily supposed to preside over the joint session, though Congress has by tradition and statute assigned that role to them.


The various minor incidents Eastman mentions, such as Thomas Jefferson handling electoral votes that hadn’t strictly complied with the forms required by the Twelfth Amendment, were never understood to amount to a vice presidential power to defy Congress during the count. At best, they show that vice presidents have, in a few instances, glossed over harmless errors without serious controversy. 



Eastman cites some examples of scholars who had previously entertained the idea that the vice president, if presented with a genuinely uncertain controversy or facially defective votes, might be called upon to exercise some independent judgment. But that is a moot point, because no such controversy or uncertainty existed as to any state’s votes in the 2020 election. Every state had submitted only a single, duly certified set of votes with no apparent defects. The scholarly articles he cites were thus irrelevant and inapplicable to the 2020 election even if taken on their own terms.



More importantly, Eastman emphasizes that he did not advise Vice President Pence to simply decide which votes to count. Though that theory is widely rejected, he’s not wrong to note it had at least been discussed by some experts as something that might apply in some narrow circumstances. But Eastman can offer no such defense for what he urged Pence to do instead, and he does not even attempt to.


Eastman’s preferred plan was for Pence to instead halt the count and demand that the states somehow confirm or reconsider their votes over a ten day period. There’s no basis for this idea in any law or in any legal scholar’s previously published writings. Eastman’s suggestion was that Pence could simply make it up on the spot, concocting the whole procedure out of thin air. 



Even if the vice president did have some substantive, limited authority in presiding over the count, there is no basis whatsoever for the vice president to unilaterally halt the joint session, “send the votes back” to the states, demand that state legislatures somehow act on his instructions, and set a later date for Congress to reconvene. This would involve the vice president usurping Congress’s power to determine its own rules, and it would mean instructing the state legislatures to do something they have no constitutional power to do.


Eastman also points to how some state legislators supported overturning the election. Among the thousands of state legislators across the country, there were a smattering who bought into Trump’s wild conspiracy theories. But the reality is that no state legislature had taken any official action in support of rescinding their state’s duly cast electoral votes. Due to the opposition of principled Republicans like Arizona House speaker Rusty Bowers, there was not a single upper or lower house in the entire country where a majority was willing to do what Eastman proposed. 



Eastman presents this send-it-back-to-the-states scenario as a more restrained option, because it would have attempted to enlist state legislatures to legitimize a vice-presidential power grab. But it is actually much less defensible as a legal theory. Nobody had ever heard of or suggested such a thing before. No law or provision of the Constitution envisions anything like it. It had no history, no scholarship, no statute, and no constitutional basis to support it. Simply put, he made it up, and his critics are entirely correct to say so.


We’re lucky Pence saw through the absurdity of Eastman’s idea. Congress should reform the Electoral Count Act to make sure there’s no doubt about that in the future. 

The Washington Post editorial board offers three reasons that Washington-area governments should not use taxpayer funds to subsidize a new stadium for the Washington Commanders:

1. “The prospects are cloudy at best for a healthy return on that investment for the surrounding community.”

2. Billionaire owner Dan Snyder is rich enough to pay for his own stadium, as the wealthy owner of the Los Angeles Rams, Stan Kroenke, did recently.

3. Dan Snyder is a jerk “who faces multiple allegations of engaging in and tolerating sexual harassment of female employees.”

Point 1 is definitely true, as Cato publications and many other analysts have noted for years.

Point 2 is also true, although it implies that if Dan Snyder were less wealthy, a taxpayer subsidy might be appropriate. In fact, subsidies to particular businesses are always inefficient and a drag on economic growth. True, there’s something especially off-putting about handing taxpayers’ money to billionaires. But every business, small or large, should have to earn its way in the marketplace, by satisfying consumers.

Point 3 is the one that especially concerns me. Dan Snyder may well be a jerk, and may run his company in a way that many people find objectionable. But governments should not be in the business of handing out favors—or penalties—to businesses because they find the corporation or its owners offensive. As I wrote recently, some Democratic officials tried to prevent Chick-fil‑A from opening outlets in their cities because of the company’s owners’ opposition to gay marriage. And Florida governor Ron DeSantis is attempting to punish Disney for expressing a political view which, as it happens, is more or less the opposite of the Chick‐​fil‑A owners’ views. It’s a form of crony capitalism to reward or punish businesses on the basis of their alignment or non-alignment with incumbent officials.

Don’t make taxpayers subsidize a stadium for the Washington Commanders. Even if Snyder sells the team to a consortium of $100 stockholders or to the National Organization for Women.

On the issue of whether voting should be made mandatory, which I wrote about last month, I wanted to share with his permission some correspondence from reader Paul Hughes, together with my response:

I just listened to your podcast on the “Australian” system of mandatory voting. I think you addressed the topics covered in the podcast well. However, I did not hear what I consider the best justification for mandatory voting, increasing the election’s credibility.

It seems to me the most compelling reason in favor of this system is removing the voter disenfranchisement/​voter fraud argument. It seems clear to me that if one party loses, they will protest on the grounds of voter fraud. If the other party loses, they will say it was due to voter suppression. Won’t mandatory voting, with the option to return a blank ballot, give a full accounting of every one of voting age, thus removing some of the ridiculous rhetoric coming from both parties?

And my response, which I’ve lightly edited and expanded:

Thanks for writing. It’s an interesting point and I don’t deny that it has some weight at a time when alarms over claimed voter suppression and fraud contribute to polarization. And it would have a different, also important weight if we assume that many localities witness actual, purposeful, and effective voter suppression or fraud.

Overall, my response on suppression would still be that the first and best line of defense against such suppression consists of vigilance by the courts, combined with executive oversight by states and (as explicitly provided in, e.g., the Fifteenth Amendment) by the federal government. Sacrificing the liberty of the citizenry is not to be resorted to while other, more targeted means are available to address maladministration on this important matter.

It might also be noted that mandatory voting in practice in many countries coexists with actual voting rates that fall much short of 100%, with the challenge of outreach to marginalized populations actually worsened if nonparticipation carries legal penalties that may drive people further into hiding from the state.

A few further comments on the topic of voting fraud. In theory, if enforced, mandatory voting might help curb at least two grave kinds of electoral dishonesty: the fraudulent casting of votes in the name of persons who are legally qualified to vote but currently choose not to; and the possible interception and discarding of genuine votes sent by mail or left in insecure dropboxes. Again, both abuses can and should be held in check through means that do not involve coercion of large numbers of bystanders. In particular, prompt and efficient communication to voters by authorities of when and whether a vote has been counted in their names is one way to assist in identifying both kinds of illegality.

Also on the subject of compulsory voting, colleague Andy Craig has a point-counterpoint for InsideSources with advocate Miles Rapoport, reprinted in many newspapers. Rapoport’s “pro” argument is here and Andy’s response is here.

When I am discussing the advantages of privatizing airports, air traffic control, and passenger rail, reporters often ask, “Will it be safe?” I point out that these activities are private in many other countries, and are indeed safe. Besides, if you only trust government-owned transportation, then you should not drive that Ford car or fly in that Boeing airplane.

Also, consider how dysfunctional the federal agencies are that are supposed to ensure safety, such as the 900-person Federal Railroad Administration (FRA). Clearly, it is not doing a good job on rail safety, given all the recent crashes on government-run Amtrak.

During the Obama adminstration, the FRA was headed by someone who had no background in railroads or transportation, or apparently any technical qualifications. The ticket to the top for the official appears to have been a decade of media relations jobs for Democratic members of Congress and the Obama White House.

More recently, another party person, also devoid of relevant skills, was appointed to the number two slot at the FRA, and he is now embroiled in scandal. Health Hall resigned the other day from the FRA due to allegations that he was illegally working a second job in Mississippi while he was supposed to be on duty in Washington.

Hall apparently had no railroad or technical experience, other than as an FRA intern. The Washington Post called him a “public relations professional and political consultant.”

While we’ve had amateurs running the FRA, NPR notes,

last year marked the deadliest year in terms of railroad deaths nationwide in at least a decade. In just the past two weeks, a train carrying House and Senate Republicans to their annual retreat struck a garbage truck, killing one person, and a train collision in South Carolina killed two and injured more than 100 more. In December, an Amtrak passenger train derailed and plummeted off an overpass in Washington state, killing three people.

As usual, Congress has added to the bureaucratic disarray: “The FRA hasn’t had a permanent leader in more than a year, as Senate Democrats have blocked the confirmation of former railroad executive Ron Batory, who is President Trump’s nominee for the position.”

The bottom line is that Washington is a mess, and everyone knows it. The more transportation activities we can extract from its dysfunctional claws the better.

Read more about Amtrak here.