Major reforms of the political process are more often than not controversial, as those in opposition charge that self-interest lies behind proposals with the intended effect of unfairly tilting the competitive playing field. This critique is often fair. It is generally rare for a political party to argue for reform, however meritorious, that might adversely affect it. In this time of polarized politics, this kind of conflict is still more intense. It has been made immeasurably worse by President Trump’s relentless attacks on the integrity of the electoral process, which he depicts as corrupted by pervasive cheating by the Democratic Party. He has launched unprecedented presidential interventions into this process, most recently reflected in two executive orders issued in March of 2025 and a year later based on claims of executive authority to establish rules for the conduct of federal elections.

Where partisan overreach in the design of reform raises major constitutional issues, the courts can step in to block it. Most recently, lower courts have performed this function in enjoining the implementation of various aspects of the March 2025 executive order that purported to impose new requirements for voter identification, voting machinery, and mail voting. The second order is now also before the courts and likely to run into the same constitutional objections. But here courts perform a checking function, leaving open the question of what can be done to channel political reform debate and rule-making into more productive directions.

Unlike the president, Congress does have rule-making authority in federal elections and any quest for bipartisan election law regulation begins there. There is no sure answer to this problem, but there is one path lawmakers could contemplate. Congress could adopt self-governance constraints to mitigate the potential or pace of partisan excesses and to incentivize bipartisanship. It could align its normally professed commitment to reform on neutral principles—reform on the policy merits—with organizational choices that help effectuate it.

There is always the perfectly reasonable question of whether Congress would ever do such a thing. History might suggest little cause for optimism. Republicans mobilized successfully en masse to block the passage in 2021 of the omnibus election reform bill, HR 1, which they characterized as a Democratic wish list pursued to achieve partisan advantage. Democrats are now responding with similarly dedicated energies to the enactment of the SAVE Act, strongly supported by Donald Trump, that would establish new voter ID requirements for the alleged purpose of protecting against non-citizen voting. HR 1 failed, and the same fate has so far befallen the SAVE Act. And the history of reform conflicts suggests that even if one party overcomes opposition and enacts a controversial reform, the success might be short-lived. When Democrats overwhelmingly supported, and Republicans with a few notable exceptions opposed, federal campaign finance reform in 2002, the losing party set about with litigation and regulatory strategies to undermine the new measure. And, in time, it has largely succeeded. (A notable exception in this modern history is Congress’ remarkable passage of the Electoral Count Reform Act of 2022, but it is an exception made possible by the disastrous experience with the electoral vote count process on January 6, 2021.)

Before concluding that this rules reform project is hopeless, it may be more useful to ask whether there is reason to believe that it could happen and, if so, how it might be done.

Congress has already recognized that successful reform with major impact on political competition requires measures to guard against one-party domination. Two agencies it has established with responsibilities affecting electoral competition, the Federal Election Commission (campaign finance) and the Election Assistance Commission (election administration), are structured to keep any one party from acquiring a voting majority.

The same principle is at work in the membership composition of the congressional ethics committees, also split equally between the majority and the minority. The task of members judging one another’s ethics, and potentially imposing career-ending penalties, is fraught with the risk of political weaponization. Speakers of the House (Jim Wright and Newt Gingrich) lost their leadership posts in whole or part as a result of damaging ethics investigations. Of course, one result of a committee without a party majority has been a very different risk: that the parties would do nothing. The House attempted an innovative response to this risk by setting up the Office of Congressional Ethics, whose members are private citizens and who are charged with accepting complaints about ethical misconduct from any source and referring cases deemed meritorious to the House Committee with enforcement authority (The House Committee on Standards of Office Conduct). This process is meant to establish some “outside” pressure on the Committee to confront issues it might otherwise be inclined to avoid.

The modified application of these principles to election law legislation might involve, for example, revising the procedures for the relevant jurisdictional committees (in the Senate, the Rules Committee, and in the House, the Administration Committee). This move would be a variant of the bipartisanship structure of the FEC, the EAC, and the ethics committees. A “variant” in this instance means, as a practical matter, limits on one-party control that are less decisive than in the case of the independent agencies. It is hard to imagine either party entirely surrendering the power of the majority to move legislation out of committee, and there is a sound, powerful argument that neither should. Not every measure involving elections carries existential significance for the conduct of electoral competition. Even the controversial reforms to which a majority party is passionately and self-interestedly committed may have to pass out of Congress and be tested in the political process and the courts. A default rule that gives too much veto power to the minority would seem to go too far, and it is also unrealistic to expect either party to agree to it.

But Congress could still adopt committee procedures that would elevate to a meaningful degree the principle of bipartisanship and some protection against one-party abuse of power. Drawing on an approach I have suggested in a different context, revised procedures could require bipartisan support (at least one member of the minority voting with the majority) to move legislation for at least two rounds of voting. A specified period of time would have to pass between successive votes to permit whatever further deliberation and negotiation might be possible toward bipartisan passage. If the Committee was unable to proceed with bipartisan support, the majority would regain the ability to pass a measure over unified minority party opposition on the third try. A procedure structured in this fashion operates as a “cooling” mechanism. And whatever emerges from the Committee will be measured to some extent against the bipartisan objectives established by the Committee and reflected in the supermajority rule.

The rules could also provide for the fair involvement of the minority party in the timing and conduct of hearings and other committee business relating to election law matters. The Committees could consider establishing an outside advisory committee of experts and other private citizens to comment on proposals and apply some “outside” pressure toward responsible, bipartisan deliberation and action.

These procedural reforms seem especially timely in view of the deepening problem of a system of “separated powers, not parties” in which presidents like Trump may exacerbate partisan tensions by expecting their side of the aisle to do as bidden on political reform issues. Both sides have had occasion to complain about presidential interventions. Republicans objected to President Biden’s executive order to strengthen federal government support for voter registration and access to election information. Democrats are now determined to stop President Trump from driving the Republican majority to support his SAVE Act. A new commitment to bipartisanship incorporated into the internal rules of operation would provide each party with an improved position from which to express its objections to partisan presidential overreach. 

One response to the question of whether Congress would ever pursue this course of internal procedural reform would be: “what’s the alternative?” Much of the problem with Congress is entirely and only within Congress’ power to solve. Its public disapproval rating could not sink much lower: most recently it stood at about 10%. Congress’ adoption of concrete steps toward bipartisanship where partisan self-interest is suspected, or actively at work, can improve public perception—and perhaps, too, performance.

The effect of Congress’ internal rules on its performance of core functions has received attention in other contexts. The Presidential Commission on the Supreme Court of the United States received testimony on “the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court.” It heard on this point from former senior congressional staff who agreed on the lamentable state of the confirmation process. One witness suggested a range of reforms to Senate Judiciary Committee rules governing the scheduling of hearings and votes, and ensuring equal access by the majority and the minority to information, such as background investigative materials developed by the Federal Bureau of Investigation.

The Commission did not endorse these recommendations: that was beyond its charge. But it attached the rules reform recommendations as an Appendix to its Report to the President, thereby highlighting the bipartisan recognition that a process widely perceived to be broken could be improved, even if not entirely fixed, by rule.

At a time of deep voter disquiet with the operation of our democratic institutions, there is much to be debated. Congress can do more to set the right terms of that debate and maybe even get something done.