A Governmental Reform Agenda To Constrain Future Trumps
President Donald Trump has gotten away with all kinds of things while in office, blowing apart many traditions, conventions, and presidential precedents. He has gotten away with it, for the most part, because very little of it is actually written into law. They're all just a sort of an unwritten code of conduct that previous presidents have all (mostly) followed. But if Democrats do win the "trifecta" next Tuesday and wind up in control of both houses of Congress and the White House, they will be in a position to do something about this sorry state of affairs, in order to prevent any future presidents from getting away with such egregious behavior.
It may be one of those rare times in American history when an incoming president will willingly sign laws that restrict his own power, because the need for such laws is now so obvious and it fits in so well with Joe Biden's desire for us all to return to some sort of normalcy. So allowing Congress to legally define what these norms are shouldn't be too big a problem for Biden.
Of course, to do any of these will require (at a minimum) that Senate Democrats do away with the filibuster almost immediately. But in this era of open partisan warfare, that may also finally be possible. There are other big things a Congress dominated by Democrats may be able to do as well -- things like granting D.C. statehood, ending the Electoral College and moving to a national popular vote instead, or packing the Supreme Court (to name just a few). But there are plenty of other foundational separation-of-power reforms that are even more important to directly constrain any future president from what Trump has managed to get away with. Some of these may actually require constitutional amendments, but most could just be passed as legislation.
Each of these is a subject worthy of further discussion in future columns, so I'm just going to give a very brief overview of the main concept and goal of each of them. Each and every one of them could end with the phrase: "...so that future Donald Trumps can't do this." Or, more broadly: "...so the Republican Party won't ever be able to get away with this again." Here is my suggested government-reform agenda for Democrats to consider if they do manage the trifecta next week:
Rewrite the Electoral Count Act of 1887
This obscure law is supposed to detail exactly how the Electoral College actually performs its duties. It also tries to outline how disputes are to be handled. But both it and a revision that happened in 1948 are incredibly badly-written laws, full of vagueness and contradiction. Importantly, none of it has even been used to determine a presidential election's result, and none of it has ever been tried in court (it came close in 2000, but Bush v. Gore was a different type of case). This could lead to all sorts of disastrous scenarios this year. Congress should rewrite the act and clearly and unequivocally define exactly what is supposed to happen in any contested presidential election. Hopefully none of the arcane language in the current badly-written laws will be what the 2020 election comes down to in the end -- but even if it doesn't, we should still have clear guidelines for the process for the future. At present, we don't.
Pass a new Voting Rights Act
This is already on the Democratic agenda, so it needs little explanation. As well as restoring everything the Supreme Court gutted from the 1965 Voting Rights Act, at an absolute minimum all federal elections should have to conform to certain standards, including: Paper ballots must be used. Absentee ballots should be available to anyone who wants one, for any reason, period. Voters are entitled to equal treatment at the polls, so if a polling location has very long lines one year then the state must open more polling locations in that neighborhood for the next election. And that's just the absolute minimum required -- plenty of other ideas could be added as well.
Originate executive privilege cases in the Supreme Court
Whenever the executive branch and Congress disagree on questions of executive privilege, any legal disputes (over congressional subpoenas, for instance) would be heard first by the Supreme Court. They're going to wind up deciding such cases anyway, so why not start at the top? Such cases would be deemed emergencies that required the high court to put aside everything else on its docket and hear the case within (say) two weeks. One week after that, a decision would be required. Justice postponed is justice denied, and Donald Trump has always been an expert at dragging court cases out forever and a day. This is why even during impeachment congressional Democrats mostly refused to even move executive privilege cases to the courts -- because they knew it would take too long because such cases wouldn't ultimately be decided until after Trump's first term was up. This is disgraceful, but one legal fix could solve the problem for good. If such cases happened lightning-quick then such disputes would become a lot less common. And no future president would ever be able to "run out the clock" ever again.
Ban self-pardons and nepotistic pardons
This one might require an amendment. Ban presidents from pardoning themselves. Ban presidents from pardoning members of their own family, too.
Codify the emoluments clause
Presidents must -- before they are eligible to be sworn into office -- fully divest themselves of (or put in an iron-clad blind trust) all of their financial holdings. Period. If you don't like this requirement, then don't run for president. While the president is in office, his or her tax returns will immediately be made public by the I.R.S. when they are filed (including the one filed the year after they leave office, since that will cover the last year of their term). And define exactly what the Constitution's emoluments clause means, in great detail -- a list of everything a president is barred from profiting from in any way.
Reform the Hatch Act
Instead of the Justice Department being in charge of Hatch Act violations (using public property or employees for political purposes), instead turn the whole thing on its head by allowing the aggrieved political party to sue the president and any other government employees in court, for monetary and punitive damages. Also put teeth into the anti-propaganda laws on the books by allowing political parties to sue for damages, as well.
Mandate total and complete independence for government scientists
Who ever thought we would have needed such a law? But obviously we do. From Sharpiegate to the disgraceful politicization of the coronavirus response, such a law is sorely needed. Protect government scientists not just from being fired for political reasons but from any retaliation whatsoever for telling the public the truth.
Inspectors general will be controlled by Congress, not the White House
Congress is charged with the oversight of the executive branch. So make all inspectors general (throughout every twig of the executive branch) legislative employees instead. Congress would be the only ones who could hire and fire them (and discipline them in any way, for that matter). Their mandates to independently investigate the various departments would not change, but they could not be fired by the president for doing their job (as Trump has repeatedly done).
Clarify the Insurrection Act
This is far too tempting for presidents to contemplate using when there is no true insurrection at all. Again, Trump has already done so in several instances. Maybe require Congress to vote on whether an insurrection exists? That could possibly work.
Conclusion
This is quite obviously an incomplete list. There are so many conventions Trump has torn asunder during his term that it is going to require a Herculean attempt by Democrats to put all of these genies back into all their bottles.
But the effort needs to be made, no matter how hard it proves to be. Even the ones that require constitutional amendments should be initiated as soon as possible. American democracy quite obviously needs some fixes made, so that unwritten presidential conventions are written down and codified as the law of the land.
None of these should raise any real objections at all, because they are all commonsense reforms of things that are badly broken. Every Democrat in Congress should be able to easily vote for all of them. In fact, Republicans should be able to support these ideas as well, because being against them is essentially being for corruption. And that's a tough position to take, for your next election campaign.
Democrats couldn't stop Donald Trump from breaking all the unwritten rules (and a few written ones to boot). But passing pre-emptive laws to prevent any future president from doing so is eminently possible. I realize that Democrats will have an enormous amount of things to take care of if they do take control of Congress and the White House next January, but these are such bedrock issues -- that all go to the heart of the public being able to trust their own government -- that they deserve to be very high on that list.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
Yes, indeed, food for further thought. Dunno if "mainstream" Repugs would be up for a lot of these -- that's how badly Trump has screwed up what used to be the Grand Old Party.
Great list,CW. I would add that any person wishing to run for a federal office must pass a back ground check in order to qualify to run. These people are going to be given access to our country’s most critical data, so why are the people who scrub the White House toilets put through a more thorough background check than candidates? If they are compromised, we need to know it.
One last idea... creating a “Truth in journalism” rule for media. If you are knowingly gonna spread false information to the masses, you should have to post a disclaimer at every commercial break or the beginning of every written article. People need to understand if they are getting opinion pieces or if they are getting information that they can accept as being true. We have blurred the lines far too much for this to continue. Yes, you have the freedom to say whatever you want, but I have the right to be warned if I am listening to a journalist telling me facts or an entertainer spewing BS!
I really should have posted these in the article itself, but for anyone who is really interested, here's Wikipedia on the Electoral Count Act of 1887:
https://en.wikipedia.org/wiki/Electoral_Count_Act
and here's a PDF version of the 1948 revision:
https://www.loc.gov/law/help/statutes-at-large/80th-congress/session-2/c80s2ch644.pdf
I did read an article that did a deep dive into these a few weeks ago (in Politico maybe?) but I couldn't find it while writing this... sorry...
-CW
What? It's been HOURS since your last Lincoln Project fix?
You came to the right Comments section!
Pizza
Cruel
Doc
[3]
I think this is the
POLITICO article you referenced.
MtnCaddy [5] -
No, it's close (I found this one when searching, earlier today), but not the one I'm remembering. THe article went into great detail about the lack of clarity in the 1887 law, how the 1948 one was supposed to fix it, and how it may have introduced even more problems instead. It was a VERY long article, I do remember that...
I hate it when I don't save links...
Sigh.
But thanks for suggesting it! I have one other article from a few weeks ago that is downright terrifying, that I'm saving for Friday's column:
https://www.politico.com/news/magazine/2020/10/23/election-nightmares-guide-430915
Still don't know what I'm doing on Friday, though. I may punt on Hallowe'en and not even carve pumpkins... in that case, I'd put out a regular FTP article instead...
-CW
Perhaps even some Republicans will join into an effort to restrain the presidency if they are restraining a Democratic president. Think how many times we've said, "Imagine how indignant Republicans would be if any Democratic president ever [did what Trump just did]!" Maybe we can get them indignant enough about the mere THOUGHT that a Democratic president could ever, ever [do what Trump did] to have them codify their indignation into law.
andygaus [7] -
See, that's another good reason why it could work! I almost included in my list "reform executive orders and signing statements" -- I bet the GOP could get on board that one, at the start of a Dem president's term...
Heh.
-CW
One last idea... creating a “Truth in journalism” rule for media.
We had something close to that once upon a time called the FCC Fairness doctrine. Unfortunately with the advent of cable T.V. and the birth of cable news networks the doctorine was ruled to not apply to them as they were not utilizing the "public airwaves.
We should bring back the fairness doctrine...
Here's an entry point.
https://en.wikipedia.org/wiki/FCC_fairness_doctrine
I would add that any person wishing to run for a federal office must pass a back ground check in order to qualify to run.
I second this whole heartedly, every 5 years (of which this is one of them) I have to file a new SF-86 and have my past tossed through by the OPM; Then every 6 months I have to file an SF-86c to maintain my security clearance. It is a real PITA but I do like what I do and so I go through it.
If I can do it so can anyone who wants to be in congress or the president.
I would also take it a step further and make them file a modified version of the SF-86c every 6 months just like the rest of us mortals have to do. The only reason I say modified is that congresscritters and the president talk / travel to foreign entities on the regular. So perhaps it gets modified to require disclosure of non-public record, non-official interactions.
Congress and the president are the only positions in government where some form of clearance comes with the job. It is high time for that to stop.
If we had some requirement like this in place we would not have had a trump, and also not a Hillary...
I guess my first question is what good is it for Congress to make much clearer what is legal and illegal for a president to do, when the president is the guy (or branch of government) who enforces the law?
The big problem with Trump (and the gang - Mr. Barr, etc.) was that he made clear that executive branch illegalities would not be investigated or prosecuted by - wait for it - the executive branch.
Obviously the Constitution's Framers didn't think like that - they saw George Washington, Mr. Integrity, as the first president and model for the rest. And they weren't far wrong, all things considered. Almost all presidents before this one have been able to distinguish between "politics" and "crime" when deciding how far they could go in exercising their tremendous power over federal law enforcement.
In the end, this kind of thing can't be legislated. The country's political culture will be what it will be. Official corruption top to bottom - or official corruption only up to a certain point, above which it's prosecuted for, frankly, looking bad to the majority constituency.
John M. from Ct. [11] -
Yeah, well, that's why there's a few curve balls in there. Like the bit about the Hatch Act and propaganda. And the inspectors general -- we need to move these powers totally AWAY from the DoJ, to avoid future Barrs.
-CW
CW, could you explain your Hatch Act proposal further? My immediate reaction is that ousted Repubs would see anything like that as an opportunity for harassment, but I'm probably missing something.
yeah, that hatch act reform sounds like a recipe for perpetual litigation.
Cw
...paragraph 3.
A hefty slice of pie in the sky for Mr Sweetooth.
LL&Pie
You guys are making it far too complicated. Why not just enact a law that idiots, incompetents and ass holes are ineligible to run for national office.
@crs,
that would render ineligible about three quarters of current elected officials.
@jtc,
props on the pie reference, but what's so unlikely about getting rid of the filibuster? if dems don't do it now, republicans almost certainly will next time around.
JL
I have some news related to the Republican cult of economic failure and it confirms what I've heard from American economists.
The Economist magazine has endorsed Senator Biden for president and would vote for him if it had a vote.
President Trump likes to warn that the stock market will crash and burn if Biden is elected and that the economy will whither and die.
In reality, according to economists in America, the stock market has long ago baked in a Biden victory.
Democrats may have an opportunity to finally put to rest the long and strongly held if wholly misguided notion that Republican ideology and practice are based on economically sound principles because, they are most decidedly NOT based in reality, let alone in sound tax and fiscal policy.
***Lincoln Project One Stop Shopping***
Mom
Don't Mess with Texas Voters (Shout out to Kick and Bleus!)
Bledsoe (The Constitution Party candidate running against Lindsey Graham
If Biden can't persuade Bill Gates to be the American Czar for pandemic response and preparedness, then Dr. Maria Van Kerkhove would be just what the US needs to take on this virus.
She has been nothing short of stellar in her role as Technical Lead for COVID-19 at the World Health Organization. Her contributions to the regular WHO virtual press conferences, along with those of Dr. Mike Ryan and the Diretor General of the WHO, Dr. Tedros, have been invaluable in helping us understand what needs to be done to control this virus.
Maria makes America proud, every single day!
@liz,
why on earth would you want bill gates to work on pandemic response? that's as far outside his expertise as education is, and he's already screwed up quite a bit in my field just by being a rich, influential, enthusiastic amateur.
The Gates Foundation has undertaken several projects in education. They have not gone well, and while Gates has always had the ability to walk away from these projects unscathed, not everyone has been so lucky.
~peter greene - forbes
https://www.forbes.com/sites/petergreene/2020/05/08/why-bill-gates-is-not-the-man-to-reimagine-new-york-education/?sh=2a1d766079cc
Hey, Joshua, pandemic response is very much a Gates field now and has been for a long time. And, it seems to me that his expertise on this is pretty sound.
But, I would be just as happy with Dr. Maria Van Kerkhove in charge. Though, I think it would be harder to pry her away from the WHO than it would be to get Gates to leave his foundation.
Actually, I'm not that attached to the idea of a Gates or a Van Kerkhove leading the US epidemic response or of anyone else.
Because, standing up a public health architecture and implementing pubic health measures to control a virus ain't exactly rocket science. Anyone who has been paying attention for the last 10 months and learning about respiratory pathogens and how to control and prevent their spread knows that case identification, isolation of cases, tracing all contacts and quarantining contacts is the only way to reduce and prevent transmission of SARS-COV-2.
Perhaps, Dr. Fauci could be pried away from NIH. I guess I just want to see a high-profile person who knows what they're doing and can lead a successful effort to make the US a leader once again in pandemic response and preparedness. So, I'm open to anyone who can do that.
Do you have any suggestions?
here is a list of the 101 top public health professors, any of whom would probably be excellent in the role.
https://mphprogramslist.com/101-most-influential-professors-of-public-health-the-leaders-in-the-field/
there ya go!