Marcum is a fellow at the R Street Institute, a center-right think tank. Deaton is on the communications staff of Protect Democracy, a nonprofit working "to prevent our democracy from declining into a more authoritarian form of government."
Thirteen months ago, we cheerfully reported on a little-covered House Rules Committee hearing that examined ways Congress could "reassert national security authorities it has long lost or delegated to the executive branch." We documented the "bipartisan goodwill" in the room and the seeming "genuine energy for reform."
Despite these good feelings, though, we warned that past optimism has too often been followed by inaction, and so it was up to Congress "to continue this important discussion."
The good news: A year later, we're still optimistic — in fact, even more so than before — thanks to two House committees and a growing bipartisan band of lawmakers interested in restoring Congress' institutional powers.
One day last month, both the Rules Committee and the Foreign Affairs Committee held hearings reexamining Congress' war powers and the broad authorizations to use military power given to previous presidents but still in effect — in one case, almost two decades after being granted.
Before the Rules hearing, Democratic Chairman Jim McGovern of Massachusetts and ranking Republican Tom Cole of Oklahoma released a joint statement explaining why the issue enjoys bipartisan interest. Their committee also highlighted the growing bipartisan consensus that the legislative branch needs to apply greater scrutiny on the executive branch's growing powers and lack of consultation with Congress on its numerous uses of military force.
During the Foreign Affairs hearing, ranking Republican Michael McCaul of Texas, for instance, explained that "wars should not be on autopilot" and "Congress owes our troops a clear commitment to the missions we are asking them to undertake." Democratic Chairman Gregory Meeks of New York similarly observed that an outdated congressional authorization for force "opens the door for future presidents to use force without working through Congress."
After both hearings, the chairmen released a joint statement summarizing the growing consensus that "executive authority on matters of war and peace has gone unchecked for many years" and declaring that Congress has a joint responsibility "when we send our uniformed men and women into harm's way." The chairmen concluded that these hearings would guide Congress' next steps to make "reform a reality."
One immediate reform is to repeal outdated and unnecessary authorizations for the use of military force. The most criticized is the 2002 measure, written to allow President George W. Bush to topple Saddam Hussein's regime, authorizing the president to "defend the national security of the United States against the continuing threat posed by Iraq."
But much has changed in the subsequent 19 years, of course. To begin, the United States is no longer at war with Iraq. Indeed, in the view of the State Department, Iraq is now "a key partner" in the Middle East. Nevertheless, the broad language has been stretched by subsequent presidents of both parties, Democrat Barack Obama and Republican Donald Trump, to support military actions unrelated to ending Saddam Hussein's rule. And finally, as Jack Goldsmith, a high-ranking George W. Bush administration official, explained last month, the law is now "unnecessary" because "every use of force in which the 2002 AUMF was invoked could have been justified independently" — either by the 2001 authorization of force enacted after the Sept. 11 attacks or by the president's commander-in-chief constitutional powers.
Two days after the hearing, Foreign Affairs approved legislation to repeal the 2002 war authorization written by Democrat Barbara Lee of California, who cast the singular "no" vote in Congress against the 2001 use-of-force measure. The legislation enjoys seven Republican cosponsors along with its 105 Democratic backers.
Lee's legislation isn't the only bipartisan bill on this topic moving through Congress. A measure recently introduced by Democrats Abigail Spanberger of Virginia and Jared Golden of Maine, along with Republicans Mike Gallagher of Wisconsin and Peter Meijer of Michigan, would repeal not only the 2002 law but also antiquated authorizations from 1991 (which precipitated the Persian Gulf War) and 1957 (to repel communism in the Middle East). There's also a Senate measure by Democrat Tim Kaine of Virginia and Republican Todd Young of Indiana to repeal both the 2002 and 1991 authorizations.
However, it is important that the effort not stop there. "Congress must do more than withdraw old permission slips and reduce America's heavy military presence abroad," Goldsmith wrote in a New York Times op-ed last month. "It should end its long acquiescence in presidential arrogation of war power by affirmatively prohibiting unilateral uses of force except in tightly defined circumstances of actual self-defense."
In other words, AUMF reform must be partnered with fundamental war powers reform to be effective.
In 2019, a coalition of good government groups articulated key principles for additional reform.
These include the reauthorization or sunset of all AUMFs after two years, a limitation on their scope, strengthened reporting requirements, tightened definitions of relevant terms such as "hostilities" and the cut-off of funds for any violations.
During a long Senate career that included almost four years as Foreign Relations Committee chairman, President Biden was a champion of stronger war powers for the legislative branch and weaker ones for the executive. But, historically, Congress hasn't been willing to take up this cause, while presidents of all ideologies have fought to protect their own expanding power.
Between the recent and widespread action in Congress and Biden's record as a senator, there finally may be the sort of cooperative spirit in Washington necessary to make war powers reform reality. As McGovern told his House Rules hearing, sometimes it is possible to catch "lightning in a bottle" — times such as this one.
- Congress needs to reassert its authority - The Fulcrum ›
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- Congress, White House should both have emergency powers - The ... ›
Terrell is executive director and Goral is a communications fellow at RepresentWomen, a nonpartisan group advocating for policies that would result in more women holding office.
The United States is facing a growing representation crisis. While our population continues to grow, the number of elected officials representing us at the highest levels of government has not changed in more than a century. As a result, our Congress has among the most disproportionate representation ratios of any legislature in the world.
The constituency of the average representative will be 760,000 after the upcoming redrawing of House district lines, and at the current rate of population growth that number will be 1 million by 2050. These enormous numbers compound the feelings of inadequate representation that already permeate our democracy.
Fortunately there is an easy solution: expanding the House of Representatives.
From the very beginning the members of the House have been directly elected, so that they would have "an immediate dependence on, and an intimate sympathy with, the people, as James Madison said.
When the House first convened in 1789, its membership of 65 ensured a ratio of one representative for every 60,000 people. The number of seats in the House then grew steadily decade after decade, expanding with the population and the findings of the decennial census, until the Permanent Apportionment Act of 1929 capped the "People's House" at 435 members — where it had been for almost two decades, and where it remains today.
It has been more than a century since the number of seats was expanded. In 1911, there was one member for every 216,000 people in a nation of 94 million. Now, that same number of people cast votes setting policy on behalf of 331 million — leading to inadequate representation of constituents, inequalities in representation among states, and a partisan skew of what was supposed to be the body of government most responsive to the people.
Expanding the House — which we believe should be populated with several members for each of a reduced number of districts, chosen in ranked-choice elections — would have a profound impact on our democracy, solving several problems that have arisen from the current crisis of representation.
First, expansion would decrease the sway that big-money donors and political action committees have over the members. A larger House would encourage grassroots campaigning and person-to-person interactions, which cost less than current campaigns —which had expenses averaging more than $2 million last year.
This will particularly help women and people of color, who are more likely to run as challengers or for open seats, because they would have a viable chance to win while relying on small-dollar networks of donors, and fewer financial resources overall than what almost always flows to the incumbents.
Second, expansion would have an immediate impact on the diversity of Congress. Due to the incumbency advantage, individuals running as challengers have very low success rates. Unfortunately the majority of women running for the House continue to be challengers. Last year there were 192 such candidates, and only nine won. (Another 17 women won open seats, while a record 98 congresswomen were re-elected.)
Expanding the House will increase the number of open seats available to political newcomers who are more likely to be women, younger and more racially diverse. Recent projections by our organization suggest that expanding the size of the House would significantly increase the number of women on Capitol Hill.
Third, expansion combined with multimember districts would create more engaged constituencies. Because people would be able to have more direct and intimate relationships with their representatives, the nation could look forward to an increased feeling of trust in and accountability from its government.
Finally, expansion would mitigate partisanship and polarization. A larger legislature would increase opportunities for members to cross party lines and form inter-party coalitions on policies.
Despite last year's record turnout for the presidential and congressional elections, too many citizens continue to feel alienated by politics — and too many feel unheard by their elected officials. Fixing this will take commitment and leadership on the part of Congress, but it also demands institutional changes like growing the membership of the House.
- Electoral systems matter when it comes to electing women - The ... ›
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Despite record-high turnout in last year's general election, a new report found that a majority of congressional elections in 2020 were determined by only a small number of voters due to the widely used partisan primary system.
Unite America, which released "The Primary Problem" on Tuesday, found that just 10 percent of voters cast ballots in primaries that ultimately decided the winners of 83 percent of House seats. These "safe" seats are in districts that are reliably retained by the same party in nearly every election, so the real competition is not in the general election but in the primary.
The resulting problem, the report concludes, is high re-election rates for members of Congress, even though most voters don't feel adequately represented by their elected officials or approve of the job they are doing. Unite America's solution: Adopt open and nonpartisan primaries.
In most states, primaries are closed so only registered Democrats or Republicans can vote for which of their party's candidates they want to advance to the general election. This not only leaves out millions of minority party or unaffiliated voters, but it also leads to more polarizing politics.
Candidates in those districts tend to fall more on the extreme ends of the political spectrum in order to have a better chance at winning a partisan primary. Therefore, districts are pushed further into uncompetitive territory when it comes time for general elections.
Last year, in 151 of the 361 congressional districts considered "safe," candidates for the dominant party ran unopposed in the primary. In the remaining 210 "safe" districts, voters in the non-dominant party "effectively had no voice in choosing their representative," per the report.
Unite America, which is a financial supporter of The Fulcrum, says more states adopting nonpartisan primaries will help solve the country's twin issues of dysfunction and polarization.
Nonpartisan primaries are designed to serve the voters, the report says. "They can give every citizen an equal voice, produce more representative outcomes, and improve governing incentives by ensuring our elected leaders are accountable to a broader swath of the electorate."
The most recent state to adopt such a system is Alaska. In last year's election, voters approved a nonpartisan top-four primary system that also uses ranked-choice voting. Starting in 2022, voters will rank their top candidates, with the four who receive the most support advancing to the general, regardless of party. California, Nebraska, Louisiana and Washington also use nonpartisan systems in which all candidates appear on the same primary ballot.
But most of the country uses some form of a partisan primary system. Nine states have closed primaries in which voters must be a registered Democrat or Republican and all other voters are excluded from participating, according to the National Conference of State Legislatures.
In 15 states, unaffiliated voters can participate in primaries, but the contests are still closed to cross-party voting. Six states allow voters to cross party lines in a primary, but they must publicly declare they are doing so. And the remaining 20 states are considered to have open primaries that either have all candidates listed on one ballot or allow voters to privately choose which party's ballot to vote.
There has been recent movement in Wisconsin to change the state's primary system to a nonpartisan one. Last week, a bipartisan group of state lawmakers introduced a bill to adopt "final-five voting." Under this system, there would be a single ballot for all primary candidates and the five who receive the most votes would advance to the general election. Then, voters would rank candidates in order of preference to determine the winner.
Democracy Found Executive Director Sara Eskrich, whose organization advocates for final-five voting in Wisconsin, said she's seen a lot of interest in this reform from voters and legislators alike because they recognize there is a systemic problem and the nonpartisan solution benefits everyone.
"Until major systemic reform is undertaken, it is likely incumbents will continue to change their behavior to avoid being primaried, rarely lose to more moderate challengers, and continue to put the interest of their narrow primary electorates over the public interest," the report concludes.
- Independent voters deserve a voice in primary elections - The Fulcrum ›
- How Florida's open primaries amendment failed to pass - The Fulcrum ›
- Alaskans switch to open primaries and ranked elections - The Fulcrum ›
Goitein is a director of the Liberty and National Security Program at the Brennan Center for Justice,, a progressive think tank at New York University Law School, and a fellow at the University of Chicago's Center for Effective Government.
This is part of a series advocating for parts of legislation soon to be proposed in the House, dubbed the Protecting Our Democracy Act, designed to improve democracy's checks and balances by curbing presidential power.
In the last weeks of Donald Trump's presidency, anxiety grew over what he might do to try to hold on to the White House. Attention focused on emergency powers and whether he could exploit them to block the Electoral College vote count or deploy the military to prevent a peaceful transition of power. As it turned out, Trump wielded the power of an angry mob rather than the emergency authorities granted to the chief executive, and Congress certified the election results nonetheless.
But it would be a serious mistake to wipe our collective forehead and move on.
While invoking emergency powers would not have enabled all the actions people feared, many of them give presidents tools that could be used to undermine democracy.
House Democrats have written sweeping legislation, titling it the Protecting Our Democracy Act, that would significantly reduce these powers' potential for abuse. Congress should enact that bill now, before the memory of our nation's close call fades.
The measure contains two important reforms to emergency powers. The first focuses on the National Emergencies Act, under which presidents may declare a national emergency and thereby unlock enhanced powers contained in more than 120 different statutory provisions. Trump declared more national emergencies than any previous president over a four-year period. Most notably, he declared an emergency in order to secure billions of dollars in federal funding, which Congress had refused to provide, for a wall along the southern border.
Notwithstanding Trump's aggressive use of the NEA, he could have gone much further. Although no laws allow presidents to block vote counts or declare martial law, there is one statute that permits presidents, during a national emergency, to take over or shut down radio stations and communications facilities. Another law allows presidents to freeze the assets of anyone, including any American, for the purpose of addressing a foreign threat. Still others allow presidents to control domestic transportation, prohibit major exports — and even suspend the prohibition on government testing of chemical and biological agents on unwitting human subjects.
Congress' ability to check presidents' exercise of these powers is limited. As originally written in 1976, the NEA allowed Congress to terminate an emergency declaration using a "legislative veto" — a resolution, adopted by simple majorities of the House and Senate, that goes into effect without the president's signature. In 1983, however, the Supreme Court deemed legislative vetoes unconstitutional. Without that mechanism, the only current way for Congress to end a state of emergency against the president's wishes is to pass legislation with veto-proof two-thirds majorities in both the House and Senate.
The new legislation would correct this imbalance of power by requiring emergency declarations to expire after 20 days if not approved by Congress. This would give presidents flexibility in the immediate throes of a crisis, while creating a backstop in the event of presidential overreach or abuse. There is broad bipartisan support for this approach: It is patterned on a measure by conservative GOP Sen. Mike Lee of Utah, which was approved by the Homeland Security Committee in 2019 with the support of 12 of the committee's 14 members.
The new measure also addresses a second, less-well-known category of emergency powers — those reflected in presidential emergency action documents. These are directives drafted in anticipation of an assortment of worst-case scenarios, ready for the president's signature if any such scenario should come to pass. They originated as part of the Eisenhower administration's planning for a possible Soviet nuclear attack.
By Washington standards, presidential emergency action documents are an extraordinarily well-kept secret. None has ever been released or leaked. From other official documents, however, we know that draft directives in the Cold War's early decades purported to authorize martial law, censorship of the press, warrantless searches of property and the roundup and detention of "subversives." The current content of these documents is unknown, but they presumably reflect the outer limit of whatever powers a given administration claims to possess.
That's worrisome, as the executive branch's interpretations of its own power have only expanded in recent decades. Modern administrations increasingly argue the Constitution gives presidents broad "inherent" powers not specified in the actual text. We don't know the full extent of these claimed "inherent" powers because the legal opinions that describe them are often secret. Presidential emergency action documents, which quite likely rely on these claimed powers, are not even shared with Congress. By contrast, even highly classified covert military and intelligence operations must be shared with the Gang of Eight, the top leaders from each party in the House and Senate and the top lawmakers from each party on the two congressional Intelligence committees.
The new legislation includes a provision, modeled on a bill by Democratic Sen. Ed Markey of Massachusetts, that would require disclosure of presidential emergency action documents to the relevant committees of Congress. It would not require or permit public disclosure of any classified information. It would simply enable Congress to perform its constitutionally mandated oversight function, allowing lawmakers to exercise the power of the purse to prevent presidential abuses of power.
Some might argue these reforms are unnecessary now that Trump has left office. But he was not the first president to abuse emergency powers — recall the internment of Japanese Americans during World War II under President Franklin D. Roosevelt and the CIA's torture of detainees after Sept. 11 under President George W. Bush — and he surely will not be the last.
Delaying reform because the potential for abuse has temporarily lessened is the civic equivalent of leaving a leak in the roof unfixed because it just stopped raining. Congress should move swiftly to enact these and other provisions of the new legislation before the next storm hits.
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