Hempowicz is director of public policy and Wasser is a policy attorney at the Project On Government Oversight, a nonpartisan group that investigates corruption, misconduct and conflicts of interest in the federal government.
This is the last in 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.
Last year, while a global pandemic and the accompanying economic uncertainty ravaged the country, political corruption was ranked the second most important issue among voters. This wasn't an anomaly — the American public has ranked "political corruption" and "corrupt government officials" as one of their leading fears for the past five years.
It's clear we must strengthen the integrity of our government institutions so the public gains confidence that corrupt actors will be exposed and held accountable.
Greater protections for whistleblowers and independent government watchdogs will go a long way toward rooting out this corruption the public is so concerned about.
Whistleblowers support the system of checks and balances in our government by speaking up and reporting waste, fraud, illegalities or abuses of power that might otherwise go unnoticed and unaddressed. But they do so at great personal and professional risk.
In many instances, whistleblowers themselves become the subject of retaliatory internal or criminal investigations, monopolizing the truth-teller's resources. These investigations, as well as other forms of retaliation, have a chilling effect, preventing others from coming forward to expose wrongdoing and lending credence to fears that corrupt government officials are allowed to operate with impunity. Because of this, better protections are necessary to ensure whistleblowers are able to make their disclosures and combat corruption and abuse of power within our government.
Currently, federal whistleblowers are in a no-win situation. Most cannot access federal courts to enforce their protections. And the agency that's supposed to help protect them, the Merit Systems Protection Board, has not had any of its seats filled for more than two years — creating a backlog of more than 3,000 cases.
Further, the culture surrounding whistleblowers has created an almost reflexive response to shoot the messenger (through whistleblower retaliation) for reporting the wrongdoing rather than addressing the actual, systemic issues in the government that the whistleblower is disclosing.
To this end, the Protecting Our Democracy Act would strengthen whistleblower protections in many ways. Most importantly, it would allow whistleblowers to enforce their protections in a court in front of a jury of their peers — instead of the MSPB, a quasi-judicial agency within the executive branch.
The bill also would limit opportunities for government officials to disclose a whistleblower's identity. It would make it illegal to retaliate against whistleblowers by opening meritless investigations into their conduct. It would require administrative judges and employees who work with whistleblowers to undergo special training. And it would create a secure mechanism for intelligence community whistleblowers to provide information directly to Congress.
Strengthening whistleblower protections by enacting this legislation can help restore the check on corruption that is desperately needed within the federal government.
Inspectors general, the independent government watchdogs that investigate federal agencies and report their findings to Congress, also need stronger protections now more than ever.
The nature of their jobs is to provide independent oversight without political interference or retaliation, a fundamental difference from other political appointees nominated by the president and confirmed by the Senate. However, under current law, a president can remove IGs for any reason — as evidenced by the removals and replacements that Donald Trump carried out in response to oversight of his administration.
While the law prohibits agency heads from interfering in an IG investigation, this limitless removal authority allows any president or agency head to improperly block any effort that an IG undertakes to conduct independent oversight, by simply removing the watchdog rather than interfering in a politically sensitive inquiry. To conduct robust, apolitical oversight, IGs need independence both from the agency they are overseeing and from the president.
Congress responded to the rash of seemingly politically motivated firings of IGs during Trump's final year in office with the introduction of a handful of bills to protect them from removal as retaliation. One such proposal, which is now part of the Protecting Our Democracy Act, would require the president to have "good cause" for removal. The administration would have to provide Congress proof of the cause, require inspector general offices to report to Congress on any investigations underway at the time of a removal (to ensure those could move forward independently), and enhance congressional reporting requirements around IG vacancies. These fixes would bolster the independence of inspectors general and ensure they remain free from retaliation while providing the American taxpayers with independent oversight.
Stronger protections for whistleblowers and inspectors general would advance the bipartisan ideal that a functioning democracy relies on robust checks and balances. Whistleblowers should be able to make disclosures free from retaliation, just as IGs should be able to perform their jobs with integrity without facing political interference. These reforms would ensure that accountability and transparency remain the driving force in restoring key elements of our democracy.
- Meet the reformer: Danielle Brian, a dean of the watchdogs ›
- More than ever, inspectors general need stronger protection - The ... ›
- Inspectors General get some Senate GOP back up - The Fulcrum ›
- Grassley pushes more protections for government watchdogs - The ... ›
Partisan passions erupted on Wednesday at the Senate's first-ever hearing on HR 1, which has rapidly transformed from the democracy reform movement's longshot wish list into one of the topflight fights in Congress.
The session magnified the virtually total disagreement between the bill's Democratic proponents and Republican opponents. Not a glimmer of potential compromise surfaced, even about the need to do anything to fix the system.
"We have an existential threat to democracy on our hands," Majority Leader Chuck Schumer declared. Minutes later, Minority Leader Mitch McConnell derided the measure as "a solution in search of a problem" because "states are not engaging in efforts to suppress voters, whatsoever."
After more than four hours of testimony and tart exchanges among senators, it was clearer than ever that enacting the package will require limiting or eliminating the filibuster and its effective 60-vote requirement for passage. That is not close to happening, but more and more Democrats say this bill would by the most appropriate venue for changing the Senate rules sometime this year — on the grounds that protecting minorities' civil rights across the nation is a cause much more important than protecting the rights of a minority on Capitol Hill to shape policy.
The bill has generated a surge of attention mainly because it would create an expansive array of nationwide, liberalized ballot access rules, from required no-excuse absentee balloting to limits on voter ID requirements. Doing so would repel the potential wave of state efforts to make voting harder in the aftermath of a 2020 election that saw record turnout despite the pandemic.
But the measure, which the Democratic House passed over united GOP opposition three weeks ago, would also tamp down big money's secretive sway over campaigns, prevent partisan congressional gerrymandering and tighten government ethics rules — aspirations of good-government groups that in many cases predated their newly heightened concerns about election laws.
The divide over the election language is so stark that the two parties refer to it by different shorthand. Democrats almost always describe the provisions as assuring voting rights. Republicans almost always describe the same provisions as weakening election security.
The Rules and Administration Committee, which has jurisdiction over all legislation connected to elections and internal Senate operations and so counts both party leaders as members, conducted the hearing. Schumer and McConnell each asserted that a partisan power grab was motivating the HR 1 position of the party across the dais.
"Shame, shame, shame on them," Schumer said, his comments focused on the GOP's opposition to federalization of election rules.
"There's plenty you ought to be ashamed about," McConnell replied, emphasizing proposals to boost the regulation of campaign finance.
They departed after their dueling speeches, yielding to an unusual level of sniping between the two senators with the senior seats on the panel. Democratic Chairwoman Amy Klobuchar of Minnesota and top Republican Roy Blunt of Missouri have a rare reputation for collaboration in the gridlocked Senate, but the flashpoint created by the 800-page bill is clearly testing their relationship.
At one point, they sparred for about five minutes about the allocation of a few seconds of time for witnesses to finish their answers.
One of the witnesses called by the Republicans was GOP Secretary of State Mac Warner of West Virginia, whose vocal opposition to the bill — it would "overrule the balance of powers" and "stomp on states rights," he said — is seen as crucial to swaying his state's senior senator, Joe Manchin. He is the only Democrat who has not sponsored S 1, the nearly identical companion to HR 1, and is also the most prominent opponent to weakening the filibuster.
The possibility of a middle ground on the legislation seems remote. The parties fundamentally disagree about whether the states should continue to have dominant control over how elections are run (the GOP view) or whether the need to shore up voting rights can be met only by the federalized standards the Democrats have proposed.
Beyond that, there are several emerging strategic disagreements within the world of democracy reform advocates.
Some say the best option may be to shrink the bill to only the nine or so second-tier provisions that have drawn GOP support, such as mandating the disclosure of who pays for political advertising online.
Others acknowledge the standoff on the election provisions and argue those should be handled separately from the rest of the bill — calling for independent commissions to draw House seats, making super PACs disclose big donors, starting a public financing system for House candidates who rely on small-dollar gifts, enhancing the Federal Election Commission's regulatory strength, and setting new codes of conduct for the Supreme Court and Congress.
Still others, including the prominent election law professors Edward Foley of Ohio State and Rick Hasen of the University California at Irvine, are advocating for the opposite — a bill narrowed to provisions that would prevent a retrenchment of voting rights and shore up confidence in the fairness and security of elections in the face of former president Donald Trump's baseless claims about fraud.
But for now the majority of advocacy groups agree with two of the most venerable voices in the democracy reform world, Lawrence Lessig of Harvard and Fred Wertheimer of Democracy 21. They argue that the heightened attention to voter suppression and the new Democratic control of Washington have created a rare opening for pushing the entire package, that proponents should "stop arguing with themselves" and that aspiring to nothing short of total victory is both bad politics and bad policy.
The proponents point to an array of polling showing the public is behind most of HR 1's ideas. But on Tuesday a conservative group, The Honest Elections Project, released results of a survey it commissioned showings something of the opposite: broad support for such things as having to show a photo ID to vote, which the bill would disallow, and solid opposition to third parties collecting and delivering sealed ballot envelopes, which the bill would permit.
- HR 1 ad campaign focuses on keeping Democrats in line - The ... ›
- Cuccinelli to lead conservative campaign against HR 1 - The Fulcrum ›
- Progressive campaign aims to weaken filibuster to pass HR 1 - The ... ›
- HR 1 ad campaign targets Arizona, Georgia, New Hampshire - The Fulcrum ›
- Survey finds bipartisan support for HR 1 - The Fulcrum ›
Ahearn is policy director of Citizens for Responsibility and Ethics in Washington, or CREW, a nonpartisan group that works to expose ethical violations and corruption by federal officials and agencies.
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.
Throughout Donald Trump's four years as president, nearly every federal government ethics and anti-corruption law suffered immense public damage. But among his administration's flagrant and unrepentant disregard for such laws, the serial flouting of the Hatch Act may have been the most obvious — and among the most damaging.
The Hatch Act became law in 1939 with a simple purpose: to prevent federal employees from engaging in partisan politics while performing official government duties. Despite its low public profile, the Hatch Act codifies fundamental tenets of American democracy, ensuring "federal programs are administered in a nonpartisan fashion" and government officials do not abuse taxpayer funds to hold political power.
Our government should provide service to all people, regardless of their partisan or personal affiliation. Such a guarantee is the bedrock of a government by and for the people. Government employees of both parties have abided by the Hatch Act's principle of nonpartisan service for more than 80 years.
That tradition, and its guarantee of equal governmental service, ended within hours of the 2017 inauguration. For almost the entirety of his presidency, Trump political appointees engaged in a "persistent, notorious, and deliberate" attack on the Hatch Act, an institutional disregard that eroded "the principal foundation of our democratic system — the rule of law."
It is of critical and immediate importance that Congress address this issue before it further erodes public trust in our government. The Protecting Our Democracy Act is an important step in that direction.
It would patch some of the most problematic cracks in the Hatch Act exploited by the previous administration exploited.
The most important improvements would be strengthening the Office of Special Counsel, the agency in charge of enforcing Hatch Act compliance. The Trump administration vividly demonstrated how OSC's weaknesses created two tracks for executive branch employee compliance: Civil service and lower level appointees face standards adjudicated by the independent Merit Systems Protection Board, but higher-level employees appointed by the president are exempt and so may avoid consequences if the president chooses.
The bill would take significant steps to address this inequity between rank-and-file and politically connected appointees.
First, it would allow the OSC to fine senior political appointees $50,000 when the president fails to hold them accountable for violations. This addresses the loophole glaringly exposed, for example, when Trump refused to take any action to address senior adviser Kellyanne Conway's flagrant violations of the Hatch Act.
Second, it would increase transparency surrounding Hatch Act violations by senior political appointees. Not only did Trump repeatedly refuse to discipline political employees who violated the act, but he provided no rationale for his decisions. The bill would require presidents to provide a written statement to the OSC in response to that office finding a political appointee violated the act. At a minimum, this would make the president's choice to avoid disciplining political appointees politically toxic.
The bill also addresses a problematic loophole created by the OSC. It says the law requires an independent complaint about a potential violation before beginning an investigation. This interpretation limits any ability to proactively enforce compliance with the Hatch Act. The new legislation would end this problem by authorizing the OSC to start Hatch Act violation inquiries on its own.
While the bill is an important step in the right direction, more improvements are needed. For instance, the proposed $50,000 penalty would only be a deterrent for officials of normal financial means. It would mean little for somebody like former Secretary of Education Betsy DeVos, whose fortune is in the hundreds of millions of dollars. To bolster deterrence, Congress should include language in spending bills to prevent salary payments to political appointees with multiple Hatch Act violations. That would be a stronger disincentive than individual fines, because loss of a salary indicates a shameful betrayal of public trust.
Additionally, the Hatch Act is unclear about some aspects of executive branch officials becoming candidates for partisan office. While explicitly defining who is an employee and which elections are covered, it does not explicitly address whether an employee may use federal funds to explore a potential run for office. The OSC has interpreted the law as applying only after someone "officially announces" a candidacy, a loophole that allows abuse of taxpayer funds to go unchecked. No member of the Trump administration abused this more than former Secretary of State Mike Pompeo, whose numerous taxpayer-funded visits to conservative donors allowed him to "quietly" nurture plans to someday run for senator in his Kansas or for president.
Congress should start applying Hatch Act restrictions as soon as executive branch officials hold themselves out as exploring a candidacy — either stating they are considering a run or not denying they are considering a run. Similar to how employees may not use federal funds for partisan purposes, Congress should clarify the Hatch Act applies to those who use federal funds or official travel to meet with prospective political donors and allies.
The guarantee of unbiased government service is a necessary condition in building a government by and for the people. By flagrantly disregarding and decimating the Hatch Act, the previous administration undermined this bedrock of our government. Without immediate and bold congressional action, public trust in the rule of law may be permanently damaged. The Protecting Our Democracy Act represents the most immediate and important step towards avoiding such lasting damage.
- Time for a cross-partisan push to prevent abuses of power - The ... ›
- Fact-checking claims that Pompeo violated the Hatch Act - The ... ›
President Biden has thrown a lifeline toward HR 1, his party's comprehensive response to voter suppression and the American republic's other most serious ailments. But, while the legislation was launched in the Senate on Wednesday, Biden's new support for weakening the filibuster is not nearly enough to assure he'll get to sign the bill.
Opponents of legislation should be forced to verbalize their opposition and stage their dilatory protests in person on the Senate floor, Biden said Tuesday. That would push the filibuster closer to its original form and potentially weaken the Republican minority's resolve for blocking almost everything on the Democratic agenda.
But the president did not get behind ending the de facto requirement that 60 senators support legislation, or the idea of a carve-out so voting rights bills could pass with a simple majority. Without such changes, the GOP would seemingly still be able to devote its collective stamina to talking the fix-the-system package to death.
And if the filibuster gets any sort of substantive downgrade, Minority Leader Mitch McConnell on Tuesday vowed a "completely scorched-earth" response in which the GOP would tie the chamber in such procedural knots that not even routine business gets done.
The sharpened rhetoric suggested that a showdown over the Senate rules is getting close, with civil rights and good-government advocacy groups applying increasing pressure for the climactic moment to come this spring during a debate on the sweeping democracy reform package.
Many of these organizations are most keenly invested in the provisions to curb money in politics, tighten government ethics rules and curtail partisan gerrymandering. But they have concluded that emphasizing the urgency of the proposed array of nationwide voting standards — at a time when GOP legislatures in states across the country are moving to make access to the ballot box tougher — offers their best chance to overcome the bill's long odds.
Democrats on Wednesday formally introduced the Senate's version of what they've dubbed the For the People Act, and labeled S 1, which is almost identical to HR 1 as passed by the House this month. The first hearing is scheduled for next Wednesday, with committee approval on course for April.
Both bills would nationalize no-excuse, postage-paid absentee voting and at least 15 days of in-person voting before Election Day. They would assure eligible voters everywhere could both register and vote on Election Day, or else be automatically registered when they do business with many state agencies. And they would make it more difficult for states to purge from the rolls people who vote only infrequently.
Democrats say these things would perpetuate if not improve the robust turnout of 2020, especially in communities of color — which would be good for democracy and for their electoral prospects, too. Republicans say the states should retain their discretion over voting rules, with some pointing without evidence to the potential for more fraud in a federalized system. Some in the GOP also concede worry that easier voting would mean more Republcian defeats.
Many advocates for the bill argue that, since the filibuster has historically been used most vigorously to thwart civil rights and voting rights legislation, an appropriate repentance would be doing away with the supermajority hurdle for such bills — even if the rules are left unchanged for measures addressing other issues, from immigration to climate change to gun control.
If Democrats break the filibuster to pass HR 1, said the Rev. Stephany Rose Spaulding of the civil rights coalition Just Democracy, the Senate "will forever be remembered as a body that protected Black and Brown communities and erased a vestige of our white supremacist history. Without eliminating this Jim Crow relic, America will slide back into the era of literacy tests and poll taxes."
But the package goes way beyond voting rights. It would also change campaign finance rules by requiring super PACs and issue advocacy groups to disclose donors who give more than $10,000, and by creating federal matching funds for candidates willing to rely on small-dollar donors. It would make states assign the drawing of congressional districts to politically independent panels, and stiffen codes of conduct for all three branches of government.
Polling in swing states by two progresisve groups, which launched a $30 million advocacy campaign this week, found that all the major provisions are broadly popular but the money-in-politics and government ethics proposals draw the most enthusiasm from Republicans.
Biden, who issued an executive order this month to promote voting rights as much as possible without the legislation, did not mention democracy reform much as as a candidate last year but has called for passage of HR 1.
"It's getting to the point where, you know, democracy is having a hard time functioning," Biden said in an interview with ABC News when asked why he had changed his mind to support only a "talking filibuster," which he opposed during his own 36-year career in the Senate.
For now, a senator need only announce opposition to a bill to make the other side start searching for 60 votes, a near impossibility in the ideologically polarized 50-50 Senate. Some budget measures and all nominations are exempt, which is how Biden has been able to get his Cabinet confirmed and win passage of his $1.9 trillion pandemic economic rescue bill.
Insisting on the talking filibuster would require a rules change, which can be accomplished by simple majority. All Republicans could be counted on to vote "no," meaning the Democrats and Vice President Kamala Harris would all have to vote "yes." Two Democrats, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have been reluctant to change the rules but have signaled an openness to the sort of change Biden described.
McConnell warned of stark consequence both procedural and ideological.
"This chaos would not open up an express lane to liberal change. It would not open up an express lane for the Biden presidency to speed into the history books. The Senate would be more like a hundred-car pile-up. Nothing moving," he said.
And whenever Republicans return to power, he vowed, they could pass "all kinds of conservative policies with zero input from the other side" without a filibuster, such as restricting abortion rights and eviscerating organized labor.
- Senate must end filibuster to pass democracy reform bills - The ... ›
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- End Citizens United makes proactive game plan to pass HR 1 - The ... ›
- With the For the People Act, organizing is paying off - The Fulcrum ›
- For the People Act doesn't curtail states' rights - The Fulcrum ›