Dayton is a policy advocate and Lindgrensavage is a counsel at Protect Democracy, a nonprofit group advocating for policies that "prevent our democracy from declining into a more authoritarian form of government." Dayton once worked for a GOP House member and Lindgrensavage for a Democratic senator.
Imagine this: The conduct of the previous presidential administration has crystallized the need for Congress to reassert its constitutional authority as a check on the executive branch.
The year is 2021, to be sure. But it was also 1974. In the wake of the Watergate scandal, lawmakers of both parties acted to address weaknesses in federal laws and government institutions that Richard Nixon had either created himself or exposed.
Nearly half a century later the Protecting Our Democracy Act, a package of good-government reforms first proposed by Democratic Rep. Adam Schiff of California in September, aims to take similar steps toward restoring guardrails on executive power. The legislation is on course for a reintroduction in the House this month.
To raise awareness about the bill and advocate for its passage, experts from half a dozen democracy reform advocacy groups from across the political spectrum have written pieces touting its various virtues. These will appear in the Opinion section of The Fulcrum in coming weeks.
These individual analyses do not constitute an endorsement of the full package. What they demonstrate in combination, rather, is how the multifaceted measure draws from ideas proposed by Republicans and Democrats alike — and how Congress' constitutional prerogatives, not ideology, explain why they fit together.
The Protecting Our Democracy Act, which also goes by the acronym PODA, tackles a dozen different topics:
- Limiting the president's pardon power.
- Extending the deadline for prosecuting former presidents and vice presidents for federal crimes before or during their time in office.
- Enforcing the constitutional ban on presidents using the office to enrich themselves.
- Boosting enforcement of congressional subpoenas.
- Reasserting Congress' power of the purse.
- Mandating disclosure of contacts between the White House and Justice Department.
- Strengthening protections for inspectors general.
- Strengthening protections for federal whistleblowers.
- Ensuring the Senate's say in confirming executive branch officials.
- Bolstering enforcement of the Hatch Act.
- Preventing foreign interference in elections.
- Clarifying federal prohibitions on foreign assistance to campaigns.
Some of the proposals respond directly to vulnerabilities in presidential power exploited by the Trump administration, treating those abuses as lessons from which the need for reform must be learned.
It will remain difficult to hold future presidents accountable for violating the Emoluments Clause, the Constitution's ban on presidential profiteering, or attempting to sway the independence of the Justice Department, for example, without Congress creating mechanisms to guarantee such accountability.
Some of the proposals have a history of bipartisan backing — or began as Republican ideas. The provision to strengthen congressional control over the allocation of federal funds, for example, resembles a bill by Republican Sen. Mike Lee of Utah that the Homeland Security and Government Affairs Committee approved last year on an 11-2 vote. And improving protections for inspectors general and federal whistleblowers has been a longstanding priority of the most senior GOP senator, Chuck Grassley of Iowa..
The Protecting Our Democracy Act meets this current moment in two important ways.
First, it is the right response, and it is similar to a past, successful response in the aftermath to a similar period in our history. After Nixon's resignation, both Republican and Democratic lawmakers understood how his behavior had exposed weaknesses in the system of checks and balances that constrains presidential power, and they responded by enacting laws such as the Privacy Act and the Inspector General Act.
The parallels to today are now widely acknowledged by experts on the right, left and center. Trump "has revealed that the presidency is due for an overhaul for accountability akin to the 1974 reforms," Jack Goldsmith, an assistant attorney general in the George W. Bush administration, told the New York Times. (He and a White House counsel during the Obama administration, Robert Bauer, have come up with their own set of ideas for recalibrating the balance of power.)
Second, PODA responds to increasing numbers of lawmakers asking why their branch is so ineffective relative to the executive and the judiciary. Republican Sen. Ben Sasse of Nebraska, a frequent observer of this development, spent part of his time during last month's confirmation hearing for Attorney General Merrick Garland offering his views.
"I think it's a mix of overreach by Article II and underreach by Article I," he said, adding that it's not "as if everything that's wrong is chiefly outside the Congress, because I think we're probably chiefly to blame."
The Protecting Our Democracy Act gives Congress an opportunity to retake some of its authority and live up to its responsibility.
Ensuring the proper checks and balances between the executive and legislative branches is an ongoing obligation of Congress. But it hasn't kept pace in recent years with the expansion of presidential power or deterred presidents of both parties from exceeding — even abusing — their authority.
This House bill is a big first step on the path to catching up. The fact that Democrats are going to introduce this package when the president is a member of their party should not escape notice. Nor should the repeated instances of Republicans who have voiced concerns and floated measures about the relationship between the president and Congress. The opportunity to bring Republicans and Democrats together to act is now.
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As a momentous election draws closer, government leaders and law enforcement agencies are preparing for a contested election and ensuing civil unrest. The FBI and Department of Justice are getting ready for election-related violence. And National Guard leaders have assembled rapid-response forces in two states to deal with potential disruptions.
Joint Chiefs of Staff Chairman Gen. Mark Milley has been unequivocal that the military should play "no role" in a U.S. election. "Zero," he said. In fact, it is a federal crime to deploy troops to polling places. But what if there are protests, including when voters have already cast their ballots but the final results remain uncertain?
To be clear, if there is any election unrest, the federal government should not be the one handling it. Elections are run at the local and state levels, so those law enforcement agencies should respond. Yet there's concern the president and his allies may try to interfere with election outcomes by deploying — or threatening to deploy — military forces and turn American streets into "battle spaces."
Let's step back to Lafayette Square to add some context. On June 1, National Guard troops were used to clear civil rights protesters from the square for a presidential photo-op. The Trump administration asked states to send National Guard troops into D.C. to crack down on these protests. Over 98 percent of the 3,800 National Guardsmen deployed came from states whose Republican governors answered Trump's call. This "red-state army" of out-of-state National Guard troops was operating under a "hybrid status," which means they're on federally funded missions while under state governors' command. Because National Guardsmen in hybrid status remain under state control, they are exempt from posse comitatus, the principle that the U.S. military cannot perform domestic law enforcement functions unless expressly authorized by law. But when National Guardsmen also report to a federal chain of command, as Defense Secretary Mark Esper admitted they did in D.C., these troops are subject to posse comitatus — unless the president properly invokes some other authority, such as the Insurrection Act. Yet, by Attorney General William Barr's own account, National Guard troops' mission in DC included quintessential law enforcement duties, including "detention" and "search."
President Trump has said this could happen again, promising that post-election protests would be "put ... down very quickly." It would be improper to use the National Guard or military (or other federal law enforcement) to patrol the polls or retaliate against protesters. So what happens if the president or his allies try anyway?
We can learn from what happened in Lafayette Square and beyond. Then, the troops withdrew from Washington within a few weeks. But the law didn't precipitate their retreat. Public opprobrium did. Political leaders and the public will have to fight back.
There are both legal and political ways that state and local leaders can respond. Concerning the National Guard at polling places, governors and National Guard leaders should commit to upholding laws that apply to the U.S. military. Governors, state attorneys general and mayors should broadcast the message early that it's unlawful for the president to use the military or federal agents to interfere with elections. State and local leaders can also create political pressure on key decision-makers. Just as Milley vociferously denounced the idea that the military should play any role in our election, governors and mayors can denounce improper deployment of federal law enforcement. Finally, states and cities can call on courts to intervene.
Meanwhile, Sen. Tom Udall and Rep. Jim McGovern are working on legislation to close the statutory loophole Barr exploited to evade laws to use the military to police Americans.
One of the lessons of Lafayette Square is that public outrage and protests may be a critical check on the use of the force against protesters. If, as President Trump has threatened, the military is unlawfully deployed against U.S. citizens exercising free speech, Americans must stand with protesters to preserve the rights for all.
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Hedtler-Gaudette is a policy analyst at the Project On Government Oversight, a nonpartisan group that investigates misconduct and conflicts of interest by federal officials. Dayton is a policy advocate at Protect Democracy, a nonprofit working "to prevent our democracy from declining into a more authoritarian form of government."
Back in April, President Trump said he would halt federal funding of the World Health Organization, on the grounds it was too slow to sound the alarm about the global spread of the coronavirus. The next month, he announced the United States was withdrawing from the WHO altogether.
Like so many of the president's norm-shattering proclamations, that raised the question: Can he do those things?
The answer, as it happens, is complicated — and it shines a bright light on the vulnerabilities in the congressional appropriations process and the wobbly balance of legislative and executive power. As Congress begins to exercise the power of the purse again, by starting this month to produce spending measures for the coming year, it would do well to learn from the troubling weaknesses the WHO issue raises.
Congress provided the president with discretion when it appropriated this year's funding for "international organizations," as has been typical. It neglected to specify an amount for the WHO, created after World War II to combat diseases of global import, or even mention the organization by name.
Instead, the law instructed the administration "to meet annual obligations of membership in international multilateral organizations, pursuant to treaties ... conventions, or specific acts of Congress," and provided a bucket of funds for doing so. Absent more specificity, the administration may be technically entitled to redirect funds originally destined for the WHO.
After more than seven decades as a dues-paying member, the United States is changing course by executive decree, but it's far from clear Congress intended to grant the executive such sweeping authority.
Lawmakers commonly appropriate without including line-item details, with the understanding that policymaking benefits from some reasonable flexibility. Undergirding this practice is trust. In exchange for granting some discretion, Congress expects the presidents will not run loose and suspend the flow of money clearly meant for a program or organization — or pursue policies clearly at odds with the nation's commitments as decided upon by Congress.
Whether the president has the technical authority misses the bigger point: The administration's actions risk further eroding trust between the two branches. The president is chipping away at the presumption of good faith. And, just as troubling, lawmakers are steadily losing control over their most critical constitutional prerogative.
In this respect, the WHO issue is one of many. Last year, for example, the White House's Office of Management and Budget informed federal agencies they need not reply to inquiries from Congress' Government Accountability Office about potential violations of appropriations law.
No statute specifically mandates agency cooperation with the GAO in this regard; the law only obligates agencies to report violations themselves. But traditionally, cooperation prevails. Alarmed, the GAO wrote to tell Congress the novel OMB guidance was an abrupt departure from long-standing norms.
As the president sidelines bedrock congressional authority, it falls on Congress to reassert its power to spend money. Otherwise, Congress' power and interbranch trust will continue to erode.
First, Congress should start with requiring spending transparency within the executive branch. While Trump announced termination of WHO funding, Capitol Hill has little visibility into whether and when funds would actually be withheld or redirected.
Congress should require publicly available and regular apportionment reports, and mandate compliance with requests for information from oversight bodies like the GAO. Congress should have little tolerance for being left in the dark when exercising its most basic constitutional duties.
Second, it's time to add some teeth to its lawmaking by authorizing disciplinary measures for officials who violate appropriations law. The Congressional Power of the Purse Act, a bill proposed this spring by the chairman of the House Budget Committee, Democrat John Yarmouth of Kentucky, would make progress on both fronts.
Perhaps most importantly, members of Congress should speak up in defense of their branch of government — and forcefully.
This pushback must include public statements but also assertive action to claw back the legislative branch's rightful position in our system of separated and balanced powers. Trump's letter to the WHO suggests the power of the purse lay squarely with the executive — Congress, meanwhile, entirely absent from the picture.
A president's usurpation of congressional authority is not novel, to be sure; every one of them has sought to accrete more spending power for himself. Still, recent episodes risk further muddying the constitutional waters, communicating to the public (and the world) that our government's spending authority resides with the executive. The Framers certainly disagreed, unequivocally vesting Congress with the sole constitutional power of the purse.
Reasonable people can disagree on policy, such as whether the United States should be the 194th member of WHO or keep current on its dues to belong. That's not the issue. This is about the president's unilateral decision and Congress' power to determine government spending priorities.
While the issue right now may be Trump's decision to leave the WHO, next year may bring a new administration. Congress should want to reassert its power of the purse regardless of who is in the White House. Congressional Democrats have excoriated this administration for assuming Congress' spending authority; should Joe Biden move into the Oval Office, we can expect congressional Republicans would rightfully do the same.
Congress' real struggle, then, is less about any one president and more over its own role as envisaged by the Constitution. The latter is certainly more enduring and more important, so Congress should stand up now and reclaim its authority.
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