Reforms to Repair Our Democratic Guardrails
With the impeachment trial of Donald Trump underway, the Senate is carrying out its formal responsibility to hear the case against the individual chiefly responsible for the January 6 mob attack on the Capitol.
Unfortunately, it is unlikely that the necessary number of Republicans will put their country before their own political aspirations and vote to convict the former president—meaning that the only people who will be held accountable for the events of January 6 will be some of the rioters themselves. The person who assembled the crowd, encouraged it to violence, directed it toward the Capitol, and dithered during the attack will almost certainly go unpunished.
Yet even if a moment of accountability never arrives, there exists an opportunity for President Joe Biden—joined by Democratic majorities in both chambers of Congress and a handful of Republicans standing firm for the rule of law—to pass meaningful reforms that will repair some of the guardrails that protect American democratic institutions, so that the specific abuses of the Trump era never happen again.
There is plenty of precedent for pursuing reforms in the wake of national scandals—the most prominent example being the reforms enacted nearly a half-century ago after Watergate: the Government in the Sunshine Act, the Inspector General Act, the Presidential Records Act, and more.
A host of ideas have been floated for reforms suitable for preventing future presidents from attempting the kind of flagrant abuses and corruption that characterized the Trump presidency. The first thing that must be noted, however, is that some of the most glaring problems have no easy fix—they require constitutional amendments.
Take the power to pardon during the lame-duck phase of a presidency. We’ve seen moderate abuses by George W. Bush and Barack Obama, and significant abuse by Bill Clinton. Donald Trump’s abuse of the pardon power was worse still—commuting the sentences and completely expunging the significant criminal offenses of close political allies and family members, including Roger Stone, Paul Manafort, Steve Bannon, and Charles Kushner.
The ability of a president, any president, to wipe clean or commute the criminal record of political cronies with no ability for the American people to render judgment is not only wrong in itself, it encourages abuse for all the years an administration is in power.
Since the pardon power is written into the Constitution, the only way to rein in its abuse is through a constitutional amendment. In 2001, such an amendment was proposed after the Clinton pardon scandal:
The power to grant reprieves and pardons for offenses against the United States shall not be exercised between October 1 of a year in which a Presidential election occurs and January 21 of the year following; except that after October 1 in said year a President may delay the execution of a sentence of death until January 25 of the year following.
Whatever the best language for reform might be—perhaps the pardon power could be retained during the lame-duck period, but its exercise would require the approval of Congress or the cabinet—the overarching need is clear: Presidents on their way out the door should be stripped of the unilateral power to pardon.
Another potential reform that might necessitate a constitutional amendment is requiring presidential candidates to make public their tax returns.
For voters to make informed choices, they should know the sources of loans made to presidential candidates and the nature of their foreign financial relationships. And once a president has taken office, Congress will need that information to help ensure that he doesn’t grant special favors or manipulate foreign policy because of money he owes.
Before Trump, the release of tax documents by candidates had become a norm. But like many other important unwritten norms in our system, Trump ignored the precedent because it wasn’t codified into law. And even when, while in office, his tax returns were required as a matter of law to be handed over to Congress, when the chairman of the House Ways and Means Committee demanded them in 2019, Trump simply disobeyed the law, knowing that the ensuing court case would extend beyond the 2020 election.
To prevent a recurrence of this abuse, presidential candidates (as a requirement for ballot access) and sitting presidents should be required to make public their returns.
Constitutional amendments are very challenging to ratify even when they have broad support. Given our current hyper-partisan climate, the challenge seems next to impossible. But amendments are still worth pursuing. Action pointed toward reform, even if it does not succeed, is important in protecting our institutions—it informs the public of the serious nature of a problem while also encouraging leaders to think critically about protecting and improving our constitutional system.
Not all potential post-Trump reforms require amending the Constitution. A bill drafted last September by the House Democrats proposed a package of reforms aimed at safeguarding our republic from corrupt and abusive chief executives.
Using Donald Trump’s scandals as a roadmap, the authors of the Protecting Our Democracy Act aimed to curb presidential abuse of power, restore checks and balances, strengthen accountability and oversight of government, and defend against foreign manipulation in our elections. Many of the proposed reforms are smart and should be adopted by the new Congress, either by reintroducing and debating last year’s bill or by taking a more piecemeal legislative approach.
One of the most important provisions of the bill ensures that inspectors general—corruption watchdogs within federal agencies—can only be fired for cause. Removing one IG without reasonable cause had been unprecedented; the fact that Trump fired five IGs exposed a significant hole in our democratic guardrails. The independent oversight provided by inspectors general is important to government accountability and transparency. The president must not be able to fire IGs without cause.
Another excellent provision in the Protecting Our Democracy Act would ensure that the executive office cannot be used as a shield from legal accountability by suspending the statute of limitations for a president and vice president for any federal crime committed during or before a term of office. If the Department of Justice is going to continue to maintain that it cannot indict a sitting president because doing so would “undermine the capacity of the executive to perform its constitutionally assigned functions,” it only makes sense to uphold the principle of no man being above the law by ensuring that the countdown toward the statute of limitations for federal crimes be paused during a president’s tenure. Accession to the presidency must not be a mechanism to trigger immunity.
The House bill has roughly ten other provisions. It increases penalties for Hatch Act violations; clarifies that a pardon can be considered a “thing of value” for the purpose of bribery statutes; clarifies that information provided by a foreign government can be considered a “thing of value” for the purposes of campaign law; and provides a check on the president’s power to declare national emergencies. These worthy ideas are all related to real abuses from the Trump years.
Because the Protecting Our Democracy Act was introduced in September, it does not include solutions to the soft spots exposed by Trump’s post-election actions.
For present purposes, let’s set aside reforms relating to the conduct of the election—an election in which judge after judge and election official after election official—including many Republicans—in state after state affirmed that there was no evidence of mass fraud, cheating, or irregularities. Let’s also set aside reforms to the Electoral College, a perennial target of proposed changes. Instead, let’s focus on what Congress is supposed to do on January 6—the date President Trump chose for his last-ditch effort to thwart the will of the people.
The Electoral Count Act of 1887 is the chief guide to the procedures for Congress’s joint session finalizing a presidential election. The act states that if at least one senator and one representative join in an objection to the certified election results of a state, then the vote count must stop and each chamber shall consider the objection and vote on it. A majority in each house is needed to affirm the objection.
We saw this process play out last month as the House and Senate separated to debate and vote following objections to the Arizona and Pennsylvania presidential results.
This process cries out for reform. Politicians with an excess of ambition and a shortage of integrity can exploit it to score political points. Two individuals should not be able sow widespread distrust in the validity of an election.
The threshold for objections must be raised. It should take no less than a quarter of the House and a quarter of the Senate to move an objection into debate.
This reform would significantly decrease the ability of anti-democratic factions to undermine the will of the people while still providing a relatively low bar for objections should serious issues ever exist. It would help ensure that most future January 6 joint sessions are the mere formality they are supposed to be, and less likely to be targets for abusive incumbent presidents desperate to cling to power.
Common-sense reforms to help safeguard American democracy must be a priority for the Biden administration and the 117th Congress. In the last four years, important guardrails that protect American democratic institutions have been torn down. Regardless of the outcome of the impeachment trial, the president and members of Congress from both parties have a responsibility to repair and strengthen those guardrails.