Reforming and rebuilding our democracy
Many of us remember our high school civics class where we learned about our democratic institutions. We learned about our three branches of government – Legislative, Executive & Judicial – with each branch separate and co-equal, and with each providing checks and balances on the others. That is certainly the ideal, but the reality is quite different. Historically, there is an ebb and flow as each branch competes with the others in a constant struggle for power and dominance. Power shifts constantly from one branch to the other depending on the era and the individuals involved. The danger for our democracy is that if one branch dominates permanently, it can create authoritarian rule.
The Trump administration ran roughshod over Congress in ways that were unprecedented in scope and levels of abuse. They abused our Constitution and governing norms by implementing a strong authoritarian governing style. Yet Congress stood by as Trump and his associates ignored subpoenas, punished whistleblowers, ignored conflicts of interest, refused to release required records, and redirected appropriated funds. Even when former President Trump solicited and encouraged the January 6th insurrection against our government, Congress would not convict him after he was impeached.
It’s past time for Congress to reassert itself to check the powers of the Presidency. After Watergate, Congress passed a series of laws designed to broaden the oversight of the Executive branch. This Congress needs to do the same to prevent future presidents from abusing power under the Constitution. Here are three areas of reform where Congress can reassert its authority to increase accountability and transparency as well as protect government officials.
Increase Accountability – legislation is needed to hold the Executive branch more responsive to the will of Congress and make Congressional oversight more penetrating. The Trump Administration ignored subpoenas for witnesses and documents. They relied on the slow pace of judicial proceedings to stifle legislative attempts at oversight. Congress should pass a statute to allow immediate review by the Federal Court of Appeals for the D.C. Circuit when subpoenas are issued but contested by the Executive branch. A two week timeline for final disposition should be mandated. Fines should be levied on officials who willfully fail to comply.
Legislation is also needed to limit Presidential emergency declarations. The Trump Administration unilaterally declared immigration an emergency and redirected Defense Department funds to the construction of the border wall. This redirection of funding should require a Congressional vote as well as documentation from the President justifying such designations of emergencies.
Increase transparency – Congress should pass legislation requiring that all Presidential candidates release their tax returns. Release of tax returns should stand as a legal qualification for the Presidency just as citizenship and age do now.
Conflicts of interest should be addressed to assure that any conflicts are disclosed and monitored to avoid even the appearance of impropriety. Ideally, Presidents should place their financial assets in blind trust during their tenure. In addition, Presidents should not be taking lavish gifts from foreign governments. An independent regulatory body should be established to oversee potential conflicts of interest. This body should have subpoena power and ability to fast track violations to the courts.
Protecting Government officials – Presidents should have a trusting relationship with those who serve them. However, whistleblowers deserve strong protections, especially those who cooperate with legitimate Congressional subpoenas. Congress should legislate to protect the anonymity of whistleblowers and strengthen the Merit System Board protections for individuals who come forth with information that may be critical of the Executive Branch.
Legislation should also provide protections for inspectors general (IGs) who act as watchdogs over federal departments. Inspectors General should only be removed from their positions by the President or the Secretary of each Department and then only for cause. Documentation of that cause should be provided to Congress prior to any removal.
The path to these kinds of reforms will not be easy especially with a 50/50 split of Democrats and Republicans in the Senate. However, the time may be right given that Republicans will want accountability and transparency from the Biden Administration. For their part, many Democrats will want to return to their former status as a co-equal branch of government.
We desperately need these reforms to prevent abuses by future Presidents. The framers of our Constitution knew that we needed all three government branches to be strong to prevent the others from abusing power. So we need to get back to what we learned in civics class. Our government works best when we have three co-equal branches.
Tom DeLoe is a retired public health officer in the U.S. Department of Health and Human Services. Tom lives in Gettysburg and is a member of the Gettysburg Democracy for America Government Accountability Task Force.