This letter outlines a critical issue that no one — no politicians, no activists, not even the pundit class — seem to be addressing, the need for sweeping political reform legislation. We have witnessed unprecedented flouting of Congressional oversight during the Trump administration, corruption of the Justice Department and undermining of the rule of law, removal of inspectors general, and numerous other attacks on fundamental foundations of our democracy. But there is, as yet, no “Omnibus Fix Democratic Institutions Act.”
I started my career in Washington working on Latin American affairs — constitutional reforms are what banana republics with semi-functional legislatures did on a regular basis when political events demonstrated the fragility of their institutions. (I suppose that betrays my view of our once great beacon on a hill — I think we are well on our way to banana republic status.) It is a sad irony that some of the same Cold War hawks who hectored those Latin American countries for decades about their fraudulent elections, weak judiciaries and corrupt legislatures have played supportive roles in turning the United States into the pot to Venezuela’s kettle. Donald Trump has vastly more in common with Hector Chavez — who appeared on television to speak directly to the people every Sunday, packed the court system with toadies, and steamrolled the national assembly — than he does with Abraham Lincoln.
I am not an attorney, much less a Constitutional scholar, so I cannot opine as to which of the “fixes” are beyond Congress’s sole control or rise to the level of Constitutional amendments. However, I would suggest that reformers take Donald Trump’s approach and play offense — pass the legislation, enforce it, and let the courts sort out whether and how it is constitutionally legitimate or can be made so (a corollary to the old adage about possession: “passing the law is 9/10ths of the law”). It may be that testing in the courts is the only way to figure out how to craft reforms that pass constitutional muster. Who knows, maybe disgust with Donald Trump in the coming years will rise to such a level that Constitutional amendments become possible.
Some of these provisions may cause a great deal of pain and suffering to (please God) a future Democratic administration. That does not make the legislation bad. It makes it a genuine set of reforms with some bipartisan hope for passage, far more likely under a President Biden than a Donald Trump. Here are some of the issues that the Fix Democratic Institutions Act might cover:
• Drastically time-limiting the span under which presidents are allowed to use acting appointments to Cabinet positions for which Congressional approval is required;
• Mandating that the U.S. Marshal provide physical enforcement for Congressional subpoenas;
• Requiring public disclosure of the minutes of all presidential interactions with the Attorney General, and restricting or penalizing overt or covert executive attempts to influence cases before the court system.
• Clearly delineating what kinds of information, e.g. Health and Human Services meetings, can be classified and where claims of executive privilege put the public at risk.
• Requiring expedited review and decision by the court system of potential Constitutional violations by the president, especially where attempts to stonewall Congress are calibrated to delay beyond the next election cycle and/or where extensive discovery and investigation are not necessary;
• Giving clear, definable teeth to the Emoluments Clause, which, while clearly an issue of concern to the framers of the Constitution has not been given sufficient statutory structure.
• Requiring release of tax returns by all presidents and senior State Department officials as well as review of all investments past and present that may bias their judgment (Russia First would more aptly describe the current administration than America First);
• Clarifying whether and how presidential emissaries not employed by the State Department can play overt or covert diplomatic roles;
• Restricting the president’s ability to fire inspectors general and other independent watchdogs and/or giving whistle blower protections to ombudsmen who produce reports that displease the executive;
• Restricting the president’s power to pardon individuals with information that may incriminate him or her.
This list is not exhaustive, a fact that makes it that much more depressing. Donald Trump has, in less than a full term, shown just how weak our institutions are, how many holes in the fabric of our legal system must be mended. I do not think it is an over-dramatization to say that a slate of reforms of this type may help to determine whether democracy in the United States survives. A brave Democratic candidate for president would make them a fundamental plank in his or her platform and promise passage, even if they circumscribe the powers of the office they seek.
Sean O’Neill is a resident of Charlemont.