As Americans, our task now is not just to repair the damage, but to fill the cracks in, too. If we do so, the Trump era can end on a positive note by spurring reforms that make American democracy more resilient.
After Watergate, Congress adopted a slate of reforms to prevent a future Nixon from replicating his abuses of power. The Ethics in Government Act, the War Powers Act and the Hughes-Ryan amendment were legislative responses to presidential overreach. Yet Trump’s presidency has shown that many of the norms designed to bind presidents to proper and ethical conduct are about as robust as handcuffs made of spaghetti.
American democracy has survived Trump, for now. We were saved partly by Trump’s bumbling incompetence and partly by the verdict of voters. But it was close.
We can’t afford more close calls. To prevent them, we need three crucial reforms.
First, Trump demonstrated how easy it is for a president to politicize the rule of law, turning it into a weapon against opponents and a shield for his friends. In many countries, such warping of the legal system is the first step on the road to authoritarianism.
Republicans cried foul at the optics of Attorney General Loretta E. Lynch meeting Bill Clinton briefly on an airport tarmac while Hillary Clinton was running for president, but that seems positively by-the-book compared with the past four years. Trump fired an FBI director because he was investigating the president, pardoned political allies and instructed William P. Barr to reduce prison sentences for Trump’s friends. We can no longer rely on norms and good faith. We need legal changes to ensure that presidents are neither above the law, nor can they bend it to their will for personal or political gain.
The White House should be legally barred from attempting to influence any cases that are remotely political. Political appointees, including the attorney general, should be required to recuse from those cases, too. Additionally, a nonpartisan oversight board should be empowered to review pardons for political allies, friends or relatives of the president. A constitutional amendment may be required to achieve this, but it’s an essential reform that’s worth it.
Second, Trump exploited flaws in our election system to undermine confidence in the democratic process. We need to overhaul federal election laws. The patchwork of maddeningly complex state variations creates public confusion, and that confusion provides an opening for authoritarian-style demagogues such as Trump to falsely claim victory despite defeat.
In established democracies, election administration is handled by nonpartisan civil servants. In the United States, the electoral henhouses are guarded by political foxes. Existing oversight is toothless. The Federal Election Commission lacked a quorum for much of the past 15 months. And it is disastrously partisan. The current chair openly endorsed Trump’s unhinged conspiracy-theorist lawyer Sidney Powell.
Fixing this isn’t complicated. The FEC should be reshaped to emulate Australia’s independent election commission. The United States could also mandate automatic voter registration, which would expand participation while ensuring a streamlined registration database to deter any (so far very rare) instances of voter fraud. Federal law could incentivize states to mandate maximum average wait times at precincts so a “time tax” is no longer imposed on minority neighborhoods. The U.S. Postal Service could be required to deliver all mail-in ballots within five days, with appropriate funding to make that possible.
And, because of General Services Administration head Emily Murphy’s craven refusal to unblock funds for President-elect Joe Biden’s transition for weeks (she finally relented last week), we need a legally defined threshold for at least provisionally releasing those funds when the result is not seriously in question.
Third, Trump demonstrated that presidents can be openly corrupt and suffer no consequences. Ethics norms must become ethics laws. Presidents should be required to divest from potentially compromising financial interests. Major-party nominees should be compelled to release 10 years of tax returns. And, given what potentially looms ahead in Trump’s post-presidency, there need to be more specific laws ensuring that former presidents don’t abuse their security clearances for future profits.
As became apparent even before Trump took office, deeper structural reforms are also required. We need greater transparency in campaign finance. The electoral college must be eliminated or reformed. We must end gerrymandering and address the rapidly growing gap between population size and political power in the Senate. H.R. 1, a package of such reforms that passed the Democratic House in March 2019 but languished in the Republican Senate, offered a good starting point. But it’s not enough.
Trying to make American democracy more resistant to demagogues will undoubtedly face Republican resistance in the Senate because it will be seen as an affront to Trump. But because Biden would also be constraining himself, he might well find converts in Sens. Lisa Murkowski (Alaska), Susan Collins (Maine) and Mitt Romney (Utah). That would increase the likelihood of some reforms passing (even if Republicans win the Georgia special elections and retain control of the Senate).
The Trump era is coming to an end. The fight to revive American democracy has begun.
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