The election is still too close to call, but let’s be clear about one thing: It was never a fair fight.
The Hatch Act prohibits government officials, excluding the president and vice president, from using their official positions to support a candidate in a partisan election. Day in and day out, senior White House officials and Cabinet members have violated this law. They have advocated for the president and bashed his opponent in television interviews given in their official capacity, on social media accounts they use for their work and on official, taxpayer-funded trips around the country.
A comprehensive report released last week by Sen. Elizabeth Warren (D-Mass.) documented 14 administration officials as having violated this law a total of 54 times. An additional 22 officials are being investigated for nearly 100 other violations. Recently, Agriculture Secretary Sonny Perdue was ordered to repay the government for an official trip to North Carolina after he used his official remarks at the event to push for the president’s reelection, following a complaint by my organization, Citizens for Responsibility and Ethics in Washington. The Office of Special Counsel, which administers the Hatch Act, recommended that former counselor to the president Kellyanne Conway be fired for repeated egregious violations; the president, of course, did not fire her.
This part might sound trivial. Who really cares about a tweet or a TV interview? But it’s not trivial. Leveraging government authority to keep a ruler in power is not something that happens in democracies; it’s what happens in dictatorships, and it’s been happening here.
It goes well beyond interviews and tweets, in any case. The Republican National Convention featured speeches from the White House and a naturalization ceremony performed by the Department of Homeland Security secretary, all included to improve the president’s image before the election. Trump has also turned countless White House events and news conferences into de facto campaign rallies.
Even more egregious, federal agencies have been enlisted to shift the playing field in the president’s favor. The Interior Department and National Park Service have cleared national park land like Mount Rushmore and the Mall for events aimed at boosting the president, and the Interior Department has produced videos best described as propaganda films for Trump, including one posted in August lavishly praising the president’s conservation efforts with dramatic visuals including fighter jets flying over the Lincoln Memorial.
The attorney general has used the Justice Department in unprecedented ways to boost the president politically, including baselessly casting doubt on voting by mail and publicizing investigations in early stages to feed those doubts, as well as ginning up duplicative and unnecessary investigations into the origin of the investigation into Russian election interference to cast suspicion on the president’s rivals.
New Postmaster General Louis DeJoy, a Trump megadonor and ally, has made changes to the U.S. Postal Service that a court has found endanger voting by mail. Just in the past few days, the Postal Service ignored a court order to perform sweeps for missing ballots in 12 postal processing facilities spanning 15 states after hundreds of thousands of them could not be traced. The president has been clear that he believes voting by mail will hurt his reelection, and DeJoy appears to be acting on that belief.
This use of government power to support the president’s reelection violates the law in some cases and democratic tradition in all cases. But this is not just a matter of conduct that is wrong in principle and violates our ideals. It is also cheating.
How many votes for the president resulted from the stirring White House appearances during the convention or from Perdue’s laudatory statements to farmers in a swing state? How many votes against the president did the Postal Service’s policy changes keep from being counted? We will never know. But make no mistake: They wouldn’t be doing this if they didn’t think it would help them. We have to assume it has helped them. And that means the election has been tilted in Trump’s favor.
Add to that years of efforts to write laws that make it harder for people to vote, as well as weeks and months of court cases aimed at restricting voting, with most of the impact directed at communities of color; those factors, too, while not legal violations, have contributed to an election that was anything but fair.
So what can be done?
First, there must be accountability. Henry Kerner, the special counsel, is a Trump appointee who has tried to be an honest broker in calling out administration Hatch Act violations. His office’s investigations must continue, regardless of the results of the election. There should also be investigations by inspectors general and the Government Accountability Office into the improper use of taxpayer funds for political activity or propaganda in agencies like the Interior and Justice Departments. And in some cases there should be criminal investigations; CREW has requested one into DeJoy for Hatch Act violations. Congress should insist on meaningful accounting for what has happened and consequences for those involved.
Second, there must be reform. Laws need to be strengthened to reduce a president’s ability to misuse his office for political and personal gain and to ensure real penalties when officials break the Hatch Act and related laws. The Protecting Our Democracy Act, introduced by House leaders earlier this fall, takes important steps in that direction, including by empowering the Office of Special Counsel to fine and punish senior administration officials who violate the law and to investigate potential violations without waiting for a complaint.
Finally, there must be a public outcry, regardless of the outcome of the 2020 presidential election. Without it, there will not be any meaningful accountability, there will not be reform and these kinds of abuses, which tip the scales toward those in power, will continue.