Beyond Trump, Not Just After Him
Prelude
When Richard Nixon resigned, the newly inaugurated president, Gerald Ford, gave a speech declaring that “our long national nightmare is over.” Well, sort of. Less than a month later Ford pardoned Nixon despite his claim in his inaugural speech that “if you have not chosen me by secret ballot, neither have I gained office by any secret promises.” Whatever was in Ford’s heart, he took it to his grave. We have to live with the lack of a full, formal investigation of the 36th president.
Morning after the 2021 Inauguration
After the — hoped for — inaugural galas for President Biden comes the frigid light of a new day. The new president has a much deeper mess to deal with than Gerald Ford could have imagined. After four years of corrosive politics, overt and public flaunting of governmental norms, conduct that prima facie showed criminal intent, and the decay of what was once the 4th Estate, the new president has a lot of repairing and cleaning to do.
As a naive citizen, here’s my list of actions that the new government needs to do.
Presidential Pardons
Chances are that the exit of Trump from the White House will be a shamble. The legal wielding of presidential pardons will probably feature prominently between the declaration of Trump’s loss and his exit. We can imagine a wide variety of scenarios where he uses his constitutional power to protect himself, his family, and the last remaining co-conspirators he has. It’s even conceivable that he pardons himself. Or cuts a deal with Pence to receive a pardon after resigning from office. No matter what the reality will be, we can be assured that Trump will foul the waters of presidential pardons beyond their polluted state today.
The Democrats will have to reign in the power of presidential pardons. Unfortunately, the hill to climb is an amendment to the Constitution. Remedies can make explicit that a president cannot pardon himself or members of his immediate family; prohibit pardons between Election Day and the Inauguration; and require that a conviction much precede a pardon. It’s also possible to require Congressional oversight and approval before pardons can be executed.*
Reforming Politics
This is a big one but we will restrict ourselves to formal steps.
First, we have to recognize that campaign finance has become corrupted — mostly by the notion that money is speech. While it may be the megaphone, it should not be considered thought and reason. The prudent reform is the status quo we had before the Supreme Court decided Citizens United v. FEC in 2010. The unleashing of unlimited spending under the notion that independent spending cannot be corrupt and that it would be transparent has been soundly refuted by later events. Today, a small group of very, very rich people can outshout millions.
We need to restore the volume of those ordinary citizens’ voices. Remedies include publicly funding federal campaigns; requiring a system that matches small donations with public funds; and requiring complete transparency in political contributions — no more “dark money.” These are potential legislative actions that Congress can begin, hopefully with presidential support.*
The Electoral College (along with the US Senate) skews governing power away from the principle of one person, one vote. A vestigial appendage of circumstances that pertained in the 1780s, it serves no function today except as a method to undemocratically elect the president and vice president. Twice in 20 years, we have seen presidents elected by a minority of the popular vote.
Here, the ultimate solution is a constitutional amendment, but we do not need to climb that hill. One proposal is for states to abolish the winner-take-all presidential elections to base electoral votes on the popular votes cast — as do Maine and Nebraska today. The problem with that is that the number of electoral votes is partly based on two senators from each state. (Historically, Trump would still have won in 2016 by this reckoning.*) A better solution is the National Popular Voter Interstate Compact which offers a way for the states to mandate awarding their electoral votes to the winner of the national popular vote. Ten states and DC have passed it — 165 electoral votes out of 538. It will become law in these states when states representing a majority of electoral votes pass it.*
Reforming the Federal Election Commission can complement efforts to restore democracy. First, the FEC needs to have its membership revamped to break the partisan gridlock and zombie commissioners — remaining in office after their term expires. The Commission also needs some dental implants to give it real investigative and prosecutorial powers with a budget big enough for the bites needed.*
But wait, there’s the arcane Section 230 and the Federal Communications Commission that have spawned the rise of social media as we wish we did not know it today. Section 230, born in the optimism for the internet in 1996, offers an onramp for new platforms with protections from most lawsuits related to the content of its users. One proposed remedy is revising Section 230 to open up these platforms and mandate that their policies and algorithms do not skew to extreme and unreliable material posted by users, all to beef up the clicks. Otherwise, they lose their immunity from civil litigation.* To enforce it, give the FCC the power to regulate the American digital universe.
Reforming Governance
Trump has inflicted a lot of damage on governing and the very idea of governance. He has appointed hundreds of youngsters to the federal bench and ideologues to the Supreme Court. His appointments prompt a structural reform to make the courts both reflect the people and their interests in the rule of law. Suggested reforms are legion, but one is to rotate lower court judges to the Supreme Court to leaven the mix of genders, races, and educational backgrounds of justices that rule on the cases in the docket. The rotation would make ideological blocs on the Court harder to maintain because the certiorari process would have a different panel with each case being appealed for a hearing. One other urgent reform is to prevent the Senate from blocking action on a nominee as Mitch McConnell infamously did to President Obama. Finally, there’s the option to increase the size of the court, an action that has occurred seven times since 1789. Just because FDR failed to do it in 1937 does not mean that it cannot work in 2021.*
In our system of checks and balances, the rise of “acting” appointments to positions requiring Senate advice and consent has robbed us of oversight in the very hiring of high government officials. While many presidents have used the power of acting appointments to thwart the power of the Senate, Trump turned it into a regular feature — not a bug — to avoid congressional oversight. This only requires tightening the loopholes in the Federal Vacancies Reform Act of 1998. Get on that.
Defending the Nation
It seems strange to bring up the notion of disloyalty to the Constitution and the nation by the president, but the unprecedented coziness of Trump’s relationship with our adversaries — particularly with Vladimir Putin — requires attention. The trampling of constitutional norms and law in offers of quid pro quo to foreign leaders (see Ukraine) prompted impeachment but no punishment. While technically not treason — we were not in a formal state of war — Trump’s actions require a congressional response to prevent future transgressions.
Policing the presidency is a power granted to Congress in an effort to thwart a would-be tyrant — something the Founders believed they understood too well. Congress needs to pass legislation to prohibit and prevent the president from the types of abuses that have become familiar: interfering with the administration of justice; abusing the pardon power; abusing the appointment process; disseminating misinformation; reaffirming that the president is not above the law; prohibiting abuse of security clearances; abusing official powers for electoral interference; and ensuring administration staff serve the public.*
Looking Ahead
Of course, driving Trump and his GOP enablers from power is a prerequisite for any and all of the above. With a durable 40+ percent of the people approving of Trump’s performance, that is a very heavy lift. Perhaps the acid of recent revelations of Trump lying about the coronavirus will corrode some of that base, but we cannot rely on changing hardened attitudes in a single presidential election. The above reforms only offer us a good start — and only if we are in a position to get started.
