Here's how a Biden presidency could erect new guardrails and prevent the next Trump
Last week, Joshua Holland highlighted an under-appreciated facet of Joe Biden’s candidacy: his unique opportunity to “fascist-proof” the presidency and prevent a repeat of our long, national Trump nightmare. Given Biden’s rare openness to being a transitional, one-term president--and against the backdrop of his experience as a Senate lifer--Biden may have the rare motivation and self-discipline to do America an historic service by reversing decades of incremental power-grabs by an increasingly “imperial” executive branch, thereby restoring the checks that our framers intended us to have on an out-of-control president.
This is not some abstract, late-night dorm room issue – the accrual of power in the hands of a venal, authoritarian president has had real consequences to real people. Trump has weakened our defense, targeted the vulnerable, enriched the powerful (including himself) at the expense of middle- and working-class families, and directly caused more than 100,000 American deaths while costing the country trillions of dollars in lost output. Every American reading this has been directly harmed by our system’s failure to put limits on Donald Trump.
So how would hitting the constitutional reset button work? Reining in the president requires re-asserting the intended role of Congress (and the Judicial branch) under the Constitution’s separation of powers. The catch is that if we are going to dial back the power of the executive, there has to be a functional legislative branch to receive it. It does America little good to remove authority from one Napoleonic fool and distribute it to a cabal of self-serving partisans like Mitch McConnell. That doesn’t solve the problem, it merely spreads it around.
That is why the first step in the rebalancing process has to be passing a pro-democracy reform bill. It is the only way to make Congress work better. “Political dynamics on the outside drive the procedural dynamics on the inside,” explains Ryan McConaghy, who led issue strategy and message planning for Senate Democratic Leader Charles Schumer and the Democratic Caucus. “So you can tweak process and Senate rules and even the laws all you want, but if you don’t deal with the underlying incentives and the way we run our democracy, elected leaders will keep behaving in the same old ways and we’ll end up right back in the same place. The bottom line is that if you want a better product out of Congress, you have to focus on the forces that shape behavior before anyone even steps onto the House or Senate floor.”
Distortions in American democracy have seriously slanted that playing field. In 2018, Democrats won by 8 points nationally and received 10 million more votes. Yet they ended up with only a slim House majority after partisan gerrymandering cost them 16 seats. Barriers to voting and a river of dark money (dark money spending rose by a factor of 50 between 2004 and 2012--to above $300 million--and by 2015 was ten times higher than that) fuel an electoral ecosystem that allows candidates outside the mainstream to thrive and remain competitive in races where voter preferences would never otherwise allow it. These factors shield candidates from having to broaden their appeal. And increasingly in recent years, Republicans especially have been able to subsist almost entirely by stoking outrage to drive turnout on their side. By fixing anti-democratic distortions, candidates (disproportionately Republicans, but in fairness it would apply to everyone) would find themselves with less and less room to hide inside safe partisan niches, and greater need to broaden their appeal beyond their base.
House Democrats already have a reform bill assembled. The For The People Act of 2019 addressed voting rights (making election day a federal holiday, getting rid of partisan gerrymandering, expanding voter registration, etc.), ethics (forcing candidates to release their taxes, for one thing) and campaign finance (voluntary public financing for campaigns, small donor matching, reining in Super PACs). There are more things to do. The pandemic has shown the urgent need to upgrade vote-from-home solutions, and the death of John Lewis has reminded Americans of the need for a renewed Voting Rights Act – but Democrats have a basic blueprint ready to go in January 2021, assuming they win the presidency as well as majorities in both chambers of Congress.
There is an important consequence to note here: taking this critical step to fix our politics “on the outside” will almost certainly require one big fix on the “inside”: finally getting rid of the Senate filibuster. Republicans are demonstrating in real-time once again that they fear expanding access to voting and restoring voting rights protections, as it may force them out of their safe political enclaves and could cause some short-term electoral pain (the irony being that Republicans would actually be a healthier, stronger, and more competitive party long term if compelled to broaden their appeal beyond their current base). So they would almost certainly filibuster.
In turn, Democrats will almost certainly conclude that pro-democratic voting and civil rights reforms are the indispensable key to their entire agenda—to healthcare and climate policy and racial justice and to the future of our democracy. They will find it unacceptable to allow those reforms to be blocked, and will very likely conclude that the filibuster must finally go. To be sure, there remain some misgivings inside the party (Democrats have found filibustering useful as recently as last month in blocking Republicans’ weak police reform bill), but ultimately, that probably won’t matter. In fact, Senate insiders contacted for this article confirmed that filibuster reform is already “hot right now” in Democratic thinking, and that forward-thinking leaders are already “moving” behind the scenes.
After securing a reform law and creating a more level and democratic playing field, Democrats can then focus on returning some of the Constitutional birthright of power back to other branches of government. Three areas in particular stand out.
A central, constitutionally-granted congressional check on the executive branch that is in dire need of a refresh is the power of oversight. Stonewalling by Trump administration officials has gone essentially unpunished because the three options open to Congress to stop it are all fatally flawed. Criminal contempt relies on the Attorney General pursuing a prosecution – and good luck with that under most Attorneys General, let alone William Barr. Civil contempt takes years to wind through the courts, as the ongoing litigation intended to compel testimony by former White House counsel Don McGahn shows. And inherent contempt requires the congress to send a sergeant at arms to arrest someone and lock them in a room in the Capitol basement (yes, that is real). The politics of that maneuver make it unpalatable at best.
But congress has the ability to expand its power here in a durable way with a President Biden on board. For one thing, Congress should make the Department of Justice an independent agency, like the Federal Reserve Board or the Federal Communications Commission. This would not only provide some protection against another William Barr – who has demonstrated that a sufficiently corrupt figure in his position can turn major functions of the DOJ into an arm of the president’s campaign – but it would also strengthen Congress’ ability to deliver criminal contempt citations with teeth. And if they want to sharpen those teeth further, they can strengthen the fines and the potential jail time for those found guilty of contempt, and set up specific standards for the DOJ to rapidly review and assign contempt citations to prosecutors. In short, Congress can give itself all the tools it needs to provide real oversight.
It can also fully reclaim the “power of the purse” which Congress has dithered and deadlocked away. Under the 1974 Congressional Budget Act, both chambers of congress are supposed to pass a budget resolution to set a framework for overall spending, and then pass a dozen separate appropriations bills that actually give detailed amounts and instructions for each program and action that federal agencies want to undertake.
But in most of the years since the Tea Party wave of 2010 (and even in many before that), Congress could never agree on a budget resolution, even under unified Republican control, and it got so far behind on individual appropriations bills that it rolled most or all of them together into an “omnibus.” Frequently unable to pass anything at all, Congress resorted to “continuing resolutions” to keep government funding flowing on autopilot, sometimes for a full year. These have increasingly been driven by total collapses of the process that have led to government shutdowns every two years, on average. These budget meltdowns have handed much more leverage to the executive to determine how our dollars are spent, which is an enormous source of power.
A President Biden could do some things around the edges to incentivize getting the process back on track, but most of the repair work here has to come from within Congress. One thing they should try is restoring earmarks – funding specifically directed by congress, usually to a project in a member’s state or district. Notorious cases of waste and stupidity in the 2000s led first to earmark reforms in 2007, and then finally to total abolition in 2011. But that only had the effect of giving more power to the executive branch. As even some conservative Republicans pointed out at the time, if Congress isn’t directing where tax dollars go within programs, an executive branch bureaucrat is. It is in many ways far more democratic and transparent to have more of our tax dollars directed by the people we actually vote for, and subject to televised debates on C-Span. And of course, the traditional political function of earmarks is to give members of congress in both parties a vested interest in passing appropriations bills, since they usually have something riding on it back home. Returning that grease to the wheels would help get Congress moving on exercising its spending authority again.
The third area involves the third branch: the judiciary. Presidents have accumulated far too much power via their ability to appoint judges to the federal courts (the judicial appointment process has also had a pernicious feedback effect on our underlying political condition: Republicans who at baseline rely almost exclusively on mobilizing their base to win elections also have a base that is much more attuned to judicial appointments, which feeds back into incentivizing Republican senators to take a hard line on the most extreme judiciary possible).
Trump is a perfect example – he has been able to fundamentally alter the balance of power in the courts in a way that will long outlast him. Among the 13 appellate courts, Trump has shifted Republican-appointed judges from holding 40 percent of the seats to an outright majority at 54 percent. Trump has also flipped 3 of those 13 courts to Republican-appointed majorities, meaning that 7 of the 13 Courts of Appeals are now controlled by jurists picked by the GOP. Comprehensive analyses have shown Trump judges to be much younger, far more partisan, less respecting of precedent and socially conservative than those of any other president. Former Trump advisor Steve Bannon called this group of Trump judges “a Kafkaesque nightmare” for the left, because “Donald Trump is going to be in their personal lives 10, 20 and 30 years from now.”
Congress can dilute this kind of disproportionate influence from any one president by expanding the number of slots on appellate courts, instituting judicial term limits, and creating staggered vacancies to give presidents an even number of appointments per term.
There are also many other smaller steps that Democrats could take. They could expand on the recent bipartisan law to dial back presidential war powers. They could limit presidential emergency powers, which Trump unlawfully abused to fund a border wall. And they could rein in the president’s ability to make recess appointments.
But at the heart of anything they do has to be a commitment and a vision from Joe Biden. While a complicated figure, George Washington did give our country the unalloyed and unparalleled gift of voluntarily limiting his own power by walking away from the presidency. Joe Biden now has a chance to renew that bequest. And, if the stars align, he may be the rare president who takes it.