Planning For Post-Trump Reforms
This paper examines what might be done to reestablish and solidify American liberal democracy and our system of checks and balances if Trump is defeated in November.
The tools for reform are:
- Constitutional amendment
- New Legislation
- Presidential executive action
- New interpretation or resuscitation of existing congressional power
- Reassertion of norms or declaration of new norms
- Efforts to affect public opinion
Problem #1 – Attacks on oversight
Possible Solutions – Strengthen laws for disclosure of materials and witness testimony, with specific instances and time limits, expedited review by SCOTUS in executive disputes, Congress declare intention to use Sergeant at Arms and imprisonment for witnesses who do not obey subpoena.
Problem #2 – Attacks on fair electoral processes
Possible solutions – New legislation detailing forbidden foreign interference acts with stronger penalties, rewards for whistle-blowers, penalties up to decertification of election. Federal standardization by constitutional amendment of state laws on gerrymandering, voter role purging, voting methods. Reinstate pre-clearance in Voting Rights Act, reform Federal Elections Commission. Increase sanctions for election violations by officials.
Problem #3 – Abusive extension of presidential powers
Possible solutions – Many measures are suggested, including constitutional amendment requiring Speaker of House co-signature for pardons; requiring IG firings be for cause; time limits for “active” status; legislation to protect judges from intimidation; specific legislation forbidding nepotism; putting teeth into the Hatch Act; and a constitutional amendment prescribing penalties for crimes against humanity and genocide. Invention is also called for to produce presidential sanctions north of censure but south of impeachment. This problem is so important that major efforts in public education and a high-level commission should be considered.
Problem #4 – Department of Justice has come under complete control of President
Possible solutions – DOJ's norm for independence and protection of the constitution should be regularized by law, perhaps constitutional amendment, making it quasi-independent. The 1973 decision that a President cannot be indicted should be reversed. A special commission would probably be warranted.
Problem #5 – Corruption and conflicts of interest are rife
Possible solutions – Very specific new laws are required, compelling submission of tax returns and financial statements, spelling out the details of forbidden emoluments, and ethics offices need to be strengthened and reorganized to represent both legislative and executive branches with much stronger investigative abilities.
Problem #6 – Extensive inattention and incompetence in directing basic governmental functions
Possible solutions – Transparency is the key. Reports need to be full from departments to congress, and response of congress needs to be public as well. Science based agencies might have senior semi-independent science boards to enforce that science not be compromised.
Problem #7 – A coarse, mendacious, thuggish, racist, cynical and dictatorial demeanor and tone
Possible solutions – Make the Trump experience an educational opportunity to highlight the difference of democracy and autocracy, and the characteristics of a demagogue, while continuing to explore publicly the basis for the obvious resentments harbored by Trump supporters.
Problem #8 – Population of the United States widely ignorant of governmental processes and concepts
Possible solutions – Epic educational efforts required, with mandatory civics classes for three years in middle and high school, funded by federal government.
The Realities of Reform
The closest precedent for the Trump administration is probably Watergate. The strength of the Watergate reforms was their thoughtful changes of procedures and laws that have been lasting, and the fact that the perpetrators, except for President Nixon, received penalties of justice that included prison sentences. By contrast, Iran-Contra perpetrators received pardons that short-circuited the course of justice, and those transgressions have receded into memory with few consequences. Pursuing reforms with vigor, and allowing justice to take its course unimpeded, is certainly indicated, and would be more important than the risk associated with a precedent for persecuting the party out of power. We would be lucky if the post-Trump reforms were as significant as the Watergate reforms.
The longer article is here.