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It’s Time to Enact Reforms to Curb Executive Branch Abuses

The Protecting our Democracy Act would help restore checks and balances in the federal government that have degraded.

  • Christine Todd Whitman
  • Preet Bharara
October 21, 2021

This piece was originally published in The Hill.

On September 21, members of the House of Representatives reintroduced the Protecting Our Democracy Act, a set of reforms to strengthen legal guardrails against self-dealing by government officials and reinforce protections for the rule of law. Its fixes would help restore checks and balances in the federal government that have degraded during the past several presidential administrations, most precipitously under former President Donald Trump. Fortifying these safeguards is essential to revitalizing and strengthening American democracy for future generations, and to ensuring that members of both parties adhere to its core ideas. Congress should pass the bill without delay.

One of the most important things the Protecting Our Democracy Act would do is create clear standards for enforcing the Constitution’s emoluments clauses. The Foreign Emoluments Clause requires Congress to consent to any federal government official receiving a benefit from a foreign government, while the Domestic Emoluments Clause prohibits the president from receiving any personal benefit from a U.S. state or local government.

These provisions have been in the Constitution since the Founding era, but there is no easy way to enforce them in most cases. The Protecting Our Democracy Act would establish a broad definition of the term “emolument” (including proceeds from commercial transactions), prohibit federal officials from receiving foreign emoluments of significant value without congressional consent, and establish a flat prohibition on the president receiving most domestic emoluments.

Stronger safeguards like these could have forestalled a number of scandals in recent decades. For instance, if such a system had been in place during the Trump administration, it would have enforced stronger separation between the president and his sprawling business interests — some of which regularly dealt with foreign governments and state officials looking to influence U.S. policy. These safeguards could also have prevented scandals involving members of Congress from both parties doing business or accepting significant travel and other gifts from foreign governments beyond what current law authorizes. By codifying the emoluments clauses, the bill can help ensure that government officials put the interests of the American people first over their own enrichment.

Another crucial set of reforms in the bill would establish guardrails to stave off political interference in law enforcement. The Protecting Our Democracy Act would shield agency inspectors general from political pressure. It would also codify and expand the longstanding executive branch practice of limiting who in the White House may contact the Department of Justice about specific law enforcement matters and require those communications to be logged. And, the bill requires transparency about certain controversial pardons, which would increase accountability and likely deter abuse of the pardon power.

These protections would have helped blunt the Trump administration’s attempts to interfere in sensitive Justice Department matters, including the president’s effort to enlist the department in overturning the result of the 2020 election. They could have also helped address troubling incidents in prior administrations, such as the George W. Bush administration’s drastic expansion of the number of political personnel permitted to contact the Department of Justice and politicized firings of U.S. attorneys, the ill-advised meeting between President Barack Obama’s Attorney General Loretta Lynch and former President Bill Clinton while the FBI was investigating Secretary of State Hillary Clinton’s use of a private email server, and President Clinton’s controversial pardons — including of his own brother.

To be sure, the Protecting Our Democracy Act doesn’t address every abuse of power or violation of the norms that uphold American democracy.

We studied these problems as co-chairs of the National Task Force on Rule of Law & Democracy, convened by the Brennan Center for Justice at NYU Law.

Another critical issue we identified is the vulnerability of government science to increasing political interference, which contributed greatly to the federal government’s flawed response to the COVID-19 pandemic. A separate bill, the Scientific Integrity Act, would create safeguards to ameliorate these problems. Of course, we also need broader federal democracy and ethics reforms such as those the House passed last March in H.R. 1, the For the People Act.

But the Protecting Our Democracy Act is a crucial piece of the puzzle. It would help restore the public’s trust in the executive branch, and in our government more broadly. By reining in abuses at the federal level, it would also send a strong message to states that transparency and ethical conduct must be cornerstones of democracy in the United States.

In the past, crises and scandals have forced us to assess what we need to do to make our system of government stronger and to institute reforms so that the abuses that have been committed never happen again. Now too is a time to act. The Protecting Our Democracy Act is a key step towards a more accountable government, and Congress should pass it now.

Preet Bharara is the former U.S. Attorney for the Southern District of New York. Christine Todd Whitman, president of the Whitman Strategy Group, was administrator of the Environmental Protection Agency and governor of New Jersey. Both are co-chairs of the National Task Force on Rule of Law and Democracy housed at the Brennan Center for Justice.