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In Novem­ber, Amer­ic­ans over­whelm­ingly elec­ted Joe Biden as the 46th pres­id­ent of the United States. His admin­is­tra­tion inher­its crisis on top of crisis from its prede­cessor: a demo­cracy in decline, a nation riven with deep divi­sion and racial injustice, and a public health crisis that has killed nearly 400,000 Amer­ic­ans and upen­ded the live­li­hoods of millions. Add to this a viol­ent insur­rec­tion of pro-Trump rioters at the Capitol, enflamed by Trump’s campaign of racist lies around a stolen elec­tion, and the chal­lenges facing the incom­ing admin­is­tra­tion could­n’t be more daunt­ing.

But great crises present great oppor­tun­it­ies for change.

In the first months of his admin­is­tra­tion, Pres­id­ent Biden should commit to bold policy reforms to revital­ize Amer­ican demo­cracy, begin to undo the epidemic of mass incar­cer­a­tion, return the pres­id­ency to its right­ful place in our consti­tu­tional order, and act to restore the trust of Black and brown communit­ies who have been treated with contempt. These solu­tions are among the neces­sary first steps the Biden admin­is­tra­tion can take to advance the ideal of a success­ful multiracial demo­cracy that repres­ents all Amer­ic­ans.

1. Repair and Strengthen Demo­cracy

Our demo­cracy urgently needs repair.

For years, it has been marked by declin­ing parti­cip­a­tion, a polit­ical system over­run with big money, and a tramp­ling of rules and norms that curb abuse. A commit­ment by millions of voters to our demo­cracy has begun to change that.

In 2020, despite the pandemic, we saw the highest voter turnout since 1900. This was achieved despite increas­ingly blatant voter suppres­sion efforts — usually target­ing communit­ies of color — combined with lies about voter fraud. Such rhet­oric culmin­ated in an ugly, unpre­ced­en­ted attempt to over­turn a pres­id­en­tial elec­tion result. At its heart, this bid tried to negate the votes of people of color.

Plainly, if we want to solve our nation’s prob­lems, we must fix our demo­cratic systems. And if we take seri­ously the need to address long­stand­ing systemic racism, we must make Amer­ican demo­cracy work for all.

We should start with the For the People Act (H.R. 1/S. 1) and the John Lewis Voting Rights Advance­ment Act, which would ensure that every eligible voter who wants to cast a ballot has the oppor­tun­ity to do so. The vote is the core of demo­cracy, and the reforms in these bills would expand and protect this most funda­mental right and bring voting into the 21st century.

The For the People Act (H.R. 1/S. 1)

The For the People Act, which has been rein­tro­duced in the House as H.R. 1 and will soon be in the Senate as S. 1, would be the most sweep­ing demo­cracy reform since the 1960s. It has several key provi­sions.

Auto­matic Voter Regis­tra­tion (AVR)

Nine­teen states and the District of Columbia have adop­ted this reform. The For the People Act would make it the law of the land. Today one in five eligible Amer­ic­ans is not registered to vote, due in many cases to old-fash­ioned voter regis­tra­tion systems. Fully imple­men­ted, auto­matic regis­tra­tion would modern­ize voting while adding up to 50 million eligible citizens to the rolls. Every eligible citizen who inter­acts with desig­nated govern­ment agen­cies — such as the Depart­ment of Motor Vehicles, a public univer­sity, or a social service agency — would be auto­mat­ic­ally registered unless they opt out. AVR cuts costs, increases the accur­acy of voter rolls, and bolsters secur­ity and accur­acy.

Small Donor Public Finan­cing

The For the People Act would lift the voices of ordin­ary citizens by estab­lish­ing a volun­tary system of match­ing funds for small contri­bu­tions, at no cost to taxpay­ers. It would mark the most signi­fic­ant response to the Supreme Court’s Citizens United decision and counter the over­whelm­ing influ­ence of private wealth in our demo­cracy. It would also help amplify the voices of Black and brown Amer­ic­ans, who are grossly under­rep­res­en­ted in the ranks of major donors and, in partic­u­lar, help close the fundrais­ing gap that exists for female candid­ates of color. Along with this crit­ical reform, the legis­la­tion would also over­haul the dysfunc­tional Federal Elec­tion Commis­sion and take other steps to fix our broken campaign finance system.

Ending Partisan Gerry­man­der­ing

The For the People Act would ban partisan gerry­man­der­ing for Congress and take other steps to make congres­sional redis­trict­ing more open and trans­par­ent. Every state would have to follow a uniform set of rules when draw­ing congres­sional districts, includ­ing enhanced protec­tions for racial, ethnic, and language minor­it­ies. No longer would the state polit­ical party in power control the redis­trict­ing process for their congres­sional districts. Instead, states would estab­lish inde­pend­ent redis­trict­ing commis­sions composed of an equal number of Demo­crats, Repub­lic­ans, and inde­pend­ents to draw new maps. And the days of map-draw­ing behind closed doors would be over in favor of an open and parti­cip­at­ory process where members of the public can attend public meet­ings, comment on maps, and access the under­ly­ing data and soft­ware used to draw district lines.

Ensur­ing Fair and Access­ible Elec­tions

The meas­ure would set uniform national stand­ards — based on long exper­i­ence in states — to make voting access­ible to all. A nation­wide minimum of 15 early-voting days, includ­ing week­ends, would make voting more conveni­ent and reduce lines at the polls while push­ing back against discrim­in­at­ory cuts some states have made to voting hours. It would ensure that all Amer­ic­ans have access to vote by mail and author­ize elec­tion offi­cials to begin count­ing those ballots before Elec­tion Day.

Restor­ing the Right to Vote

Restor­ing voting rights to all Amer­ic­ans with past crim­inal convic­tions upon release would elim­in­ate one of the most power­ful vestiges of Jim Crow. It would also fix a troub­ling recent court ruling that allowed the Flor­ida Legis­lature to disen­fran­chise more than 775,000 return­ing citizens unless they pay off legal finan­cial oblig­a­tions they cannot afford, effect­ively acting as a poll tax.

The John Lewis Voting Rights Advance­ment Act

The Voting Rights Act of 1965 was long the nation’s most effect­ive civil rights law. But the Supreme Court gutted it in 2013 with its ruling in Shelby County v. Holder. In the absence of a strong Voting Rights Act, recent elec­tions have been marred by the most brazen and racially discrim­in­at­ory efforts to suppress the vote in decades.

The John Lewis Voting Rights Advance­ment Act would strengthen and modern­ize the Voting Rights Act and ensure that its strong provi­sions would apply to voters across the coun­try. It would again give the Justice Depart­ment and courts the power to block states and local­it­ies from taking racially discrim­in­at­ory steps to curb voting rights.

2. Reform the Crim­inal Justice System

The United States has less than 5 percent of the world’s total popu­la­tion but nearly 20 percent of its prison popu­la­tion. Mass incar­cer­a­tion has crush­ing consequences — racial, social, and economic. It rein­forces inequal­ity across soci­ety. It is perhaps the great racial justice crisis of our time.

Over the last decade, govern­ment at all levels has acknow­ledged that crim­inal justice reform is desper­ately needed. Mass incar­cer­a­tion is not only unne­ces­sary to keep crime down, but it is inef­fect­ive in produ­cing public safety and destroys the lives of indi­vidu­als and their famil­ies. Now we have a chance to make signi­fic­ant progress and address how, and for whom, the crim­inal justice system really oper­ates.

Most crim­inal justice policy is made in cities and states. And although local jails and state pris­ons account for 91 percent of the nation’s incar­cer­ated popu­la­tion, the federal govern­ment can lead in two primary ways: by using federal fund­ing to support state and local efforts to curb our reli­ance on incar­cer­a­tion and by cham­pi­on­ing new laws and policies at the federal level that can make our crim­inal legal systems less punit­ive. Congress and the pres­id­ent should commit to signi­fic­ant crim­inal justice reform as a key early prior­ity.

Reverse Mass Incar­cer­a­tion Act

Federal funds provide power­ful incent­ives for states to act — wisely or unwisely. For years, federal budget dollars incentiv­ized states to build more pris­ons and incar­cer­ate more people. Federal funds were an influ­en­tial if often hidden driver of mass incar­cer­a­tion.

Those same federal funds can help spur posit­ive change.

Biden has proposed a $20 billion compet­it­ive grant program to spur states to shift from incar­cer­a­tion to preven­tion. This is based on a 2015 proposal craf­ted by the Bren­nan Center. Biden has prom­ised that “states, counties, and cities will receive fund­ing to invest in efforts proven to reduce crime and incar­cer­a­tion, includ­ing efforts to address some of the factors like illit­er­acy and child abuse that are correl­ated with incar­cer­a­tion. In order to receive this fund­ing, states will have to elim­in­ate mandat­ory minim­ums for non-viol­ent crimes, insti­tute earned credit programs, and take other steps to reduce incar­cer­a­tion rates without impact­ing public safety.”

Strive Toward Ensur­ing More Account­ab­il­ity in Poli­cing

Although Amer­ican poli­cing has always been primar­ily a local concern, with approx­im­ately 18,000 law enforce­ment agen­cies nation­wide respons­ible for their own policies and prac­tices, the federal govern­ment is well posi­tioned to encour­age and even require action by states and local govern­ments.

By cham­pi­on­ing national use-of-force stand­ards, strength­en­ing police account­ab­il­ity mech­an­isms, and support­ing community-led public safety strategies, we can begin to redefine how communit­ies inter­act with the police. The George Floyd Justice in Poli­cing Act, which was intro­duced last Congress, offers some crit­ical oppor­tun­it­ies for reform on choke­holds, racial profil­ing, and the Justice Depart­ment’s pattern-or-prac­tice invest­ig­a­tions of police depart­ments and should be rein­tro­duced and passed imme­di­ately this Congress.

But even without congres­sional action, the Justice Depart­ment should resume pattern-or-prac­tice invest­ig­a­tions that focus on systemic prob­lem­atic beha­vior by certain police depart­ments and should support legis­la­tion that would provide subpoena power for such invest­ig­a­tions.

Specific­ally, the Biden admin­is­tra­tion should rescind the guid­ance issued by former attor­ney general Jeff Sessions that has curtailed pattern-or-prac­tice invest­ig­a­tions and direct the Justice Depart­ment to engage in robust enforce­ment, includ­ing of exist­ing consent decrees. The Justice Depart­ment should resume previ­ous efforts under­taken by its Collab­or­at­ive Reform Initi­at­ive to encour­age and support police reform at the local level — whether to address racial bias, reform use-of-force policies, or improve police depart­ments’ rela­tion­ships with their communit­ies.

Senten­cing and Prison Over­sight

Although states have tradi­tion­ally led on senten­cing reform, Congress should learn from its successes and support expans­ive federal drug law reform to signi­fic­antly reduce the federal prison popu­la­tion. The new admin­is­tra­tion should encour­age Congress to repeal mandat­ory minimum sentences for drug offenses, return­ing discre­tion to judges who are best placed to determ­ine an appro­pri­ate sentence based on the circum­stances of a partic­u­lar case. Congress should elim­in­ate senten­cing dispar­it­ies for crack and powder cocaine. These dispar­it­ies are based on outdated and incor­rect under­stand­ings of the connec­tion between drug use and other offenses and have had racially dispar­ate impacts that under­mine community trust in police.

The new admin­is­tra­tion can also play a greater role in reima­gin­ing incar­cer­a­tion itself by work­ing with Congress to signi­fic­antly limit the use of solit­ary confine­ment, improve access to educa­tion, and enact compre­hens­ive over­sight of federal pris­ons to ensure that incar­cer­ated people are treated with human­ity and dignity.

Ending mass incar­cer­a­tion and reform­ing the Amer­ican crim­inal justice system should be a defin­ing legacy of the Biden admin­is­tra­tion.

3. Curb Exec­ut­ive Abuse

A half century ago, in the wake of Water­gate and Viet­nam, laws and rules aimed to check the “Imper­ial Pres­id­ency.” Over the decades since, those limits have eroded. Pres­id­ent Trump insisted the Consti­tu­tion gave him “the right to do whatever I want,” and the result was a viol­ent shat­ter­ing of the norms that hold our demo­cracy together, culmin­at­ing in the attack on the Capitol.

Now our demo­cracy is at a cross­roads, and it’s crit­ical that we revital­ize the Consti­tu­tion’s system of checks and balances and restore the pres­id­ency to its proper consti­tu­tional role before another pres­id­ent takes advant­age. Congress can do this by passing the Protect­ing Our Demo­cracy Act, and the Biden admin­is­tra­tion can do its part by issu­ing a series of exec­ut­ive actions limit­ing the pres­id­ent’s poten­tial for abuse.

Protect­ing Our Demo­cracy Act

It’s crit­ical that Congress restore the basic guard­rails our demo­cracy depends on and prevent exec­ut­ive abuse of power.

The Protect­ing Our Demo­cracy Act would begin the neces­sary shor­ing up of insti­tu­tional checks against pres­id­en­tial over­reach and abuse, and it would take signi­fic­ant steps toward restor­ing the proper balance of power between the pres­id­ent and Congress, partic­u­larly when it comes to the pres­id­ent’s exer­cise of emer­gency powers. Put simply, the legis­la­tion will help ensure our demo­cracy func­tions prop­erly.

Many provi­sions of the Protect­ing Our Demo­cracy Act draw on propos­als cham­pioned by the Bren­nan Center’s National Task Force on Rule of Law and Demo­cracy, a group of former govern­ment offi­cials that includes both Repub­lic­ans and Demo­crats, which published a compre­hens­ive agenda to combat exec­ut­ive abuse. These propos­als include:

  • Codi­fy­ing stand­ards for commu­nic­a­tions between the White House and the Depart­ment of Justice to deter the politi­ciz­a­tion of federal law enforce­ment
  • Ensur­ing trans­par­ency for contro­ver­sial acts of clem­ency
  • Deter­ring self-pardons
  • Estab­lish­ing stand­ards and proced­ures for enfor­cing the Emolu­ments Clauses of the Consti­tu­tion that prohibit pres­id­en­tial self-deal­ing
  • Clos­ing loop­holes in the Federal Vacan­cies Reform Act to stop inap­pro­pri­ate appoint­ments of acting offi­cials and disal­low acting offi­cials to under­mine the Senate’s consti­tu­tional role
  • Protect­ing whis­tleblowers who report censor­ship of govern­ment scientific research
  • Protect­ing our elec­tions from foreign inter­fer­ence.

The bill contains other import­ant reforms, includ­ing amend­ing the National Emer­gen­cies Act to bolster Congress’s role as a check against abuse and requir­ing the pres­id­ent to disclose secret emer­gency direct­ives to Congress.

Emer­gency Powers Reform

The Trump admin­is­tra­tion brought into sharp relief the dangers of unchecked emer­gency powers. The National Emer­gen­cies Act gives pres­id­ents near-abso­lute discre­tion to declare emer­gen­cies, which in turn gives them access to dozens of extraordin­ary author­it­ies. The only way Congress can prevent abuse of those powers is to enact a law by a veto-proof super­ma­jor­ity. Trump exploited this state of affairs when he declared a nonex­ist­ent national emer­gency to secure fund­ing for a border wall against the express will of Congress.

In response, Congress must pass legis­la­tion to bolster its role as a check against abuse of emer­gency powers by future pres­id­ents. The Article One Act, a bill with broad bipar­tisan support, would do just that by putting a 30-day limit on pres­id­en­tially declared emer­gen­cies absent approval by Congress. Versions of the Article One Act have been incor­por­ated into two major Demo­cratic reform pack­ages: the Protect­ing Our Demo­cracy Act and the Congres­sional Power of the Purse Act.

Action is also needed to address the most secret­ive of emer­gency powers: pres­id­en­tial emer­gency action docu­ments. These are pres­id­en­tial direct­ives draf­ted in anti­cip­a­tion of a broad range of worst-case scen­arios, ready for the pres­id­ent’s signa­ture if one of those scen­arios were to come to pass. They are not shared with Congress, despite the fact that even the most highly sens­it­ive covert milit­ary and intel­li­gence oper­a­tions must by law be shared with the bipar­tisan group of House and Senate lead­ers who make up the “Gang of Eight.” Although none of these docu­ments has ever been released or leaked, offi­cial records from the 1960s and 1970s indic­ate that docu­ments from that era purpor­ted to author­ize martial law, pres­id­en­tial suspen­sion of habeas corpus, warrant­less searches of prop­erty, censor­ship of the press, and the roundup and deten­tion of so-called “subvers­ives.”

No pres­id­en­tial power of this magnitude should ever exist without any over­sight from the other branches of govern­ment. The Reign Act embod­ies a simple, common­sense solu­tion: it would require the pres­id­ent to disclose pres­id­en­tial emer­gency action docu­ments to the relev­ant commit­tees of Congress. A version of this bill was incor­por­ated into the Protect­ing Our Demo­cracy Act.

Exec­ut­ive Actions

The coronavirus pandemic has urgently under­scored the need for a federal govern­ment that can focus on the public interest, is staffed by qual­i­fied profes­sion­als, and values expert­ise. As we’ve seen, Trump’s failed “response” has cost hundreds of thou­sands of lives and has put the nation’s recov­ery at risk.

But the lead­er­ship fail­ure and corrup­tion run much deeper.

During the Trump admin­is­tra­tion, federal offi­cials have increas­ingly abused their power by using law enforce­ment for polit­ical purposes, lever­aged their posi­tions for finan­cial gain, under­mined the role of object­ive science and research in poli­cy­mak­ing, and appoin­ted unqual­i­fied candid­ates to key govern­ment posts. Legis­la­tion, such as the Protect­ing Our Demo­cracy Act, is undoubtedly needed, but Biden does­n’t need to wait to begin fixing the system.

To rebuild the guard­rails that prevent the abuse of exec­ut­ive power, the pres­id­ent should issue orders and direct­ives focus­ing on five areas:

  • Prevent­ing improper polit­ical inter­fer­ence in law enforce­ment
  • Strength­en­ing ethics and conflict-of-interest rules as well as requir­ing trans­par­ency for campaign spend­ing
  • Support­ing the integ­rity of science and research in poli­cy­mak­ing
  • Promot­ing the appoint­ment of qual­i­fied exec­ut­ive branch offi­cials
  • Respect­ing Congress’s role as a coequal branch of govern­ment.

As recent abuses show, the unwrit­ten norms of conduct that previ­ously ensured integ­rity in govern­ment can too easily be jettisoned. Formal writ­ten rules are needed. The Bren­nan Center has proposed 22 exec­ut­ive actions — exec­ut­ive orders, memor­anda, and other direct­ives — that would restore the integ­rity of govern­ment and strengthen our demo­cracy. The complete list is detailed in our report, Exec­ut­ive Actions to Restore Integ­rity and Account­ab­il­ity in Govern­ment.

4. Fight White Suprem­acy

Racial and reli­gious minor­it­ies have for too long been scape­goated as secur­ity threats. Discrim­in­at­ory stereo­types pervade the Muslim ban, which star­ted as a ban on the citizens of seven predom­in­antly Muslim coun­tries. It now prevents more than half a billion people, includ­ing a quarter of Africa’s popu­la­tion, from coming to the United States on equal terms with people from other nations. The Biden admin­is­tra­tion reportedly plans to termin­ate the Muslim ban on day one, but there is much more the admin­is­tra­tion can do to fight white suprem­acy in our govern­ment and soci­ety.

End Racial and Reli­gious Discrim­in­a­tion

In addi­tion to scrap­ping the ban, the new admin­is­tra­tion should work with Congress to enact the No Ban Act, which passed the House with bipar­tisan support last July. The bill over­turns the restric­tions on people from major­ity-Muslim and African coun­tries enter­ing the United States. The legis­la­tion also guards against future abuse of Section 212(f) of the Immig­ra­tion and Nation­al­ity Act, the law the Trump admin­is­tra­tion invoked as author­ity for the bans and a host of other sweep­ing immig­ra­tion restric­tions.

Biden should also urge Congress to quickly pass the End Racial and Reli­gious Profil­ing Act. The bill would prohibit profil­ing “to any degree” of “actual or perceived race, ethni­city, national origin, reli­gion, gender, gender iden­tity, or sexual orient­a­tion” for invest­ig­at­ory or enforce­ment activ­it­ies.

It would signal the communit­ies who at the receiv­ing end of Trump’s racist policies and rhet­oric that law enforce­ment will treat them with profes­sion­al­ism and respect. Pending legis­la­tion, the pres­id­ent should direct the FBI and the Depart­ment of Home­land Secur­ity to close the loop­holes in their racial profil­ing guid­ance that enable profil­ing based on race, reli­gion, nation­al­ity, and other protec­ted char­ac­ter­ist­ics in far too many cases.

Mount an Effect­ive Response Against Far-Right Viol­ence

The Biden admin­is­tra­tion, however, does­n’t just need to protect racial and reli­gious minor­it­ies from law enforce­ment. These communit­ies have also been the victims of an accel­er­at­ing trend of far-right viol­ence, encour­aged by federal and state offi­cials. This must stop.

As a first step, the Biden admin­is­tra­tion should direct the Depart­ment of Justice and the FBI to exped­i­tiously collect and publish inform­a­tion on white suprem­acist and far-right viol­ence and develop a strategy for address­ing this threat as a matter of prior­ity, as required by the latest National Defense Author­iz­a­tion Act for Fiscal Year 2020.

Using the data collec­ted, the Depart­ment of Justice and FBI should develop a national strategy that focuses invest­ig­at­ive and prosec­utorial resources on address­ing white suprem­acist and far-right milit­ant viol­ence, partic­u­larly in local­it­ies where local law enforce­ment is fail­ing to adequately address these crimes. Part of that national strategy should focus on identi­fy­ing law enforce­ment officers who engage in racist miscon­duct or actively collab­or­ate with white suprem­acist groups and far-right mili­tias.

The Justice Depart­ment has long acknow­ledged the unfor­tu­nate truth that white suprem­acy and far-right milit­ancy remain a persist­ent prob­lem in law enforce­ment, a real­ity that was driven home starkly by the parti­cip­a­tion of current and former law enforce­ment offi­cials in the Janu­ary 6 attack on the Capitol. The national strategy should instruct FBI agents invest­ig­at­ing domestic terror­ism and civil rights to pursue crim­inal cases in which law enforce­ment officers are alleged to have engaged in racist miscon­duct or collab­or­a­tion with white suprem­acist and far-right milit­ant groups. Once iden­ti­fied, the Justice Depart­ment should place these officers on Brady lists and encour­age state and local prosec­utors to do the same, so that defend­ants in crim­inal trials have access to inform­a­tion to impeach these officers’ testi­mony.

At the same time, the admin­is­tra­tion should also reject coun­terter­ror­ism-based approaches that are not suppor­ted by empir­ical evid­ence and create risks for communit­ies of color, such as propos­als to create a new crime of domestic terror­ism and the Depart­ment of Home­land Secur­ity’s Coun­ter­ing Viol­ent Extrem­ism and Targeted Viol­ence and Terror­ism Preven­tion programs.