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Policy Solution

The Biden Administration’s Opportunity for Change

Published: January 19, 2021
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Getty/LightFieldStudios/Henryk Sadura/Bryan Bedder

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.