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Why We Need to Protect the Rule of Law in the Federal Government

“We need to do more than just restore the norms that were unwritten before. We need to actually codify them and give them the force of law.”

There has been a growing awareness in recent years of the critical role of checks and balances to prevent abuses of power, especially by the executive branch. This is the focus of two volumes of recommendations put forward by the Brennan Center’s bipartisan National Task Force on the Rule of Law & Democracy. The Brennan Center’s Martha Kinsella and Daniel I. Weiner spoke with Tim Lau about the ongoing efforts to restore government ethics and the rule of law, including recent federal legislation such as the Protecting our Democracy Act, which includes several key task force recommendations. 

In the United States, there’s an important conversation happening about the rule of law, government ethics, and preventing abuses of power, especially by the executive branch. What’s the context behind that conversation?

Martha Kinsella: There has been an erosion of norms, unwritten rules, and practices in a variety of different areas of government, including at the Department of Justice. This predates the Trump administration. There were abuses before, such as Watergate and the U.S. attorney firing scandal during the George W. Bush administration. But there has been a marked acceleration in the number and the magnitude of abuses during the current administration. To address this situation, we need to do more than just restore the norms that were unwritten before. We need to actually codify them — really give them the force of law — across many different areas, from rule of law, to ethics, to the personnel process, to the role of science in government policymaking.

Daniel I. Weiner: I think that’s right. For virtually every abuse of power you see, there’s some antecedent from prior administrations. We’ve had administrations that have bent science to serve their political goals, had prior administrations where there were ethics issues — both Democratic and Republican. But under the Trump administration, it feels like everything has amped up exponentially, to the point where the integrity of our democracy is in question. That’s why abstract commitments to go back to unwritten rules aren’t enough, because the unwritten rules themselves weren’t enough. That’s the impetus for saying that some of this stuff really does need to be codified. 

I moderated an event yesterday, with the co-chairs of the Brennan Center’s bipartisan National Task Force on Rule of Law & Democracy, former U.S. Attorney Preet Bharara and former New Jersey Governor and EPA Administrator Christine Todd Whitman, task force member and former Solicitor General Don Verrilli, and Associate Director-Counsel of the NAACP Legal Defense and Educational Fund Janai Nelson, about the current state of the rule of law in this country. It was a fascinating and very timely conversation, and I encourage people to check it out.

Why are there are so many loopholes in the highest levels of government when it comes to ethics and transparency rules? 

Kinsella: A couple of things come to mind. With respect to ethics, for instance, there was a wave of reforms after Watergate. Now, 40 to 45 years later, we’re starting to see some of the gaps in that legislation, which is to be expected over such a long period. There were things that weren’t foreseen at the time — for instance, changes in the way that people hold wealth and in the types of financial instruments that they use (LLCs, etc.). They weren’t necessarily covered by Watergate-era ethics laws.

When it comes to the politicization of science, the scientific apparatus of the United States government really emerged during World War II. And at the time, I think people didn’t really think about the potential for politicization or the need for safeguards. But those assumptions have really been challenged. There have been more and more political attacks over the years, which have accelerated during the Trump administration. And the need for more robust protections has become clear.

Weiner:  It’s not that prior administrations were pristine, but there might have been more of a reasonable expectation that they could be held electorally accountable. For example, Watergate led to a devastating midterm election in 1974 for the Republicans. They got abandoned by vast swaths of their constituency because people were disgusted.  

We live a much more polarized time.  On the one hand, these sorts of abuses of power genuinely make people cynical and angry about government. It feels like there’s one standard for the powerful and another for everyone else. At the same time, I think it’s harder today for people to dislodge from their partisan identities. So you’re less likely to see an electoral backlash to wrongdoing on the scale of the one that followed Watergate, particularly with people having so many more options in terms of the media they consume. But that doesn’t mean voters are indifferent to these issues. They are just hungry for more systemic change, as we see in poll after poll.

What is the role of law enforcement when it comes to the rule of law? How has that been affected by the Trump administration’s engagement with the Justice Department?

Kinsella: It’s important to talk about the rule of law and evenhanded administration of justice and what it means when the president or other members of the administration are putting their thumb on the scale, directing prosecutions or directing people at the Department of Justice to not take certain actions in prosecutions and investigations. We’ve seen a lot of political interference in high-profile DOJ matters during the Trump administration — the Roger Stone case, Michael Flynn, to say nothing of White House attempts to shut down the Mueller investigation. Efforts such as these have subverted the independence of the Department of Justice from political interference. 

It’s also important to discuss these issues — rule of law and the evenhanded administration of the law — with a racial justice lens, particularly when the president and members of his administration appear to be downplaying the threat of white supremacists while playing up that of left-wing groups like antifa. Police brutality against predominantly Black and brown people, as well as the deployment of federal law enforcement to quash protests against racial injustice, are basically instances of lawlessness dressed up as efforts to promote “law and order.”

Weiner:  These are really issues that go to the heart of our democracy, including in a very literal sense, where the president is simultaneously threatening to send “sheriffs and U.S. attorneys” to the polls while also encouraging vigilantism targeting voters. Respect for the rule of law directly impacts the integrity of our democracy. It is a condition precedent for conducting free and fair elections. Fortunately, the president doesn’t actually have the power he claims. As Michael Waldman and Wendy Weiser pointed out in Politico, states run elections, and the overwhelming majority of state election officials are dedicated public servants. Still,  to have the nation’s chief law enforcement officer behaving this way is understandably very unsettling for people — and, frankly, infuriating.

House Democrats recently introduced the Protecting Our Democracy Act (H.R. 8363), a bill that addresses ethics and rule of law in the federal government. What role does this legislation play within broader democracy reform efforts, such as the For the People Act (H.R. 1)?

Weiner: I think that they are different pieces of the same puzzle. The Protecting Our Democracy Act, for example, is best understood as restoring and codifying some of the basic protections that, frankly, most Americans probably thought were already in the law — for example, that the president should not be interfering with criminal prosecutions or selling pardons, and that an administration can’t simply ignore a subpoena when Congress needs to conduct legitimate oversight. 

H.R. 1 represents a more ambitious, although still very popular and politically achievable, effort to repair some of the bigger structural problems with our democracy, such as the inaccessibility of voting rights and the dominance of big money in politics. A third critical piece is the Voting Rights Advancement Act (H.R. 4), which would restore and renew the full protections of the Voting Rights Act of 1965 that were gutted by the Supreme Court in its Shelby County decision.

Kinsella: H.R. 1, H.R. 4, and the Protecting Our Democracy Act are intertwined and somewhat mutually reinforcing. You need H.R. 1, for example, to make sure that people are able to express their preference at the polls and that candidates who represent interests of voters, rather than the interests of moneyed donors, are able to succeed in our electoral process. Then, for example, once the president is in office and appointing people to run the executive branch, accountability measures are needed to ensure that the executive branch can’t erode our democracy. 

What would it take to enforce ethics and rule-of-law safeguards if they are enacted?

Weiner: That’s a great question! A lot of the protections outlined in H.R. 1 would be enforced either by the Department of Justice (working through the courts) or the Federal Election Commission. And so the Protecting Our Democracy Act, along with H.R. 1 itself, is really important in part because it reinforces the independence of the Department of Justice, which is going to be entrusted with some of these new federal voting rights protections (H.R.1 also contains a much-needed overhaul of the FEC that incorporates key Brennan Center recommendations).

Obviously, the courts are also very important, which is why it’s very hard to have this discussion without also talking about the Supreme Court battle.

I want to emphasize that under the Court’s current jurisprudence — even if Amy Coney Barrett is confirmed — I can’t think of a single provision of H.R. 1 that shouldn’t be upheld, even under a very originalist or restricted jurisprudence. But the Court is also supposed to be a critical accountability mechanism — it not only rules on the constitutionality of various safeguards but also enforce them. So the future of our democracy is going to depend on having a Court that understands protecting democracy as one if its core missions. That is something that we should consider as we think about confirming a new justice.

Ultimately, paper rules are not enough. They have to be embedded in a culture that actually values the rule of law and is committed to rigorous, evenhanded enforcement. But you can’t build that culture until the law reflects what our values actually are. So, the law partly functions as a stick, but also partly as a way of expressing society’s expectations. And I think that’s an important thing, particularly when it comes to the president. These rules express our collective understanding of how the president should be held accountable. 

What’s the connection between scientific integrity and the rule of law?

Kinsella: When it comes to scientific integrity — respect for the role of independent, nonpartisan scientific expertise in government policymaking — we have really seen a collapse of the rule of law.

Science-based policymaking is not optional; in many cases, it is a legal requirement. So when the administration privileges the views of scientists (or even nonscientists) who support their political goals and cuts out longstanding experts, or picks outside companies to collect coronavirus data without going through the standard contract procurement process, it is directly undermining core safeguards designed to protect the public welfare. 

This has been happening for a long time, but it’s really reached a crisis point during this administration, with the subversion of many longstanding processes that are supposed to result in reasoned, science-based policy decisions. Often this is to politically advantage the administration or interests aligned with it.

All of this has been front and center during the pandemic, with censorship of research and data coming out of the Centers for Disease Control and Prevention because someone thought it made the president look bad,  efforts to subvert the U.S. Food and Drug Administration’s approval process, bullying of leading scientists, and many other abuses. And this is part of a long pattern. There has been censorship of government research, for instance, on the issue of climate change, as part of a concerted effort to roll back so many regulations that protect the environment and public health and replace them with new regulations that really are contrary to both the science and regulatory agencies’ statutory missions.

Another dimension here is the personnel process. The appointment of qualified, ethical people plays an essential role in upholding the rule of law, including adherence to science-based policymaking requirements. Appointing EPA officials who have spent their careers sowing doubts about the science at the heart of the agency’s mission sums up what the problem is.