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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.