By Preet Bharara and Christine Todd Whitman
January 29, 2018
One year into the Trump presidency, it’s clear that the norms and boundaries traditionally guiding American political behavior have deeply eroded. That matters greatly. A workable democracy can thrive only when there are basic rules, often unwritten, that curb abuse and guide policymakers. Though the two of us are from different political parties, we both believe that now is the time to ensure the president and all our public officials adhere to basic rules of the road. It’s time to turn soft norms into hard law.
So far, President Trump has refused to divorce himself from his business interests, despite decades of tradition. He has repeatedly tried to influence federal criminal investigations. Policymaking processes have become haphazard. And we now see worrisome attacks on the independent press. All this shows just how easily a chief executive can ignore the unwritten rules that typically constrain presidents. We see similar erosion elsewhere in government, too. For example, a major tax bill, affecting the whole economy, enacted with no committee hearings.
Trump is extreme, but he is not the first president to breach core constitutional norms. Our system relies on checks and balances, constitutional commands that are implicit in our founding document but often not spelled out with specificity. Everyone in the political process must act as if limited by invisible guardrails to avoid abuse of power. But at moments of stress or executive impudence, what was assumed to be a solid restriction on improper conduct turns out to be flimsy, relying too much on goodwill or unspoken understandings. When that happens, reform often follows scandal and controversy.
Today, we’re launching an independent democracy task force at the Brennan Center for Justice at New York University’s School of Law to holistically review these informal rules, which ones should remain guidelines, and perhaps which ones should be enshrined into law. We’ll examine norms surrounding financial conflicts, political interference with law enforcement, the use of government data and science, the appointment of public officials and any other issues that may arise in the coming months. We will be joined by experts and former officials from both parties. The goal is to issue a set of recommendations, policies that can be enacted that mend the gaps in our system and ensure we have a government that functions ably, competently and with the trust of the American people.
That’s how Americans have responded in other instances when norms have been breached. For example, George Washington’s decision to limit himself to two terms seemed like as solid a precedent as ever existed in American political life. Then Franklin D. Roosevelt ran for and won a third and then a fourth term, and we amended the Constitution to enshrine the two-term norm. After John F. Kennedy appointed his brother to lead the Justice Department, Congress passed an anti-nepotism law.
Richard Nixon’s many abuses, of course, led to a wide array of new laws, ranging from the special prosecutor law (now expired), to the Budget and Impoundment Control Act and the War Powers Act. Some of these were enacted after he left office. But others, such as the federal campaign finance law, were passed while he was still serving, with broad bipartisan support, over his veto.
So it’s not too early to begin mapping out needed change. The longer we wait, the more damage our system will sustain. Public confidence in our institutions is plummeting, and with an ever-quickening news cycle that turns on every tweet, we have to take on these challenges in short order.
Of course, we undertake this effort in a hyperpolarized and partisan political environment. But we believe, perhaps with more idealism than is merited, that there is a strong underlying consensus in both parties around these norms. There is ample precedent for bipartisan majorities to strengthen institutions in the wake of scandal, controversy or abuse. It’s also why we’re recruiting task force members from inside and outside government, Republicans and Democrats and independents, to join us.
Already some leaders — at least outside Washington — are having these conversations. Legislators in Massachusetts and California have proposed bills that would require the disclosure of tax returns to appear on the state’s presidential election ballots (though California Gov. Jerry Brown vetoed one of those attempts). While we may not agree with their proposed solutions, the fact that states — our laboratories for democracy — are beginning to generate their own debates about norms gives us hope that there’s room to have these discussions on a national level.
It’s not enough to read news stories — or tweets — and fret. Our system is facing a challenge it has not faced in decades. These norms of liberal democracy are being pummeled around the world, as well. At a moment like this, perhaps it is a good thing to break the norm of partisanship.
Preet Bharara, a scholar in residence at the NYU School of Law, was U. S. Attorney for the Southern District of New York from 2009 to 2017. Christine Todd Whitman, president of the Whitman Strategy Group, was administrator of the Environmental Protection Agency from 2001 to 2003 and governor of New Jersey from 1994 to 2001. They are co-chairs of the National Task Force on Rule of Law and Democracy. Follow them on Twitter: @PreetBharara and @GovCTW.