November 15, 2019
by Kathryn Olmsted
[Proposed] laws that will [help]
- Protect elections,
- End corruption, and
- Fix the balance of power.
Three years after he resigned from the presidency, Richard Nixon declared that the nation’s chief executive, properly understood, is the law. “When the president does it, that means that it is not illegal,” he explained. Reformers in Congress disagreed, and they embarked on a lawmaking campaign to ensure that nothing like Nixon’s crimes and abuses, known collectively as Watergate, could ever happen again.
Those laws could not stand the test of time. The post-Watergate reformers revolutionized campaign finance, government ethics, intelligence oversight and the president’s war powers. But they could not anticipate, let alone prevent, increasingly brazen and innovative abuses of executive power. And now we’re living through a new battle between Congress and the president, a new impeachment inquiry, and a new constitutional crisis.
Nixon in his zeal to ignore, jettison or rewrite the nation’s norms. Even his allies in the Republican Party, in which Trump still has 89 percent support, according to Gallup, have denounced his efforts to recruitforeign help in winning elections and to profit from his family business while holding office.
Eventually, when Trump is gone, Congress and his successor may have a chance to pass reforms that stop a future president from repeating his sins. What might the post-Trump legislation look like?
Much of what Nixon did was already against the law. It was illegal to promise ambassadorial posts or other government favors for specific campaign donations, and Nixon’s personal lawyer was convicted of that crime. It was illegal to use campaign cash to buy the silence of co-conspirators, as E. Howard Hunt did at Nixon’s direction, and to break into political opponents’ offices to plant listening devices.
But the president’s defenders insisted that many of his other actions, though they might have shocked the conscience, did not violate any laws. The president secretly bombed Cambodia, a neutral country, without consulting or even notifying Congress — and then ordered others to falsify records of his actions. He sent U.S. troops to fight in Cambodia without congressional approval. He ordered wiretaps on journalists without getting warrants; he oversaw massive, domestic spying programs without congressional consultation; he many times refused to give information that lawmakers requested as part of their impeachment inquiry.
In November 1974, the first post-Watergate elections brought in a new class of officeholders determined to ensure that future presidents knew they could not act like Nixon, on pain of prosecution. Popular revulsion against Nixon and his party gave Democrats 61 Senate seats and a supermajority in the House. Democrats, if unified, could override a presidential veto.
They began to lash reins onto a future runaway presidency. To counter the Nixon campaign’s use of extortion as a fundraising tool, they limited individuals to $1,000 gifts per cycle and congressional candidates to campaign spending caps of $70,000 in the House and $250,000 in the Senate. (They were later lifted.) Congress also required candidates to file periodic reports on donors with the new Federal Election Commission.
In response to Nixon’s penchant for secrecy, the reformers mandated more governmental transparency and codified ethical norms. The Ethics in Government Act required public officials to disclose their financial information; it also set out the conditions for triggering the appointment of a special prosecutor to investigate executive misconduct. Amendments to the Freedom of Information Act, which originally passed in 1966, and a new Privacy Act made it easier for ordinary citizens to demand information and documents from the government.
Reformers, appalled by the president’s willingness to send the military into combat on his own initiative, passed the War Powers Act in 1973, even before Nixon resigned (and over his veto). It required the president to notify Congress within 48 hours of deploying American troops in combat and mandated congressional authorization for wars that lasted longer than 60 days.
Watergate also led to a new era for America’s intelligence agencies. Congress limited the president’s power to unilaterally direct the CIA to overthrow foreign governments: The Hughes-Ryan amendment to the Foreign Assistance Act compelled the president to notify six (later eight) congressional committees of any covert action abroad. Soon after Nixon’s resignation, Congress established special committees under Sen. Frank Church (D-Idaho) and Rep. Otis Pike (D-N.Y.) to investigate possible intelligence agency abuses. After these inquiries, Congress voted overwhelmingly to establish a permanent select committee on intelligence in each chamber. The Intelligence Oversight Act of 1980 required the CIA to inform the intelligence panels of many covert activities and the president to brief congressional leaders of both parties (the “Gang of Eight”) in advance of extraordinarily sensitive covert actions. The Foreign Intelligence Surveillance Act of 1978 established safeguards for government monitoring of U.S. citizens.
Over subsequent decades, though, reformers lost their nerve as adherents of Nixon’s view of executive power fought back against these laws. The Supreme Court’s Buckley v. Valeo decision in 1976 gutted campaign finance laws, allowing unlimited campaign expenditures (alongside limits in individual contributions). President Ronald Reagan and his aides mocked the principle of congressional oversight of intelligence when they secretly traded arms for hostages and ran a covert war in Central America that Congress had tried to end. And after a special prosecutor won convictions of key figures in the Iran-contra scandal, President George H.W. Bush pardoned them. President George W. Bush ignored the Foreign Intelligence Surveillance Act on the flimsiest of legal pretexts. The CIA set up secret prisons and tortured suspects after 9/11, while the National Security Agency vacuumed up Americans’ data in the surveillance programs exposed by Edward Snowden.
Yet Trump has surpassed all his predecessors in his determination to expand the powers of the executive. He shows what happens when the imperial presidency is held by someone who genuinely believes Nixon’s doctrine that whatever the president does is legal. Meanwhile, Americans’ trust in government is at a record low. Once again, American democracy is in grave crisis.
Several nonprofit groups and think tanks have produced lists of possible post-Trump reforms. The most important of these proposals fall into four broad areas.
Protecting elections. Trump openly solicited Russian interference in the 2016 presidential campaign (“Russia, if you’re listening”) and privately pressured Ukraine’s president to investigate a political rival this past summer. A post-Trump Congress could pass laws that impose immediate and severe sanctions on foreign governments that interfere in our elections. But the threat to the ballot extends far beyond outside meddling on behalf of Trump. Gerrymandering is rampant, some states have adopted voter suppression laws, and dark money is flooding the political landscape. Reformers could address these challenges by mandating the disclosure of the ultimate source of every political donation, so influencers can’t hide behind mysterious groups. They could allocate more money and staff to the existing enforcement agency, the FEC. And they could give grants to states to improve election cybersecurity.
Ending corruption. Trump has flouted ethical norms that presidents have followed for decades. He refuses to release his tax returns, promotes businesses he still owns (by visiting them and proposing them for international conferences), and has hired his daughter and son-in-law for key jobs. He also apparently tried to hinder the FBI’s investigation of Russian interference in the 2016 election and threatened his political opponents, such as Hillary Clinton, with government investigations. Congress could prevent such ethical lapses and abuses of power in the future by requiring presidential candidates to disclose their tax returns, prohibiting presidents from appointing family members to senior positions, forcing top executive officials to divest from their businesses while in office and making it clear that White House officials cannot intervene in Justice Department investigations and prosecutions.
Restoring congressional power. Congress is theoretically a coequal branch of government, yet Trump has shown contempt for its power. The president declared a “national emergency” to unilaterally shift money to build a border wall, defying Congress’s constitutionally specified control of the purse. He held back aid Congress had allocated to Ukraine. He has taken advantage of loopholes in the Federal Vacancies Reform Act to bypass the Senate approval process for several administration positions, most recently when he appointed former Virginia attorney general Ken Cuccinelli as acting director of U.S. Citizenship and Immigration Services. Trump also ignored the statutory requirement to inform the Gang of Eight before the operation to kill Islamic State leader Abu Bakr al-Baghdadi. (President Barack Obama followed this rule before the raid on Osama bin Laden’s compound in 2011.)
A future Congress could respond by closing the loopholes in the vacancies law to reduce the time limit for “acting” appointments and clearing up the law’s ambiguities. It could narrow the circumstances under which a president could declare a national emergency, thus preventing future chief executives from playing politics with the nation’s safety. It could also review comprehensively the functioning of the intelligence committees. Select committees in each house — new versions of the Church and Pike panels — could examine 40 years of intelligence oversight and suggest ways it could be improved. Above all, Congress needs to find the will to reclaim power from the executive branch.
Limiting the president’s war powers. Trump insists that presidential powers, including war powers, are unrestricted. He launched airstrikes on Syria in 2017 without lawmakers’ approval, vetoed a congressional resolution that would have required U.S. withdrawal from the civil war in Yemen, and threatened Iran and North Korea with nuclear attack. A post-Trump Congress could respond by amending the War Powers Act to eliminate the loopholes that have allowed presidents to evade it. It could also repeal the 2001 Authorization for Use of Military Force (AUMF), which presidents have cited in sending troops into combat zones throughout the Middle East; and it could repeal the 2002 AUMF approving war against Iraq, which could, in theory, be used by a future president to justify war with Iran. The president’s sole authority to start a nuclear war is the most frightening potential use of unrestrained executive power. Lawmakers could mandate that the commander-in-chief cannot launch a nuclear strike without approval from other executive branch officials, such as the vice president and the defense secretary.
Post-Watergate reformers tried to constrain the presidency, but they failed to curb Trump — or Iran-contra, or mass warrantless surveillance, or any number of presidential abuses of power in the decades between Nixon’s resignation and our current crisis. We seem to have come full circle. Trump says, “Article II allows me to do whatever I want,” and he has gone even further than Nixon in some cases. He doesn’t have to hope that his successor will pardon him, he wrote on Twitter, because “I have the absolute right to PARDON myself.”
Yes, one constitutional provision may yet check Trump: impeachment. But despite his many “high crimes,” conviction and removal seem unlikely, for partisan reasons. If Congress does not rein in executive power, future autocratic presidents — including a second-term Trump — could succeed where he has failed. An adept future president could actually carry out Trump’s threats: muzzling the press, jailing political enemies and turning U.S. foreign policy into a protection racket.