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Protecting Our Democracy Act

Protecting Our Democracy Act

The Protecting Our Democracy Act (PODA) is an historic package of pro-democracy reforms to create or strengthen guardrails preventing the abuse of executive power, restore Congress as a meaningful check on executive authority, and reinvigorate Congress’s exercise of its own constitutional power. Protect Democracy strongly supports these vital reforms.

Without these important legislative measures, our democracy is at risk of backsliding into a more authoritarian form of government in which the president wields unchecked power — the very danger our constitutional system of checks and balances was designed to forestall.

The Protecting Our Democracy Act (PODA) tackles a dozen different topics, which are explained more fully in the accompanying tabs, including: 

  • Limiting the president’s pardon power.
  • Extending the deadline for prosecuting former presidents and vice presidents for federal crimes committed before or during their time in office.
  • Enforcing the constitutional ban on presidents using the office to enrich themselves.
  • Boosting enforcement of congressional subpoenas.
  • Reasserting Congress’s power of the purse.
  • Mandating disclosure of contacts between the White House and Justice Department.
  • Strengthening protections for inspectors general.
  • Strengthening protections for federal whistleblowers.
  • Ensuring the Senate’s say in confirming executive branch officials.
  • Bolstering enforcement of the Hatch Act.
  • Ensuring access to transition resources following a presidential election.
  • Requiring transparency of tax records of presidential candidates.
  • Preventing foreign interference in elections.
  • Clarifying federal prohibitions on foreign assistance to campaigns.

The proposals respond to longstanding vulnerabilities in our democracy that have allowed for the aggrandizement of presidential power, many of which have been exploited over decades by presidents of both parties, and some of which reached new heights through the actions of the Trump administration. PODA responds to these abuses as lessons from which both parties must learn. 

  • Articles discussing the Protecting Our Democracy Act include:
    • Reps. Claudine Schneider, Reid Ribble, Charles Djou, and Jim Kolbe, “Congress can’t rein in executive branch abuses without Republicans. Will they step up?” (USA Today)
    • Bob Bauer and Jack Goldsmith, “Congress Should Seize This Chance to Get Its Power Back.” (Politico)
    • Rep. Adam Schiff, Rep. Anna Eshoo, Rep. Steve Cohen, Rep. Gerald E. Connolly, Rep. Jackie Speier, Rep. Eric Swalwell, Rep. Ted Lieu, Rep. Madeleine Dean, Rep. Katie Porter and Rep. Mary Gay Scanlon, “Trump left behind a road map for aspiring autocrats. We intend to destroy it.” (NBC News)
    • Charlie Savage, “Democrats Begin Effort to Curb Post-Trump Presidential Powers,” (New York Times)
    • Charlie Savage, “Proponents of Post-Trump Curbs on Executive Power Prepare New Push.” (New York Times
    • Richard Gephardt, Gary Hart, Joel McCleary and Mark Medish, “Why Trump’s Chaos Requires New Guardrails on Biden.” (POLITICO)
    • Rep. Adam Schiff, Rep. Jerrold Nadler, Rep. Carolyn Maloney, Rep. John Yarmuth, Rep. Zoe Lofgren, Rep. Eliot Engel and Rep. Richard E. Neal, “Here’s how we can protect democracy from a lawless president.” (Washington Post)
    • Rep. Adam Schiff, “Why my colleagues and I are introducing the first major democracy reforms since Watergate.” (L.A. Times)
    • A series of articles published by the Fulcrum, discussing different titles. Links and summaries of the articles are available here.

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Title I, Stopping Abuse of Pardon Powers

The Constitution grants the president broad power to issue pardons for federal crimes—but that power is not unlimited and cannot be used for corrupt ends. The Abuse of the Pardon Prevention Act would deter presidents from abusing the pardon power by increasing transparency into the pardon-granting process and by clarifying bans on self-pardons and pardons used for corrupt ends.

  • The Abuse of Pardon Prevention Act is Title I of the Protecting Our Democracy Act.
  • The Abuse of Pardon Prevention Act was also introduced as a stand-alone bill in the 116th Congress as H.R.7694 (Rep. Schiff), and S.2090 (Senator Cortez-Masto).
  • A coalition of organizations sent a letter in support of the legislation in July 2020. 

Articles about the measure include: 

  • Martha Kinsella, Daniel Weiner of the Brennan Center for Justice, “After four years of abuse, tangible fixes abound for restoring the rule of law.” (The Fulcrum)

Background 

Presidents enjoy broad constitutional power to grant clemency for federal crimes. Article II (Section 2, Clause 1) provides that the president “shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

In 2017, President Trump claimed that this power was “complete.” The assertion echoed a longstanding position of the executive branch. President Wilson’s attorney general claimed that the “President, in his action on pardon cases, is not subject to the control or supervision of anyone, nor is he accountable in any way to any branch of the government for his action.” President Clinton’s attorney general similarly advised him that any cooperation with congressional oversight of his pardon power would be entirely voluntary.

However, the president’s power to issue pardons and commutations is not absolute, but rather is constrained by other provisions of the Constitution, including the system of checks and balances it establishes and the individual rights it protects. Use of the pardon power to place the president above the law, undermine the constitutional powers of another branch, undermine the Bill of Rights, obstruct justice, or as a bribe is unconstitutional and an abuse of executive power.

Presidents in recent decades have pushed the limits of the pardon power in ways that erode the rule of law. President Clinton was investigated by federal prosecutors for a last-minute pardon of Marc Rich in 2001 on suspicions of a quid pro quo for donations. President Trump repeatedly floated the possibility of a self-pardon, which would have set a dangerous precedent for presidents attempting to place themselves above the law. President Trump’s counsel discussed the possibility of pardons with Michael Flynn’s and Paul Manafort’s counsel, and President Trump wielded the pardon power in ways that may have been intended to obstruct criminal investigations, shield himself from criminal exposure, and thwart congressional oversight.

To ensure future presidents cannot hold themselves above the law, the pardon power needs reform. Congress should clarify its limits and increase transparency into the pardon-granting process.

The Protecting Our Democracy Act would respond to this by:

  • Clarifying the Constitution’s prohibition on self-pardons, by making explicit that any pardon issued by the president to themself has no legal effect and shall not deprive a court of jurisdiction over the pardoned offense.
  • Enhancing transparency into self-dealing and obstructive pardons, by requiring the attorney general to submit to Congress investigative materials or materials regarding the DOJ’s consideration of a pardon related to (i) any offense arising from an investigation involving the president or their relatives; (ii) any violation of laws prohibiting withholding of testimony or documents from Congress; and (iii) acts of false statements, perjury, obstruction, and witness intimidation respecting a congressional proceeding or investigation.
  • Ensuring that pardons cannot be used in bribery schemes, by amending the federal bribery statute to explicitly include the offering or granting of a pardon or commutation by the president or vice-president as a possible predicate for criminal liability.

Title II, Ensuring Presidents Cannot Evade Justice

Federal law generally sets a five-year statute of limitations for prosecuting criminal offenses. Yet it is the Department of Justice’s (DOJ) policy not to charge a sitting president with a federal crime, despite the fact that statutes of limitations would continue to run during the president’s term in office. DOJ’s policy can therefore allow a president to avoid criminal accountability, especially if the president serves two terms. Because the presidency affords temporary immunity from prosecution, statutes of limitations should also be temporarily paused to ensure that no president is above the law.

  • The No President is Above the Law Act is Title II of the Protecting Our Democracy Act.
  • The No President is Above the Law Act was also introduced as a stand-alone bill in the 116th Congress as H.R.2678 (Rep. Nadler), and S.1756 (Senator Blumenthal).
  • A coalition of organizations sent a letter in support of the legislation in July 2020. 

Articles about the measure include: 

  • Amanda Lineberry and Chuck Rosenberg, “Equitable Tolling and the Prosecution of a President.” (Lawfare)

The Protecting Our Democracy Act would toll—or pause—for the duration of a president’s tenure in office the statute of limitations for any federal crime committed by a president or vice president before or during their term.

Title III, Enforcing the Emoluments Clauses

The Emoluments Clauses of the Constitution seek to prevent foreign influences from corrupting presidents and other federal officials by preventing them from accepting emoluments — namely any profit, gain, advantage, or payment — from a foreign government without prior congressional consent. The president is also barred from accepting emoluments from Congress or any U.S. state or local government beyond his or her official salary. Unfortunately, because there is currently no statutory enforcement mechanism, presidents and other public officials have sometimes escaped accountability for violations of these constitutional provisions.

  • The Foreign and Domestic Emoluments Enforcement Act is Title III of the Protecting Our Democracy Act.

Articles about the measure include: 

  • Jonathan O’Connell and David A. Fahrenthol, “Trump’s D.C. hotel made millions from foreign governments but still struggled, federal documents show.” (Washington Post)
  • Martha Kinsella, Daniel Weiner of the Brennan Center for Justice, “After four years of abuse, tangible fixes abound for restoring the rule of law.” (The Fulcrum)

Background   

Through the Emoluments Clauses, the framers of the U.S. Constitution sought to deter corruption and foreign meddling by barring the president and other high federal officials from accepting an emolument — namely any profit, gain, advantage, or payment — from a foreign government without congressional consent. The president is also barred from accepting any benefit from the federal or state governments beyond the presidential salary. 

Early presidential practice reflected an understanding of emoluments as a broad range of gifts, payments or other advantages – with presidents seeking congressional consent to accept even such items as a gold medal. Over time, presidents and other government officials have voluntarily sought to comply with the prohibitions on emoluments, including by divesting themselves from business interests or holdings that would create potential violations. Former President Trump broke with this practice by refusing to divest from his business and financial interests after becoming president despite those interests involving payments from foreign and U.S. government entities, and by rejecting the longstanding interpretation of what constitutes an emolument. 

Because the Constitution does not provide an express enforcement mechanism for the Emoluments Clauses, lawsuits from members of Congress, state attorneys general, businesses, and nonprofits against President Trump faced significant procedural hurdles and ultimately were either dismissed on standing grounds or mooted once his term expired. 

The Protecting Our Democracy Act would give force to the constitutional emoluments provisions by codifying their prohibitions and establishing clear mechanisms for reporting and enforcement. Specifically, the bill would:

  • Codify constitutional prohibitions on foreign and domestic emoluments, by expressly prohibiting federal officers from receiving most foreign emoluments absent prior congressional consent, and prohibiting the president specifically from accepting domestic emoluments.
  • Enhance transparency, by requiring disclosures from federal officers of actual or potential receipt of foreign emoluments, including any business interests that may receive foreign emoluments, and also requiring parallel disclosures from the president related to domestic emoluments.
  • Authorize enforcement, by (1) directing the Office of Special Counsel to investigate potential violations and report investigative results to Congress and the director of the Office of Government Ethics (OGE); (2) authorizing the OGE director to issue rules and regulations to ensure compliance with the Act and enforce it through civil and administrative actions; and (3) creating a right of action for the House and Senate to sue for violations of the statute and setting expedited procedures for such suits, including hearings before three-judge panels reviewable only by the Supreme Court.

Title IV, Enforcing Congressional Subpoenas

Congress’s inherent power to conduct oversight and compel the provision of information—a key piece of our system of checks and balances—has come under increasing attack from the executive branch. The Congressional Subpoena Compliance and Enforcement Act would strengthen Congress’s tools to enforce subpoenas and gather the information it needs.

  • The Congressional Subpoena Compliance and Enforcement Act is Title IV of the Protecting Our Democracy Act. 
  • The Congressional Subpoena Compliance and Enforcement Act was introduced as a stand-alone bill in the 116th Congress by Rep. Dean, H.R.8335
    • The House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on congressional subpoena enforcement, including the need for measures like the bill, on June 8, 2021. 
    • The Senate Judiciary Committee’s Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights held a hearing on the need for measures to aid enforcement of congressional oversight requests on August 3, 2021.
  • The Congressional Subpoena Compliance and Enforcement Act was also introduced as a stand-alone bill in the 115th Congress as H.R.4010 by Rep. Darrell Issa and passed out of the House on a voice vote. 

Articles about the measure include: 

  • Grant Tudor and Anne Tindall of Protect Democracy, “Scaling the Wall of Resistance: How Congress Can Compel Executive Branch Cooperation in a Jan. 6 Investigation.” (Just Security)

Background

Congress’s power to conduct oversight and secure information is a well-settled feature of our constitutional order. The U.S. Supreme Court has repeatedly held that Congress’s oversight power is “inherent,” a necessary corollary to its lawmaking role. To effectuate that oversight power, Congress has authority to enforce its information requests through various means, such as criminal prosecution, fines, and even arrest.

When requesting information from the executive branch, however, Congress has traditionally relied on an informal accommodation process to resolve disputes via negotiation. Yet in recent decades, presidential administrations of both parties have increasingly stonewalled Congress and successfully stalled its efforts to enforce subpoenas. 

For example, during the Obama administration, it took nearly four years of negotiation and litigation before a U.S. district court forced the Department of Justice (DOJ) to comply with a subpoena from the House Committee on Oversight and Reform regarding the DOJ’s Operation Fast and Furious. Similarly, a settlement over the August 2019 subpoena against former Trump White House Counsel Don McGahn was not reached until May 2021, after a change in administrations. In these cases and others, the executive branch has faced no real cost for obstruction, only risking turning over the information Congress requested in the first place.

Reforms are needed if Congress is to receive information—especially from the executive branch—in a timely manner to inform its legislative and oversight work. Congress should clarify its powers, expedite enforcement procedures, and strengthen deterrents to ensure compliance with its subpoenas.

The Protecting Our Democracy Act would:

  • Establish clear rules for subpoena compliance, by explicitly requiring all subpoena recipients to (1) appear and testify and/or produce records in accordance with a subpoena, and (2) produce a privilege log of any information withholdings and the specific basis for each instance of non-compliance, which would be limited to those granted under the Constitution or federal statute.  
  • Expedite civil enforcement procedures, by creating an explicit right of action for the House and Senate, and their committees and subcommittees, to enforce subpoenas through civil suits; requiring federal courts to expedite enforcement suits as much as possible; and allowing suits to be appealed directly from federal district courts to the U.S. Supreme Court.  The rules preserve the interbranch accommodations process, where applicable, by requiring Congress to certify before going to court that it has met and attempted to confer with the executive branch.
  • Enhance deterrents for non-compliance, by authorizing courts to impose monetary penalties on certain subpoena recipients for knowing noncompliance and prohibiting such fines to be paid with federal taxpayer dollars; and waiving any privilege or ground for non-compliance if a court finds a failure to produce a detailed privilege log.

Title V, Reasserting Congress’s Power of the Purse

The framers of our Constitution vested Congress with the power to tax and spend—the “power of the purse”—as a key check against executive power. Over time, however, the executive has abused flexibilities and authorities granted by Congress, and consequently has taken more control over federal spending. 

The Protecting Our Democracy Act includes the Congressional Power of the Purse Act (CPPA), which would help Congress reclaim its constitutional authority over federal spending by increasing transparency of final spending decisions by the executive branch, improve reporting under the Antideficiency Act (ADA) and Impoundment Control Act (ICA), strengthen the Government Accountability Office’s (GAO) ability to investigate and prevent violations of budget or appropriations laws, and restore checks and balances against executive authority to respond to emergencies.

  • The Congressional Power of the Purse Act is Title V, Subtitles A and B of the Protecting Our Democracy Act. 
  • The Congressional Power of the Purse Act was also introduced as a stand-alone bill in the 116th Congress by Rep. Yarmuth, H.R.6628
  • Similar provisions have been included H.R.4502, the Financial Services and General Government Appropriations Act, Sections 204, 747, 748, and 749. This legislation was passed by the House on July 29, 2021.
  • The hearing and effort to move legislation forward is supported by the Power of the Purse Coalition.

Articles about the measure include: 

  • Andrew Lautz of the National Taxpayers Union and Jonathan Bydlak of the R Street Institute, “Strengthening the system means putting power over the purse where it belongs.” (The Fulcrum)
  • Dylan Hedtler-Gaudette of the Project On Government Oversight, “Secret Spending Decisions Undermine the Rule of Law: The Biden Cut.“ (POGO)

Background

Congress’s power of the purse is a key feature of our constitutional system of checks and balances. Congress has enacted various appropriations laws foundational to its ability to protect its authority over taxing and spending decisions. The ADA prevents federal agencies from spending funds that were not appropriated, whereas the ICA requires agencies to spend funds Congress appropriated and limits the president’s ability to interfere with such spending. Over time, however, presidents of both parties have exploited weaknesses and opacity in these and other appropriations laws to circumvent congressional control over federal spending. 

Presidents, working through the Office of Management and Budget (OMB), have pushed the bounds of Congress’s limited delegations of authority to apportion, reprogram, and transfer funds. A lack of transparency around the ways OMB uses that authority prevents Congress from effectively exercising oversight of OMB’s compliance with budget and appropriations laws. For example, apportionments, the binding documents through which OMB grants authority for agencies to spend federal dollars, are not publicly available. This prevents Congress and the public from knowing the status of federal spending, and effectively holding the executive branch accountable for implementing appropriations laws.

Current budget laws also lack sufficient enforcement mechanisms. While the ADA imposes penalties on government officials for noncompliance, the ICA does not, leaving few enforcement tools when funds are illegally withheld. Moreover, the executive branch has relied on legal opinions from the DOJ’s Office of Legal Counsel (OLC) and OMB to guide its understanding of what it means to comply with these budget and appropriations laws, opinions which may conflict with those of Congress and the GAO, and are often not even made public. In 2019, for example, OMB’s general counsel informed federal agencies they are not bound to report violations of the ADA to Congress and can ignore GAO decisions. To reverse this trend of executive overreach, Congress must strengthen its constitutional authority over the federal government’s purse strings.

 

The Protecting Our Democracy Act would:

 

  • Increase transparency into Executive Branch execution of spending laws by: 
    • requiring OMB to publicly disclose apportionments (the binding decisions through which OMB allows agencies to spend federal funds), together with statements that explain the apportionment to ensure compliance with relevant budget laws;  
    • requiring publication of the positions of officials to whom apportionment authority has been delegated; 
    • requiring OLC to publish opinions instructing agencies on budget and appropriations law; 
    • requiring the executive branch to report violations of the Impoundment Control Act and Antideficiency Act identified by the GAO to Congress; and 
    • requiring OMB to release funding at least 90 days before it expires so it may be spent in accordance with the law.
  • Detect and deter violations of the law by strengthening GAO’s ability to quickly obtain information from agencies to assess compliance with budget or appropriations law; expediting GAO’s ability to sue agencies to release impounded funds in violation of the Impoundment Control Act; authorizing administrative discipline for officials found to have violated the Impoundment Control Act; and requiring the DOJ to review and investigate reports of Antideficiency Act violations.
  • Restore Congress’s role in funding decisions by requiring agencies to notify Congress if a delay or condition in an apportionment would prevent the timely spending of those federal funds in accordance with the appropriations law passed by Congress and signed by the President. 

Title V Preventing Abuse of the National Emergencies Act

The Protecting Our Democracy Act and Congressional Power of the Purse Act contain national emergency reform provisions based on the ARTICLE ONE Act introduced in 2019. The provisions would restore the balance of national emergency powers and have received substantial bipartisan support in the Senate. 

These provisions would strengthen Congress’s role in overseeing presidential emergency declarations under the National Emergencies Act. Given that the delegation of national emergency authorities poses serious challenges to Congress’s role in budget oversight, these provisions are part of a wider effort to reassert Congress’s power of the purse. 

  • These reforms are Title V, Subtitle C of the Protecting Our Democracy Act. 
  • These reforms, in slightly different forms, were also introduced as a standalone bill, the ARTICLE ONE Act, S.241 by Senator Lee, as part of the National Security Powers Act, S.2391 by Senator Murphy, and as part of the Congressional Power of the Purse Act in the 116th Congress by Rep. Yarmuth, H.R.6628

Articles related to the measure include: 

  • Andrew Lautz of the National Taxpayers Union and Jonathan Bydlak of the R Street Institute, “Strengthening the system means putting power over the purse where it belongs.” (The Fulcrum)
  • Liza Goitein of the Brennan Center for Justice, “Deciding what’s a national emergency needs to be the work of two branches.” (The Fulcrum)
  • Liza Goitein of the Brennan Center for Justice, “The Alarming Scope of the President’s Emergency Powers.” (The Atlantic)

Background

Emergency powers stem from Congress’s recognition that presidents should have the flexibility and power to respond to rapidly unfolding national emergencies. Under current law, the president is granted access to 123 special statutory powers once the president declares a national emergency. To mitigate potential abuses of power, the National Emergencies Act (NEA) was passed in 1976, paving the way for congressional oversight of emergency declarations. The Act created the following guidelines: the president must identify the powers invoked in an emergency proclamation, issue public updates if additional powers are invoked, and report any emergency-related expenditures to Congress every six months.

While the NEA intended for Congress to review and terminate emergencies when appropriate, it typically fails to do so. When Congress passed the NEA, the threat of a legislative veto, a resolution by one or both chambers of Congress disapproving presidential use of a delegated authority, was included as a check against the president’s emergency authority. The Supreme Court’s 1983 decision INS v. Chadha, however, undermined this powerful check on executive power when it held that acts of Congress without presidential signature were unconstitutional. 

Post-Chadha, Congress must override a presidential veto to disapprove executive exercise of delegated national security powers. This has resulted in emergencies remaining in effect long after they should: as of October 2019, 34 states of emergency out of the 63 declared since the NEA was passed remain in effect, and Congress has yet to reconsider any emergency declarations. Presidents are therefore able to bypass important constitutional boundaries; for example, a president can undermine Congress’s power of the purse by calling on national emergency authorities to reappropriate certain funds. Without a clear path to effectively review and end national emergencies, current emergency powers law lacks the guardrails necessary to stop abuses of power by the executive branch.

The Protecting Our Democracy Act would:

  • Empower Congress to proactively approve a presidentially-declared national emergency, and require any national emergency declaration to expire after 30 days absent congressional assent. 
  • Require Congress to consider national emergencies annually, letting them expire if not proactively approved
  • Require the president, after the initial declaration, to submit a report every six months for the duration of the emergency detailing its status and the actions taken pursuant to the invoked authorities. 

Title VI, Preventing Political Interference in Law Enforcement

Insulating the Department of Justice (DOJ) from political meddling from the White House is essential to ensuring our democracy’s promise of equal justice under the law for all Americans. The Protecting Our Democracy Act includes the Security from Political Interference in Justice Act, which would increase transparency in the relationship between the DOJ and White House and strengthen protections against actual or perceived political interference in law enforcement decisions.

  • The Security from Political Interference in Justice Act is Title VI of the Protecting Our Democracy Act. 
  • The Security from Political Interference in Justice Act was also introduced as a stand-alone bill in the 116th Congress by Rep. Jeffries, H.R.3380, and Senator Whitehouse’s S.1915. In 2007, the Senate Judiciary Committee considered and reported out nearly identical legislation on a bipartisan 14-2 vote.
  • The legislation has been supported by a bipartisan coalition of organizations, including the Brennan Center for Justice, Common Cause, Citizens for Responsibility and Ethics in Washington, Niskanen Center, Project on Government Oversight, Protect Democracy, Public Citizen, Republicans for the Rule of Law, Stand Up Republic, and TechFreedom.

Articles about the measure include: 

  • Martha Kinsella, Daniel Weiner of the Brennan Center for Justice, “After four years of abuse, tangible fixes abound for restoring the rule of law.” (The Fulcrum)

Background

The promise of “fair and impartial” treatment under the law is a bedrock principle of American democracy and part of the DOJ’s stated mission. DOJ’s fairness and impartiality are essential to ensuring the rule of law and the public’s trust in the federal government and federal law enforcement.

Because the DOJ’s ability to enforce the law fairly and impartially would be threatened by either the appearance or effect of political interference, there has been longstanding bipartisan agreement that the White House should not weigh in—publicly or privately—on specific civil or criminal enforcement actions. To this end, every presidential administration since Watergate has issued guidance limiting contact between the White House and DOJ.

However presidents of both parties have violated the norm on occasion. President Nixon, for example, directed the DOJ to give a sweetheart settlement deal to I.T.T. in exchange for a donation to the 1972 Republican National Convention. President Clinton publicly called for the Oklahoma City bombers to be sentenced to death in the early days of the bombing investigation before they had their constitutionally-guaranteed day in court. More recently, President Trump repeatedly pressured the DOJ to take actions on specific enforcement matters, from the AT&T and Time Warner merger to the prosecutions of his National Security Adviser Michal Flynn and close associate Roger Stone.

Weaponizing the power to investigate, prosecute, and enforce the law to punish political opponents, help allies, or secure personal gain is a dangerous misuse of the presidency that severely undermines the rule of law. It is critical for our democracy that Congress prevent the executive from eroding DOJ’s independence through political interference.

The Protecting Our Democracy Act would:

  • Increase transparency into White House communications with the DOJ by requiring the attorney general and White House counsel to keep a log of communications between the Executive Office of the President and the DOJ, including parties involved, topics, and purpose.
  • Create accountability mechanisms to curb political interference in law enforcement by requiring the attorney general to disclose those communication logs every six months to Congress, the DOJ Office of the Inspector General, and the DOJ Office of Professional Responsibility, and requiring the IG or OPR to report to Congress any improper communications.

Title VII, Protecting Inspectors General

Inspectors general (IGs) are critical checks against waste, fraud, and abuse across the federal government. Yet gaps in current law leave IGs vulnerable to abuses of presidential power, which undermines their mission. The Protecting Our Democracy Act includes the Inspector General Protection Act and the Inspector General Independence Act, which would ensure that IGs have the necessary independence and tools to faithfully execute the duties of their office.

  • The Inspector General Protection Act and the Inspector General Independence Act are included in Title VII of the Protecting Our Democracy Act.
  • The Inspector General Protection Act, H.R.23, has been introduced as a standalone bill in the 117th Congress by Rep. Ted Lieu and Rep. Jody Hice and passed out of the House on January 5, 2021 on a voice vote. 

Articles about the measure include: 

  • Liz Hempowicz and Melissa Wasser of the Project on Government Oversight, “It’s time to make it easier for watchdogs to work without interference.” (The Fulcrum)

Background

IGs investigate and report on concerns raised by employees of government agencies and are crucial in addressing malfeasance both within the government and throughout the private sector. 

In the wake of the Watergate scandal, Congress passed the Inspector General Act in 1978, which empowered IGs to identify areas for improvement in government programs and operations; investigate fraud and abuse and recommend policies to promote economy, efficiency, and effectiveness; and ensure the heads of their affiliated federal agencies and Congress remain informed of potential issues in order to take corrective actions. The Act also established the framework for the Offices of Inspector General (OIGs), which now include 74 IGs, together with auditors and special agents. Thirty-seven of the IGs are presidentially appointed and Senate-confirmed, while the remaining IGs are selected by agency heads. 

IGs conduct audits and investigations to determine areas of cost recovery, savings, and instances of wrongdoing. During fiscal year 2020 alone, IGs identified approximately $53 billion in potential savings and reported their work resulted in over 1,266 civil actions, 4,146 suspensions or debarments, and 4,146 indictments and pieces of criminal information. 

IGs need protections to carry out their oversight free from political influence. The Inspector General Act accordingly outlines basic removal protections: Both houses of Congress must be notified at least 30 days before the removal or transfer of an IG, regardless of whether they are presidentially appointed or agency-designated. In crafting the IG Act, Congress designed this notification requirement to deter presidents from taking advantage of their unfettered removal authority and prevent them from replacing IGs without proper cause. However, presidents from both political parties have demonstrated time and time again that they are willing to undermine Congress’s original intent. Moreover, the congressional notification requirement does not apply to individuals performing IG duties in an acting capacity, nor to cases where an IG’s personnel status is changed, such as placement on administrative leave. In these situations, Congress lacks the same visibility to question and address IG vacancies, which contributes to IG vacancies remaining for significant periods of time. 

Between 2007 to 2016, 53 of the 64 major IG offices had vacancies that lasted from two weeks to six years. Better guardrails are thus needed to prevent removals or changes in personnel status that result in extended vacancies. This is especially apparent when considering former presidents’ retaliation against IGs. President Trump, for example, informed Congress on April 7, 2020 that he intended to dismiss Michael Atkinson, the IG for the Intelligence Community, after Atkinson notified Congress of a whistleblower complaint filed against the president. Rather than waiting 30 days to replace Atkinson, however, President Trump placed him on administrative leave immediately, effectively bypassing the 30-day notification requirement. President Obama similarly informed Congress he would remove Gerald Walpin, the IG for National Community Service, on the same day he suspended Walpin with pay.

Current protections should be improved to ensure that the president and agency heads cannot undermine IG independence.

The Protecting Our Democracy Act would strengthen protections for IGs, and safeguard the independence of IGs by:

  • Requiring the president to notify Congress at least 30 days before an IG is placed on non-duty status, with an exception for situations in which an IG remaining on active status poses a threat to lives, government property, or risks destroying evidence relevant to an ongoing investigation. 
  • Requiring the president to specify, after an IG position has been vacant for 210 days, why they have not made a nomination, and to set a target date for doing so.
  • Specifying that IGs can be removed only for a limited number of causes and requiring disclosure to Congress of detailed and case-specific reasons for the removal or transfer of an IG.

Title VIII, Protecting Whistleblowers

Whistleblowers are indispensable to uncovering wrongdoing across our federal government. With around two million federal employees, the U.S. government is too large for congressional or agency oversight to capture all wrongdoing. Whistleblowers, who disclose fraud, waste, and abuse, are therefore critical in ensuring that our government functions effectively, efficiently, and lawfully, as well as a resource to help Congress fulfill its constitutional responsibility to conduct oversight. The Protecting Our Democracy Act includes the bipartisan Whistleblower Protection Improvement Act of 2021, which reinforces protections for federal whistleblowers and thereby strengthens Congress’s ability to stem budgetary waste and abuses of executive power.

  • The Whistleblower Protection Improvement Act is Title VIII of the Protecting Our Democracy Act. 
  • Similar provisions have been introduced as stand alone legislation, including:

Articles about the measure include: 

  • Liz Hempowicz and Melissa Wasser of the Project on Government Oversight, “It’s time to make it easier for watchdogs to work without interference.” (The Fulcrum)
  • Melissa Wasser of the Project On Government Oversight and Andrew Lautz of the National Taxpayers Union, “Protecting courageous whistleblowers is not a partisan issue.” (Roll Call)

Background

Congress has a long history of valuing and protecting whistleblowing. The Lloyd-La Follette Act of 1912 granted federal employees the rights to “petition Congress or a member of Congress, or to furnish information to either House of Congress, or to a committee or member thereof” and protected them from some forms of retaliation for presenting “grievances” to Congress. The Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 provided additional protections for federal whistleblowers from retaliation and streamlined review processes for whistleblower complaints and allegations.

Under current law, civilian federal employees, contractors, and grantees can directly contact congressional oversight committees, the offices of their representatives and senators, and/or select authorizing committees. Within the executive branch, whistleblowers can disclose information to agency leadership, inspectors general, the Merit Systems Protection Board (MSPB), the Office of Special Counsel, or the Government Accountability Office’s FraudNet system. 

Despite these processes and protections, it remains difficult for whistleblowers to report issues and to vindicate their rights when they face retaliation.

First, the Merit Systems Protection Board (MSPB), the three-member, quasi-judicial executive branch agency in charge of reviewing most whistleblowers’ retaliation complaints, has become a bottleneck. Unlike private-sector whistleblowers, federal employee whistleblowers cannot move their complaints to court, and must seek relief from the MSPB. Since it lost a quorum in January 2017, the MSPB has been unable to grant relief to whistleblowers who have filed retaliation complaints and faces a backlog of over 3,500 cases. Even when the MSPB functions, whistleblower retaliation cases can take years to resolve, and in cases where the MSPB’s lower-level administrative judges deny relief, whistleblowers are vulnerable to retaliation while they appeal.

Second, whistleblowers in the Intelligence Community (IC) have no access to the MSPB or courts; they can only petition Inspectors General in the IC, who can investigate their claim and issue an opinion that agency heads may ignore. In addition, the IC Inspector General may not directly transmit whistleblower complaints to Congress and, rather, must rely on the Director of National Intelligence to do so. As a result, whistleblowers in the IC can be ignored, silenced, and suffer retaliation under current law. 

More broadly, federal whistleblowers lack protections against basic forms of retaliation, including harassing investigations, revocations of their security clearances, and disclosure of their identity. Strengthening whistleblower protections would not only protect those brave enough to come forward from unjust punishment, but also ensure that federal employees are not chilled from reporting waste, fraud, and abuse in the future.

The Protecting Our Democracy Act would:

  • Clarify federal employees’ rights to blow the whistle, by strengthening communication channels with Congress, ensuring non-career Senior Executive and Public Health Service employees have access to whistleblower protections, and making enforceable requests to investigate abuses by the Offices of Inspector General;
  • Create additional protections for whistleblowers in the Intelligence Community, by limiting the sharing of whistleblower complaints with the subject(s) of the complaint, creating a secure mechanism for disclosure to congressional intelligence committees, and prohibiting the disclosure of the whistleblower’s identity without their consent;
  • Strengthen anonymity and retaliation protections, by setting standards for whistleblower confidentiality, protecting against retaliatory investigations, and expanding anti-gag provisions under current law;
  • Improve access to justice, by providing access to court and jury trials in retaliation cases and expanding attorney fees to cover court representation.

Title IX, Accountability for Presidents Relying Upon Acting Officials (Vacancies Act Reform)

The Senate has a constitutional responsibility to give advice and consent on nominations of certain executive branch officials in order to hold them accountable to Congress and the American people. The Protecting Our Democracy Act includes the Accountability for Acting Officials Act, which would close problematic loopholes in the Federal Vacancies Reform Act of 1998 (FVRA) to help ensure the timely nomination and confirmation of qualified leadership across the executive branch.

    • Cerin Lindgrensavage of Protect Democracy and Liz Hempowicz of Project on Government Oversight, “Congress needs to reform the Vacancies Act to keep the business of government on stable footing.” (The Hill)
    • Steve Vladeck, Professor of Law at the University of Texas School of Law, “Good Governance Paper No. 7: Executive Branch Vacancies.” (Just Security)

Background

Since our country’s founding, there has been some provision for temporary leadership of federal government agencies in the absence of a Senate confirmed official. The FVRA sets the default rules for which officials may temporarily fill a vacant executive branch position requiring Senate confirmation, and limits on how long that temporary official may serve.

The FVRA rests on the assumption that the president and Senate will work as partners to nominate and confirm officials to these posts. Unfortunately, that has become less and less true in today’s polarized political environment. As a result, presidents of both parties have sought to skirt the constitutional requirement to seek the Senate’s advice and consent by abusing weaknesses or loopholes in the FVRA and its enforcement.

The FVRA has several weaknesses that have enabled presidents of both parties to evade the requirements of the law and rely upon acting officials to lead agencies. For starters, FVRA has no direct enforcement mechanisms, but relies on private parties—who often struggle to demonstrate standing to a court—to sue to overturn actions of an official serving unlawfully.

If a party does succeed in bringing a suit under the FVRA, the potential consequences include invalidation of any and all actions taken by the unlawfully acting official, which creates extraordinary uncertainty for businesses, consumers, and others who depend on that agency for regulations, grants, guidance, or federal law enforcement.

Furthermore, Congress often isn’t notified when positions are filled, leading to a lack of clarity and transparency about when vacancies have occurred—which is critical to understanding how long an acting official can lawfully serve. 

While the FVRA sets a default that the “first assistant” to a vacant position can automatically take on the duties of the position on an acting basis, the statute fails to define “first assistant” or ensure that person has the qualifications and experience to step into the job. Some agencies have agency-specific statutes that interact with the FVRA in unclear ways, creating confusion about who should automatically serve if there is a vacancy, and who the president can designate to serve if they decide to select someone other than the first assistant. 

The FVRA has been evaded by presidents of both parties. President Trump bypassed the Senate in unprecedented fashion to fill a wide range of positions—from U.S. Attorneys to Cabinet positions such as secretary of Homeland Security or attorney general—with acting officials. He even went so far as to express a preference for acting officials. In some cases, vacancies persisted so long that acting officials served out the time allowed under the FVRA only to have another acting official take their place. As of August 2020, the Trump administration had 136 vacancies requiring Senate confirmation that lacked an appointee.

President Obama also sometimes tried to bypass the Senate’s advice and consent; at the DOJ for example, Vanita Gupta performed the functions of Acting Assistant Attorney General of the Civil Rights Division for over two years, beyond the term allowed under the FVRA. Acting officials also filled a wide number of inspector general roles as slots lacked Senate-confirmed appointees for long periods throughout President Obama’s tenure. With historically slow confirmation times and high nomination failure rates, the Obama Administration increasingly relied on acting officials in its second term.

Excessive use of acting or non-confirmed leadership unconstitutionally circumvents the Senate’s advice and consent responsibility, leaving acting officials who are less accountable to Congress and the American people. This may incentivize a president to rely more heavily upon acting leadership selected based upon their loyalty rather than their qualifications. Further, acting officials may not feel empowered to make necessary decisions, potentially crippling agencies for long periods of time. It is critical for our democracy, and the continued stability and functionality of our government, for Congress, particularly the Senate, to reassert its partnership role in the appointment process to prevent the executive from installing unaccountable acting officials.

The Protecting Our Democracy Act would:

  • Promote filling vacancies with qualified acting officials, by requiring a first assistant to have served in that position 30 days prior to a vacancy in order to be eligible to serve as the acting official, with an exception for the first 180 days of a new administration. 
  • Promote filling vacancies with qualified acting officials by requiring senior career staff serving as an acting official to have served at that agency for one year prior to the vacancy. 
  • Incentivize the president to nominate officials for vacancies more rapidly, by shortening the time limit for acting service to 120 days, from 210 days for federal agency heads and other cabinet positions.
  • Close loopholes in existing law, by clarifying that the FVRA is superseded by agency-specific statutes that prescribe different procedures in the event of a vacancy.
  • Strengthen congressional oversight, by requiring faster reporting of vacancies from agencies to the GAO, and that GAO alert Congress within 14 days of determining that an acting official served beyond FVRA time limits.
  • Require that for inspector general vacancies, the IG’s first assistant shall serve as the acting IG. In the event both an agency’s IG and the IG’s first assistant position are vacant, the acting IG could be selected from among other senior officials who worked in IG offices for at least 90 days in the previous year.

Title X, Strengthening Enforcement of the Hatch Act

The Hatch Act is a federal law that ensures our federal government administers the law in a non-partisan fashion by preventing federal employees from engaging in partisan activities on the job. The law serves as a bulwark between partisan politics and the civil service, and helps ensure that the workforce staffing our federal agencies remains free from coercion to participate in or use their office to influence elections.

Unfortunately, the Office of Special Counsel charged with enforcing the Hatch Act has limited authority to discipline senior political appointees found to violate the law, and has limited ability to investigate potential violations of the law only when allegations of violations are made. The Hatch Act Accountability Act provisions included in the Protecting Our Democracy Act would strengthen enforcement of the Hatch Act and clarify that it applies to senior political appointees who work for the president and vice president.

  • The Hatch Act Accountability Act is Title X of the Protecting Our Democracy Act. 

Articles about the measure include: 

  • Jennifer Ahern of Citizens for Responsibility and Ethics in Washington, “After four years of loophole abuse and flagrant disregard, the Hatch Act needs repair.” (The Fulcrum)
  • Donald K. Sherman of Citizens for Responsibility and Ethics in Washington, “Good Governance Paper No. 1, The Hatch Act Ban on Political Uses of Government Resources.” (Just Security)

Background 

The Hatch Act prevents federal employees from engaging in partisan political activities while they are on the job, or using federal government resources to engage in partisan politics. Federal employees are still allowed to engage in political activities privately, outside their work. The separation between their work for the government and any political activity helps to ensure that our laws and federal programs are administered in a non-partisan way. This separation also helps protect federal employees from being pressured or coerced by their superiors to engage in partisan political activities.

Unfortunately, there are a few weaknesses under the current law that have allowed violations of the Hatch Act, particularly by senior political appointees, to go unpunished. Under existing law, senior political appointees are exempt from the Office of Special Counsel’s enforcement of the Hatch Act, and can avoid consequences if the president decides not to discipline them for violations of the law. This has the potential to create a two-tier system that holds lower level civil servants responsible for violating the law but allows senior government officials to flout its restrictions with impunity. 

The Protecting Our Democracy Act would:

  • Clarify that White House, vice presidential, and other staff within the Executive Office of the President — other than the president and vice president themselves – are subject to the bill’s Hatch Act enforcement provisions. 
  • Grant authority to the Office of Special Counsel to investigate a violation of the Hatch Act without having to first receive an allegation.
  • Require the president to provide a written response on whether disciplinary action was taken when the Special Counsel finds that a presidential appointee has violated the Hatch Act. 
  • Grant authority to the Merit Systems Protection Board to hold senior political appointees who violate the Hatch Act accountable, including by issuing an administrative fine of up to $50,000, if the president does not take disciplinary action against such appointees. 
  • Require the Office of Special Counsel to report to Congress investigations of senior political appointees found to have violated the Hatch Act, the disciplinary recommendation made to the president, together with the president’s response.

Title XI, Promoting Efficient Presidential Transitions

The Presidential Transition Act of 1963 was enacted to promote a smooth transition between incoming and outgoing presidents, and guard against the risks to public safety or security caused by a disorderly transition. Since then, the law has been updated repeatedly – and on a bipartisan basis – to reflect the growing complexity of administrations and presidential transitions. The Protecting Our Democracy Act continues this tradition by amending the act to eliminate risky delays in the transition process when there is a delay in determining the apparent winners of an election for president and vice president. In the event of such delay, it would provide transition support to all qualified general election candidates while the winners are determined. 

  • The “Efficient Transition Act of 2021” is Title XI of the Protecting Our Democracy Act. 

Background

The Presidential Transition Act mandates planning and activities around a possible change in Administration. In particular, it requires the General Services Administration (GSA) to provide support to candidates for president and vice president, and to a president-elect and pice-president elect in the period between the election and inauguration. Under the proposed law, following the general election the GSA administrator is directed to ascertain the “apparent successful candidates” for president and vice president and provide certain access and support to those individuals and their staff. 

Typically that “ascertainment” has been fairly swift and straightforward. But there are no clear guidelines for how the GSA administrator should make that determination or fallbacks should the ascertainment be delayed. So for instance, amid the contested 2000 presidential election, neither major candidate, George W. Bush or Al Gore, was ascertained to be the apparent winner and neither received the specified resources until mid-December, when Gore conceded. And in fall of 2020, the GSA administrator did not make the ascertainment in favor of President-elect Biden and Vice President-elect Harris until November 23, 2020, notwithstanding the fact that the race had been called for them on November 7, 2020 by the major news outlets.  

The Efficient Transition Act of 2021 would address the problem by specifying that if the GSA administrator does not make the ascertainment within 5 days of the general election, all of the qualified general election candidates will receive the support and access normally accorded the winner. This will continue until the GSA makes the ascertainment or until the conclusion of the counting of electoral votes by the Joint Session of Congress, whichever comes first. The bill also requires the GSA administrator to issue regulations establishing standards and procedures to be followed in making a future ascertainment determination.

The Protecting Our Democracy Act would:

  • Direct the GSA administrator to make the required ascertainment as soon as practicable after the general election.
  • Direct that, if such an ascertainment is not made within 5 days of the general election, each eligible candidate for President and Vice President be treated as if they are the apparent successful candidate until the earlier of:
    • An ascertainment by the GSA administrator of a single successful candidate for that office, or
    • The conclusion of the joint session of Congress at which the House and Senate count the electoral votes for each candidate.
  • Direct the GSA administrator to issue regulations, within 270 days of enactment, laying out standards and procedures to be followed for any future determination regarding ascertainment under section 3(c) of the Presidential Transition Act.

Title XII Transparency of Presidential and Vice Presidential Taxes

The president and vice president of the United States are both taxpayers and the overseers of the bureaucracy that enforces compliance with our nation’s tax code. The Protecting our Democracy Act would codify for the first time the longstanding norm of presidents, vice presidents, and candidates for those offices publicly releasing their tax returns. Doing so would ensure transparency over whether our highest office-holders are complying with the laws they are sworn to uphold and provide the voting public with an opportunity to scrutinize the finances of high office-holders for potential conflicts of interest. 

  • This provision is Title XII of the Protecting Our Democracy Act. 

It has also been introduced as stand-alone legislation by Rep. Eshoo, H.R. 347, the Presidential Tax Transparency Act, and similar provisions have been included in H.R.1 and S.1, the For the People Act.

  • Articles related to the measure include:
    • Jack Goldsmith, “How to Respond to the Trump Tax Disclosures.” (Lawfare)
    • Joseph Thorndike, “There Oughta Be A Law: Why Presidents Should Be Forced To Release Their Tax Returns.” (Forbes)
    • Rep. Anna Eshoo, “Why all presidential nominees should release their tax returns.” (The Hill)

Background 

President Nixon started the tradition of releasing tax returns in 1973, when he released his to tamp down controversy over an audit the Internal Revenue Revenue Service (IRS) was conducting of his taxes and questions over whether the IRS could effectively hold the head of the executive branch accountable for complying with the tax laws. Following Nixon, every president and presidential candidate voluntarily released their tax returns or some version of information from them, until President Trump exercised his legal right to keep his tax returns private. Notably, under the voluntary system, presidents and candidates made individual choices regarding the form of the tax data they released and the time frame the data covered.  

In recognition of the strong governmental interest in ensuring that the holders of high office are not above compliance with the tax laws, the Protecting our Democracy Act makes presidential and vice presidential tax disclosures a legal requirement, creates a mechanism for enforcing it, and standardizes the information the public is entitled to receive. Its provisions would:

  • Require major-party candidates for president and vice president to, within 15 days of becoming their party’s general election candidate, submit tax returns for the past 10 taxable years to the Federal Election Commission (“FEC”).
  • Require sitting presidents and vice presidents to, by the annual tax filing deadline, submit tax returns to the FEC for the relevant taxable year, along with returns for the preceding 9 taxable years.
  • Create an enforcement mechanism by requiring the FEC to report any failure to disclose returns to the secretary of the Treasury along with a written request that the secretary provide the undisclosed returns to the FEC.
  • Require the secretary of the Treasury to provide returns so requested by the FEC within 15 days.
  • Ensure transparency by requiring the chairman of the FEC to make each submitted return, or return disclosed by the secretary of the Treasury, publicly available subject to appropriate redactions.

Title XIII & XIV Protecting Elections from Foreign Interference

While the 2020 election was the most secure in our history, recent investigations have found that foreign actors have targeted activities toward political campaigns. The Protecting Our Democracy Act includes provisions that would bolster confidence in our democratic institutions by requiring campaigns to disclose offers of illegal campaign help from foreign governments, and clarify that federal law prohibits accepting opposition research and other non-public information from foreign governments.

  • The Reporting Foreign Interference in Elections and Eliminating Foreign Interference in Elections are Titles XIII and XIV of the Protecting Our Democracy Act.
  • Similar provisions have also been included in S.1 and H.R.1, the For the People Act, and S.2747, the Freedom to Vote Act. 

Articles related to the measure include:

    • Stephen Spaulding of Common Cause and Lisa Gilbert and Craig Holman of Public Citizen, “Two smart ways to deter foreign money and dirt-digging from our elections.” (The Fulcrum)

Background

Foreign attempts to interfere and influence our elections have been serious and persistent. Numerous studies by Congress, and executive branch agencies as well as Special Counsel Robert S. Mueller, III have been conducted, particularly in response to concerns about Russian interference in the 2016 election. 

The Protecting Our Democracy Act  would:

  • Require campaigns, parties, and political committees to notify the Federal Election Commission (FEC) and Federal Bureau of Investigation (FBI) about contacts with a foriegn government or its agent for the purposes of making a contribution in violation of the Federal Election Campaign Act, or offering information or services from a foreign government or its agents. 
  • Require the FBI to report to Congress each year regarding such notifications. 
  • Require campaigns to put a compliance system in place to report and track foreign contacts. 
  • Provide for civil or criminal punishment for knowing and willful failures to report foreign contacts as required by the law, or for knowing or willful destruction or concealment of materials related to a foriegn contact. 
  • Clarify that the Federal Election Campaign Act prohibits the acceptance of opposition research, polling, and other non-public information relating to a candidate for federal, state, or local office by foreign governments and political parties for the purpose of influencing an election. 
  • Provide criminal penalties for knowing and willful violations of these prohibitions. 
  • Provide notice from the FEC to political campaigns and their employees explaining these prohibitions.

Updates

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