By Tom Rogers and Susan Del Percio
While no one could have imagined the abuses our governing system would be forced to endure under the Trump presidency, we did learn where our constitutional and governing norms were vulnerable. The reforms necessary to strengthen and protect our system will require substantial public support, yet it will likely be up to Senator Mitch McConnell to decide whether they move forward. So how can we overcome the McConnell hurdle?
The key here lies in putting forward ideas that McConnell can embrace as being in his own interest.
During the next four years, the Senate will look to hold the Biden administration accountable, and many Republican Senate committee chairs will be looking to score points off the Biden administration. Thus, come January 20th, when Joe Biden is inaugurated, Senate Republicans will not have much incentive to plug the holes that the Trump administration drove through, but they have plenty of incentive to put in place ways to make the executive branch more responsive to the will of Congress, and to make Senate oversight in particular more penetrating.
So what reforms might Senate Republicans be willing to embrace? The precise reforms necessary to address all the bad behavior of the Trump administration are not even knowable without access to a massive number of files, documents and servers in which the full extent of malfeasance is hidden. So to begin the reform process, the House ought to be issuing subpoenas now, and renewing them at the start of the new Congress on Jan. 5—not because the Trump administration would comply with any of them, but in order to make it very clear that any attempt to destroy these materials would subject Trump administration officials to the significant criminal penalties that come with destruction of information subject to a subpoena request.
There are three areas where reform-minded House Democrats and Biden-harassment-minded Senate Republicans might agree: enforcement of congressional subpoenas, protection of government whistleblowers and transparency by government officials to avoid conflicts of interest.
One of the things that made the Trump administration so difficult to tame was its complete disregard of House subpoenas for material relevant to key investigations. Today, congressional subpoenas, when challenged in court, are not given deference as special lawsuits that deserve unique, accelerated consideration.
It makes no sense to allow the executive branch to hide behind the normal slow pace of judicial proceedings as a way to stifle legitimate legislative attempts at meaningful oversight. Congress should pass a statute which provides immediate review by the Federal Court of Appeals for the D.C. Circuit Court when subpoenas are issued and approved by either house of Congress, or a special counsel. That court should be given a two-week timetable to consider and rule on the legitimacy of issued subpoenas.
Given the oversight issues that McConnell will want to bring to bear over the Biden administration, this should be a reform he would embrace.
On the issue of whistleblowers, the Trump administration demonstrated it was willing to go on witch hunts to ferret out and publicly reveal whistleblowers in an effort to intimidate them, and even put such government workers’ personal safety at risk. Moreover, the Trump administration fired key administration officials who cooperated with congressional investigations.The president should be able to decide whether he has a trusting relationship with those who serve him, but whistleblowers require stronger protections, and those who cooperate with legitimate congressional subpoenas must be able to do so without repercussions.
Creating clear criminal sanctions for any executive-branch employee who limits or constrains a whistleblower complaint from being shared with Congress would be one answer to this issue. This would simply build upon the Whistleblower Protection Enhancement Act, which passed the Senate with unanimous consent in 2012.
Again, Senator McConnell should be willing to go along with such a reform. After all, it would make sure any efforts by whistleblowers to bring to light potential abuses in the Biden administration are not impeded.
On the broad subject of providing greater transparency into the actions of the president, a number of necessary reforms became obvious after the 2016 election. First, there must be a requirement, enforced by criminal statute, that all presidential candidates release their tax returns. As to enforcement against an elected president where failing to release returns might not be remedied through criminal enforcement, federal law needs to be amended so that the focus is on any candidate for federal office, making the release of tax returns a qualification for office—an absolute standard that sits aside age and citizenship as a mandatory requirement.
Second, conflicts of interest must be disclosable, policeable and remediable, so that a president is forced to be fully transparent. So, for example, a future president cannot have his or her hand extended to members of foreign governments who are paying lavishly to stay at a hotel he may own. An independent regulatory commission consisting of three appointees from each party, not unlike the Federal Election Commission (FEC), with full subpoena power that also can be fast-tracked to the courts, should be created to oversee potential conflicts of interest.
The ability to fine, sanction, order divestment, disgorge profits and refer for criminal prosecution must be part of the agency’s arsenal of enforcement tools. There also needs to be a mechanism for an agency to function in the absence of sufficient commissioner appointments having been confirmed, in order to prevent an agency suffering the kind of atrophy the FEC has.
This commission should not only oversee executive branch conflicts, but congressional conflicts of interest as well, such as potential abuse of inside information for trading of stocks (yes, we mean you, Senators Perdue and Loeffler). McConnell probably will not easily embrace the congressional oversight element of such an agency, but even getting such a pillar of reform in place relative to the executive branch would be a major reform accomplishment.
With the Republicans in control of the Senate, or even a 50/50 split, the path to reform will not be easy, especially with Donald Trump yelling from the sidelines. This means it is essential to enhance Congress’s ability to enforce its oversight role in a way Leader McConnell can embrace.
Dealing with congressional subpoena power enforcement, protecting whistleblowers and providing ways to ensure transparency, all backed by a meaningful regulatory and criminal sanctions regime, would provide a basis for Senate Republicans to get behind reform efforts given that they will now be dealing with a Democratic administration.
As John McCain said in 2017, “Let’s return to regular order. We’ve been spinning our wheels on too many important issues.” The House must take the first step and immediately issue subpoenas to preserve all materials, to ensure the sunshine can reach the darkest corners of the Trump administration—so we know where to best apply the reform disinfectant. It is a long road ahead to put in place all the necessary reforms, but we can only make strides by getting Leader McConnell and Senate Republicans to be teammates in the effort.
Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chairman of Engine Media and is former senior counsel to a congressional committee. Susan Del Percio is a Senior Advisor to the Lincoln Project. She is a well-known political strategist and crisis communications consultant with over 30 years of experience in the political, government, nonprofit and private sector arenas.
The views expressed in this article are the writers’ own.