Mark Medish is the co-founder of Keep our Republic, a non-partisan civic education organization. He served as a Special Assistant to the President and Senior Director on the National Security Council and as Deputy Assistant Secretary of the U.S. Treasury in the Clinton administration. He was a law partner with Akin LLP and headed the international division of Guggenheim Partners LLC, an asset management firm. He is currently Vice Chair of Project Associates, Ltd., a strategic consultancy headquartered in London and co-founding partner of Mosaiq Law Group, PLLC in Washington, D.C. Medish is a member of the Council on Foreign Relations and serves on several corporate and non-profit advisory boards, including the Institute for Human Sciences (IWM) in Vienna, the Institute for the Study of Diplomacy at Georgetown University, and the Wilson Centre. Medish was educated at Harvard (J.D., A.M.), Oxford and Georgetown.
Deborah McCarthy: You have had a long career covering international issues: as a lawyer, in the White House, at Treasury, and in various companies and think tanks. In 2020, along with former Senator Tim Wirth (D-Colorado) and others, you founded Keep Our Republic, a nonpartisan civic education organization whose guiding principle is “Let all citizens vote. Let all votes be counted, and let the counts stand.” Can you tell us why you took on a domestic political challenge and where did Keep Our Republic get its name?
Mark Medish: Keep Our Republic got its start in early 2020. A number of concerned citizens, former elected officials, and policy people started to brainstorm on what could be the implications of the COVID-19 pandemic on our 2020 election calendar. From the pandemic, we moved to other unconventional threats. Whereas conventional threats include attempts at voter suppression, gerrymandering, and the like, our group focused on unconventional threats to raise awareness. We got our name from the famous legend about Benjamin Franklin. When he was stepping out of the Constitutional Convention in Philadelphia, in 1789, onlookers asked him “So what’s it gonna be? Is it going to be a monarchy, or what?” And Franklin, with his characteristic wit, supposedly replied, “A republic, if you can keep it.” So that’s where we got our name, Keep Our Republic.
McCarthy: You mentioned unconventional threats. Keep Our Republic has worked to educate the public about the vast emergency powers that our President has, and the potential for abuse. These include those given to the President by Congress and those implied by Article II of the Constitution. Some have been on the books for years, including one that I found rather frightening, dating from 1942, which allows the President to take over radio stations and wire communication facilities. Which are the most concerning?
Medish: Our purpose is not to panic people, but citizens ought to be aware of how power is distributed in the system, and what the checks and balances look like and how they work. Emergency powers basically fall into two categories.There are Article I powers that Congress may decide to delegate to the Executive branch. The other basket is Article II powers. Article II deals with the Presidency, and some people argue that there are inherent emergency powers that simply go with the Office of the Chief Executive. One needs to think about the two baskets separately. With respect to the delegated emergency powers, Congress has been remiss in conducting reviews and, consequently, there are lots of declared emergencies that relate to events that happened decades ago, so the delegation of powers is still there. And that’s great, as long as you have a scrupulous executive who follows the Constitution in good faith. But what if you have an unscrupulous executive?
The good news is Congress, if it does its job, has the authority, the power, to engage in oversight, hold hearings, and so forth. More good news is that there have been attempts to place statutory limits on the delegations. One such attempt occurred late last year to put a 30-day limit on any delegation — the President could act within that 30-day period but, at the end, would have to report back and seek an affirmative extension. Unfortunately, that reform provision was not adopted. It almost got adopted right before Christmas (2022).
For the other basket, Article II, Congress does not have authority to revoke. Congress can express its views, but the only protection is the good faith of the President and the possibility of judicial review by the federal courts. Jurisprudence, unfortunately, is sadly lagging. There is not a coherent theory of the case about inherent Presidential emergency powers, and what the limits might be.
McCarthy: I understand that Keep Our Republic teamed up with the Brennan Center and others to update the National Emergencies Act of 1976, which set up timelines and mechanisms for Congress to oversee what it had delegated. How did Keep Our Republic partner with organizations to push for reform?
Medish: Keep our Republic is a 501 (c)(3) non-profit. We’re a nonpartisan, civic education organization. We teamed up with other civic organizations, think tanks, academic institutions, individual experts, and professors to think about what a sensible reform of the National Emergencies Act would look like. There are many groups involved but the strongest common denominator was a 30-day automatic limit, and that’s the piece that almost got adopted. As I said, we missed it by that much. It was the White House that, in the end, did not fully support the inclusion of that provision.This was a disappointment to many that the Biden administration did not push for this. In a sense, it’s not surprising, because the executive branch, on principle, might not want to limit its own discretion. In fact, there’s a Supreme Court case pending right now about the forgiveness of student debt. And it is important to bear in mind that the Biden administration has pinned that use of executive authority on the COVID-19 emergency. So, pushing for an automatic 30-day limit for an emergency might be at cross-purposes with their use of executive authority.
I should add for students of American history: why the National Emergencies Act of 1976? It was a period of a lot of social and political agitation over the powers of the President, the role of an imperial presidency, post-Vietnam War, Watergate and all the covert activities of the CIA. It was the period of the Church Committee. One of our founding members, Senator Gary Hart, of Colorado is the last surviving member of the Church Committee.
McCarthy: What are the prospects of getting some sort of reform to the National Emergencies Act done in the current Congress?
Medish: Passing anything in Congress these days is very, very hard. But there is a strong bipartisan argument because this is very principled, and you never know whether your party is going to be in power or not. So why not have a requirement that the President does not get an unlimited delegation but must come back and seek affirmative renewal from Congress? The bill that did not quite make it had bipartisan support. I think it’s possible and we are going to keep working on it.
McCarthy: Keep Our Republic has also argued for reform of the Electoral Count Act (ECA) of 1887, which lays out how the electoral college selects the President and Vice President, and how Congress tallies votes. The Twelfth Amendment requires electors to meet in their respective states to cast their votes which are then transmitted to Congress to be opened by the Vice President in a joint session. As we know, former President Trump pressured some state officials to set aside election results, declare him the winner, and appoint his electors. He also pressured Vice President Pence to set aside the vote count. What were the weaknesses in the Act, and how were they demonstrated in the 2020 Presidential election?
Medish: The ECA was a statute that was passed after the impasse of the 1876 Tilden-Hayes election. The Electoral College was basically short-circuited because a number of states put forward dueling slates of electors. That was a Constitutional crisis, which was resolved through an extraordinary commission of high-level eminent persons that worked out a compromise whereby Tilden conceded to Hayes. Congress then said, “we’ve got to try to clarify the rules so that we don’t have this problem going forward”. The ECA was the upshot about 10 years later. It tried to set out who had the authority at the state level to decide which slate of electors was the real one. It seemed to indicate that the governor had that authority, but it was a bit ambiguous. Also, it did not clarify the role of the Vice President.
The reform of the ECA that was adopted at the end of the last Congress has some critical changes, includingspecifically saying that the governor of the state has the authority (unless the state’s Constitution says otherwise), that the Vice President’s role in opening the electoral votes is merely ministerial, and that the Vice President cannot decide for him or herself which ones count, and which ones do not. Finally, it raised the threshold for challenges in Congress. Under the original ECA, just two or three members could basically challenge any given state’s slates of electors. Now the threshold has been elevated to one-fifth of the members of the House and Senate. Keep Our Republic played a small role. There were many groups involved and a lot of leadership on the Hill. We are not out of the woods constitutionally, because this reform statute, like its predecessor, has not been challenged in the Supreme Court. So, it is possible that critics of ECA would argue the whole thing is a Congressional intrusion on the rights of states. In any constitutional challenge the statute might be upheld, or parts of it might be upheld, and other parts struck down. This raises fundamental questions about Federalism, the role of states, what state Constitutions say, what state legislatures can do, versus what are federal national standards — one of the strongest of which is “equal protection,” the closest we have to the protection of one person, one vote. You can make a very strong, well-grounded argument in the U.S. Constitution, that any set of rules that tries to overturn the popular vote is unsound, is not a good reading of the totality of the Constitution’s principles. But there are states’ rights advocates who look at things differently. We should know our own history — we actually fought the Civil War over a similar set of issues.
McCarthy: Keep Our Republic is focused on civic education, beginning in Pennsylvania, Wisconsin, and Michigan. Can you explain the choice of these states and what Keep Our Republic is doing on the ground?
Medish: What we have talked about up to this point is largely our “Paul Revere“ role, which is issue spotting and consciousness raising, deliberation about legal solutions and legal challenges, to preserve our democratic operating system. But another level of our activity is state and local. And it is the part that I’m probably most excited about. It’s de Tocquevillian. We are really taking pages out of Robert Bellah’s “Habits of the Heart” — or Bob Putnam’s “Bowling Alone” — to learn how to restore a sense of civic engagement at the community level in America. We’re operating on the theory that this is the source of the strength of our society — the actions of ordinary citizens. We felt that it would be a mistake to leave this issue to high level debate about ancient statutes like the ECA, without getting down to the local level where our elections take place. We don’t really have national elections – we have elections in 50 states at the same time. We felt it very important to engage civic leaders, activists, concerned citizens in a discussion in their localities, and to bring some thinkers from around the country to compare notes. This is the core civic education side of Keep Our Republic. We’re small, so we chose states that politically you’d call purple, where there’s a lot of foment about how elections were being conducted — Pennsylvania, Wisconsin, Michigan. There are a few other states we’re looking at, including Georgia and Arizona. The events are anything from town hall meetings to fireside chats, to sessions with officials or ex-officials on what do you do if this scenario unfolds during your election? We rip case studies out of the headlines, things that have already happened in the country somewhere, whether it’s a power outage, a demonstration, an attempt to impede access to voting places. And then there is brainstorming: what are the legal remedies? How can how can things like that be dealt with to minimize risks? We had a couple of events across Pennsylvania, at Dickinson, and then at Franklin & Marshall in Lancaster. We had former Republican Governor of Pennsylvania Tom Corbett and David Thornburgh engaged. I know the names I’ve mentioned so far are former Democratic leaders, like Senator Wirth and Senator Hart and Congressman Dick Gephardt. But Ex-Governor Tom Ridge (R) is also involved, and this is a cross partisan effort.
McCarthy: There is concern about deliberate efforts to create doubt about election results through disinformation/misinformation. We also have election deniers, some of whom hold office in various localities. So how do organizations like Keep Our Republic work to address this?
Medish: We face a heightened challenge because of the digital world we live in. The sowers of doubt use social media to spread confusion and misinformation very quickly and on a large scale. We are very concerned about this, and what the advent of artificial intelligence tools could mean for deliberate attempts to undermine confidence in the system. I go back to the de Tocquevillian point – we’re good at transparency, we’re good at neighborhood activism. Governor Corbett used a phrase in Lancaster: “we need hyper-localized dialogues about democracy.” The bad guys, from our standpoint, who want to sow mistrust are our neighbors, they’re in communities, and that’s why we have to fight complacency. We don’t want to sleepwalk into the loss of our vibrant democracy. The only thing groups like Keep Our Republic can do is serve as wake-up callers. We want to empower people and for people to sense their democratic agency. That is really the brilliance of our system. That’s the Republic we’re trying to keep.
McCarthy: I like the term “hyper-localized.” Engaging in civic education is essential to preserve what we have.
Medish: When we say “civic education” it is not a one-way street. We believe in listening to people. People have questions, have doubts. The way we work that out in a deliberative democracy is that we talk about it. There must be convincing explanations. We believe there are, and this is why our democratic electoral operating system is very strong and the source of our success and our prosperity as a nation. We want to keep alive this 250-year-old experiment in self-government, but it depends on our awareness, on our action, and on our engagement as citizens.