Why we need a Commission on Democracy, and what it could do
BY DONALD K. STERN
As the Trump presidency thankfully comes to a close, many of us are relieved that our constitutional democracy managed to avoid four more years of steady erosion.
We look forward to trying to make America better again. But, it is important that we also look back.
I know that there are some who seek criminal prosecution of Donald Trump for decisions and actions taken during his term. I am sympathetic to the argument that no person is above the law, Trump will lose his claim for immunity as president, this is the only way to make things right and prosecution is needed to deter future presidents.
However, I worry about the further damage to our institutions in this toxic environment and whether a prosecution will have the desired effect.
Although this may be a foreign concept to Donald Trump, I care more about the country than I do what happens to Trump. So, how can we assess the damage, have some measure of accountability and strengthen the guardrails of democracy?
I suggest that a bipartisan Commission on Democracy be established by President-elect Joe Biden following his inauguration. I know that such commissions can be seen as just kicking the can down the road and often end up as coffee table ornaments. Still, they serve as historical markers and can illuminate and lead. The Warren Commission, the Kerner Commission and the 9/11 Commission all played important roles in assessing events and suggesting remedies, even if not adopted immediately or ever.
Here are some of the issues, some small and some large, which might be considered:
I have no reason to doubt the judgment that this was the “safest election in American history.”
Still, another deep dive to examine the risks, foreign and domestic, would be timely. If it was so safe, then what worked and why? And, what steps do we need to take to address future risks?
ELECTION RULES AND REFORM
Our system looks to state and local election officials to set the ground rules and certify the results. Ironically, this decentralized patchwork may be a triumph of democracy and may have prevented Trump from hijacking the election.
On the other hand, is there a need to establish some clearer standards and protocols in federal elections?
What about voter suppression?
We may need to pass a new Voting Rights Act aimed at protecting and even enhancing the right to vote.
We owe a debt to those courageous whistleblowers, some anonymous and some not, who set the record straight and came forward.
Are they adequately protected? And do we need to do more to protect the inspector generals in our federal agencies?
This law, passed in 1939, is intended to keep the executive branch out of politics. It didn’t seem to work very well and lacked enforcement teeth. It needs a fresh look.
TRANSPARENCY AND CONFLICTS OF INTEREST
If we want those running for president to release their income tax returns, then we should pass a law to require it. If we don’t want sitting presidents to benefit financially, then we should say so and make it enforceable. If we want to prohibit or make public any contact by political campaigns with foreign actors, then we should specify how this should be done.
The ability and willingness of Congress to oversee the executive branch seems broken. Hearings and reports are often just political statements. Subpoenas are sometimes designed to just make a point and, even when well-crafted and limited, are ignored. I would think that we could create a bipartisan roadmap to make this work, without undue burden on any administration. Also, outside the legislative and executive branches, judicial review should be fast-tracked.
There is no doubt that the highly partisan split in Congress, often squeezing out the middle, is the result of the highly partisan drawing of congressional districts by state Legislatures. Can this be changed or limited and, if so, how?
DEPARTMENT OF JUSTICE
Some of the norms governing the Department of Justice are just that — self-imposed standards or guidelines. Some worked and some didn’t. These need to be examined and, if need be, put into legislation, so we can preserve an independent system of justice.
THE PARDON POWER
The conventional wisdom, probably correct, is that the power of the president to pardon is unbridled.
But, selectively pardoning those who have protected you by not testifying and bypassing the usual DOJ process for vetting pardons is corrosive. Can the president’s power be restrained in any respect?
Here we all know the problem, but solutions are harder to come by.
Social media has an outsized impact on government and how we see government institutions. Is there anything that we can do, while still protecting our First Amendment rights? Do we need our schools to teach social media skepticism?
Inevitably, a look back and full reckoning is necessary to figure out the changes that will strengthen our democracy.
These and no doubt other issues are seemingly distinct., but a careful and holistic examination can help put us back on track and build in some additional protections. In my view, a bipartisan Commission offers a better chance of success than a more heavy handed criminal prosecution.
Donald K. Stern, a former U.S. Attorney in Massachusetts, lives part-time in Monterey.