Essential Politics: Trump abused his powers. His shadow may block reforms.
Three months after Richard M. Nixon became the first president to resign his office, Democrats netted 49 new House seats in the November 1974 congressional elections, a tidal wave that opened the way for a burst of post-Watergate reforms.
New limits on campaign contributions, the Ethics in Government Act, the Presidential Records Act, the creation of a legal framework for special prosecutors — all these and more burst out of Congress between 1974 and 1978. Not all those laws succeeded, but many of their provisions continue to set limits on elected officials more than four decades later.
Democrats and some former Republicans hoped for a similarly sweeping election victory this year, believing that President Trump‘s abuses of power required a congressional response as far-reaching as the one that followed Watergate. But voters had something else in mind — Trump lost decisively to Joe Biden, but Republicans gained seats in the House and largely held their own in the Senate.
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The election didn’t eliminate the chance for new laws designed to prevent a future president from repeating what Trump did: Privately, some Republican members of Congress agree that he badly abused his power and opened a path that a future president could take to even more seriously damage American democracy.
But the election did significantly lengthen the odds on major reforms, and the reasons why are worth a look.
By contrast with Trump, Nixon served as a moderately popular president during much of his tenure. Many Democrats loathed him, of course — a distaste that stretched back to his days as a red-baiting member of Congress in the 1940s and early 1950s — but after a very close election in 1968, he had majority approval for most of his first term, according to Gallup’s data, and won a landslide reelection in 1972.
Nixon’s standing with Americans only dropped below 50% for good when his top aides, H.R. Haldeman and John Ehrlichman, resigned at the end of April 1973. When the drop came, it was loss of support among voters of his own party that ultimately brought Nixon down. By the final six months of his tenure, barely half of Republicans still approved of his job performance.
Trump, by contrast, alone among presidents since scientific polling began, never had majority approval. His support never rose much above the mid-40% range. But it never dropped much below that, either.
In this era of deeply entrenched partisanship, Trump’s backing within his own party seldom dropped below 90%. Combine that steadfastness with gerrymandered districts which give Republicans a notable advantage, and the GOP was able to come close to a majority in the House this year even though Democratic candidates, in aggregate, won substantially more votes.
That support has survived Trump’s defeat. As he’s shown since he lost the election, his popularity with Republican voters has given him the power to suborn scores of Republican elected officials into actively backing his efforts to subvert the voters’ will, which have gone nowhere, but still harmed voters’ faith in American democracy.
The reality of partisan division means that nothing close to a national consensus exists on how to view Trump’s actions or which to consider abusive, let alone what the proper legislative responses might be.
That hasn’t stopped Democrats — and some former Republicans — from making the case for change. Their essential pitch is that the precedents Trump set could be used by a future president of either party set on abusing his authority. Now’s the time, they say, to act to put guardrails back in place.
“The whole course of events in the last few weeks just underscores that there’s a need” to restore broken norms of presidential behavior, argues Bob Bauer, the former White House counsel under President Obama and now a senior advisor to Biden.
Trump failed to put many of his policies into effect and failed again in his effort to overturn the election. His frequent examples of “incompetence tend to limit the overall impact” of what he did manage to do, Bauer noted.
To gauge why reforms are needed, however, “you have to imagine what would the impact be if we had a president who was more adept” at translating his will into action.
Before the election, Bauer teamed up with Jack Goldsmith, a Harvard law professor and former top Justice Department official in the George W. Bush administration, to write a book, “After Trump: Reconstructing the Presidency,” that details dozens of specific reforms that they advocate Congress and the new administration should adopt.
Those range from changes in how a presidential candidate runs for office, an enforceable requirement to disclose tax returns, for example; to conduct in office, such as new conflict-of-interest rules and steps to prevent retaliation against reporters; to measures that would affect a post-presidency. They recommend, for example, that Congress amend federal law to say that a presidential effort to pardon himself would have no effect — a limit they believe courts would uphold despite the broad wording of the Constitution’s pardons clause.
House Democratic leaders, who consulted with Bauer and Goldsmith, have gathered together many of those ideas in a legislative package that Speaker Nancy Pelosi (D-San Francisco) has said she hopes to bring to the floor early in the new year.
Backers of the plan say Republicans should support the legislation in the knowledge that a Democratic president could strong-arm Congress using the same tools that Trump employed.
“Republicans are not going to want a Biden administration to say, ‘we’re going to just ignore your subpoenas’” the way Trump’s White House did, said Rep. Adam Schiff (D-Burbank), one of the principal authors of the Democratic bill.
Schiff is under no illusion, however, that Republicans are ready to take that advice. At least for now, he said, Republican members of Congress will be “wary of taking any legislative action that will look like criticism of Trump.”
The same entrenched partisanship that sustained Trump through four chaotic years will now probably impede efforts in Congress to repair the damage he did.
Even so, Goldsmith said, the debate is worth having. Eventually, the partisan deadlock will shift. The post-Trump repair job may take longer than the one that followed Watergate, but eventually, the country will be ready to move on.
“The context here is much different” than in the aftermath of Watergate, but “we still think a lot of these proposals are ripe” for action, he said.
“It’s really hard to predict the extent to which Trump will have a grip on the party” for the long term and whether “a return to the norms will remain viewed as an attack on him.”
In the long run, he said, “I’m not pessimistic” on the prospects.
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California ticket splitting
The final data haven’t all been analyzed yet, but the 2020 election almost certainly has set a modern record for straight-ticket voting, according to David Wasserman of the non-partisan Cook Political Report.
Nationwide, at most 17 congressional districts went for Biden for president and a Republican for Congress or Trump and a Democrat. That’s fewer than half the number that split in 2016. As recently as 2008, 83 districts displayed such split loyalties.
Notably, four of this year’s split districts are in California — one in the Central Valley, one in northern Los Angeles County and two in Orange County — all carried by Biden, often by large margins, but narrowly won by the GOP.
Democrats disagree over how to interpret those congressional losses. Mark Barabak sat down with two freshmen Democratic members of Congress, Reps. Katie Porter of Irvine, who won a second term, and Harley Rouda of Laguna Beach, who didn’t, to talk about their differing views of why Democrats lost seats and how to gain them back.
The latest on the transition
As Biden has continued to build out his new administration, his former rivals for the nomination have been conspicuously absent — with the important exception, of course, of Vice President-elect Kamala Harris.
Sens. Elizabeth Warren and Bernie Sanders, for example, both let it be known early on that they had interest in Cabinet positions, Treasury and Labor, respectively, but Biden’s team used the need to preserve the Democrats’ ranks in the Senate as a reason to sidestep those suggestions.
This week brought the first — and likely only — exception as Biden tapped Pete Buttigieg, the former mayor of South Bend, Ind., as his designee to run the Transportation Department. That also closed the door on Mayor Eric Garcetti, who said Thursday that he had discussed possible roles in the administration but had decided to stay in Los Angeles.
Biden months ago showed his high opinion of Buttigieg by comparing him to his late son, Beau Biden. As Noah Bierman and Chris Megerian write, memories of Beau have had a major role in shaping the Biden administration, even as the problems of Biden’s surviving son, Hunter, continue to pose a threat to it.
Biden and Buttigieg both emphasized Transportation’s role in fighting climate change. Biden plans to emphasize that topic further on Saturday as he unveils his picks for agencies dealing with the environment, headlined by Rep. Deb Haaland (D-N.M.) to head the Interior department, the first Native American to head a Cabinet department.
Biden also chose Michael Regan, the head of North Carolina’s environment agency, to run the Environmental Protection Agency.
Early on, Mary Nichols, the head of California’s Air Resources Board and one of the nation’s most experienced environmental regulators, had been widely expected to get that post. But, as Anna Phillips reported, opposition from California-based environmental justice advocates played a big role in blocking Nichols. The groups have long opposed Nichols because of her role in implementing the state’s cap-and-trade system, which they say harms poor communities.
The latest from Washington
The Supreme Court effectively put an end to Trump’s effort to exclude undocumented residents from the census, in a 6-3 ruling Friday that sidestepped the big constitutional issues involved, but punted the issue over to the Biden administration, as David Savage wrote.
The court’s three liberal justices would have gone further and ruled that Trump’s efforts were unconstitutional, but the majority said the prospects for what the administration might try to do were so uncertain that there was no reason to rule on the merits. Trump’s push to exclude the undocumented posed a significant threat to the political clout of California and other states with big immigrant populations.
Congressional leaders expect to work through the weekend in an effort to close a deal on a new economic relief package and a spending bill needed to keep government agencies funded. As Sarah Wire reported, negotiators have agreed that the relief package will include extended unemployment benefits and another round of direct checks to Americans but remain divided on several other issues.
Grim news about unemployment has spurred those negotiations along. Longer-term, however, the economic forecast for next year appears bright, Don Lee reports. Assuming that the rollout of COVID-19 vaccines continues successfully, the late spring and summer likely will see a surge of spending as consumers return to restaurants, vacations and other long-delayed pleasures.
“You have to think that sometime in the middle of next year, you will see people feeling comfortable going out and engaging in a broad range of activities,” said Federal Reserve Chairman Jerome Powell.
As the Biden administration prepares to take office, the country’s antitrust laws, which seemed quiescent for years, have been coming back to life. The last couple of months have seen three major antitrust suits against Google, and this week, the Supreme Court agreed to review a major antitrust case brought by college athletes against the NCAA.
As Savage reported, lower courts in California ruled that the NCAA’s rules barring compensation for student athletes could be considered a restraint of trade in violation of the antitrust laws. Although the lower-court ruling was limited, it could set a major precedent if the high court agrees. A ruling is likely by late spring.
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