January 6, 2022

"Gradually, then suddenly”: How the Protecting Our Democracy Act addresses institutional decay

Soren Dayton Policy Advocate, Protect Democracy

american flag cracked

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

In Ernest Hemingway’s The Sun Also Rises, Bill asks Mike how he went bankrupt. Mike responds “gradually, then suddenly.” January 6th marked the “sudden” part of American democracy’s decline, when it became patently clear that our system of government had been weakened. But I want to focus on the “gradual” part: How it is connected to the “sudden” turn, and how legislation–specifically, in this example, the Protecting Our Democracy Act–is a key component of reversing the country’s continued slide.

The decline of American democracy has been gradual. According to one measure from Freedom House, a non-profit that tracks democracy around the world, our democratic decline started in 2010. The Economist Intelligence Unit pegs it to 2006. These quantitative measures were first given a clear qualitative explanation in Yascha Mounk and Roberto Foa’s July 2016 piece in the Journal of Democracy, months before the election of Donald J. Trump.

Analysts have pointed to many factors for this decline. These range from political (gerrymandering, voting rights, etc.) to cultural (affective polarization) to technological (filter bubbles and misinformation) to economic (rising inequality). Another factor, however, is institutional decay.

Institutional decay typically happens over time, when underlying assumptions in an institutional structure gradually shift, making the constraints–in this case, constraints on the abuse of power–less impactful. Institutional decay is a natural occurrence of neglect, not a consequence of bad actors misbehaving in the short term. Congress must constantly review how laws work, how practice changes, and how legal authorities evolve. Think of it this way: If you don’t do regular maintenance on your house, something will go wrong. Your neglect helps create the conditions for the house to crumble.

It is the same with governing institutions. Institutional decay has enabled and incentivized presidents of both parties to violate the norms of their office and allow the rot of Congressional prerogatives. This has taken several forms, such as Congress’s increasing inability to legislate on matters of national importance, to the executive’s increasingly successful blocking of Congressional oversight.

Eventually, this wear and tear was bound to culminate in a more serious and abrupt breakdown, which is what occurred with the previous presidential administration. To be clear: People don’t storm the U.S. Capitol for presidents who respect governing institutions and checks on their power. They storm it for the sort of person who says that blowing right through these things is the only way to save the country–and that “I alone can fix it.”

Reversing institutional decay is the target of the Protecting Our Democracy Act (PODA), which passed the House in December 2021 on a bipartisan basis. Consistent with the theme of “gradually, then suddenly,” PODA addresses a number of areas of presidential power and checks and balances that have decayed over multiple administrations. For example:

  • Title I addresses the president’s pardon power, which has been abused by a number of Presidents, most notably President Bill Clinton.
  • Title IV addresses congressional subpoena compliance by accelerating judicial review. Gradually, Congress has lost its ability to get information from the executive branch. The provision in PODA was first suggested by Darrell Issa, former Republican Chairman of the House Oversight and Government Reform Committee (now Committee on Oversight) after his oversight attempts had been rebuffed by the Obama administration.
  • Title V gives Congress (and the public) more visibility into government spending and stronger enforcement tools when the executive branch hides information from the public. Presidents of both parties have hid information, and Trump weaponized that hidden information.
  • Titles VII and VIII address various problems with the whistleblower and Inspector General (IG) systems that were created after Watergate. Presidents of both parties have tried to undermine these accountability mechanisms within the government.
  • Title IX covers executive branch appointments, including rules for how Senate confirmable positions should proceed when there is inaction by either Congress or the executive branch. This issue has steadily gotten worse since the recess appointment battles at the end of George W. Bush’s second Term.

These ideas are checks on strongman government. They not only address institutional weaknesses that have worsened over time, but their necessity is even clearer at moments of peak antidemocratic behavior. Consider how they could have changed the first impeachment proceedings against President Trump, the Mueller investigation and related Congressional investigations, and events surrounding 1/6:

  • The pardon provisions of Title I may have limited how President Trump used or dangled pardons in the Mueller investigation.
  • The subpoena compliance provisions of Title IV may have accelerated the response to Congressional investigations of the White House.
  • The whistleblower and IG provisions of Titles VII and VIII could have exposed the concerns raised within the executive branch and provided additional protections to those raising the concerns.
  • The vacancy provisions of Title IX would have required regular Congressional testimony by acting officials and created more channels of accountability. Additionally, it would have been an important down-payment on fixing the broken appointment confirmation system. A number of positions in the executive branch that had key decision roles on January 6th were not occupied by Senate-confirmed individuals at the time. Instead, they were populated by individuals who were selected by President Trump - without Congressional input - using the over-relied on Federal Vacancy Reform Act or the succession statutes of the relevant agencies, such Chris Miller, the Acting Secretary of Defense, who delayed providing National Guard support; Jeffrey Clark, the Acting Assistant Attorney General for the Civil Division, who plotted with President Trump to overturn the election results; and the entire senior leadership of the Department of Homeland Security.

Much of PODA’s spirit, however, is to highlight institutional decay that leads to less obvious–but no less serious–de-democratization. Consider national emergencies, which are the subject of Title V of the bill. In 1976, Congress passed and President Gerald Ford signed the National Emergencies Act (NEA) to create a structure for exercising certain legal authorities when declaring national emergencies. Congress delegated certain authorities to the President, and Congress gave itself a way to intervene when it disagreed with a President’s use of national emergencies.

The Brennan Center’s Liza Goitein has documented the ways in which this system gradually transferred powers to the executive branch. For instance, Congress never reviewed any of the emergencies that a president had declared prior to the Trump administration, creating a de facto blank check for executive power. Furthermore, the 1983 Supreme Court decision INS v Chadha made Congressional review even harder, because Congress would need to muster a super majority to terminate a President’s veto. This happened in 2019, when majorities in the House and Senate each voted twice to terminate former President Trump’s reallocation of Congressional appropriated money toward his U.S.-Mexico border wall project, using the NEA as his rationale.

The institutional framework around national emergencies had decayed gradually in the 43 years since its adoption.  The decay was largely due to Congressional disuse of the tools at its disposal, and Supreme Court precedent that altogether dulled Congress’s tools. Had Congress reviewed and responded at any point during this four-decade stretch, the sudden challenge brought by President Trump–essentially confiscating billions of dollars Congress approved by law for one thing and using them for another–would never have happened, or at least would not have set such a scary precedent.

It’s better late than never, though. Congress can perform institutional maintenance now, with a presidential administration that’s open to reform and the bipartisan potential that PODA–many of whose ideas were in fact introduced first by Republicans–provides. For example, even after President Trump’s national emergency declaration for the border, it was Republicans in the Senate, led by Mike Lee, who pushed for reforms to the national emergency system.

That, right there, is one way to see PODA as transcending left-right, as well as the current political moment. It’s about the long-term health of the country’s democratic institutions, which would be bolstered by smart, preventive measures such as those contained in PODA.

Democracy and Elections, Executive Power, January 6th, National Security and Civil Liberties, Separation of Powers and Federalism