Catastrophic Attack and Political Reform

June 22, 2017
posted by Bob Bauer

Had the Alexandria shooter had his way and murdered a score or more legislators on a baseball field, the country would have witnessed horrifying carnage--and, as Norm Ornstein has argued, it would have entered into genuine constitutional crisis. The slaughter of the members of one political party would have changed, in minutes, the balance of power in the federal government. A Killer’s Congress would have come into session for an extended time. Special elections don’t happen overnight, or within days or weeks.

It is hard to see how-- by what exceptional displays of political leadership--the government in these conditions could re-establish its legitimacy. It would be exceptionally hard in the “best of times”. In a divisive, polarized politics, it is close to unimaginable.

As Ornstein points out, we cannot say that this miserable state of affairs could not have been anticipated. On 9/11, the Capitol only escaped a devastating attack because Flight 93’s passengers gave their lives to bring down the plane. We also cannot say that no thought was then given to reforms to protect the continuity and democratic integrity of government if its senior ranks were to be violently cut down. Ornstein joined with others to establish a Continuity of Government Commission, which then recommended measures for assuring in the event of catastrophe a functioning, constitutionally legitimate presidency, Congress and the Supreme Court. That was fourteen years ago.

This is a follow-up to a first posting on this issue, now up on Just Security.

The text is also reproduced below:

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As a potential crime under the campaign finance laws, the Trump campaign collusion with the Russians is well documented. As I contended in a recent essay, there is ample evidence in plain sight. The President applauded a foreign government for its interference in the election and suggested that he would be happy to see more of the same. Asked to disavow it, he declined to do so. Both the candidate and his campaign made extensive use of the material the Russians supplied via WikiLeaks on the campaign trail and in the presidential debates. The Russians had a willing partner in their design to influence the election and a clear signal that their intervention had value. There is more than enough in the public record to warrant inquiry into the Trump campaign’s “substantial assistance” to a foreign government in violation of the campaign finance laws.

Some analysts believe that this is evidence is insufficient. They insist that more is needed in the form of direct communication between the campaign and the foreign government. But they are mistakenly discounting the significance of the evidence in plain sight, and looking in the wrong direction for more proof, if in fact more is needed.

I wrote the following piece for Just Security on the campaign finance issues raised by what is known about Russian activities in the 2016 election. It also appears below.

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Commentary on Russian intervention in the 2016 elections has included one confidently expressed and perhaps growing view: that there may be a scandal there, but no conceivable crime. It is claimed that the Trump campaign could wink and nod at Russian hacking, and derive the full benefit, but that without considerably more evidence of direct involvement, there is no role for criminal law enforcement. The matter is then left to Congress to consider whether new laws are needed, and the public, of course, will render its judgment in opinion polls and in elections still to come.

This view is flawed. It fails to consider the potential campaign finance violations, as suggested by the facts so far known, under existing law. These violations are criminally enforceable.

The Supreme Court and the Political Parties

May 23, 2017
posted by Bob Bauer

The Supreme Court has turned Jim Bopp away, denying his wish to have the parties relieved of core McCain-Feingold restrictions. There could be any number of explanations. The Court may have no appetite at the moment for a major campaign finance case. Or, having chipped away at McCain-Feingold, the Justices may not be inclined to demolish its centerpiece. After all, if the parties are hurting, then Congress, its membership filled with party members and candidates, is perfectly free to take stock of their needs and do away with a legal impediment if necessary.

There is one other possibility. If the Justices are concerned with the condition of parties, and they're relying on general commentary outside the court for their assessment, they would not have too much reason to worry. They would read that parties have found a way to adapt to McCain-Feingold. Various experts are telling them about energetic online fundraising and about more dramatic innovations, like the establishment of super PACs functioning as "shadow parties." On this account, the parties are not in crisis. They are thriving. The furniture is being rearranged and renovations are ever in progress, but the basic party structure remains healthy.

This is a paradox of the reform battles of recent years: how the erosion in the Buckley regulatory framework might persuade the Court to leave alone whatever is still standing. What really is the scale of the problem, they might ask? The prime actors of campaign finance have been busily working around the law. The reform community, partly stymied by the courts, has not been able to do much about it. The FEC has gone into hibernation, and it emerges only occasionally to exhibit paralysis. As a result, the prevailing view is that the parties may be restive under McCain-Feingold's strictures, and they are certainly disadvantaged in their competition with the "outside groups," but they are not on the verge of extinction. In fact, so it is believed, they're doing well enough, or at least better than expected.

My colleague Brian Svoboda, an expert in congressional ethics, has written an insightful commentary on how we might think about the ends and design of effective congressional ethics regulation. This is a complex and important question to which altogether too little attention has been devoted. Brian's extensive experience with these issues in private practice, coupled with his grasp on the broad policy and constitutional issues, enable him to effectively frame the issues for the discussion--and reforms-that are needed. He also tweets periodically on these issues at https://twitter.com/BrianSvoboda.

Brian's commentary follows:

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From an Essay on Impeachment, a Useful Perspective on Congressional Ethics

Greg Weiner cogently argues in The New York Times that we should view the impeachment process institutionally in light of its constitutional design. (Full disclosure: while I used to work with Weiner in the Senate, my views are meant neither to be his nor anyone else’s.) Weiner says that impeachment’s purpose is not retributive, but prophylactic and forward-looking. The process is meant to “protect the public against future acts of recklessness and abuse.” Impeachment serves as a safety valve in the overall constitutional machinery to keep the system functioning properly.

While the processes and standards are markedly different, Weiner’s argument is highly relevant to Congressional ethics enforcement also. Since the House last reformed the ethics process in 2008, creating the Office of Congressional Ethics as an independent investigative authority, there has been a conspicuous lack of reflection over what the purposes of ethics enforcement really are, and how those purposes are best served. Weiner’s institutional approach offers one good perspective for this sort of reflection.