As states scurry to certify their results before the electoral college meets December 14, the wheels of government continue to grind. Last week we discussed the long list of legislative must do’s for the lame duck. While those are critical, calendar year 2021 and the 117th Congress are right around the corner. This week presumptive President-Elect Biden and various interest groups began releasing policy priorities for the new year. At Taxpayers for Common Sense we think there are a number of priorities of particular interest to taxpayers.
Restore the Norms that Make Things Work(ish)
Orderly transition and the continuity of government is a core value of being a democratic country. The absence of an orderly process and the inability of landing teams to begin doing their job to take over from the last person at the desk can be consequential. As Senator Lankford (R-OK) said of the need for Biden to receive intelligence briefings, “if that’s not occuring by Friday I will step in.” Several other Republican Senators echoed his concerns.
The U.S. government is not an entry level endeavor. Continuity matters, as does oversight in the final rush to clear the building. Especially as outgoing officials act on their final days of authority to do what they want, or significantly slow walk, or simply don’t do what needs doing. But it’s not always about politics; it’s about national security. The report of the Commission investigating the terrorist attacks of 2001 pointed to the delays in the normal activities of transition between the Clinton and George W. Bush administrations as contributing to a loss of situational awareness in government on what Bin Laden was plotting. We’ve seen the tragic results once in our recent history, let’s not make that mistake again.
Agencies should keep working on the fiscal year 2022 budget request because that’s how it works. The Obama Administration kept working toward a Fiscal Year 2018 budget request because the process needs to go forward. Likewise, President George W. Bush kept people moving on a Fiscal Year 2010 budget request. Much of the underlying data is the same regardless, and the incoming administration amended the policies and priorities in the budget and sent the new request to the Hill.
Make the Legislative Branch Great Again
Congressional power has eroded in the Trump Administration. Congress needs to reassert its power by not deferring to the administration on tough issues. We’re big believers in the need for a balance of power across the three branches of government. We see several areas of concern:
- The increase in the use of Executive Orders – Tough issues require enduring solutions. There is a role for executive orders. But they should not replace action by Congress. If anything, governing by Executive Order continues to undermine one of the bedrock principles of American democracy, that the president is a duly elected official, and not a monarch. Executive Orders are fleeting. Stability, predictability, and durability come from legislation. Immigration, trade policy, infrastructure, all these require legislative solutions to find the best solutions.
- Oversight and Transparency – We’d settle for a return to previous levels of oversight, but an increase is really what’s needed. The Trump Administration’s outright refusal to testify before Congress (or, at least, the Democrats in the House), to provide briefings to Democrats on Capitol Hill, to respond to document requests, and on and on, must be stopped. Congress needs to reassert itself in the oversight process, Democrats, Republicans, everyone. The sad truth is legislative oversight has diminished in the last couple decades. Choosing to only pursue “oversight” of the executive branch if the other party is in power is not acceptable.
- Appropriations laws – The Trump Administration has repeatedly thumbed its nose at the Congressional power of the purse. Spending money in ways specifically prohibited by appropriations law – like using military construction funds to build a barrier at the southern border – is a violation of the Antideficiency Act. Refusing to spend money duly appropriated by law – like military aid to the country of Ukraine – is a violation of the Impoundment Control Act. Spending money against the specific purpose of the law – like maintenance backlog funds being used to clean bathrooms in national parks during a government shutdown – is a violation of the Purpose Statute. These things have to stop.
What we’ve discovered in the last four years is a lot of what makes Washington work(ish) isn’t enshrined in law but based on expecting people to operate in good faith. Those things that are based on the rule of law have never been tested because, frankly, most officials have acted in good faith. Like the so-called “Watergate Reforms” enacted in the mid-1970s, it may be time to look at changes to put some teeth into restoring norms and returning to substantive Congressional oversight.