Volume 6      Number 292    

Nobody does it better than our lawmakers. Take the recent decision by our president to deliver his Republican National Convention speech “live from the White House.” He’s not allowed to do that by a law of Congress. The Hatch Act of 1939 “forbids political activities of federal employees while on duty or in the workplace.” The act bars federal employees from using their offices and resources for political purposes. Those found to have violated it can be fined as much as $1,000 and face discharge.            

           King Trump

                                                                                     Image by Cagle Cartoons

The president says it is okay for this obviously political event to occur on the White House because the Hatch Act doesn’t apply to him. He’s right, but it does apply to a number of government employees who were busy building a platform, setting up the chairs, arranging the setting, being ushers and Marine honor guards and providing security at the events, all the while on government grounds “on our dime,” during government time.

What was being done to prevent this odorous act? Nothing, because the one to prevent this partisan activity is the “employing agency,” who is, if you haven’t noticed, the same guy who arranged for this happening: the office of the president. The Democrats didn’t even bother to file a formal protest because they knew it was a waste of time.

So, this is what happens on an almost daily basis in Washington, DC, where the rules and laws are made, and made to be broken, right there. A 2017 case brought by the Citizens for Responsibility and Ethics in Washington (CREW), against White House Press Secretary Sara Huckabee Sanders and six other government employees who posted Tweets supporting the re-election of the president in 2020, another no-no for government employees. This little fiasco rapidly disappeared from the news as the president probably just applauded her action.

Same thing happened to Kellyanne Conway, senior counselor to the president, in a ruling by the Office of Special Counsel in 2018, for a couple of nasty remarks she made about the Democrats while being interviewed on cable. These instances had been referred to the president for “appropriate disciplinary action.” Of course, they were never heard of again. So it’s no wonder that the Democrats gave a pass to the president’s latest soiree in the White House.

But why should this be? Why wasn’t the Hatch Act drafted to prevent this kind or nonsense, or amended to take this into account? It is because the lawmakers want it that way, that’s why. Often legislation is drafted as a publicity stunt to reassure the public that the Congress is being meaningful watch dogs, so the laws and rulings have no teeth. Lawmakers are reluctant to punish one of their own or other important officials.

This partisan use of government employees is only one of the shenanigans that go on. If this sounds like a partisan diatribe, it really isn’t. Unfortunately, having a president like Trump becomes a litmus test that reveals many of the shortcomings built into our system. President Trump has a way of revealing and putting his finger on all of our lawmakers’ shortcomings in protecting our government. Built into our system of government is the naïve notion that the president would be the ultimate fixer of inequities that might exist. He is to be the ultimate default.

This supposes that the president is an honorable man. But we as a nation have been left by the 2016 electorate to deal with a man who in over 40 years in commerce has enriched himself by employing, and getting away with, every dirty business trick known to man or woman, and has probably invented a few more. Congress has more than met its match in trying to control him, especially when he has the Republican Party at his back. Need more be said.

After all, we just got finished impeaching the president on two counts–and there were many more in the wings that the prosecution held back on. This involved the 2016 election, for which a new bi-partisan Senate report has supported the charge that the Russians, with the cooperation of Republican staff, and, perhaps, the presidential candidate, interfered with the election. But that was by now so after-the-fact that people just shrugged their shoulders at what should have been a momentous finding.

So, the president got off, and has been reinvigorated to go merrily along, undercutting the post office’s ability to count mail-in votes, sending federal agents to cities having protest demonstrations, encouraging the Justice Department to prosecute his enemies, pressuring health officials to prematurely authorize vaccines for the coronavirus and having an employee of the government, Secretary of State Mike Pompeo, give an endorsement at the Republican nominating convention. And there is nothing to stop him from conducting these outrageous acts that we have become almost inured to.

Let’s take a look at something that prevents the Congress from passing meaningful legislation and has been keeping them in such an acrimonious state in recent years. We tend to forget that it’s Congress’s job to pass laws. The key thing that prevents them from fulfilling this mission is a self-destruct called the filibuster. Using the filibuster to delay or block legislative action has a long history.

The term filibuster—from a Dutch word meaning “pirate”—became popular in the 1850s, when it was applied to efforts to hold the Senate floor to prevent a vote on a bill. This was modified in 1917, allowing senators, by a vote of two-thirds of those present, to limit debate to one hour before proceeding to a majority vote on a bill. For almost 50 years after the adoption of the new rules, such votes to end debate, called a cloture vote, were exceedingly rare.

Two major changes occurred in the 1970s. First, the threshold for closure was reduced from two thirds, 67, to three fifths, 60. Then, most importantly, a new rule said that Senators no longer had to physically occupy the Senate floor and speak to block a vote. Now all they had to do was to simply announce their intent to filibuster a bill, and the Senate would either hold a cloture vote on the measure or move on to new business. In effect, when a minority party has 41 or more members, which is usually the case, they can prevent a vote sponsored by the majority from taking place.

Now, filibustering Senators no longer faced the uncomfortable prospects of having to be on their feet for hours or even days to protest the arrival of a new bill. Even the threat of a cloture now became enough to prevent a bill from being brought up. But just showing the frequency with which the new cloture occurs indicates how widespread this filibustering event has become.

           graph filibuster use

Surprisingly, it wouldn’t take much to eliminate the filibuster because it is a rule of the Senate and not a law, only requiring 51 votes to be passed. The reason why a party with the majority in the Senate hasn’t done this is the fear that they could be in the minority come the next election. So they have avoided this action.

Don’t be surprised if the Democrats are in the catbird-seat in 2021 and pass what is called the “nuclear rule” that forbids filibusters in the Senate. Democrats are up to their eyeballs in all kinds of legislation that they are promising to the 2020 voters including: health care, the environment, education, immigration, voting rights, police brutality, etc. So they are likely, if they win both Houses and the presidency, to use the “nuclear rule” to obtain their objectives, and hope they will control the government for years to come.

What kind of ethics does the executive branch have to adhere to? Well, there is a separate department created for just that purpose. The United States Office of Government Ethics (OGE) is an independent agency within the executive branch of the U.S. Federal Government. It is responsible for directing executive branch policies relating to the prevention of conflict of interest on the part of Federal executive branch officers and employees. Sounds good.

With the Trumpian cast of characters, the whole notion of ethics has been reduced to mincemeat. In an article of July 14, 2017, just six months after taking office, it was revealed how the Trump administration has shattered the workings of this office. What he has a knack for doing is breaking norms, even more than laws. Take the word of Walter Shaub, who resigned as the head of the OGE. 

He pointed out that the criminal statute prohibiting conflict of interest for government officials doesn’t require them to shed assets. All it does is require them to recuse themselves from working on politics that conflict with these holdings. So, it became routine for the office of OGE to advise new officials to get rid of these holdings. It also became routine for the officials not to do so within the Trump White House. Shaub said that the Trump appointees, of which there was a flock in the new government, took the stance that “we’re going to do the bare minimum of what is legal, and we’re going to do things that are questionable as long as there is an argument that maybe it’s legal.”

It’s obvious that the office of OGE has no real power to enforce these ethics norms. They can only advise. While officials in other administrations have generally gone along with their recommendations, they are under no compulsion to do so. In other cases, Shaub reported if he had problems with an official, he would appeal to the president to break the logjam. Of course, with Trump, there was a voice that lacked sympathy with the ethics consideration. Even when Shaub went public with a situation, the administration vehemently denied it was doing anything wrong. So Shaub left. He is now Ethics Director of the non-partisan Campaign Legal Center.

To augment the executive OGE, there is the House Ethics Committee (HEC) and the Senate Ethics Committee (SEC), the watchdogs of the legislative branch. Both are ineffectual in either bringing charges against errant lawmakers or if they do, in achieving a punishing resolution. They have complex rules that govern each charge of a misdeed, that often keep them from reaching a conclusion or let them blatantly find the charged person innocent of any wrongdoing. In recent years, more sexual harassment suits have come to light, as powerful men seem to have a wanderlust. Most of these charges are buried and the Congressmen continue on their merry way.

It has lately been noticed that by 2020, just about everyone who routinely disagreed with the president, appointees, or public servants, are gone. Earlier, there were cooler heads in the administration to prevent him from going down the la-la trail. But, over time, they either resigned or were sacked.

There are so many of them that it looks like the line-up for a baseball All Star game. In no particular order there were such reasoned heads as John Kelly, chief of staff; Hope Hicks, communications director; Dan Coats, director of national intelligence; Rod Rosenstein, deputy attorney general; Rex Tillerson, secretary of state: Jeff Mattis, defense secretary, Craig Cohn, chief economic advisor; HR McMaster, national security advisor, Sally Yates, deputy attorney general; Marie Yovanovitch, ambassador to the Ukraine, etc.

So, for the last year or so the West Wing has been full of what’s left, “yes” people who haven’t the gumption or knowledge to prevent the president from going off on some tangent, such as encouraging people to drink disinfectant as a coronavirus preventative or welcoming the radical support of QAnon. It’s no wonder that the broken norms, rules, and laws have been piling up lately. The president has become more and more out of control. If he was back at the New York Military Academy, his prep school, he would probably be sacked, kicked out for all those demerits.

These summaries but touch the surface of what the president and Congress have done to weaken, degrade, and cheapen our government for the people it serves and in the eyes of the world. Can it be fixed? If we elect a new administration that wants to clean up the country, it would probably take two terms in office to rectify the president’s misdeeds. But we need a Congress that is willing to tackle issues that need to be corrected on the presidential and Congressional levels. That is what occurred in the post-Watergate era, when Congress sought to rectify some of the loop-holes that President Nixon had crawled through, and cleaned up its own act.

A squeaky-clean president also is needed, and it is dubious that Vice-President Biden, is up to it. After all, he has been a creature of the system for almost 50 years. Concrete laws, not rules and norms, are needed to right the wrongs being done daily by leaders in our country and to prevent another run-away-president or any other official from damaging us so severely.

“Being elected to Congress, though I am very grateful to our friends for having done it, has not pleased me as much as I expected.”

Abraham Lincoln

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