It’s time to turn traditions into law

Trump abuses require more than just fretting

One year into the Trump presidency, it’s clear that the norms and boundaries traditionally guiding American political behavior have deeply eroded. That matters greatly. A workable democracy can thrive only when there are basic rules, often unwritten, that curb abuse and guide policymakers. Though the two of us are from different political parties, we both believe now is the time to ensure that the president and all our public officials adhere to basic rules of the road. It’s time to turn soft norms into hard law.

So far, President Trump has refused to divorce himself from his business interests, despite decades of tradition. He has repeatedly tried to influence federal criminal investigations. Policymaking processes have become haphazard. And we now see worrisome attacks on the independent press. All this shows just how easily a chief executive can ignore the unwritten rules that typically constrain presidents.

Trump is extreme, but he is not the first president to breach core constitutional norms. Our system relies on checks and balances that are implicit in the Constitution but often not spelled out. Everyone in the political process must act as if limited by invisible guardrails to avoid abuse of power. But at moments of stress or executive impudence, what was assumed to be a solid restriction on improper conduct turns out to be flimsy, relying too much on goodwill or unspoken understandings. When that happens, reform often follows scandal and controversy.

We’re launching an independent democracy task force at the Brennan Center for Justice at New York University’s School of Law to review these informal rules, with an eye toward which ones should remain guidelines and which ones should be enshrined into law. We’ll examine norms surrounding financial conflicts, political interference with law enforcement, the use of government data and science, the appointment of public officials and any other issues that may arise in the coming months. We will be joined by experts and former officials from both parties. The goal is to issue recommendations on how to mend the gaps in our system and ensure we have a government that functions ably, competently and with the trust of the American people.

That’s how Americans have responded in other instances when norms have been breached. For example, George Washington’s decision to limit himself to two terms seemed like as solid a precedent as ever existed in our political life. Then Franklin D. Roosevelt ran for and won a third and then a fourth term, and we amended the Constitution to enshrine the two-term norm. After John F. Kennedy appointed his brother to lead the Justice Department, Congress passed an anti-nepotism law.

Richard Nixon’s many abuses led to a wide array of new laws, ranging from the special prosecutor law (now expired), to the Budget and Impoundment Control Act and the War Powers Act. Some of these were enacted after he left office. But others, such as the federal campaign-finance law, were passed with broad bipartisan support while he was still serving, over his veto.

So it’s not too early to begin mapping out needed change.

Of course, we undertake this effort in a hyperpolarized and partisan political environment. But we believe, perhaps with more idealism than is merited, that there is a strong underlying consensus in both parties around these norms. There is ample precedent for bipartisan majorities to strengthen institutions in the wake of scandal, controversy or abuse. It’s also why we’re recruiting task force members from inside and outside government, Republicans and Democrats and independents, to join us.

It’s not enough to read news stories — or tweets — and fret. Our system is facing a challenge it has not faced in decades. At a moment like this, perhaps it is a good thing to break the norm of partisanship.