The Protecting Our Democracy Act Unpacked

Last week, Senate Democrats failed to overcome a Republican filibuster of the Freedom to Vote Act and will now move to consider the John Lewis Voting Rights Advancement Act. While the overwhelming focus has been on these two momentous voting rights bills, there is another critical piece of legislation that you may have forgotten about, one that approaches democracy protection from an equally important, though different angle. In September, House Democrats introduced the Protecting Our Democracy Act, H.R. 5314, which tackles a handful of pro-democracy and ethics issues, namely reining in the executive branch. Sen. Amy Klobuchar (D-Minn.) introduced the Senate bill the following week. Led by Rep. Adam Schiff (D-Calif.), the bill bolsters oversight measures to ensure transparency and accountability in the executive branch.

In today’s piece, we examine the history of expanding executive power, how the bill reforms the relationship between the branches of federal governments and how it fits into a larger movement to protect democracy. 

Former President Donald Trump illustrated the potential for abuse in the executive branch, issues that preceded and will follow the 45th president. 

There are numerous tools at a president’s disposal to give him or her extraordinary power and free them from typical constraints. However, not all actions are within this typical, although expanding, presidential authority — some threaten the separation of powers and other clauses in the U.S. Constitution. For example, Trump refused to divest from companies where there was an increasingly blurred line on whether he was profiting from his presidential position. He fired inspectors general without specific cause. He continually refused to release his tax returns and brought concerns of foreign election interference to the forefront, among other things.

What’s more, in February 2019, Trump declared a national emergency on the Southern border with the intention to redirect funds for building a border wall. While this move was ultimately ruled outside of Trump’s legal authority, it was indicative of how executive power has been expanding over the past few decades and across both parties. The 1976 National Emergencies Act was passed to stop open-ended states of emergencies, yet there are still 136 statutory powers available to the president after a declared national emergency, only 13 of which require Congress to declare the emergency first.

Consequently, the Protecting Our Democracy Act was first introduced in the 116th Congress as a direct response to Trump’s tumultuous term, but with its focus on the potential for future abuse. “While Donald Trump is no longer president, the fault lines he exposed in the foundation of our democracy remain — ready for a future unethical president to exploit,” said Schiff in a press release. “These weaknesses continue to erode the American people’s trust in our democratic institutions and the norms that are essential to a functioning democracy.” 

What does the Protecting Our Democracy Act do, exactly? 

H.R. 5314 aims to prevent the abuse of presidential power. To do so, the act curtails presidential pardon powers so that pardons for certain offenses are subjected to congressional oversight and can be considered a form of bribery under federal bribery statutes. It also makes explicit that there cannot be a presidential self-pardon (pundits and scholars were theorizing about this power last fall as questions arose whether Trump would be the first to take such a step). H.R. 5314 would ensure that no president is above the law by exempting the duration of a president’s or vice president’s term from statutes of limitations for federal offenses. Additionally, by codifying the Constitution’s foreign and domestic Emoluments Clauses, it prevents the president or other federal officials from exploiting their offices for personal profit.

To help restore the checks and balances between the three branches of government, H.R. 5314 empowers Congress by the following: explicitly affirming congressional authority to subpoena and enforce those subpoenas through civil suits and penalties for noncompliance; restoring Congress’ “power of the purse” — the spending authority granted to the legislative branch in the U.S. Constitution — through a series of provisions requiring approval and reporting on executive branch spending; and ensuring Congress can place expiration dates on presidential declarations of national emergencies.    

To improve the transparency and accountability within executive branch agencies, H.R. 5314 clarifies and strengthens pre-existing provisions in several ethics laws and outlines new requirements: 

• The attorney general is required to keep a log of communication with the White House to help watchdogs distinguish any improper contact or political interference with the Department of Justice.
• Inspectors general (IG) are political appointees whose offices investigate potential ​​fraud, abuse or mismanagement within various executive branch departments, and H.R. 5314 protects IGs from removal on the basis of political retaliation. It extends similar protections to the IGs of the U.S. Intelligence Community and also enhances protections for whistleblowers.
• H.R. 5314 clarifies the role of the General Services Administration in ensuring a timely and efficient presidential transition. This provision is new to this year’s act, added after Trump refused to concede the 2020 election.
• The Hatch Act of 1939 is a key law that prohibits federal employees from engaging in certain political activities while on duty. H.R. 5314 permits the investigation of Hatch Act violations, specifically for senior political appointees, even when the President fails to recommend action or impose disciplinary measures.
• Sitting presidents and vice presidents, and major party candidates for those positions, are compelled to publicly disclose their 10 most recent federal income tax returns.

Finally, the act outlines new safeguards against foreign interference in our elections, specifically mandating reporting requirements if a campaign has contact with a “covered foreign national.” Additionally, since the Federal Elections Campaign Act of 1971, it has been illegal for foreign nationals to make “a contribution or donation of money or other thing of value” to a political party or in any relation to an election. H.R. 5314 further defines a “thing of value” to include “opposition research, polling, or other non-public information relating to a candidate.”

How does H.R. 5314 fit with other pro-democracy reforms? 

In an op-ed, Schiff called the Protecting Our Democracy Act the “third pillar of our Congress’ democracy agenda,” in addition to the For the People Act (which has since been transformed into a pared-down version by the Senate titled the Freedom to Vote Act) and the John Lewis Voting Rights Advancement Act.

While the Freedom to Vote Act contains one section on reporting foreign election interference and the earlier version, the For the People Act, included several other ethics provisions, H.R. 5314 is distinct from the other pro-democracy reforms moving through Congress with its narrow focus on ethics and anti-corruption in the executive branch. However, the bills go hand in hand — expanding voting rights and preventing election subversion are absolutely fundamental to preserving our democracy. H.R. 5314 would work to ensure that democracy is not further weakened once elected officials take office.

What’s the bill’s path to passage? 

In both chambers, the bills have been referred to committee and await further action. H.R. 5314 has the support of House Speaker Nancy Pelosi (D-Calif.) and currently has over 150 co-sponsors in the House — all Democrats. Historically, government ethics reforms have garnered bipartisan support. However, it is unclear how the implicit, though clear, reprimand of the Trump administration will impact GOP buy-in.

“The Protecting Our Democracy Act isn’t about one man, one party, or even one moment in time,” tweeted Schiff. “It’s about ensuring that our democracy endures — no matter who’s in the White House. And we should all be able to get behind that.”