Legal Authority

04.18.14

How Obama Can Use Executive Actions to Improve Our Democracy

He’s been hammered for going around Congress with executive orders. But he’s within his authority—and he should go further on voting and transparency to make government work better.

With Congress paralyzed, President Obama has promised to use his “pen and phone” to overcome the ongoing dysfunction and get some work done. And the White House has already acted several times to help improve America’s economy. But such policies, no matter how valuable, will achieve little if we do not fix our broken democracy.

Allow me to suggest some ideas for how the president can do just that.

First, some historical context. Presidents have long acted within their authority, from Jefferson’s purchase of Louisiana without consulting Congress to Lincoln’s freeing the slaves by proclamation. In recent decades, at a time of divided government, presidents have found ways to act in the arena of domestic and social policy. As a young Harvard professor, Elena Kagan identified President Reagan as the pioneer of the current trend. President Clinton extended the president’s role as originator of creative executive policymaking. As Clinton’s chief speechwriter, I was deeply involved in his administration’s executive action program, which used tools creatively to catalyze major policy change. All those announcements in the Rose Garden, from school uniforms to tobacco regulation? Those were executive action, designed to call attention to an issue, prod Congress, or achieve results. We even tried to enact campaign finance reform by executive agency action. The plan fizzled, but helped keep the issue alive—and built momentum that eventually led to the McCain-Feingold law. President Bush did the same thing.

Now comes Obama. Is his second-term strategy overreach? Hardly. Indeed, the president has issued executive orders at a slower pace than all his recent predecessors. And he is not trying to outsmart a hostile Congress. The legislative branch isn’t oppositional; it’s paralyzed. It can’t pass good bills, bad bills, or any bills.

In the face of divided and dysfunctional government, it’s little wonder that presidents have found ways to push policy and prod the bureaucracy without waiting for congressional action or approval that may never come. But Obama’s executive orders have not yet focused on ways to make government work better.

My colleagues and I have suggested 15 steps the administration can take to overcome dysfunction, strengthen democracy, secure justice, and further the rule of law. The president should take them. And he has explicit legal authority to do so.

Start with voting. The president recently spoke out on the issue: “The first words put to paper in our American story tell us that all of us are created equal,” he said. “… That makes it wrong to pass laws that make it harder for any eligible citizen to vote, especially because every citizen doesn’t just have the right to vote, they have a responsibility to vote.” But his own administration could do much more to help voters exercise their franchise. The National Voter Registration Act, enacted in 1993, is known as the “motor voter” law because it uses DMV offices and other agencies to register voters. The law authorizes federal agencies to help, too. States have been asking for action for years. Remarkably, federal agencies routinely have said no. Obama could reverse that with the stroke of a pen. Hundreds of thousands could be registered by the Veterans Administration, United States Citizenship and Immigration Service, Department of Defense, and other units if they are designated as voter registration agencies. He also should convene his Cabinet heads and ask them what else they can do to boost participation.

Like many second-term presidents, Obama is discovering that he has many powerful tools at his disposal to make progress toward his goals. He should apply them to our broken democracy.

Criminal justice reform is another area ripe for presidential action. The United States has 5 percent of the world’s population, but 25 percent of its prisoners. That’s a scandal. Policy on autopilot is one reason why. Washington sends billions of dollars to states for criminal justice, but the funds can have perverse consequences, inadvertently steering police and prosecutors toward unwise policies. The president should order an immediate review of the array of criminal justice grant programs. The goal: When possible, shift them toward what is known as “Success-Oriented Funding.” This reliance on metrics, funding only what works—the modernizing reforms of which the administration is so proud in education and health care—would extend to criminal justice.

How about the $300 million of money from anonymous campaign spenders now hurtling toward our elections? The president could act there, too. A few years ago he floated the idea of requiring companies that bid on government contracts to disclose their campaign spending. Congress howled. At last, a cause that could rouse it to action: defending the honor of campaign contributors. It passed a provision blocking such a move. But the law allows the government to require disclosure by firms that are actually awarded contracts. That basic anti-corruption move would do much to shine light on “dark money.”

As for fighting terrorism, controversy rages—how much, for example, it should be vacuuming up information about our phone calls. Nonetheless, the White House could take steps to disclose more of the government’s activity. Since September 11, 2001, much of the government’s aggressive counterterrorism moves have relied on legal opinions and directives, even by courts, that are themselves secret. That makes no sense. These documents don’t reveal terrorist hideaways but legal doctrines that should be the subject of public debate. The president could order the attorney general to lead a careful government-wide review of such secret laws with an eye toward declassifying as much as possible.

Wait a minute: Didn’t liberals spend a decade blasting Dick Cheney’s claims that the president had “monarchical notions of prerogative”? Didn’t conservatives, who now denounce the “imperial presidency,” defend its right to use “enhanced interrogation techniques” without congressional approval? It’s all enough to give hypocrisy a bad name. The steps we propose are all authorized by law. None would be secret. When Obama oversteps, as in his defense of the NSA spying program, he will be called to account by Congress, courts, and the public—and he should.

But it should not require a defense of torture, or torturing the Constitution, to see that the president is well within his authority to act when he can. All public officials have a duty to try to advance the public good. None of these modest proposals will magically transform Washington, unfreeze Congress, or upend so many of the problems facing our political system. That still requires good old-fashioned legislation or new rulings from the Supreme Court—and perhaps a new justice or two. But like many second-term presidents, Obama is discovering that he has many powerful tools at his disposal to make progress toward his goals. He should apply them to our broken democracy. That would be the best vindication of what Alexander Hamilton, writing in the Federalist Papers, said would inevitably be a key source of strength: “energy in the executive.”