How the Trump administration is unraveling the good-government reforms of the post-Watergate era.
The last time a Republican president abused power and faced impeachment, the system survived. That president, Richard Nixon, was forced to leave office. In the wake of his scandalous conduct came a wave of reforms passed by an invigorated Congress, seeking to restore balance to a government characterized by executive overreach, one in which Nixon could say, “When the president does it, it’s not illegal.”
Those post-Watergate reforms of the mid-1970s were a landmark in American politics. They partly righted the ship of state after Watergate and Vietnam. They rebalanced power between the president and Congress for most of the four decades that followed.
In recent months, Trump and Senate Majority Leader Mitch McConnell have seemed particularly determined to challenge, ignore, or undo all those laws enacted in a short burst in the 1970s and meant specifically to prevent anything like Nixon’s overreach, criminal behavior, and secret wars from recurring. One by one, Trump has taken on the post-Watergate reforms, from checks on what a president could do with congressionally appropriated funds to laws on when a president can get us into war.
The reforms had frayed long before Trump came along. But they are now in danger of being stamped out, if Trump and McConnell get their way.
The post-Watergate reforms, explained
Legal scholar Bruce Ackerman contends that there are “constitutional moments” when we reorder the basic design of government without formally amending the Constitution. The post-Watergate moment can be seen as one of those moments (if less significant than the civil rights transformation of the same era).
The 1970s reforms gave Congress the beginnings of the capacity to bring democratic accountability to the executive branch. The new laws restored the executive’s constitutional role in war and peace, and created the modern institutions of federal budgeting, including the House and Senate budget committees and the Congressional Budget Office.
By 1973, the executive branch had been broadening its domestic functions for four decades, taking needed responsibility for economic security, the environment, workplace safety, and many other areas of life. The Cold War establishment of a vast peacetime military with global reach further expanded the scale and scope of presidential power.
Historian Arthur Schlesinger Jr.’s 1973 book, The Imperial Presidency, raised alarms about the sweeping authority of the militarized state. The influential political scientist Theodore Lowi called attention to the degree to which Congress had delegated decision-making to an unaccountable bureaucracy. The quick sequential hits of the Pentagon Papers, Watergate, and CIA scandals converted those lingering academic concerns into an immediate crisis.
Today’s crises seem, not by coincidence, to involve specifically the reforms that came out of that moment.
For example, the Government Accountability Office recently concluded that Trump’s secret hold on congressionally appropriated funds for Ukraine violated the Congressional Budget and Impoundment Control Act of 1974.
That law created the modern federal budget process, but as the name indicates, it also ended Nixon’s practice of refusing to spend funds by “impounding” them. All presidents between Nixon and Trump have followed this law, recognizing Congress’s spending authority by formally proposing to rescind funding on occasion. If Trump had wished to withhold funds to Ukraine for legitimate reasons of policy, he could have followed that process, but he broke the impoundment law rather than notifying Congress and making the case for delaying or rescinding funds.
The War Powers Act, passed over Nixon’s veto in 1973, was similarly a direct reaction to Nixon, as well as to Lyndon Johnson, over the secrecy and dishonesty that drew the US deeper into Vietnam and Southeast Asia, particularly Nixon’s bombing of Cambodia and Laos. Every president since has raised constitutional objections to the act, but for the most part, they’ve found ways to notify and engage Congress, such as the 2001 Authorization for Use of Military Force — adhering to the spirit of the law without fully accepting it.
In taking military action against Iranian leadership, the Trump administration became the first since the law’s passage to deny the existence of any obligation even to notify Congress about the initiation of hostilities against a country not covered by an existing authorization.
Another area in which Congress sought to reestablish oversight was in intelligence matters. The Senate and House Intelligence Committees were created in 1976 and 1977, in response not only to activities during the Nixon era, but also decades of CIA abuses, assassinations, and absurd schemes revealed in hearings led by Sen. Frank Church and Rep. Otis Pike in 1975. The “Gang of Eight” process that requires the administration to notify the chairs and ranking members of those committees and House and Senate leaders of significant covert operations was created by the Intelligence Oversight Act of 1980.
Not only has Trump ignored these requirements, but Republican allies such as Rep. Devin Nunes (CA) have employed the House Intelligence Committee as an instrument to support the president, rather than hold agencies accountable.
Targeting campaigns and corruption
Campaigns and elections also caught the attention of lawmakers in the post-Watergate years. The Federal Election Campaign Act (FECA) amendments of 1974 originally set limits on contributions to political candidates as well as total spending by campaigns, along with strengthening prohibitions on foreign funding of US elections and on outside spending. The amendments also created the Federal Election Commission.
While FECA rules have been eroded over the years by court decisions and by creative political operatives, Trump’s transgressions go many steps further. He used charitable foundation funds to make political donations, non-US donors appeared on his inaugural committee as well as allied political groups, and he’s ignored prohibitions on coordination between the candidate and supposedly independent organizations. He’s identified as a co-conspirator in a significant campaign finance case, the one that put his lawyer Michael Cohen in jail. In collaboration with McConnell, he’s crippled the FEC by refusing to appoint members.
Other reforms from that flash of action in the mid-1970s include key amendments to the Freedom of Information Act (a judge recently accused the administration of “thumbing their nose at the FOIA statute”), laws requiring financial disclosure by federal officials, and core protections for whistleblowers. Trump, his family members, and allies have crossed the lines of these laws as well.
Every president in a different way has pressed or challenged all these reforms. Republican presidents in particular have embraced a view of executive power known as the “Unitary Executive” that can be traced from the Reagan administration through that of George W. Bush and expressed in its rawest form by Trump’s attorney general, William Barr, in a recent speech. Most of these laws have not been updated since passage; some are out of date, or Congress has failed to identify and close loopholes. But Trump’s actions represent the most concerted assault against them since they were enacted.
The future of reform
It’s difficult to appreciate these laws today, in part because they are now so frayed and incomplete. Very little of the campaign finance law as passed in 1974, for example, was still effective or relevant by 2016. And progressives more recently have soured on the reformist Democrats of the post-Watergate moment, scorning their concerns as a high-minded, suburban, “good government” distraction from the core New Deal mission of economic redistribution. (Matt Stoller’s recent book, Goliath, is a good example of this view.)
But imagine how vulnerable democracy was in the era that gave birth to Watergate. Congress didn’t really have a meaningful budget process, and large programs fell outside the scope of the appropriations process. Clouds of secrecy prevented Congress from engaging in any meaningful way in foreign policy or national security. What we now call “dark money” was the only kind of money there was in federal elections — a single wealthy individual could bankroll a politician’s entire career and we’d never know about it.
Trump allies such as Steve Bannon promised the “deconstruction of the administrative state.” But what Trump is actually dismantling are the structures built after Watergate meant to contain the administrative state or hold it democratically accountable. And far from preserving the role of the Senate, an institution he professes to love, McConnell is allowing it to become wholly subservient to the executive branch.
The collapse of the post-Watergate settlement is a reminder of how fragile and limited procedural reforms can be, especially under sustained attack by the powerful.
But it also brings up another possibility: that much like in the 1970s, today’s scandals might spur new good-government reforms after the current regime is voted out. Here’s hoping that actually happens — and that those laws will be more resilient than the ones that Trump and the Republicans are set on eviscerating today.
Author: Mark Schmitt
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