Preet Bharara, Co-Chair Christine Todd Whitman, Co-Chair Mike Castle Christopher Edley, Jr. Chuck Hagel David Iglesias Amy Comstock Rick Donald B. Verrilli, Jr. Proposals VOLUME II for Reform PRINCIPAL TASK FORCE STAFF: Rudy Mehrbani, Martha Kinsella, and Wendy Weiser Table of Contents Executive Summary .................................................1 ABOUT THE TASK FORCE SECTION 1: Integrity and Accessibility of Government The National Task Force on Research and Data ................................................... 3 Rule of Law & Democracy is a nonpartisan group of former Proposal 1 .......................................................7 government officials and policy experts. We have worked at the Proposal 2 ..................................................... 8 highest levels in federal and state government, as prosecutors, Proposal 3 .................................................... 10 members of the military, senior advisers in the White House, Proposal 4 .....................................................11 members of Congress, heads of federal agencies, and state Proposal 5 .................................................... 12 executives. We come from across the country and reflect varying Proposal 6 .................................................... 14 political views. We care deeply about our nation SECTION 2: Accountable and Qualified and its democratic values. And we Government Officials ............................................... 15 are concerned about the erosion in recent years of critical norms and Proposal 7 .................................................... 18 practices, built up over time, that ensure government officials use Proposal 8 ....................................................20 their power primarily to further the public interest, not partisan Proposal 9 ....................................................23 or personal interests. We have come together to propose reforms, Proposal 10 ...................................................24 including legislative changes, to bolster these norms and practices, Proposal 11 ....................................................25 and to strengthen the future of our democracy. SECTION 3: Checks and Balances to Safeguard This is the second report of Democracy and Rule of Law ......................................... 27 the Task Force. The first, released in October 2018, focused on the appendix of scientific integrity issues .............................29 erosion of the norms and practices protecting the rule of law and about the task force members .....................................38 ethical conduct in government. endnotes .........................................................40 STAY CONNECTED TO THE BRENNAN CENTER acknowledgments ................................................68 Visit our website at www.brennancenter.org Sign up for our electronic newsletters at www.brennancenter.org/signup Visit the Task Force website at www.democracytaskforce.org © 2019. This paper is covered by the Creative Commons Attribution-NonCommercial-NoDerivs license. It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s web pages is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint. Brennan Center for Justice at New York University School of Law Executive Summary n recent years, the norms and expectations that once ensured that our government was guided primarily by the public interest rather than by individual or partisan Iinterest have significantly weakened. There are now far fewer constraints to deter abuse by executive branch actors. This report focuses on two distinct areas: the growing politicization of government science and research and the breakdown of processes for filling key government positions. Objective data and research are essential to effective The White House suppressed a report showing a governance and democratic oversight. But over the toxic substance that is present in several states’ last few decades, the safeguards meant to keep govern- water supplies endangers human health at levels far ment research objective and publicly accessible have lower than previously reported by the EPA. been steadily weakening. Recent administrations have manipulated the findings of government scientists and Political officials have the prerogative to make policy researchers, retaliated against career researchers for polit- decisions, and even challenge the science and meth- ical reasons, invited outside special interests to shape odology of career experts, but accurate, nonpolitical, research priorities, undermined and sidelined advisory government-supported research and analysis should be committees staffed by scientists, and suppressed research protected. Indeed, government research has shifted the and analysis from public view — often material that had course of human history through, for example, the space previously been made available. In many cases, they have race, cures for disease, food- and water-safety measures, appeared to pay little political price for these missteps. and computer and internet technology innovations. This trend has culminated in the efforts of the current Effective government also depends on a reliable administration not only to politicize scientific and tech- process for filling senior government positions with nical research on a range of topics, but also, at times, to qualified professionals who are dedicated to doing the undermine the value of objective facts themselves. people’s work. Recent presidents have filled critical jobs Now, we are at a crisis point, with almost weekly viola- with unqualified cronies while leaving other posts vacant, tions of previously respected safeguards. and have found ways to sidestep the Senate’s approval role, nullifying a crucial constitutional check. For their The acting White House chief of staff reportedly part, lawmakers have rubber-stamped some nominees instructed the secretary of commerce to have the who are unqualified or have conflicts of interest while National Oceanic and Atmospheric Administration dragging their feet on considering others, often based (NOAA) — a part of the Department of Commerce on whether or not the Senate majority and the president — issue a misleading statement in support of the share a party. president’s false assertion about the trajectory of The consequences are readily apparent: less than a hurricane, contradicting an earlier statement re- half the senior roles at the Departments of Justice and leased by the National Weather Service. The secre- Homeland Security are filled; at least a dozen agen- tary of commerce reportedly threatened to fire top cies — including two cabinet departments — are run NOAA officials in pressuring them to act. by non-Senate-confirmed acting officials two years into this administration; and the Senate confirmation process The Department of Agriculture relocated econo- takes five times longer than it did 40 years ago. mists across the country after they published find- If left unchecked, both of these trends are likely to do ings showing the financial harms to farmers of the damage. Government research that is guided by politics, administration’s trade policies. not the facts, can lead to ineffective and costly policy, among other harms, and a dysfunctional appointments The Interior Department reassigned its top climate process risks stymieing vital government functions. Both scientist to an accounting role after he highlighted developments also threaten to exact a long-term price, if dangers posed by climate change. allowed to stand. They risk creating a vicious cycle, open- ing the door to abuse by future administrations, which The Environmental Protection Agency (EPA) adopt- may push the envelope ever further. ed rules that prevent leading experts from serving We are committed to teaching future administra- on science advisory boards and encourage participa- tions the opposite lesson — that these abuses of power tion by industry-affiliated researchers. violate broadly recognized standards of honest and effec- Proposals for Reform Vol. 2 Brennan Center for Justice 1 tive government, long accepted by both political parties. To fix the process for filling senior government posi- Abuse once again can beget reform. And the task of tions, we offer proposals that would advancing this reform could not be more urgent, and cannot be for one or another party alone. encourage the appointment of qualified and ethical We have big problems to solve in this nation. If we people to key government posts, cannot agree on the facts underlying potential solutions to those problems, and we do not have qualified and dedi- make it harder for presidents to sideline the Senate cated people in place to develop and execute on them, we during the process, will imperil the future of our democracy. To protect government research from politicization and streamline the confirmation process for executive keep it accessible, we offer proposals that would branch nominees, and create scientific integrity standards and require protect national security by fixing the vulnerable agencies to establish protocols for adhering to them, White House security clearance process. prohibit politically motivated manipulation or sup- Our proposals narrowly target areas that are ripe for pression of research, executive abuse. But