100 days in, how’s President Biden doing on democracy, ethics and transparency?
Former President Trump set a historically low bar for ethics and transparency—with more than 3,700 conflicts of interest in four years, an administration full of family members and former lobbyists, Cabinet secretaries who failed to divest from conflicts of interest, racist abuses of power and two impeachments, it’s hard to imagine a more corrupt presidency. Of course in the final weeks of his term, he lowered the bar even further, and engaged in unprecedented attacks on our democracy by attempting to overturn the election results and inciting a violent insurrection.
For President Biden to clear the low bar set by Trump is not a difficult feat—Biden has released his tax returns, has yet to funnel taxpayer dollars to himself or his family by traveling to businesses he owns, and has not hired his family members to work in the White House.
But we need to hold Biden and his administration to much higher standards than the bar set by Trump—Americans deserve an ethical, responsive, accountable and transparent government that goes beyond the standards set by any previous administration or era. Our democracy is desperately in need of reform, so President Biden’s actions must go far beyond avoiding a repeat of Trump’s corruption.
So far, the Biden administration has made some important progress on ethics and democracy reform, with some important ethics and transparency changes still needing to be addressed. Here’s a full look at how they’re doing, 100 days in:
Executive branch ethics
President Biden’s ethics executive order, signed on his first day in office, is significantly stronger than the ethics requirements of his two immediate predecessors. His order reinstates several provisions omitted or eliminated by President Trump, and adds new restrictions on practices such as post employment “shadow-lobbying.”
In any administration with a strict ethics pledge, there may be a need for waivers of some provisions for select incoming appointees. Historically, these waivers haven’t always been released publicly or centrally, and have been hard to track. However, Biden’s ethics EO required that these waivers be publicly disclosed within 10 days, and so we know that Biden administration appointees have so far received six waivers.
There are many more ethics reforms that Biden can and should implement, including banning stock trading by senior officials (with an exception for widely held mutual funds), directing the Office of Personnel Management to clarify that anti-nepotism policies include appointments by the president or vice-president, and relaunching Ethics.gov as a central place to access ethics information including visitor records, Foreign Agent Registration Act information, lobbying disclosure filing and new appointee ethics agreements and financial disclosures.
President Biden can’t address every ethics issue on his own—Congress must take action to close outstanding loopholes and strengthen ethics law—but by continuing to take actions within his power, addressing violations transparently when they do happen and holding administration officials ot high standards, the Biden administration can begin to repair the damage done by the Trump administration.
In a win for transparency, the Biden administration has agreed to release White House visitor logs quarterly (although we haven’t seen any yet), in a reversal of the Trump administration’s policies. However, the administration has also said they will not release visitor logs of virtual meetings—a disappointing decision during an ongoing pandemic where many White House meetings continue to be held virtually.
Visitor logs are only a small portion of the transparency Americans deserve. The Freedom of Information Act is a much bigger part of the picture—but the process has been broken for years, and it only got worse under the Trump administration: redactions and delays increased, and huge numbers of FOIA lawsuits were filed in order to pry information into public view. The Biden administration now has the ability to speed up and improve the FOIA process, by directing agencies to proactively disclose records and having the attorney general issue new guidance for all agencies. During his confirmation process, Attorney General Merrick Garland signaled his support for policies that “read the Freedom of Information Act generously.”
Unfortunately, we have yet to see that commitment materialize in ongoing FOIA cases and discovery in other litigation. In a particularly egregious example, the Biden Department of Justice refused to release key documents about the Trump administration’s “zero tolerance” immigration policy that resulted in the separation of thousands of families. The documents in question reportedly include a “show of hands” vote of senior Trump administration officials about whether to move forward with separating families. These are precisely the type of records that Americans deserve access to, and the Biden administration’s decision to withhold them is deeply concerning. If President Biden is going to make good on his commitment to bring transparency back to the White House, then some serious changes are in order.
Another area in need of a significant increase in transparency are Office of Legal Counsel opinions, which outline the executive branch’s interpretations of the law, and which are frequently not made public. President Biden could easily change this, by directing the Department of Justice to publish new and existing OLC opinions, with exceptions for classified or personal information. The public has a right to know how the government is interpreting the law—and the reasoning behind it—and President Biden could make this change immediately, so these secret laws are no longer secret.
Some much-needed changes to FOIA and transparency law also depend on congressional action. Government contractors, including those that operate private prisons and private immigration detention centers, are not subject to FOIA. Biden signed an executive order to phase out the use of private prisons by the Department of Justice, but has yet to take action on privately-run detention facilities. If the Biden administration is going to continue to use these facilities, the very least they could do is to vigorously advocate for Congress to change the law and pass a version of the Private Prison Information Act, first introduced in previous congressional sessions, which would close this loophole. With complaints about the mistreatment, abuse, and even death of incarcerated and detained people, making this information publicly accessible is a matter of life or death.
There is only so much that any president can do without congressional action. For the boldest and most comprehensive reforms, Congress must act—and a president’s prioritization and advocacy for legislation can help spur action.
That’s why it’s so important that President Biden has strongly supported both the For the People Act and DC Statehood.
The For the People Act is a sweeping package of democracy reforms that would address presidential ethics and corruption, strengthen and expand voting rights and access, ban partisan gerrymandering, strengthen congressional and judicial ethics and crack down on dark money, among other provisions. Biden voiced strong support for the bill after its passage in the House in early March, and again called for its passage in the wake of restrictive voting laws passing in Georgia. Some of the ethics reforms would also specifically address the loopholes and weaknesses exposed by the Trump administration, including requiring the president and vice president, as well as candidates for those offices, to release ten years of tax returns, and requiring the president and vice president to divest from assets that could pose a conflict of interest with their official duties.
DC Statehood took a step forward recently as well, with President Biden’s recent Statement of Administration Policy in support of H.R. 51, which would admit Washington, DC as a state. It is the strongest stance any president has ever taken in support of statehood. Statehood is a question of equality and democracy, and Biden’s support of it is a welcome sign of his awareness of the urgency of this issue.
On these and other issues, Biden has gone farther in advocating for comprehensive democracy reform than any president in more than 40 years. He has also signaled support for reforming the filibuster, to require a “talking filibuster,” so that senators must talk to block a bill, rather than simply registering an objection.
However, simply reforming the filibuster is not enough. In order to restore majority rule, and advance these democracy reforms and other crucial legislation, the filibuster must go. President Biden should support abolishing the filibuster so that these bills and others can get passed. A minority in the senate should not be able to use a racist relic in order to block legislation supported by the majority of the Senate and the American people, and President Biden shouldn’t hesitate to say so.
Cleaning up the mess of the Trump administration
Democracy reform and improved ethical standards aren’t the only ways that the Biden administration can improve upon the lows of the Trump era. Part of the work that remains is cleaning up the mess of the Trump administration, from firing Postmaster General Louis DeJoy to turning over Trump’s tax returns to ending the pandemic.
DeJoy, a Trump and Republican party donor, was appointed by a USPS Board of Governors dominated by Trump appointees. After taking office last summer, DeJoy made devastating mail service cuts that threatened mail ballot delivery during an election that saw record numbers of people voting by mail, raising questions about whether DeJoy’s drastic changes were an effort to boost Trump’s chances in the election. DeJoy’s financial ties and delayed divestment from his former company, USPS contractor XPO Logistics, have also raised serious ethics questions, especially given contracts that XPO Logistics received when DeJoy may still have held a financial interest. CREW and many other groups have called for DeJoy’s firing for months, but the USPS Board of Governors is the only body with the ability to fire him. Fortunately, President Biden named three new appointees to the board in February, and a Senate confirmation hearing for the three was held on April 22. While the confirmation of these nominees does not assure DeJoy’s firing, it makes it substantially more likely, and Biden was correct to prioritize filling these vacancies.
One of the simplest ways the Biden administration could lend some real accountability to one of the many abuses of the Trump era is for Treasury Secretary Janet Yellen to respond to the congressional subpoena for Trump’s tax returns. Not only is it the right thing to do, it’s also clearly legally required. Former Treasury Secretary Steve Mnuchin’s refusal to respond to Congress’ request was not just unusual, it was unprecedented, and it’s long past time for Yellen to act.
One of the ways that the Trump administration’s politicization of the government loomed the largest over the last year was their handling of the coronavirus pandemic. Political interference with scientific decision-making was rampant, including in ways we’re only now discovering. From hydroxychloroquine to misleading facts about mask-wearing to political appointees interfering with CDC advice about school reopening and untested companies receiving government contracts, public mistrust in government advice about the pandemic was fueled and worsened by Trump and his allies’ politicization of science. The Biden administration has charted a very different course, by putting public health experts at the forefront of communication with the public, issuing memos prioritizing scientific integrity and evidence-based policymaking, establishing a COVID-19 health equity taskforce, and laying out clear guidelines for data collection.
These are far from the only ways that the Biden administration can and must clean up the mess of the Trump era. Allowing independence for ongoing IG investigations, reviewing past decisions by Attorney General Bill Barr and others, and cooperating fully with congressional oversight are all crucial ways that the Biden administration can ensure that some of the wrongs of the Trump era are discovered, addressed and corrected.
So far, the Biden administration has made some promising progress on ethics and democracy reform in particular, and has unquestionably turned the page on the corruption of the Trump era. On FOIA and transparency issues, however, there is significant room for improvement, and the Biden administration should work towards more transparency and proactive disclosure. When it comes to a strong, accountable, transparent government, there is always more work to be done, no matter who is president.