2020 Election, Politics

An American Nationalist Voting Index – Draining the Swamp

This is part of a series examining the issues in the presidential election. To see other articles in the series, click on the “2020 Elections” link on the Home page


Biden 0 Trump -1

Trumps victory in 2016 was powered by a call to “drain the swamp” in Washington, which never consisted simply of campaign reform.  It sought to end the kind of cancer described by Roosevelt – the control of government by a privileged few that subverts the very nature of democracy itself.  We also now know it means different things to different groups.  In this campaign, the call for reform has focused on not just campaign reform, but also on federal administrative and policing changes.  

Campaign Finance Reform

The Citizens United decision and our loophole-riddle campaign finance laws have loosed a flood of money whose origins are opaque and very probably illegal. Democrats introduced a bill that would plug some of those loopholes.  It attempts to limit the impact of Citizens United by requiring disclosure of donations of more than $10,000 from certain non-profits that were previously exempt. It cracks down on digital ad spending on social media platforms by requiring the same kind of disclosure of the source of ads required for television and radio commercials.  The bill also attempts to limit the use of social media for the kind of election interference we saw from the Russians in 2016 by banning campaign contributions from corporations with significant foreign ownership. Finally, it also prevents foreign individuals from purchasing social media ads.  Former Vice President Biden has endorsed these proposals and President Trump opposes them. This earns Biden a +1 and Trump a -1.

However, there is a sleeper issue in campaign finance that has been ignored by both candidates.   If you are like me, your e-mail box has been deluged by appeals for campaign contributions from any number of candidates and partisan political action committees.  They seek contributions of as little as five dollars by simple completion of a form on the Internet and a charge via PayPal or by credit card. While the identity of the donors must be disclosed, there are no rules requiring the verification of their identities.  A former Kansas attorney general recently issued an analysis of the contributions to the ActBlue independent committee’s which raised over $900 million for Democratic candidates.  It showed how ActBlue has gamed the campaign finance system so that the true sources of their contributions is almost impossible to determine. This makes it easy for large donors to break up their contributions or foreign donors to hide theirs.   If Biden or President Trump are really interested in controlling dark money, this loophole must be plugged as well.

Federal Administrative Law Reform

The failure of Congress to address a pressing issue has now become an excuse for forcing action through administrative rulemakings.  As I mentioned in my post on the US Supreme Courts’ s opinion on the DACA rulemaking, current law makes it difficult to control an executive agency’s impulse to fill this perceived gap. This essentially creates a fourth branch of government whose inner workings are known and accessible to only a few.

Federal executive power needs to be reined in through new legislation that

  • Limits agency rulemaking to discrete subjects narrowly delegated to the agency;
  • Prohibit agency action if its impact on the economy or the number of people affected exceeds certain thresholds;
  • Allows more opportunity to challenge a agency ruling and repeal it.

The DACA and Clean Power Plan rules of the Obama Administration show that Vice President Biden is a likely opponent of such reforms.  Meanwhile, Trump has relied on and touted his executive power instead of pursuing legislation to prevent a future president from abusing those powers. President Biden’s’ implied approval of current agency power results in a -1 for him on this issue while Trump deserves only a 0.

Law Enforcement Reform

The death of George Floyd and other African-Americans at the hands of the police and the FBI abuses of the FISA warrant system revealed in the Russia investigation  has highlighted another swamp that needs to be drained – the excessive and unchecked power of law enforcement.  As mentioned in this post, policing reforms must be based not only reducing qualified immunity and other changes in tactics, but also a top-to-bottom review of our law enforcement strategy.

Former Vice President Biden supports proposals to reform police tactics, but never mentions the need for increased funding for the police necessary to do their job of maintaining order in our communities. Meanwhile, the Obama Administration’s acquiescence at the least, and encouragement at worst, of the FBI’s FISA abuses does not inspire any confidence that he would support reform in this area.  These two positions cancel each other out and earn him a zero on this subject. While the Trump Administration is vigorously pursuing the FBI abuses via the John Durham investigation, the President has ignored, and at times demagogued, the police brutality issue, Again, the two positions cancel each other out and thus he also deserves only a zero.


It is truly discouraging that neither candidate shares Roosevelt’s level of concern about the perilous state of American democracy and civil rights. Trump’s failures are particularly galling since his 2016 campaign featured the issue.  It is up to American nationalists to press these issues with congressional candidates and in future elections.  

Domestic Policy, Government, Immigration

The Swamp Wins Again

In this site’s mission statement, I said that as much as Theodore Roosevelt was a model, there would be times we would disagree with his likely approach to an issue.  The Supreme Court’s recent opinion on the DACA immigration program highlights one of those differences – the wisdom of unchecked presidential power. 

The Court’s opinion errs not just because it continues a program that flouts the basic rules of immigration law.  The so-called Dreamers would have been granted permanent residency eventually. However, it should have occurred through the legislative process as part of a comprehensive immigration reform that created real and enforceable limits on future immigration.  Instead, the Court used arcane administrative obstacles to allow the Obama Administration to evade the Congress and the people to achieve its political goals. In doing so, the Court has undermined the constitutional separation of powers and the democratic process.

The breadth and depth of the power granted by the Court to administrative agencies (and thus the presidency itself) can only be understood by delving into the details. The court admits that the DACA program (and the corresponding rule protecting the parents of DACA children) were affirmative rules subject to the Administrative Procedure Act. This law ordinarily would require such rules to be issued through a notice and public comment process and adopted only after “reasoned decisionmaking” (the Court’s language). They then could be appealed for judicial review by interested groups such as the Federation for American Immigration Reform, which advocates for immigration restrictions. Instead, the program was initiated by a three-page “memorandum” not posted for prior comment and justified on conclusory grounds that such immigrants “lacked the intent to violate the law”, are “productive contributors” and “know only this country as home”. No other justification or evidence was cited to support the memorandum. In addition, by acting through such a memorandum, the administration made it more difficult to challenge the program in the courts.

Thankfully, several states did challenge it and the Fifth Circuit Court of Appeals issued a preliminary ruling holding it to be an illegal rule making.  After President Trump took office, Attorney General Jeff Sessions issued an opinion to the Department of Homeland Security holding it to be illegal. Based on these opinions, the acting Secretary of the Department of Homeland Security decided to rescind the program. That should have been the end of the matter. Instead, a new set of appeals were filed and the Supreme Court struck down the rescission and sent it back to the agency so it can consider at least 8 different objections by supporters of the rule. In short, the court ruled that an agency rule having a multi-billion dollar economic impact and granting new rights to over 20 million people could be adopted without public comment or congressional input on conclusory grounds, but could only be repealed by engaging in a detailed factual and legal analysis.

Justice Thomas’s dissent accurately describes the danger to our constitutional democracy, stating that an agency is  now “not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration”.  It grants agencies and the beneficiaries of their largesse more rights than the people as a whole. No wonder many refer to Washington as a swamp. Policies adopted through the democratic process go in, but become so mired in governmental and special interest muck that they never come out.

To his credit, President Trump has issued an executive order prohibiting this kind of rogue administrative action.  At the same time, he encourages the same culture of presidential power by constantly acting through executive orders rather than by legislation.  He has never seriously pursued a comprehensive administrative law reform in the Congress.  Without this, a succeeding administration can undo his restraints by its own executive order. As we approach the 2020 election, American nationalists who believe in the unique value of our constitutional democracy should insist that candidates, including Trump, commit to reform that drains the administrative swamp once and for all and opens up policy making to the American people.