Brynn Anderson/AP Photo
Congress could have stipulated that the bailout program have an independent counsel with prosecutorial authority that did not run through Attorney General William Barr.
The coronavirus pandemic created an imperative for action that even Mitch McConnell could not ignore. In the space of just a few weeks, Congress passed three major pieces of legislation, including the largest fiscal package in this country’s history. Now, however, lawmakers have hunkered down in the safety of their in-district homes, while the Trump administration sets about administering newly appropriated funds with little challenge. It is doing a predictably poor job.
For anyone who’s been paying attention, this administration’s missteps—ranging from the corrupt to the purely incompetent—will come as no surprise. They do, however, raise an important question: Could House Democrats (the closest thing we have to an opposition party right now) have averted this outcome?
Of course they could have. Unfortunately, House Democrats were woefully ill-prepared to do so. Had they spent the past 15 months carefully investigating this administration’s actions through concerted oversight, they might have fought for legislation that meaningfully limited Trump and his pals’ discretion to enrich themselves at the expense of regular people. But they didn’t, so now we all get to watch as corporate America enjoys a veritable free-for-all.
It’s disappointing. Democrats sailed to a House victory in 2018 on the winds of accountability, but with few exceptions, Speaker Nancy Pelosi’s committee-chair allies spent 2019 refusing to issue subpoenas, sitting idly by as Trump officials skipped hearings, and letting document requests go unanswered. Even the fourth impeachment vote in our nation’s history required months of agonized protests from the party’s base, and was conducted on narrow, technical grounds that told no story about Trump’s harms to the American people. The public has all but forgotten it two months later.
Had Democrats closely observed the Trump executive branch in action, they could have developed a pandemic response that accounted for the reality of Trump’s team of corrupt incompetents. Instead, the CARES Act, which landed on the president’s desk last month, reflects little consideration of those who will be in charge of administering the authorized programs.
Had, for example, the House Education and Labor Committee held a single hearing with Secretary of Labor Eugene Scalia, they might not have been so surprised by the department’s rulemaking last week, which severely limited the reach of a new paid-leave law. Prior to his confirmation as secretary of labor, Scalia spent his time ensuring that giant corporations enjoyed even bigger profits at working people’s expense, from helping Walmart avoid contributing to Medicaid costs in Maryland, to resisting Dodd-Frank’s provisions on predatory lending, to blocking safety protections for employees of SeaWorld. As secretary, Scalia oversaw the finalization of rules making it harder for employees of franchises like McDonald’s to sue the larger corporation for violations of labor law.
That’s just what we know about; there’s almost certainly more germane information that oversight efforts could have uncovered. If House Democrats had undertaken those efforts, they might have been less credulous about Scalia’s willingness or desire to interpret the law to help regular folks in need. They could have drafted the legislative text more carefully so as to limit the labor secretary’s discretion.
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In a world where Congress was busy with oversight in 2019, it seems likely that coronavirus response legislation might also have been more attentive to government capacity issues. The economic-rescue package has bestowed two gargantuan tasks—distributing checks to every American adult and administering loans to every small business in need—to two beleaguered agencies: the Internal Revenue Service (IRS) and the Small Business Administration (SBA). Each has seen staffing levels and capacity fall over the past several years, a problem that predates Trump, but which he and his team have enthusiastically accelerated. Trump’s appointees have failed to advocate for increased funding for their respective agencies, preferring instead to insist that they can make do with what they have.
Active congressional oversight likely would have helped legislators to understand the depth of these capacity issues. Even if House Democrats did not succeed in increasing the IRS’s or SBA’s budgets last year, they could still have provided for some degree of increased emergency capacity to manage these critical programs. Or perhaps some of the increased workload on the SBA could have been assigned to teams from the Federal Reserve or Treasury or other departments.
In a world where Congress was busy with oversight in 2019, coronavirus response legislation might also have been more attentive to government capacity issues.
Perhaps most obviously, House Democrats would certainly not have structured bailout funds as they did had they been performing meaningful oversight since taking control of the House last January. As it is, lawmakers have given Trump and Treasury Secretary Steven Mnuchin the keys to the castle with no real way to get them back. The accountability mechanisms in the bailout are limited to a dedicated inspector general, a consortium of other inspectors general, and a congressionally appointed oversight panel. The oversight panel lacks subpoena power, and both mechanisms can only investigate wrongdoing ex post facto.
Trump has, predictably, preemptively rejected all efforts to monitor his administration’s management of the bailout, making broad (although legally baseless) claims about his ability to control the inspector general. Of course, with William Barr, his personal fixer who occasionally moonlights as attorney general, at his side, he can get away with some remarkably weak legal justifications.
Mnuchin’s record is no better. In the rare moments where he’s faced congressional questions about his record, he’s blown them off. On at least one occasion, Mnuchin simply refused an invitation to appear before the House Ways and Means Committee. At a House Financial Services Committee hearing, he showed up and then abruptly announced that he was leaving before it was over. And, of course, Mnuchin remains the official face of Trump’s effort to keep his tax returns hidden despite the specificity of the legal mandate.
We are stuck with these figures for the moment, but Congress could have done more to limit their latitude and ensure that rulebreaking carried real consequences. Many, for example, were demanding that the bailout funds be contingent on companies meeting strict, explicit criteria relating to employment, wages, executive pay, share buybacks, and other factors. The Federal Reserve is run by people with more competence and less hostility to the rule of law and Congress than the SBA or Treasury Department, and the law ought to reflect that sad (and historically ironic) fact.
Congress could also have stipulated that the bailout program have an independent counsel with prosecutorial authority that did not run through Barr. Lawmakers would also have done well to explicitly bar the president from controlling bailout funds via his emergency powers. These are the sorts of steps a competent opposition party, one that had been closely monitoring this historically awful administration from the day it took power, would have taken. Up to now, however, that is not what we have had.
Lawmakers are already discussing a fourth rescue package. This means House Democrats can conduct oversight, learn from their mistakes, and write a bill better designed to constrain this specific administration’s ability to abuse and circumvent the law. And either way, it should be clear by this point that, no matter the circumstances, congressional oversight must be a priority.
