Congress could protect democracy—if it wanted to

This week's 'rescission' scramble shows exactly why our elected officials need to stand up to tyrants.

Even under the best of circumstances, moving good legislation through Congress is immensely hard. But my time there did not shake me of the conviction that there is always something that can be done—and therefore no excuse for members of Congress to say they’re powerless. In that spirit, this is a story about an old disappointment and a possible opportunity.

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In 2021, I teamed up with then-Rep. Adam Schiff of California and several other House Democrats on a bill called the “Protecting our Democracy Act.” We’d just survived a four-year dose of Donald Trump bending democratic guardrails in the White House, culminating in the Jan. 6, 2021, insurrection. So, we bundled together a bunch of ideas for strengthening those guardrails to ensure that any future wanna-be authoritarian president would fail.

We also had the quaint notion that with Joe Biden in the White House, some Republicans might want to help us pass a bill that would limit presidential powers.

I recently dug up the text of the bill to remind myself what we had proposed. It was a read-it-and-weep kind of moment, because here is what it would have done:

• Codified enforcement of the Constitution’s emoluments clause to prevent presidents from accepting gifts from foreign governments.

• Made it harder for presidents to ignore Congress’s budget authority by refusing to spend money Congress appropriated.

• Required Congress to approve any presidentially declared national emergency—like the ones Trump has used to impose tariffs—within 30 days.

• Forced disclosure of any attempt by the White House to influence Justice Department investigations.

• Prevented presidents from gutting the federal government’s non-partisan civil service.

• Paused the statute of limitations for any crime committed by presidents while in office so that they can be held accountable after their terms.

• Prohibited presidents from pardoning themselves and making the offering of a pardon by the president for corrupt purposes a possible predicate for criminal liability.

Obviously, having any of these provisions in law right now would be useful!

So, what happened? The legislation passed the House, but with only one Republican, then-Rep. Adam Kinzinger of Illinois, voting in favor. We could never get enough Republicans in the Senate on board to overcome the filibuster there. They saw the bill as anti-Trump, even though Trump was gone and Biden was the president whose powers it would have limited. I guess they didn’t really believe, despite their rhetoric, that Biden would ever abuse those powers.

To be fair, the Biden administration and our Democratic congressional leadership didn’t make moving the bill, or testing whether a compromise version might pass the Senate, a priority. There was a sense then that the Trump threat was in the past.

Schiff, now a U.S. senator, recently told me that he hopes to reintroduce a version of the bill. It won’t move in the current Congress. But if Democrats regain control, watch this space. The next time around, closing our government’s vulnerabilities to authoritarian capture must become job one.

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That task will not be the business of Congress this week. But something important is happening in the U.S. Senate right now. In Washington jargon, it’s a debate on a proposed presidential budget “rescission package.” In plain English, it is a fight about whether Congress will keep the power of the purse or surrender it to Trump.

The Constitution is crystal clear that Congress decides through its appropriations process what the executive branch will spend. So, if Congress says that the State Department must spend $100 on, say, paper clips or on saving lives from AIDS and malaria abroad, the department must spend $100 on those things.

In 1974, Congress passed the Impoundment Control Act codifying this principle, but with one small out—if the president wants to “impound” (i.e., not spend) lawfully appropriated funds, he or she must ask Congress for permission through a “rescission request.” If both houses of Congress vote to approve this request within 45 days, the president can proceed; if they don’t, the impoundment is illegal and the funds must be spent.

When Trump, Elon Musk, and Trump’s budget director, Russell Vought, took their chainsaw to the federal government earlier this year, they claimed that they could ignore this law and that Congress could go jump in a lake. Apparently, enough congressional Republicans were discomfited by this that they convinced the administration to test the rescissions process. So Vought cobbled together a few of the recent impoundments—cuts to public broadcasting (NPR and PBS) and to some U.S. Agency for International Development programs, including the George Bush era anti-AIDS program—and sent them to Capitol Hill for approval.

On June 12, the House voted yes, but by only two votes. Four Republicans voted against, and, infuriatingly, four Democrats were absent.

Now the Senate has until midnight Friday, when the 45-day clock expires, to follow suit. Yesterday, three Senate Republicans—Mitch McConnell of Kentucky, Susan Collins of Maine, and Lisa Murkowski of Alaska — voted against a procedural motion to bring the rescissions bill to the floor, creating a 50-50 tie that Vice President JD Vance had to break. Senate GOP leaders also agreed to strip $400 million of the global AIDS program cuts from the bill and are considering more changes.

That’s already a big defeat for the Trump administration—it means Congress has asserted at least some authority to question its unconscionable impoundments. And if the Senate does pass this new version of the bill, the House will have to vote again to approve it, increasing the chance that there will be no agreement by the Friday deadline.

In that case, Trump could go back to ignoring the Congress and refusing to spend the appropriated funds. But anyone suing the administration to get those funds would have a virtually airtight case.

Meanwhile, a related process is playing out below the radar. Under the Impoundment Control Act, if the president refuses to spend appropriated funds without asking Congress for permission, the General Accounting Office (GAO), an agency that reports to Congress, can find him in violation of the law. And when that happens, it triggers the same 45-day clock that the Senate is up against today. In other words, unless both Houses of Congress approve the president’s impoundment of funds, it becomes clearly illegal.

In May, the GAO issued one such finding—saying that the administration’s withholding of grants to states for electric vehicle charging stations violated the law. Few people in Washington seem to have noticed this, but the 45-day clock has already run out on that one, meaning that states could argue in court that Congress explicitly declined to approve the cut. And GAO says it’s working on dozens more investigations of Trump/Musk cuts of appropriated funds. If it finds violations, the burden will be on Republicans in Congress to schedule votes to legitimize each budget impoundment—putting every member on record for or against—or to render all of them illegal by not acting.

This might be why House Republicans are also trying to cut GAO’s operating budget! So, watch this space, too.

Tom Malinowski is a former member of Congress from New Jersey who was an assistant secretary of state in the Obama administration.

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