Jurisprudence

Why Congressional Efforts to Protect the Postal Service Are Proving So Ineffectual

Schumer, glancing above his glasses, looks over Pelosi's shoulder as she speaks into a microphone.
Chuck Schumer and Nancy Pelosi speak to members of the press at the U.S. Capitol on Aug. 7. Alex Wong/Getty Images

Over the weekend, Speaker Nancy Pelosi called the House of Representatives back from its August recess to address charges that Postmaster General Louis DeJoy and the Trump administration are meddling with the U.S. Postal Service in ways that could affect the 2020 election. The House Oversight Committee has scheduled a special accelerated hearing on Aug. 24, at which DeJoy and Postal Service Board of Governors chairman Robert M. Duncan reportedly agreed on Monday to testify. The House may also take up legislation aimed at bolstering Postal Service capacity in advance of potential record mail-in voting spurred by the COVID-19 pandemic.

I am skeptical of the more apocalyptic fears being aired in the Twitterverse and some corners of the liberal commentariat. Vote by mail will not overwhelm the post office, even if it has suffered some service cuts. In 2019, the Postal Service delivered an average of 457 million pieces of mail each delivery day (Monday through Saturday), or three items daily for each of the roughly 150 million registered U.S. voters. A few tens of millions of mailed ballots spread over weeks won’t break the system.

That said, delivery delays could cause election problems. All states that permit mail-in voting have rules about when ballots must be mailed or sometimes received in order to be counted. If the Postal Service slows down delivery, ballots mailed close to Election Day could be excluded in some states. And there are numerous reports that the Postal Service has recently made a range of changes that may indeed slow delivery—removal of street post boxes and postal center sorting machines, barring postal worker overtime, and more.

Trump’s recent bald admission that he wants to block appropriation of additional funds for the Postal Service precisely in order to cripple mail-in voting certainly justifies immediate congressional inquiry into both the motives and probable effects of the Postal Service moves. Even an unresolved controversy over the mail-in voting process will fuel Trump’s persistent assault on the legitimacy of an election polls indicate he is on track to lose.

Of course, it may prove that recent events at the Postal Service have nothing to do with election meddling, but flow instead from the persistent Republican obsession with kneecapping public institutions so they can be profitably privatized. But even if that is the case, at a moment when commerce depends to an unprecedented degree on home and business delivery, undercutting the only service that reaches every American household presents an imminent threat in itself.

For these reasons, it is entirely appropriate for the House to investigate promptly and legislate as needed. Hearings should address four basic questions: Are there postal capacity problems that could affect ballot processing, either nationally or regionally? If so, why do those problems exist, and what can be done to remedy them? And is there evidence that Trump, DeJoy, or other Trump officials are intentionally trying to delay, complicate, or otherwise manipulate mail ballot processing to give an electoral advantage to Trump? Even if the motive of postal changes has not been to aid Trump, is their effect to hinder the economy and the national response to COVID-19?

Extracting answers to these questions is likely to revive the same issues that dogged the Trump impeachment investigation and virtually all congressional oversight efforts over the last 3½ years of the Trump administration. What, in short, can the House do if DeJoy refuses to provide documents or approve testimony by USPS subordinates necessary to get to the bottom of the matter? Of course, the House can immediately issue subpoenas. But the Trump administration has an established track record of refusing or interminably delaying compliance even with formal subpoenas.

Some exuberant spirits have suggested that if DeJoy fails to comply with requests for information, he should be jailed for contempt of Congress, and if evidence emerges of an effort to affect the election, impeached. While I heartily approve the sentiment, neither option is at all likely as a matter of practical politics.

Both houses of Congress have the power to find witnesses in contempt. The problem is how to translate that judgment into a meaningful sanction. Contempt of Congress is a crime, but under current law it must be referred by Congress to the Department of Justice for prosecution. No DOJ will be eager to proceed against a high official of its own administration for refusal to testify, particularly if the refusal stems from White House orders. Under Attorney General William Barr, the chances of such an event are zero. Congress can act on its own behalf to pursue civil contempt remedies in court, but that process invariably takes months or even years.

Finally, Congress probably possesses a power of “inherent contempt,” meaning a power both to find someone in contempt and to impose sanctions directly without the intervention of a court. The difficulty is that neither chamber has used the power in decades and neither has established rules delimiting the penalties or defining procedures for imposing them. Any effort to resurrect this ancient prerogative would provoke immediate legal challenges that would drag on for months or years, certainly long past the November election.

The House finds itself in this toothless posture for two reasons. First, traditionally, compliance with congressional demands for information has been enforced largely through custom. Presidents in the past have resisted some congressional requests, but after a period of haggling over details, the administration generally yielded and produced most of what was sought. Trump discovered that outright defiance could work because Congress lacked the energy and bandwidth to litigate every claim, and because Republicans in Congress have been unwilling to join with Democrats to use other tools like the power of the purse to compel executive branch information disclosure.

Second, even though it has long been clear that ordinary avenues of persuasion would not work to extract information Trump wants withheld, Democrats have dithered. Multiple proposals for regularizing an inherent contempt power have been kicked around the House Democratic caucus since at least 2019, and in one case introduced as a resolution. But none has ever been brought to a vote. The result is that a process of sanctioning DeJoy for inherent contempt would have to be invented on the fly, something I suspect Pelosi would be loath to sanction within three months of an election Democrats are reported to be winning.

As for impeachment, Cabinet members like DeJoy are “civil officers” impeachable under Article 2, Section 4. President Ulysses S. Grant’s secretary of war, William Belknap, was impeached in 1876. Moreover, if it could be shown that a postmaster general manipulated the flow of mail with the intention of benefiting one candidate or party in an election, that would plainly be an impeachable offense.

But as the country has been recently reminded, impeachment by the House is a long process, and conviction of any Trump ally in the Senate is doubtful. Even if DeJoy is neck-deep in a nefarious scheme to meddle in the election, there is no chance whatever that he could be removed from office in the 11 weeks before Nov. 3.

To the extent that the impeachment power has any utility in the Postal Service fight, it lies in the fact that, under the Constitution, congressional power to investigate impeachable offenses is probably greater than its general power of administrative oversight. Should DeJoy refuse to turn over key information or seek to block the testimony of subordinates, and should the House elect to go to court to force compliance, the impeachment power would be a helpful argument … if the House could even secure a hearing in time to be of practical use.

The bottom line here is that the Postal Service election controversy will be fought mostly as a contest for public opinion. Trump may hope to affect the actual number of votes cast and counted by mail, but he certainly wants to raise doubts about the legitimacy of whatever count emerges. Democrats want both to ensure mail-in ballots are counted and to convince voters that Trump is trying to steal their votes or force them to risk infection by casting them in person.

My hope is that, once the election is over, Congress will remember its current state of impotence and legislate new measures solidifying its authority to extract necessary information from the executive branch.

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