ND Law Journal of Legislation attracts notable experts to discuss ethics in public policy

Author: Denise Wager

Former Secretary of Defense Leon Panetta and former New Jersey Governor Christine Todd Whitman have contributed articles to the spring issue of Notre Dame Law School’s Journal of Legislation

Third-year law student Lauren Vaca, editor-in-chief of the Journal of Legislation, said that the Journal has always focused on publishing timely pieces from high-profile authors, a focus that is well represented in this issue about ethics reform, domestic terrorism, and the foreign interference in American politics. 

Panetta’s article, “Challenges of Leadership in the Twenty-First Century,” draws on his experience in government spanning from his years serving as a U.S. congressman, as director of central intelligence, and as defense secretary under former President Barack Obama.

He writes about the duty of every citizen to keep the U.S. free and strong, and that national service can be imparted in a variety of ways. He describes how the country can govern either by leadership, or by crisis. When leadership is willing to take the risks of leadership, crises can be avoided or contained. He reflects on examples of leadership from his past experiences, where opposing sides have worked together to bring about positive change. He says that it is possible for the current climate of governing by crisis to change, but both sides have to be willing to offend members of their own party in order to achieve bipartisan compromise and agreement.

"We have all learned in the past year how fragile our democracy really is, and that its survival cannot be taken for granted,” Panetta said. “In over 50 years of public life, I have personally witnessed how the quality of leadership can determine the quality of our democracy. Today, unfortunately, confrontation rather than governing is the politics of our time. The key to better leadership rests with ‘we the people.’ In this article, I stress that it is ultimately in our hands to determine the future of leadership and the future of our democracy."

In her article, “Legislative Action to Promote and Enforce Ethical Conduct in Government,” Whitman explains how norms, rather than the law, force ethical behavior in government. She argues that in the Trump administration many officials challenged these norms without consequence. Whitman proposes that Congress turn some of these norms into law so that government officials are held accountable and, in return, provide more transparency to the American people. Mandatory financial disclosure requirements, a national security review for senior administration officials, better enforcement of the emoluments clauses, and a more accountable system for dealing with beaches in ethics are some of her examples for change. 

After serving as governor of New Jersey, Whitman was the administrator of the Environmental Protection Agency under former President George W. Bush, and is currently the co-chair of the National Task Force on Abuses of Power by the Executive Branch. 

“Securing the rule of law has never been more important in modern American history. I am pleased to lay out a number of legislative initiatives that are imperative to the future of our democracy,” said Whitman.

After the January 6 Capitol attack, Vaca reached out to Jimmy Gurulé, professor of law and director of the Law School’s Exoneration Justice Clinic, about also contributing an article to the issue. Gurulé had spoken out about creating a domestic terrorist organization designation process, similar to reforms he made while under secretary of enforcement in the Department of the Treasury under former President George W. Bush. 

In his article "Criminalizing Material Support to Domestic Terrorist Organizations: A National Security Imperative," Gurulé writes that there is a lack of federal criminal legislation punishing secondary actors that provide money, weapons, training, and other forms of assistance to domestic terrorist organizations. While there is a federal statute that criminalizes material support to "foreign terrorist organizations," there is no equivalent statute prohibiting such assistance to domestic terrorist groups. In fact, currently there is no process for designating violent extremist groups that engage in acts of terrorism as "domestic terrorist organizations." Gurulé also rebuts claims that criminalzing domestic terrorism would infringe on First Amendment rights. He notes that similar arguments have been rejected by the U.S. Supreme Court with respect to punishing material support to foreign terrorist organizations.

“Domestic terrorism poses a serious threat to U.S. national security, which was demonstrated on January 6, 2021, when a violent mob, including members of anti-government militia groups, stormed the U.S. Capitol to prevent the peaceful transfer of power. The government should punish the members of violent right-wing militia groups that planned and directed the assault, as well as those individuals that provided material support to those groups and enabled their violent conduct," Gurulé stated. 

The final article in the issue, “Propaganda by Permission: Examining 'Political Activities' Under the Foreign Assets Registration Act,” is by Tarun Krishnakumar, an LL.M. student at Georgetown Law. Krishnakumar writes about the background, development, and legal standards foreign agents must disclose concerning their political activities and analyzes if these standards are adhered to in practice. He also gives recommendations to strengthen the capacity of FARA to counter covert and overt foreign influence operations.

The Journal of Legislation is the Law School’s oldest journal, and one of six student run journals.

Originally published by Denise Wager at law.nd.edu on May 20, 2021.