Presidential Candidates Should Undergo Background Checks
The authors — Joe Beery, Alexis Carra, & Emily Viola — were students in Fordham Law School’s Democracy and the Constitution Clinic, which develops non-partisan recommendation to strengthen the nation’s institutions.
Picture a crisp D.C. morning on January 21, the first day of a new presidential administration. An optimistic, likely somewhat nervous president is surrounded by national security officials in the Oval Office for his first intelligence briefing in office. Some of the nation’s most closely held secrets are discussed. Everyone in the room has undergone a background check to receive the highest-level security clearance, except one: the president.
Joe Biden and Donald Trump just accepted their parties’ nominations last month, and, like every nominee before them, they did not undergo background checks as part of the nomination process. Background checks on government employees serve an essential purpose. They keep sensitive information and responsibilities out of the hands of people who have conflicts of interest, vulnerabilities to blackmail, or other traits or relationships that pose security risks. Employees of the FBI, CIA, NSA, the Secret Service, as well as Cabinet secretaries and federal prosecutors must undergo some type of background check.
Presidential candidates should not be exempt from this requirement. Background checks for candidates would address a range of vulnerabilities, including the risk that they could be subject to foreign influence. The Constitution’s framers viewed the rise of a puppet executive beholden to foreign powers as one of the most dire threats to the government.
Some argue that the level of scrutiny already imposed on presidential hopefuls eliminates the need for background checks. Rival candidates hire firms to conduct opposition research. Journalists likewise pour over candidates’ business and personal histories through reviews of public records and interviews with friends and other contacts. Arguably, any information revealed through a background check is already injected into the national conversation through a healthy amount of journalistic digging.
But reporters and opposition researchers don’t have the same capabilities as the federal government to investigate candidates’ backgrounds. Furthermore, requiring presidential candidates to undergo background checks would safeguard a fundamental truth of our Republic: Our president is not a monarch. The commander-in-chief should be required pass the same hurdles as other government employees to access sensitive information.
But a law that made background checks mandatory would probably be unconstitutional. The Constitution says the president must be at least 35 years old, a naturalized citizen, and a U.S. resident for at least 14 years. Passing a background check is absent from this list.
The Supreme Court has said Congress and the states can’t add qualifications for congressional candidates beyond those in the Constitution. It follows that any requirement that presidential candidates submit to a background check for eligibility would likely be an unconstitutional additional “qualification” for the presidency.
Moreover, background checks require cooperation and disclosure of personal information to be effective. Absent a constitutional amendment, policies could place pressure on candidates to participate in the background checks.
The political parties could make undergoing background checks a requirement for participating in primary debates. To accommodate privacy concerns, the parties might only require disclosure of the results to the parties, not the general public. But there is a risk that political parties may not be interested in subjecting their candidates to potentially damaging background checks.
The Federal Election Commission might request background checks from candidates when they declare their candidacies and impose a $10,000 fine on any candidate unwilling to cooperate. This proposal, originally recommended by Fordham Law’s Democracy and the Constitution Clinic, would not prevent non-compliant candidates from continuing to participate in the primary process. Instead, failure to pay would inform the electorate that the candidate is unwilling to undergo a background check at a substantial monetary cost.
The president of the United States is the most powerful person in the world; an individual exposed to highly classified information, yet inexplicably excused from a background check. This does a disservice to American voters who should cast their ballots knowing that all members of their government are held to the same high standard of integrity.
