A divided Congress may sideline protecting the census after Trump’s interference

Updated December 22, 2022 at 8:45 AM ET

On the list of unfinished business of the departing Democratic-controlled Congress is reforming an often-overlooked keystone of U.S. democracy — the census.

Democratic lawmakers were among the most prominent critics of the years of census interference by former President Donald Trump's administration. The meddling laid bare many of the vulnerabilities facing the national tally.

Those numbers are used to determine each state's share of congressional seats and Electoral College votes, redraw voting maps for every level of government, and guide an estimated $1.5 trillion a year in federal funding for public services.

As risks to the 2020 count's accuracy mounted, Democrats held hearings, launched a congressional investigation and even took Trump officials to court after holding them in contempt of Congress. That extraordinary move came after the officials refused to hand over documents about their Supreme Court-blocked push for a census question about U.S. citizenship status, which was part of a scheme to exclude unauthorized immigrants from a key count the 14th Amendment requires to include the "whole number of persons" living in each state.

In these first two years of the Biden administration, however, no new census-related laws have been enacted, despite a number of bill introductions.

With a divided government coming to Capitol Hill next year, some census advocates are already looking past the new Congress for other ways to stand up more protections against any interference with 2030 census planning, a decade-plus-long process that is close to a third completed.

"The window of opportunity to actually frame what the next census will look like is closing quickly," said Terri Ann Lowenthal, a former staff director of the House oversight subcommittee for the census.

A lame-duck bill caps off a largely no-action Congress on the census

Days before this Congress is set to end, a senator squeezed in a bill intended to help block the kind of census interference by the Trump administration that upended the country's 2020 head count.

Sen. Brian Schatz of Hawaii — a Democrat who has been a vocal census supporter — introduced the legislation on Dec. 15 as a companion to a similar bill the U.S. House passed in September.

Asked about the timing of his last-minute bill — which is not expected to get through a committee, let alone the Senate floor, in this lame-duck period — Schatz pointed to difficulty finding bipartisan support.

"I've been rooting around for a Republican to co-sponsor it with me," Schatz told NPR. "While they are quietly supportive on the appropriations side, we have not been able to get as much enthusiasm for introducing standalone legislation. So we're still working on that because, you know, we have no desire to turn the census into a political football."

Many census watchers have been urging Congress to put more legal safeguards in place for the 2030 census and other future counts after Trump officials carried out what career civil servants at the Census Bureau have described as an "unprecedented" level of interference with the 2020 tally.

After its failed attempt to add to census forms a citizenship question that was likely to further suppress census participation among households with Latinos and Asian Americans and produce costly and inaccurate data, the previous administration cut short the time for counting amid the COVID-19 pandemic and tried to pressure the bureau to change its plans for protecting people's privacy.

The Trump administration also brought on four additional appointees with no obvious qualifications to join the bureau's top ranks during the final months of counting.

Like the House bill introduced by outgoing Democratic Rep. Carolyn Maloney of New York, who lost a primary race this year, Schatz's proposal would limit the number of political appointees at the Census Bureau to four, including the agency's director. The bureau would also only be able to have one deputy director, who would be a career civil servant appointed by the director.

This Senate bill, however, does not include a provision in Maloney's original House bill that would allow the president to remove the bureau's director "only for inefficiency, neglect of duty, or malfeasance in office."

"I think these are close calls here because you do want to have the president retain their executive authority," Schatz said. "You have to be careful here. If you get the wrong census director and they need to be removed, you want to make sure that the president has the authority to do that."

Schatz's proposals do include designating a bureau employee to focus on "optimizing racial and ethnic equity" in the census, a provision that is also part of the House-passed bill. Under the Trump administration, the bureau extended a decades-long census problem of undercounting people of color while overcounting people who identify as white and not Hispanic or Latino. According to the bureau's follow-up survey for the 2020 census, the net undercount rate for Latinos soared to more than three times the rate of a decade earlier, and the undercounting rates for Native Americans living on reservations and Black people remained high.

Another proposal in Schatz's bill would require the bureau to report to Congress a lifecycle cost estimate for the 2030 census by the start of 2026, in addition to what resources the agency needs to improve its ability to get an accurate count. Getting those details early, Schatz said, could help make sure funding for the count won't be "hijacked and subject to the political winds."

Schatz said he plans to reintroduce all of his proposals in a new bill after the next Congress begins in 2023. While the Senate will remain under Democratic control, Republicans are set to control the House, likely further limiting chances of census reform.

For now, the senator said introducing this soon-to-be-dead bill is a way to "lay down a marker because a lot of times people don't think of the census until it's census time."

"The Constitution enshrines the census, and that is part of our American-style democracy. The attempts to turn it into a partisan cudgel were really unfortunate," Schatz added, referring to the years of Trump-era census interference. "We mostly beat them back, but we have to be prepared for the possibility that this is something that we have to fight against every 10 years."

The Senate filibuster and a lack of public bipartisan support blocked census reform

Asked whether the Democrats dropped the ball on enacting more protections against census interference while their party controlled both houses of Congress and the White House, Schatz pointed to the challenge of the filibuster, the 60-vote requirement for most legislation in the Senate.

"We were stuck. And so you're not going to get me defending the filibuster, but it is a fact of life in the United States Senate until we change the rules," Schatz said about census reforms. "My guess is we had all 50 Democrats and just a handful of Republicans, but not the 10 that we needed."

The way Schatz sees it, the new year could bring a different political calculus for GOP lawmakers who previously were "trying to be supportive of the census without drawing attention to themselves and drawing an angry tweet or whatever" from Trump.

"Now that I think he is a less powerful force in American politics generally, but also in Republican politics, people can go back to their normal position, which is, 'Yeah, we ought to count everybody.' That's what the Constitution requires," added Schatz, who said he is counting on GOP colleagues in Congress to be "pragmatic" when it comes to funding 2030 census preparations.

Among potential Republican allies on census issues next year, Schatz named Sen. Lisa Murkowski of Alaska, who two years ago joined Schatz in co-sponsoring a bipartisan bill to extend 2020 census counting after Trump officials curtailed it. Murkowski did not make herself available for an interview for this report.

In the House, however, Democratic Del. Eleanor Holmes Norton, a nonvoting member of Congress from Washington, D.C., is concerned that the next census is far from the minds of many lawmakers.

No mention of the census appeared in the "Commitment to America" that House Republicans released in September as a preview of their agenda for the next Congress. A spokesperson for House Minority Leader Kevin McCarthy, R-Calif., did not respond to requests for comment.

"To be honest with you, I really don't think anybody in the Congress is even thinking about the years of preparation it takes and what the delay will do in shortening the preparation time needed," Norton said, referring to the delay in passing any census reforms. "I'm trying to make that more clear myself, but it will take a whole lot more people than me to make that clear."

In May, Norton introduced a bill that would ban the bureau from adding a census question about a person's citizenship, nationality or immigration status — a kind of addition that some House Republicans have continued to call for on census forms despite the bureau's research warning against one to help ensure full public participation in the count.

"I would think this would be a nonpartisan bill for God's sake," Norton said. "We need to know the number of people that are in the United States. We need to know it for federal funding. So you would think Republicans would understand that their own districts, who get the same federal funding as mine, would lose money if we don't get a complete and accurate count of just how many people there are," Norton added.

For Lowenthal, the former staff director of the House oversight subcommittee for the census, it's not surprising that the next head count is not at the top of most lawmakers' priority lists.

"Congress doesn't do long-term planning well. And once each census is over, lawmakers turn to other issues that have more immediate, tangible benefits for their constituents," explained Lowenthal, who now serves as a consultant on census issues.

In addition to that perennial challenge, Lowenthal has noticed a troubling new reality.

"I'm not sure, based on what I've seen written in conservative publications over the last couple of years since the 2020 census, that there is a common set of facts around which lawmakers agree," she said. "I think some believe that the Census Bureau's career staff represents the 'deep state' and was insubordinate when it came to carrying out the policies that then-President Trump wanted to put forward for the last census."

Some census advocates are looking to the White House and future elections

With a divided Congress next year, some census advocates are keeping their focus on funding for the next count, rather than any new laws.

Budget shortfalls ahead of the 2020 census ultimately forced the bureau to cancel test runs planned in part to inform its outreach efforts in rural and military communities. Many census watchers fear that reduced funding in these early stages of planning for the 2030 count could lead to similar cutbacks to research the bureau has relied on to try to get complete and accurate tallies.

"We're going to continue to emphasize that if we want to realize cost savings and we want to modernize how we conduct census 2030, then we have to start to invest now. Investments now will lead to modernization and cost savings for the future," said Rosalind Gold, chief public policy officer of the National Association of Latino Elected and Appointed Officials Educational Fund.

After two years of the Biden administration not keeping the census high among its priorities, Marc Morial — the president and CEO of the National Urban League, which led a lawsuit against the Trump administration's push to end 2020 census counting early — said the time has come for executive action. Morial, who chaired the Census Bureau's advisory committee for the 2010 count, is calling for the Biden administration's support on more local census offices in 2030 to help with outreach and on changing how incarcerated people are counted in the census numbers used to redraw voting districts.

"We have to do things right now pretty immediately in the next year to 18 months to solidify the executive changes that are needed while President Biden is in his first term of office," Morial said.

Meeta Anand, senior program director of census and data equity at The Leadership Conference on Civil and Human Rights, is looking toward a review of the federal government's standards for data about race and ethnicity that the Biden administration revived after it stalled under Trump. Biden officials may end up carrying out policy changes in 2024 that, the Census Bureau's research suggests, are likely to produce more accurate data about Latinos and people with roots in the Middle East or North Africa.

"That feeds into the 2030 census, so we will focus on other opportunities where we think we can improve the census so that we really do see all of our communities counted," Anand said.

In the meantime, the Census Bureau's career civil servants are on their own

While advocates outside the bureau try to muster more census support from the White House and Congress, career civil servants at the Census Bureau have already started working on plans for the 2030 tally while also trying to mitigate the effects of 2020 under- and overcounting on other critical data the bureau produces.

To try to produce more accurate annual population estimates for counties and states, the bureau factored in undercount estimates for children under the age of 5 to produce the 2021 estimates it released this year — a change the agency told NPR in a statement that it plans to continue for the next round of estimates due out next year. The bureau has also assembled a team of researchers to explore whether racial and ethnic over- and undercounting rates can be factored into future population estimates.

And while counting stopped more than two years ago, the 2020 census is not quite over yet.

The bureau is gearing up for releases of more detailed 2020 demographic data that has been held up by delays resulting from COVID-19, the Trump administration's last-minute changes to the census schedule and new, controversial privacy protections the agency is applying to the statistics.

Those planned releases starting in May are likely to bring the head count back into the national spotlight again and could offer an opportunity to remind the public of the stakes involved with the census.

"It's very hard to focus people just on good government and on statistics unless there's a crisis," said Nancy Potok, a former deputy director and chief operating officer at the bureau.

While serving as the chief statistician of the U.S. within the White House Office of Management and Budget in 2019, Potok told NPR she was close to having to formally reject the Trump administration's proposal for a citizenship question as part of the paperwork approval process for census forms. Potok said she was prepared to resign if the Supreme Court allowed the question to move forward and Trump officials overruled her decision not to approve it.

"It was that big of a deal and that big of a violation of all of the principles and practices and standards that I was basically sworn to uphold, that I could not have stayed in the job," said Potok, who later retired from the post in 2020. "I wouldn't have been the first person to resign during those years and not the last either. But the Supreme Court stepped in and I stayed on the job."

For current Census Bureau officials, Potok added, staying on the job could become more difficult under a different administration.

"If we don't sort of learn from what happened in 2020 and put safeguards in, the same exact thing could happen and it could be even worse," Potok said.

Former Census Bureau Director John Thompson has recommended limiting the number of political appointees at the bureau so that the agency is still run by career civil servants and giving more authority over the census to the bureau's director rather than the secretary of the Commerce Department, which oversees the bureau. A key challenge, Thompson said, is how to make sure future appointees "have the best interest of our democracy at heart."

"The American people have it in their hands to elect people that respect our democracy. And they also have it in their hands to elect people that don't," Thompson said.

The bureau as an institution also has much work to do ahead of 2030, according to Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund who has served as an outside adviser to the agency. The more than tripling of the net undercount rate for Latinos in 2020 compared to a decade earlier, Saenz said, is an alarming signal about the country's second-largest racial or ethnic group that deserves more attention.

"That undercount could become a permanent feature of the census unless significant steps are taken today to address the very serious reputational harm dealt to the Census Bureau by the Trump administration and President Trump's very threatening rhetoric about immigrant families and his depiction of the census as a zero-sum game," Saenz added. "We can't wait until the eve of the 2030 census. That rehabilitation has to happen now."

Edited by: Benjamin Swasey

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