| How is the Presidency undemocratic?
I think we only need look at our collective abhorrence to the Bush administration view of the President as an essentially illimitable dictator who only needs to check in with the electorate every four years. The progressive scorn for the Federalist Society view of the "unitary Executive" and the farcical claims about the inherent "sweeping" powers granted to the Executive in matters of defence under Article II show that somehow this idea rubs us the wrong way. So clearly, at an intuitive level we understand that there is more to democracy than electing a King every so often.
Bowers remarked last year On Term Limits:
I think, in the end, if I am forced to choose, I am in favor of term limits for all city, county, state and national executive offices, mainly because executive offices are of questionable value for representative government in and of themselves.
So I don't want to veer off into an unresolvable debate about the nature of representative small-r republican government and so forth, I would rather leave off at saying: it seems clear for a variety of reasons we want the Executive to be limited beyond merely assuring that s/he does not take over the whole show. Reasonable people will disagree over the extent to which a major political figure should be guided by polls or a president by the results of mid-term elections, but at a certain point when the public's mind is made up, they know the issue well, and sentiment only seems to deepen I think it is proper to argue republican officials must concede to the public will. This notion of a public that "blows in the wind" and is vacilitates wildly between opinions trivializes the populace and treats them as errant children. This is not the nature of democracy.
So the basic problem is that too much power is being concentrated in the hands of one person, and this person is increasingly isolated from democratic accountability. Power corrupts feels like a kind of a trite justification for worrying about this, but overused expressions are not less true for being so. Power does corrupt, and the missing corollary is that, it attracts the corruptible.
There are a number of ways that we could approach this, the modern Presidency has or claims many powers which one could argue it should not. But the walls of the Imperial Presidency are a mile high. How can we surmount them? By eroding the very ground they stand on using a normative shift.
Let's kill (or wound) the veto.
The Veto as a linchpin of Executive Dominance
It might seem strange that I am targeting one of the powers that is explicitly constitutional, rather than the usual targets of complaints in the form of the various bizzare unwritten powers now claimed by the current President. I am concerned as anyone else about abuse of signing statements, the bizarre unlimited interpretation of Article II and distortions of the President's role as to "protect the nation" rather than what he swears to do, "uphold the constitution." I think this represents the Right making its own normative attack to enlarge the Presidency because their aims are best served by an overwhelming Executive.
So while we should resist their normative efforts, I want to open a new front and attack the use of the Veto, which I believe to be increasingly indefensible as a tool in the Presidential arsenal.
First off, I am amazed at how high the bar is for Congress to override a veto. Two-thirds is a very high bar for democratic agreement in a representative body. And it isn't just two-thirds in one chamber, but both. It is not absurd that the voting requirements to impeach, convict and remove a President are actually lower than merely to override his veto of some legislation? So what were the founders thinking when they came up with this?
From Federalist 73:
It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority.
Ah, so it was more elitism. The masses must be protected from their "improper views" by the wise man on the throne. Really, this is pretty ridiculous when you consider that their Senate was not even elected, but appointed by State legislatures. Whatever passions might overcome the House, how would they infect the Senate? And if it could sway the Senate, how would the elected President be immune? It's not clear.
Still, for such men who were so concerned with balance between the branches, what would prevent the abuse of this power? More Fed 73:
Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament.
Norms. They're talking about norms. So it was normative expectations for respect of the democratic will that would constrain the Executive from overusing this potent power. And it did work for awhile. The first 10 Presidents formally vetoed (not counting pocket vetoes) 19 bills and were overridden only once. So far so good.
Jump ahead, and the latest 10 Presidents vetoed 300 bills and were overridden 34 times. 12 of those overrides were in the exceptional Watergate reform period under Ford (he vetoed a lot of bills for such a short time in office). That's an amazing growth in a practice that the founders thought even British monarchs would hesitate to use. It also doesn't count the number of bills that don't even come up for a vote because of an anticipated veto by the President and the lack of the needed supermajorities in both chambers.
So what went wrong? I'm going to guess it was the rise in the party system. The founders missed that, and frankly from a partisan perspective, vetoing bills by your opponents to deny them meaningful victories is important. So over time, the norms eroded and the veto became a routine power of the Presidency, one which is only questioned in terms of specific application rather than questioning the legitimacy of the practice itself.
Now I realize the veto proved handy during the Clinton years, where he held back a Republican congressional majority from enacting all sorts of regressive legislation. But historically, Clinton is an aberration. Overall, the record of the veto is not good.
And we cannot view this in isolation. The rise in legitimacy and use of the veto is directly correlated to the increase in Presidential influence over the budget and growth of the national security state. How can Congress be considered equal to the President when in practical terms, they cannot pass anything without his approval? Overriding a veto every now and then does not make up for the massive democratic deficit this practice entails.
As an example of this, we have John McCain out on the stump proudly promising to veto any bill that contains earmarked federal funds. While abuse of earmarks is a serious problem, this "cure" bothers me and a surprisingly cogent answer came out of Senator Feinstein (I am not exactly a fan) when she appeared on CNN's Late Edition on March 16:
BLITZER: Senator Feinstein, [...] Why did you oppose a freeze on those so-called earmarks?
FEINSTEIN: Well, for two reasons. [...] I try to prioritize [earmark requests], see that they have a regional impact, [...] Now, you can either say that the president is the only one that does a budget, and the Congress is entirely left out of it. The only way the Congress is in it is if the Congress can make selective and critical and prioritize adds to the budget.
Whether or not she is just being disingenuous to support the river of pork she gets to control, the point is sound.
So what we have is a situation where the solution to a congressional spending problem is to have the Executive take even more power and clamp down on all those pesky legislators. Essentially to have congress surrender all detailed budgetary authority to the President. What stops the President from pork barrel spending? Is anyone so confident John McCain won't crack the funding whip to punish honest officials who don't grant favours to his friends?
The point of having legislators control budgets is easier accountability and transparency. If they're abusing that power, the solution is not to vest it in an even less accountable and more opaque agency like the Executive branch.
So it is time to start questioning this and working to delegitimize the veto. Vetoes should be objected to on the mere grounds that a single individual has overturned the judgement of at least 218+51 and up to 435+66 legislators. Really, who are Presidents to think they should be setting the legislative course of the nation?
Aren't you opening the flood gates to tyranny of the bare majority?
No, not really because I am definitely a big fan of the power of the Courts to strike down unconstitutional legislation. This at least means the grounds for overturning majority will are preset and less subject to blowing political winds and personal interests. The Courts do a better job vetoing laws than Presidents do. I'm just proposing that a solitary elected politician should not be able to routinely insert his judgement as superior to that of up to possibly 501 legislators. As it stands, vetoes and veto-threats pass essentially unremarked. Often, they are used as grist for arguments among members of congress about whether a bill is worth their time! This is clearly absurd. The President's veto has become some immutable force of nature that Congress must simply accept and try and work around.
Also on fears of tyranny of the majority, a perverse effect of the veto is that laws passed in America tend to be quite permanent and difficult to dislodge. Many laws are set to "sunset" because Congress knows it is nigh impossible to repeal a law the executive likes, since repealing legislation would be vetoed. This raises the stakes of every law passed and increases the desperation of opponents. We saw this with the Telco immunity. We know that if it passes, it will be fiendishly difficult to repeal. Tax cuts was another. If vetoes were not such a fixture of the landscape, congress passing a law would be a lower stakes game. Everyone would know if they don't like the law or it isn't working well, they can elect a new congress who would repeal it. The veto acts as a kind of legislative lobster trap, where everyone fears laws can only go one way because there is little certainty that the next President will be one willing to allow a repeal of that law and let the lobster go free.
If anything, the veto increases partisanship by turning every bill into a near constitutional amendment.
It's a Proportionate Response too
See, I'm only talking about changing the norms here. So for now, the veto would still exist, but would become a disused and increasingly dusty power. It might return to the status that the founders intended, a thing not to be used lightly and something a President would have to struggle to explain to voters on meta grounds of his/her legitimacy rather than the usual talking points offered about why a bill might be bad.
What about Clinton's veto of this or that bad bill
One effect of the commonplace veto is actually that Congress will pass laws expecting them to be vetoed just to make political points. The Republicans did all sorts of nonsense under Clinton that they didn't do once they had a Republican president they weren't trying to embarrass. If Congress had reasonable expectation that everything they passed would actually become law, they would be more careful. Even if the Republicans had used this to repeal social security or the estate tax, the mass public outcry would have churned them from office and a Democratic congress would have been able to restore those programs quickly. I actually doubt they really would have done so anyway, since they didn't in Bush's first 6 years. Anyway, the point here is that the existence of the veto is an incentive toward legislation no one really wanted anyway.
It's in the Constitution so how would we ever deligitimize it?
This objection has some merit because of the holy aura many Americans put around the Constitution. It will be difficult to attack a presidential power that is explicitly constitutional. All I can say is that it has been done before. It is even happening right now. Did you notice Bush making a raft of recess appointments since the Senate went into recess? No? That's because Harry Reid has been busy scheduling Pro Forma sessions to deny the President one of his explicitly constitutional powers. Have we heard any petulant press conferences from Bush complaining about this? Is the media pouring out quotes from angry Republicans about "obstructionism" and whining about the cost of keeping the Senate open? (A variety of staffers need to stay around to keep the Senate in session, clerks, stenographers, security and so forth). These points would be absurd, but that's never stopped them before. I'm sure they could dream up some scurrilous case of egregious nonsense around how unfair and mean and partisan Reid is being by blocking the President's recess appointments.
The reason none of this is happening is because recess appointments are normatively indefensible. Everyone knows the power was only created for the days when the Senate would be out of session and geographically inaccessible for months of the year. If the Secretary of State dies and the Senate isn't going to gather for months, it does make sense to get someone in the job quickly. But with air travel, that need has evaporated. Hell, the President even has the power to summon the Senate at need, so if a key vacancy opened up, it could be filled in a matter of days. Republicans proved the Executive and Legislative branches can move quickly enough to prevent a bereaved husband from acting on his brain-dead wife's expressed wishes, they can move damn quick when motivated.
The 3/5th compromise, appointed senators, the male-only franchise, all these things changed from the original constitution because the norms underpinning them changed and eroded the legitimacy of these things. The veto is undemocratic. It can be assailed. The arguments in its favour are not very strong, and have to rest on anecdotal points about certain specific bills that often no one really wanted anyway except as a political club. Further, even though it is constitutional, the excerpts above (and others no doubt, I am no Federalist paper scholar) show that the veto was not meant to be used just because the President disagrees with Congress. He was supposed to show great restraint.
What about the rest?
I think damaging the veto and making Presidents more reluctant to use it, making legislators more reluctant to uphold vetoes would put us miles ahead in terms of returning the Presidency to healthier function. One can imagine legislators voting to override a veto on a bill they had voted against just on the principle that Congress should write the laws, not the President. Congress would be able to use the power of the purse again to fund what they want to, to punish contemptuous Executive appointees without playing legislative chicken by having only the choices of obeying the President or allowing the government to shut down. Both Clinton and Bush won those battles with opposition Congresses and it should be suggestive to those so eager to blame the Democrats for their weakness on Iraq funding that Newt Gingrich's Republicans lost just such a battle. It's an institutional disparity. Congress is simply out gunned.
But there are other powers needing reform. The Pardon has seen too much abuse to let stand. Scooter Libby and the Iran/Contra pardonees are representative of how serious a threat the pardon represents to the rule of law. If the President can order underlings to commit crimes on his behalf and then just pardon them if they get caught, he has short circuited any chance they will finger him and lead to impeachment. This one is harder to tackle on norms. People already object to pardon use, but the practice of dumping a bunch of pardons on your last day in office is hard to dissuade. It might take a constitutional amendment. Worth doing though.
The key in my view is to start somewhere, at a place where success will breed many spin off benefits. The overuse of the veto is one such. We must view the balance of power between the branches as being interconnected. If the President has one absolute unquestionable power, he can leverage that into many other powers. Rather than trying to roll back those other things piecemeal, go for the source of the overweening authority and the rest should dry up as they flow from it. |
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