Balkinization  

Wednesday, July 13, 2005

The Rove Scandal and the Twenty Second Amendment

JB

There's a structural issue lurking behind the developing scandal over Karl Rove.

We don't know whether the revelations about Rove will blow over, or whether they will turn into a full blown scandal that damages Bush's second term. But it's not entirely an accident that a dangerous scandal has emerged in Bush's second term, rather than his first.

As my colleague Akhil Amar has pointed out to me, since the ratification of the Twenty Second Amendment in 1951, there have been five presidents who have won two terms to whom the Amendment applied. The first was Eisenhower, who had his share of political problems in his second term, and some minor scandals involving his chief of staff, Sherman Adams, but not the serious problem of scandal that would plague later two term presidents. The real effect of the Twenty Second Amendment came later: Nixon resigned in disgrace in his second term, Reagan's presidency was debilitated by the Iran-Contra Scandal which blew up in his second term, and we all know what happened to Clinton in his second term. Bush is the fifth such president.

A president's political enemies are always trying to uncover scandals (or make them up out of whole cloth) so that they can undermine him. And there is almost always something that a President or his aides do that is scandal-worthy (or can be made to seem so), although I freely admit that some Administrations are worse than others in this respect. As a result, what makes a scandal serious as opposed to merely inconvenient is whether the President has (a) allies who will stand up for him and/or work hard to nip things in the bud, and (b) whether he has the political clout to punish people if he survives the scandal.

Amar's point (developed in his forthcoming book, America's Constitution: A Biography, pp. 437-38) is that Presidents in their first term are expected to run for a second term, so they can always credibly threaten to punish their political enemies; and their allies, knowing this, will work even harder to defend the President when scandals arise and nip potential scandals in the bud. After the twenty second amendment, however, presidents in their second term can no longer credibly threaten that they will be around to punish those who dare to attack them. This is just another consequence of being a (constitutionally mandated) lame duck.

That doesn't mean, of course, that all second term Presidents from now on will have their second terms consumed by serious scandals (or impeachment). It merely means that they are far more politically susceptible to these scandals than Presidents were before the Twenty Second Amendment. Add to that changes in communications technology and the culture of press coverage, and you get a dangerous mixture for second term Presidents. I suspect, although I cannot be certain, that if Reagan had been President in the age of the Internet, Iran-Contra would have caused him even more problems than it did, and that other scandals-- particularly those involving his aides, who seemed always to be in trouble-- might have gotten a firmer footing in the public mind. Clinton was the first President during the age of the Internet. His two terms were full of allegations and scandals, but it's worth noting that it was only after his reelection in 1996 that he got into serious trouble.

Having a Vice President who can succeed a two term President offers much less protection from scandal than you might think. The Vice President has his own agenda, and has to balance loyalty to his boss with whether he wants to be tarnished by his boss if the scandal grows. So he is much less likely to offer a credible threat to punish the scandal mongers if he becomes President. Even if he wins, he will likely not wish to waste political capital on fighting his precedessor's fights. In addition, many of the President's political allies will have presidential ambitions (or will work for those who do) and so they will be less interested in sacrificing themselves to protect the President in his second term. Al Gore's decision to distance himself from Clinton is a good example of this phenomenon.

In this one respect Bush is even more vulnerable than Clinton was. Bush deliberately chose not to have a Vice President who could succeed him. So he is even less able to mount a credible threat of retribution for what happens in his second term. Rather, Bush's source of protection may be the fact that his brother Jeb can credibly threaten to succeed him. But this requires that most people-- including both the President's enemies and his Republican allies-- believe that Jeb will be running in 2008 and that he is likely to win. And, once again, the problem is that many of his allies will be running for the same office and will be less likely to want to sacrifice themselves either to protect Bush's second term or to help his brother Jeb win in 2008.


Comments:

Interesting point, but I think that it misses how Washington really works.

While the President who leaves office may not have the bully pulpit from which to theoretically strike back at those who do him deliberate harm, the rest of the WH and RNC are going to be around and they are going to be running at least the party, if not the country for many years to come. They tend to have long memories. Show me a democrat or liberal who didn't support/actively undermined a sitting President in a time of need, and I'll show you someone who is no longer a player in the party.
 

Correction:

I meant Democrat or Republican, not Democrat or liberal.
 

Since there was a long unwritten tradition of a two term limit, only breached once (and then in stressful times not truly arising before), the 22A itself did not really bring the situation discussed in this piece.
 

There was not in fact a long unbroken tradition against running for a third term. It was a custom honored as much in the breach as in the observance. It's important to recall that after Lincoln's election in 1864 we did not have all that many presidents who were able to get themselves elected to two terms.

Washington's example of two terms held until the Civil War, but the custom degenerated quickly thereafter. Lincoln was assassinated shortly after his second term began. Grant tried to run for a third term, but did not get the Republican nomination. There were no two term presidents from Grant until Cleveland. Cleveland ran three times and won the popular vote three times, but only served twice because he lost the electoral vote the second time. Of the two term presidents in the twentieth century, Teddy Roosevelt ran for a third term, but was not successful, Wilson could not even consider doing so because of his health, and Franklin Roosevelt ran four times and was elected four times. So by the time the Twenty Second Amendment was considered, there was not much of a custom left.
 

Grant's chances in 1880 was always rather slim. He never did run.

Running three times is not the same as serving for 12yr, especially after you "lose" re-election (but not the popular vote) the second time. [Cleveland]

Theodore Roosevelt (though pretty young after his left office) also ran after a break, and the situation was somewhat special (given his youth, personality, and an opponent he felt disappointed in).

FDR is the only one who ran successfully. Again, doing so in the midst of a World War can clearly be said to be a special case. Truman could have ran again, but did not.

The best that can be said is that there was no real chance for there to be a two term tradition after the Civil War. I don't know if we can say w/o the 22A there would not be one again.

But, okay.
 

As to Grant in 1876, if he did try to run (I don't recall), the point his chance was rebuffed adds to the tradition, if anything. He just tried to break it ... "they" didn't let him. Anyway, his second term was so problematic, the point is somewhat moot.
 

Let's turn it around. Is there any justification for retaining the Twenty-Second Amendment, given the problems the post cites.
 

The Second Amendment means nothing. Most American gun owners are far right, and the regime that has taken over America is far right. The only time America's gun owners would ever take up arms would be in the event of a left wing military takeover. Which will never happen now that the far right beat them to it. And, just like their German counterparts 70 years ago, American gun owners will obediently turn in any weapon that gives them parity with the U.S. military, in return for the continued right to hunt deer with their shotguns and low-caliber rifles.

http://www.deanberryministries.org/index3.html

In Jesus' Glorious and Holy name,
Dean Berry -- Real American

dinoberry@frontiernet.net
 

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