Sabato's Crystal Ball

Perfecting the Presidency

Ideas for Terms, War-making Powers and More

Larry J. Sabato, Director, U.Va. Center for Politics October 4th, 2007

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Last week the Crystal Ball looked at potential constitutional changes aimed at building on the Founders’ congressional model and improving the nation’s legislative body to make it more representative, more responsive and its elections more competitive. Naturally, the next step is to examine the office of the Chief Executive.

The Constitution’s brilliance and originality have inspired millions around the globe to seek a better society where they live. Much of the Constitution’s superstructure needs no fundamental fix, including the separation of powers into three branches, the system of checks and balances (with a few exceptions), and the Bill of Rights.

However, in response to student critiques as well as my own–and the public’s–growing concerns, I began to construct an alternate universe for parts of the American system. The ideas comprising this universe are at the heart of this new book, A More Perfect Constitution: 23 Proposals to Revitalize our Constitution and Make America a Fairer Country.

This week we present an adaptation of the second chapter from A More Perfect Constitution, prepared especially for the Crystal Ball and provided exclusively to you, our dear readers. For more information on the book, the ideas, an opportunity to offer comments and even a forum for suggesting your 24th idea for change, visit amoreperfectconstitution.com.

To further explore the idea of constitutional reform, the Center for Politics is hosting the National Constitutional Convention on October 19, 2007 in Washington, D.C. The event is free and open to the public, and will feature participants from throughout the world of politics, academia, media and elsewhere. Moderating the day-long program will be Face the Nation host Bob Schieffer, and participants include former Vice Presidential nominee Geraldine Ferraro, former U.S. Senator Bob Dole, Democratic campaign strategist Donna Brazille, former Maryland Lieutenant Governor Michael Steele, and many, many others. Join us! Also, there are still opportunities for you or your company to sponsor the Center for Politics and our National Constitutional Convention. Please contact Vanessa Freeman at vfreeman@virginia.edu or 434-243-3535 to have your gift to the Center for Politics acknowledged as part of the Convention.

CHAPTER TWO: Perfecting the Presidency

For all of Congress’s problems, the public complains more loudly about the presidency most of the time. It’s not hard to see why. First, the presidency has become the premier branch of government, even though it is listed second in the Constitution (and therefore, appropriately, in this book). All television cables lead to the White House, and when disaster strikes, the American people turn first to their chief executive. The framers would be surprised to see just how dominant the president is in the modern era–but then our forefathers could not have imagined our hardwired world, brimming with hair-trigger weapons and dangerous threats. This reality requires split-second decisions in wartime and peacetime, the kind of decisiveness only a unitary executive can provide. Second, citizens’ dissatisfaction with the contemporary presidency goes beyond the many controversial individuals who have held the post since the 1960s. The flaws of, say, Lyndon Johnson, Richard Nixon, Jimmy Carter, Bill Clinton, and George W. Bush were real enough and character based, but their personal faults have been magnified by the constitutional imperfections in their office.

The Constitution equitably divides war-making powers between the president and Congress, but that sharing has become theoretical rather than actual. Wouldn’t a restoration of some reasonable balance between the branches give us greater protection from ill-fated and poorly thought out foreign adventures that take many young lives and drain our national Treasury?

Second, in the realm of politics, Americans now openly complain about the permanent campaign that consumes far too much of a president’s time in office. Half or more of the first term is spent seeking a second. We no longer evaluate what a chief executive says or does without interpreting it substantially through the prism of the next campaign.

Any reform of the presidency has to be flexible enough to accommodate chief executives of widely varying talents and backgrounds, and sufficiently elastic to enable its occupants to deal effectively with crises of all types, from war to depression to insurrection, and more. Most of all, the top executive post must remain able to combine, in one person, the often contradictory roles of chief of state, head of government, and boss of party faction.

The office did not emerge easily from the Constitutional Convention. The founders were naturally suspicious of a strong executive, having just endured the excesses of the British Crown’s royal governors in colonial times. What was needed, of course, was a presidency filled by a unifying figure for the nation–already obvious in George Washington–and an office commensurate with Washington’s substantial skills and containing sufficient powers to counter the threats, domestic and foreign, that were clearly on the horizon. So the new country gained an “elective kingship,” large enough to rise above “faction,” deal with Congress as an equal, and command respect at home and abroad. At the same time, the founders believed they had created enough checks and balances to keep the president from becoming a dictator or completely overriding the will of Congress and the states.

The balance held, more or less, into the twentieth century. Some presidents had a greater impact than others, through sheer force of will, vision, talent, and the circumstances of history. The events of the twentieth century altered the balance between the branches for good. National and international emergencies–World War I, the Great Depression and a series of intermittent but serious recessions (one or two per decade), World War II, Korea, the Cold War, Vietnam, 9/11, and the War on Terrorism–made the presidency front and center for most Americans.

Briefly in the 1970s, the “imperial presidency,” as the historian and former Kennedy aide Arthur Schlesinger Jr. called it, came crashing down, a result of the excesses of Johnson, Nixon, Vietnam, Watergate, a presidential resignation, and the Democratic congressional landslide of 1974. But the change was temporary and transient. The enfeebled presidency was a very brief phenomenon, affecting only Presidents Nixon, Ford and Carter, and ended by a voter revolt against Carter in November 1980.

Given America’s status as the world’s only remaining superpower and the president’s omnipresent status at the top of the nation’s power pyramid, it is both inevitable and unalterable today that the chief executive will win the contest for dominance within the United States’ governmental system. Any effort to change the executive-legislative-judicial balance of power in an overall sense will be wasted and fruitless, perhaps with the sole exceptions of war-making powers and the budgetary item veto. However, the appropriate question to ask is: Have we structured the presidency properly so that the occupant of the highest office can accomplish the greatest good in the least time? Or is the modern presidency too hampered by political machinations and a lack of support in the Congress and the courts to work as well as it should? There are various ways of considering these fundamental queries, beginning with an examination of the president’s term of office.

THE PRESIDENTIAL TERM OF CHOICE

The four-year term of office for president is deeply ingrained in our national schedule and psyche. It seemed reasonable enough in 1787, a good compromise between the short, two-year U.S. House term, which forced members of the lower house of Congress to stay close to their constituencies, and the six-year U.S. Senate term that gave its members a lengthy hold on office and the luxury, in theory, to consider the national interest.

For the first century or so, political maneuverings came to dominate only one-half to two-thirds of the fourth year of the term. As winter gave way to spring in the election year, and easy travel could resume, politicians gathered in Washington and state capitals to talk and act in preparation for the parties’ presidential nominating conventions and the general election to follow in early November.

A product of the Progressive movement, the idea of the primary as a method to eliminate “boss control” of the political parties was inspired by U.S. senator Robert La Follette of Wisconsin. Beginning with his state in 1902, fully forty-seven states adopted statutes in just six years that required primary elections for many offices. The period from 1968 to the present can fairly be called the “age of the primary.” Normally now, at least forty of the fifty states conduct presidential primaries, beginning in January with New Hampshire and ending in early June. Furthermore, other states, especially Iowa, have chosen the caucus method of nomination. The caucus is a gathering of party activists who spend several hours discussing, and then voting among, the candidates.

With such an early start to the presidential nominating season, the entire fourth year of the president’s term (assuming the chief executive is running for reelection) is devoted to reelection politics. As you well know, of course, reelection is far more consuming than that. The real presidential season begins at least a full year earlier, right after the conclusion of the midterm congressional elections. In actuality, the structure of the system today guarantees full-fledged campaigning for at least half of the president’s four-year term.

Because of the precedent set by George Washington in refusing to seek a third term that he would certainly have won, presidents–with the exception only of Franklin Roosevelt–have maintained the two-term limit. FDR set a record–four-term victories and 12.1 years as president–that, under the current Constitution, will never be surpassed. The long and short of the Twenty-second Amendment is that it limits all presidents to two elected terms, whether they are consecutive or, like President Grover Cleveland’s terms (1885-89, 1893-97), nonconsecutive.

Therefore, under current conditions in most circumstances, a president has less than two years in office during his first term before reelection politics begins intensively. Should he be fortunate enough to be reelected to a second and final term, the president is an instant lame duck. If he is very lucky, he may get a short honeymoon of influence with Congress and the American people, but under the best of circumstances, that will last a year or so before his influence begins to ebb considerably.

One could persuasively argue, then, that under our prevailing Twenty-second Amendment regime, an eight-year president has perhaps three years (two years in term one, one year in term two) of undivided attention from the press and public to accomplish his agenda–before the circus begins coming to town for the next election go-round. Is there a better alternative?

THE SIX-YEAR TERM

The most frequently suggested option is the one six-year term for the presidency, which would not be renewable (that is, one term to a person in a lifetime). Over many decades, scholars and practitioners have constructed a good case for the six-year term. First, as noted above, a four-year term is increasingly eaten up by the political schedule; nothing wastes time, resources, and capital for a president and his chief advisers like planning for a reelection campaign, say advocates of the six-year term. In addition, more than a few presidential scandals can be traced, in whole or in part, to reelection pressures–from bad appointments and sold ambassadorships to a little episode called “Watergate.” And elections are not the only time wasters in a presidency.

Also, the lack of worry about reelection would free up a president to focus on the true national interest rather than his personal election interests. Without the possibility of reelection, presidents would have no motive to postpone controversial decisions, and their critics would be deprived of the frequently heard complaint that the occupant of the White House took specific actions just to ensure his reelection. Might public cynicism decline as a consequence?

Finally, some of the best debating points in favor of six years can be awarded for the perceived advantages to the presidency of two additional years to the normal term. Congress and the bureaucracy, lacking any statutory term limits, are often inclined to “wait out” a president they do not like; six guaranteed years for the president would make this less likely (though still possible). The extra couple of years would also give presidents a chance to follow up on their most important policies, reducing bureaucratic foot-dragging and guaranteeing greater implementation. And the most persuasive argument of all for the six-year term may be in the foreign policy arena, where personal relationships with other nations’ leaders–nurtured over time–can assist America’s global efforts in this dangerous post-9/11 world.

And yet the case for the six-year term is far from airtight. Most of the advocates seem to prefer an antiseptic, apolitical presidency that is neither possible nor wise. The check of reelection is a vital one on the powerful chief executive, every bit the equal of the Constitution’s many official checks and balances. To insist that responsiveness to public opinion is somehow antithetical to a successful administration borders on the antidemocratic. To mix our metaphors with purpose, politics is the oil that greases the creaky machinery of government, and it is the glue that holds together the most ethnically and racially diverse democracy on the face of the earth.

The best argument against the six-year term is the most widely accepted. Six years may simply be too long for bad presidents, and it is certainly too short for good ones.

THE ALTERNATIVE: A PRESIDENTIAL CONFIRMATION ELECTION

I respectfully submit a new proposal in this stale, stagnant debate between four-year- and six-year-term advocates, an adaptation of the judicial confirmation election for the presidency–a compromise that takes the best aspects of the present arrangement (two four-year-terms), and the concept of one six-year term. Under it, a president would be elected to a six-year term but would have the option to request a two-year extension, so that he would potentially serve the same eight-year tenure as currently. A president would not have to exercise his right to request an extension (illness or unpopularity might lead to that choice), but most chief executives would surely do so. (See Figure 1 below).

Figure 1. New Election Schedule for President

The extension election, which would occur in November of the president’s fifth year in office, would not be a competitive choice between opposing party candidates, but rather a yes-or-no referendum from the American people on the president–similar to the “confirmation elections” of judges in some states. If the president were to win the “confirmation election,” he would go on to serve out an eight-year limit. Any vice president succeeding to the presidency would be locked into the same timetable as the replaced president.

The advantages of this new arrangement are clear:

Lastly, a provision should be included about the so-called constitutional standby equipment, the vice presidency. A vice president who succeeds to the presidency before the fifth-year confirmation election (and, thus, becomes the focus of the confirmation vote) would not be able to seek the presidency on his own for what might become another eight-year stint; after all, potentially this single individual could serve as long as fifteen-plus years consecutively in the Oval Office–much too long a term in an office of such concentrated power.

As noted earlier, this set of proposals concerning presidential elections would also affect midterm congressional elections. Every piece of the American system connects to every other piece, and part of the challenge of redesigning the constitutional apparatus is in discovering all the connections-and trying to make the wheels and gears work together for the common good.

At the moment, having redesigned the presidential term, we need to revisit Congress. There’s no getting around it: The current two-year House terms and six-year Senate terms do not neatly coincide with a White House confirmation election in the fifth year, and a possible new presidential contest in the sixth year of the executive’s term.

A LENGTHENED HOUSE TERM (AND CHANGES IN THE SENATE TERM)

The perfect complement for a transformed term for the presidency and a competitively redistricted House that produces elections with real meaning would be a longer term after those meaning-filled elections. The length of the House term should be increased from two to three years. At the 1787 Constitutional Convention, the two-year term for House members was a simple compromise between Roger Sherman’s one-year-term proposal and James Madison’s three-year-term argument. Two years once made sense, with governing consuming three quarters of the time and the reelection campaign one quarter. Those estimates are now reversed, at least for the minority of House members who have competitive contests. And for congressmen in “safe” districts, their natural insecurity about reelection has encouraged them to spend enormous time away from legislating on the all-consuming task of building large war chests, in order to ward off future challengers.

Moreover, a three-year term would fit nicely into the just-proposed regimen for presidential elections. Any time a president were to lose a confirmation vote, and a new presidential election be scheduled for November of the sixth year, House members–in their newly competitive districts–would be more likely to ride the coattails of their party’s presidential nominee to another term, or go down to defeat with their party’s candidate.

Importantly, when combined with competitive redistricting, the new president would more likely have a House majority of his own party with which to work, so that the platform on which the president ran could be passed.

Critics will claim that this tendency of the new electoral structure–resulting in more “unified governments” (with the president and Congress of the same party)–would upset the system of checks and balances that preserves American liberty. But the many other checks would still be in place, from a bicameral Congress to the real possibility, even under this system, that some presidential elections would still produce a divided president and Congress. The proposed change would merely reduce somewhat the chances for paralyzing gridlock in the federal government.

One other adjustment would be necessary whenever a president wins the confirmation vote in the fifth year. During the next year’s regularly scheduled House election, candidates would run for a special two-year term; that is, for that one election only, the House term would be cut from three years to two. This must be done in the interest of keeping the presidential and House elections on the same schedule, and to make certain that every new president has the possibility of a mandate with added congressional support for his programs.

Not surprisingly, Senate terms would also need to change. In order to maximize the potential for presidential coattails and to consolidate the elections schedule, staggered Senate terms would be abolished. The entire Senate would be elected every time the presidency was on the ballot in a competitive election. Practically, this would mean that Senate terms would vary, from six years on many occasions to a two-year term, whenever a president were to successfully achieve a term extension in the confirmation election. Again, the principle here is clear. Presidents should be given reasonable opportunities to enjoy supportive congressional majorities in order to break gridlock and implement their platforms.

Midcourse corrections would occur, then, but absolute gridlock–a function of simultaneous anti-presidential change in both houses of Congress–would not happen. This is a nod to a parliamentary system without actually going there. America would keep its presidential system but simply increase the odds that a president would have working majorities, at least at first, in the legislature.

The American system is currently so fragmented that every elected official is something of a free agent and always has an excuse, sometimes many excuses, to explain away failure to a confused electorate. The United States will never have a system as orderly as a full parliamentary government, in part because a British-style system would not be able to accommodate many of our cherished traditions, such as separation of powers, checks and balances, and federalism. But the United States now has too much separation, too many checks, and excessive inefficiency in its constitutional arrangement. We need a political and governmental system that works better and produces more coherence at election time.

WAR-MAKING LIMITS: PRESIDENTIAL DOWNSIZING

A new Constitutional Convention should also focus on the increasingly difficult question of war-making authority, and it ought to consider ways to reduce overweening presidential authority in the awesome arena of war and peace. Even though congressional consideration of foreign military adventures can be awkward and dilatory, the legislative branch should be given constitutional opportunities to reclaim its greatly diminished role, in search of a better balance of war powers between the president and Congress.

Few American political observers deny that the presidency has now absorbed the lion’s share of war powers, and fewer still argue that the founders intended our system to work this way. The great divide is over the inevitability–or not–that the chief executive must be the one to wage war.

Many scholars convincingly argue that the framers of the original Constitution wanted the Congress, not the president, to be the prime mover in initiating military action. During the twentieth century, however, America’s emergence as a superpower, and the swiftness of decisions required for waging war in the nuclear age, put the president on the front burner and relegated Congress to the back, if indeed Congress is even on the stove at all in some conflicts. Resourceful presidents gradually assumed more power in the war-making arena, mainly with the assent of Congress.

Perhaps that will always be the case even if Congress were less inclined to give up its rights under the War Powers Act. The natural tendency in a frightening era, when the nation is under threat, is to defer to a tough-talking president who can take swift action–even if the action is unwise or poorly thought out.

In a hair-trigger world, presidents need to be able to take decisive action quickly. But real consultation with congressional leaders of both parties ought to be an unavoidable part of the process. The “advice and consent” mandate that refers to federal court nominations ought also to apply in reasonable fashion to the most awesome power of the presidency. Most important of all, there should be a time limit on unilateral presidential war making–ninety days appears reasonable–at which time Congress would need to either give its assent or, through a resolution of disapproval, cause the orderly withdrawal of American forces.

The era of open-ended, unilateral war making by presidents should be brought to an end, and it will not happen without a remedy such as the one discussed here. If this be “hamstringing a president,” as critics might charge, it is time to use a little string–and the Vietnam and Iraq wars show why. Should combat be in the American national interest, it ought to find favor in both elective branches, not just one, for we will surely fail to win the battle eventually if the nation is not substantially behind the war effort. Thomas Jefferson wrote, “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

All Americans understand that this is not an arcane debate about a few phrases in the Constitution. The most awesome authority contained in the text of our basic document of state is the war-making power. How it is described and allocated determines the fate of millions of our sons and daughters–those who wear the American military uniform. Just as vital, America’s decisions to wage war affect our ability to survive and succeed in a dangerous world. It is long past time to rethink the inadequate constitutional arrangement that was well suited to the eighteenth century but is out of step in the twenty-first.

ITEM VETO

In the war-making arena, presidential power should be downsized. In the appropriations sphere, presidential power should be expanded. The reason is the same in both cases: It serves the interests of the people of the United States. The new Constitution should add the line-item appropriations veto to the arsenal of presidential power. The item veto has been much discussed and thoroughly analyzed over the years–and it actually existed for more than twenty-six months between April 1996 and June 1998. The Supreme Court ruled the congressionally granted item veto to be unconstitutional after a challenge, but one of the advantages of constitutional revision is that prior Court decisions can be overridden with appropriate language in the new Constitution’s text.

Essentially, the line-item veto would permit the president to do what forty-three of the fifty state governors can already accomplish: cutting specific appropriation line-items out of an appropriations bill sent to him by Congress, without vetoing the entire appropriations bill. The latter option is cumbersome, and often impossible because of urgent needs that must be funded immediately. It also risks months of arduous negotiations by both elected branches for an uncertain future.

FAIRNESS FOR ALL: MAKING THE PRESIDENCY POSSIBLE FOR AMERICANS WHO ARE NOT “NATURAL BORN”

The archaic constitutional requirement that the president must be a natural-born citizen should be replaced with a condition that a candidate should be a U.S. citizen for at least twenty years before election to the presidency (or vice presidency). The “natural-born” provision made sense in the Republic’s early years, when the nation was seeking its own distinct identity and worried appropriately about undue foreign influence from the Great Powers of the day: Great Britain, France, and Spain. Like the current century, the late 1700s were perilous, but peril was defined differently. Skullduggery and corruption in the governing elites of most countries were a part of daily life. However, the original intent of the framers regarding the “natural-born citizen” clause is murky since the records of the Constitutional Convention provide no conclusive evidence as to what the writers intended the phrase to mean.

In today’s America, illegal immigration is one of the most controversial and emotional issues in our politics, and some Americans are inclined to question the enduring loyalty of new arrivals. The presidency is the nation’s highest office, and unquestionably, there should still be a requirement for lengthy citizenship before one assumes the highest office in the land. Yet, except for Native Americans (Indians, Eskimos, and so on), all Americans are either immigrants or the descendants of immigrants. Some of the most prominent of our citizens throughout U.S. history have been first-generation immigrants, amazingly accomplished and yet sadly ineligible for the presidency.

On this critical question of fairness, though, it is essential to trust the people of the United States at the ballot box. The little-discussed constitutional provision barring nonnative-born citizens from the White House is a stain upon our democracy. Fundamental to our national self-image is a belief that here in the United States, however humble one’s origins, anyone can rise to the highest office in the land. Striking the prohibition on nonnative-born citizens will be a powerful symbol of America’s rising inclusiveness and equality in the twenty-first century. And for 17.9 million Americans–a number that grows daily–the dream of one day becoming president will complete their citizenship, making them whole in the eyes of the Constitution at long last.

AN ETERNAL TUG-OF-WAR

In this chapter I have made the arguments for some major changes in the presidency. The proposed term configuration and the new confirmation election for the president are probably the most significant structural alterations. Complementing the executive term shift, I have also proposed realigning the terms of members of the U.S. House of Representatives and the Senate. There is good reason to believe that this novel, synergistic arrangement of executive and legislative terms could encourage more cooperation between the branches–and that would serve the national interest. Of greatest concern to the public, though, may be the reforms in executive war-making power. In modern times we have all been witness to the weaknesses inherent in the current, muddy constitutional divide of war authority between president and Congress. In the most extensive and specific proposal yet made to rebalance war-making powers, I have tilted the scale back somewhat to Congress. In another arena, budget making, the president would gain, with the suggested addition of line-item appropriations power. Finally, I have made the case for all Americans to have the opportunity to serve as president, whether they are native-born citizens or not.

Having now looked at both Congress and the presidency, I am fascinated by the eternal tug-of-war that goes on between these mighty branches. They are required to work together in order to accomplish anything, yet they appear constitutionally destined to fight each other constantly for supremacy. It is in the public’s interest that neither succeeds in this struggle, since our lives are best safeguarded by equilibrium of power. The reforms proposed in these first two chapters, taken together, reinforce the system of checks and balances while improving the operation of both institutions so that they can more ably and equitably serve us.

This new book is intended as a spark to ignite a public discussion about constitutional reform, and we want YOU to weigh in with your thoughts! Visit amoreperfectconstitution.com for more information about the ideas, an opportunity to offer comments and even a forum for suggesting your 24th idea for change. Want to join the discussion live and in person? Attend the National Constitutional Convention on October 19 in Washington, D.C.