Monthly Archives: July 2012

What History Suggests A Second Obama Term Might Look Like

The always interesting Ryan Lizza wrote a piece in the New Yorker three weeks ago speculating about what an Obama second term might look like. Understandably, Lizza focuses on the policy initiatives that Obama might pursue in a second term, such as climate change legislation and restrictions on nuclear proliferation. As he notes, however, the window of opportunity for enacting significant legislation in the second term is quite limited; during the post-Herbert Hoover era, the president’s party loses about 30 House and seven Senate seats in the second-term midterm elections on average, and thereafter as lame duck status looms larger, the president’s influence wanes accordingly. That means Obama’s best chance to achieve significant policy gain is likely to occur during the immediate 1 ½ years after reelection.

The second term, then, affords presidents one last but very limited opportunity to cement their historical legacy. Toward this end, Lizza quotes Reagan aide Tom Korologos’ memo to the President on January 24, 1985, a few days after Reagan’s second inaugural, in which Korologos writes: “It seems to me that the President needs to decide what his legacy is going to be… What is he going to be the most proud of when he’s sitting at the ranch with Nancy four and five years after his Presidency? Is it going to be an arms control agreement? Is it going to be a balanced budget? Is it going to be world-wide economic recovery? Is it going to be a combination of all of this: peace and prosperity? . . . Every speech; every appearance; every foreign trip; every congressional phone call and every act involving the President should be made with the long-range goal in mind.”

What Korogolos’ memo doesn’t say, however – and what Lizza does not directly address – is that the combination of a reduced window of opportunity to enact policy and political change combined with an overwhelming desire to enhance one’s presidential legacy can prove politically lethal. The reason is that without the need to worry about reelection, presidents and their senior aides often demonstrate a reduced political sensitivity during their second term. This has two ramifications. First, they tend to pursue major policies or political goals without fully grasping the political constraints that limit one’s ability to achieve those objectives. Second, they are more prone to scandal rooted in the less savory aspects of presidential personalities.

On the policy side, George W. Bush conceded in his memoirs that his decision to pursue Social Security reform to start his second term was a mistake. In his first press conference after winning reelection, Bush famously remarked, “I earned capital in the campaign, political capital, and now I intend to spend it.” For his first major policy purchase, he chose social security reform. As he notes in his memoirs, “For someone asking to take on big issues, it didn’t get much bigger than reforming Social Security.” Alas, legislation reforming Social Security went nowhere in Congress, stymied by a combination of Democratic opposition and tepid Republican support. In retrospect, Bush lamented his decision to go big: “On Social Security, I may have misread the electoral mandate by pushing for an issue on which there had been little bipartisan agreement in the first place.” Hindsight is 20/20, of course, but Bush believes now that he should have pushed for immigration, rather than Social Security, reform as his first major initiative of the second term because the former had bipartisan support.

Bush’s failure to reform Social Security is a reminder that the constraints governing presidential power are not rescinded in the second term – indeed, they loom even larger. This was a lesson learned by Ronald Reagan, who shortly after reelection in 1984 signed onto a plan hatched by his CIA director and national security staff that, in effect, became an effort to trade arms for the release of Americans held hostage by Mideast terrorist groups – this despite his longstanding pledge to never negotiate with terrorists. Reagan apparently broke that pledge after a meeting with the hostages’ families, who pleaded with him to do something to earn the hostages’ release, but he did so by convincing himself that he wasn’t really trading arms for hostages, since the initial arms shipments came from Israel, and it didn’t go directly to the groups holding the hostages. When the details of that initiative and the other actions it spawned, including sending residuals from the arms sales to fund the Nicaraguan contras, finally came to light – as they inevitably had to – they triggered a public outcry that led to congressional hearings and a steep drop in public support for Reagan. Again, while well-intentioned, Reagan’s decision to pursue the arms-for-hostage initiative betrayed a stunning loss of political sensitivity.

I could cite other second-term political missteps, including FDR’s infamous 1937 court-packing plan and his failed effort to purge conservative Democrats from power by intervening in the 1938 midterm races. While it is true that FDR was eligible to run for a third term at this time, all indications are that he planned on abiding by the strong two-term tradition followed by almost all his predecessors. Eisenhower’s decision to authorize a U-2 flight over the Soviet Union, and his reaction when it was shot down in 1960 on the eve of a planned four-power summit including Soviet leader Nikita Khrushchev might also fall in this category.

But second-term presidents are not just prone to policy missteps – history suggests that are also more vulnerable to political scandal rooted in their own personal peccadilloes. Most recently, of course, Bill Clinton’s reckless personal behavior with Monica Lewinsky led to his impeachment by the House of Representatives – an event that left a permanent stain on his presidency (as well as on her blue dress!) Not coincidentally, I believe, their relationship began in November, 1985, after his reelection to a second term. Again, it is hard to explain Clinton’s behavior beyond attributing it to a combination of recklessness and hubris.

Finally, there is Watergate. Although the seeds of this scandal were planted in 1972, with the break-in to the Democratic National Committee headquarters in the Watergate Hotel, Nixon’s effort to cover-up his initial knowledge of the break-in extended well into his second term. Those efforts, when uncovered, forced him to step down as president in August, 1974 so as not to face almost certain impeachment and conviction on obstruction of justice charges. In engaging in an extensive cover-up, of course, Nixon’s obsession with secrecy and destroying his political enemies turned a third-rate burglary of little significance into perhaps the biggest presidential scandal of all.

We see, then, that each of the last four presidents to win reelection experienced either a major policy failure or political scandal during their second term. This may be sheer coincidence. But it may also be that in each case, a major contributing factor was a loss of political sensitivity. Simply put, these presidents overestimated their own power, and underestimated the constraints limiting what they could reasonably expect to accomplish, or the penalties they would pay by operating outside those constraints. I can’t be sure, but I believe a contributing factor in each of these missteps is that as second-term presidents, they no longer worried so much about the electoral ramifications of their actions. Instead, in some cases their desire to enhance their legacy led to policy overreach. In others, presidents acted on base impulses that were previously held in check by political considerations.

This is not to say that Obama’s second term will be inevitably scarred by policy overreach, or scandal, or both. But any analysis of what to expect must acknowledge the historical record in this regard. And that record is not pretty. If Obama does win reelection, where might the equivalent overreach take place? One precipitating issue might be the tax hikes and spending cuts now scheduled to kick in at the start of 2013. If Obama decides this time not to cut a deal with Republicans, and instead to hold out for his fiscal preferences, the resulting deadlock could lead to a stiff increase in taxes and concomitant drop in federal spending that could trigger another economic recession. Despite this possibility, Obama might be tempted to play hardball, reasoning that blame would fall on the Republicans and that this would be a major down payment on the budget deficit. Soon after, in February 2013, the government may face another debt limit crisis, and another round of brinkmanship could occur. On the other hand, Obama may again demonstrate the political pragmatism that has characterized his presidency to date and cut another deal with Republicans. His choices in these matters will depend in no small part on how the 2012 election turns out, not just in terms of his margin of victory (which as of now appears likely to be quite narrow), but more importantly in how well Democrats do in the House and Senate.

No matter what the electoral results, however, Obama would do well to remember the history of past presidents who won a second term in office. Victory does not lessen – never mind remove – the constitutional, institutional and political constraints that make the presidency such a weak office. Indeed, as a second-term president, Obama is likely to wield less influence, and to have a shorter window with which to enact change, than he did during his first four years.

Bill Kristol Is Wrong – Why Campaign Strategy Is Overrated and Why Romney May Win

As I write this post, panelists on Fox News Sunday, led by Bill Kristol, are debating the issue I discussed in my last post, namely, whether Mitt Romney’s single-minded focus on the economy is an effective strategy for winning the presidential race. In the discussion, Kristol is doubling down on his Weekly Standard editorial (headline: Dukakis, Kerry…Romney?). In it, Kristol writes: “Remember Michael Dukakis (1988) and John Kerry (2004)? It’s possible to lose a winnable presidential election to a vulnerable incumbent in the White House (or in the case of 1988, a sitting vice president). So, speaking of losing candidates from Massachusetts: Is it too much to ask Mitt Romney to get off autopilot and actually think about the race he’s running?” Kristol’s specific complaint is that Romney’s campaign has failed to lay out an alternative strategy to Obama’s for resuscitating the economy. Other movement conservatives have targeted the Romney team’s mishandling of the Court ruling that the individual mandate is constitutional under Congress’ taxing power.

Let me take up the Court ruling first. As I argued in the latest “Professor Pundits” piece with my colleague Bert Johnson, despite the initial wall-to-wall media coverage following the Roberts’ ruling, that decision is not likely to have much impact on the presidential race. According to Gallup only 6% of voters consider health care to be the most pressing issue facing the nation. This is slightly below the average number of Americans who cite health care as the number one issue dating back to the start of 2001, and far below the more than 30% of Americans citing it during the 1993-94 debate over Clinton’s health care policy, or the 26% referencing it during the debate over Obamacare (hat tip to Mo Fiorina for the Gallup link).

So, while I don’t doubt that the Republicans (but perhaps not Romney himself) will try to score points this fall with the Court’s ruling that the mandate is a tax, it’s not likely going to resonate with very many voters, particularly after the Court’s decision recedes in public consciousness.

The second reason I cited for why health care won’t matter is because most voters are much more concerned about the economy. When asked by Gallup to name the most important issue facing the country, 72% mention some aspect of the economy – jobs, the budget deficit, lack of money, or general economic issues – compared to only 6% citing health care. Another 12% cite dissatisfaction with government.

But what about Kristol’s complaint that Romney is not offering a viable alternative economic plan? Again, this misreads how voters go about choosing in a presidential election. For the most part, this election will be a referendum on the Obama administration’s handling of the economy. Most voters don’t get down in the weeds of the respective candidates’ economic plans; instead, they make broad-gauged estimates of the state of the economy, and decide based on their assessment whether they want to continue with the incumbent or kick him out. That decision turns more on evaluations of Obama’s record to date than it does on the specifics details of any economic plan Romney may propose. Indeed, Romney’s best strategy, contrary to Kristol’s advice, is to keep the focus on Obama and his economic record, rather than inviting scrutiny of any alternative plan. In this light, consider the memorable slogans of the previous campaigns that successfully unseated an incumbent president. In 1980, Ronald Reagan defeated Jimmy Carter by simply asking, “Are you better off than you were four years ago?”

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Note that in this admittedly brief clip Reagan doesn’t bother touting the details of his own program – the thrust of his message is to focus on Jimmy Carter’s record. And, in fact, most polls suggested a majority of voters were closer to Carter on the issues than they were to Reagan. But when it came to casting their ballot, that mattered less than did their assessment of Carter’s handling of the economy. Similarly, in 1992, “the economy, stupid” became the mantra of the Clinton campaign – few people remember that the Clinton war room also posted two other campaign themes: “Change vs. more of the same” and “Don’t forget health care.”

Now, that strategy may yet fail for the simple reason that Obama is a first-term president. This means, as indicated by this Gallup Poll, that many voters still hold George W. Bush more responsible for the current state of the economy than they do President Obama.

This is why many presidential forecast models include a time-in-office variable signifying how long the current incumbent party has controlled the presidency. In 1992, when George H. W. Bush lost his bid for reelection, Republicans had sat in the Oval Office for 12 years. However, in 1980, Carter’s presidency represented only four years of Democratic control, so history offers a mixed lesson regarding whether Obama will get booted after only one term.

Make no mistake. This election will largely turn on assessments of Obama’s handling of the economy. To win a second term, Obama must persuade voters that the economy is heading in the right direction, and that he only needs more time to right the damage caused by his Republican predecessor. As indicated by the Gallup poll above, however, the trend lines are going in the wrong direction for the President, as slightly more than half of Americans now give Obama a “great deal” or “moderate” amount of blame for the state of the economy, compared to only 32% earlier in his term. This total includes 51% of independents who now give most of the blame to Obama. And come November, George W. Bush is not going to be on the ballot. If the next quarterly GDP report shows a shrinking economy, and if the coming monthly jobs reports indicate job growth is stagnant or even declining, it won’t matter much what strategy Romney pursues: Obama will join Jimmy Carter and George H. W. Bush as one-term presidents.

Romney Campaign In Disarray? Pay No Attention To That Story!

What’s wrong with this front page? Today’s Boston Globe leads with this article titled “Romney Advisers Facing Criticism” which purports to reflect the views of “prominent conservative Republicans” that Romney is “bungling the presidential race” by focusing too much on the economy. Matt Viser, who wrote the Globe article, opines that, “The intraparty dissent has been simmering for several weeks”, but that it reached a crescendo in response to the mixed response from the Romney campaign regarding the Supreme Court’s recent ruling regarding the individual mandate. Although Romney spokesperson Eric Fehrnstrom initially said that Romney disagreed with the Court’s ruling that the mandate was a tax, Romney later appeared to reject that characterization when he said that he accepts the Court’s ruling that the individual mandate penalty is, in fact, a tax. That flip-flop prompted Viser to quote another media outlet – the Wall St. Journal – in characterizing the “stuttering response by the Romney campaign] to health ruling amateurish.” To support his assessment, Viser quotes three Republican pundits – Bill Kristol (no fan of Romney’s), Laura Ingraham and former Newt Gingrich consultant Rick Tyler. The thrust of their collective criticism is that the Romney strategy of focusing on the stagnant economy has, in Kristol’s words, “gone from being an annoying tick to a dangerous self-delusion.” Tyler, the former Gingrich consultant, concurs: “There clearly is a lack of an overarching driving force and message in this campaign.” Viser’s summary assessment based on the comments of these “prominent conservatives”? “[T]he fact that former Massachusetts governor is still taking fire from Republicans several weeks after he had appeared to unite his party could be a problem as the campaign prepares for the furious final few months.”

Anyone reading this front page story could be excused for assuming that the Romney campaign was in disarray and that it was shedding support among the Republican Party’s conservatives. And yet, just below this story, in an easily missed paragraph, the Globe posted a small blurb headlined “Fund-raising haul”. The brief paragraph notes that Romney “raised more than $100 million in June, by far his best total” and directs readers to page 9 for a more detailed discussion of the story. Readers who bothered to follow the link would learn that in pulling in more than $100 million in campaign contributions last month, Romney had outraised Obama for the first time and at the same time smashed his previous best fundraising total set in May. Moreover, it was only the second time a presidential candidate had raised more than $100 million in a single month. The headline story notwithstanding, this is not evidence of a campaign failing to unite the party faithful. Instead, as my colleague Bert Johnson discusses in our latest pundits’ video, Romney’s record-breaking haul is a sign that he is consolidating his Republican base.

Rather than “bungling the presidential race”, an objective look at the evidence indicates that the Romney campaign is picking up steam, particularly in light of the most recent economic report that shows job growth in June was essentially stagnant. But there are no quotes in the Globe story about Democrats who are critical of the Obama campaign strategy!

Look, I understand that the Globe is a liberal-leaning paper that has never shown much love for Romney dating back to the time that Mitt was governor of Massachusetts. But the reality is that Viser’s emphasis on campaign strategy, buttressed by quotes from well-known partisans, will be repeated by media outlets of all political stripes during the coming months. The fact is that journalists faced with the need to produce copy on a daily basis will inevitably focus on the horse-race aspects of the campaign, with an emphasis on controversy. The tendency will be to personalize stories, by drawing on quotes from prominent party activists, rather than discussing more impersonal but more telling indicators, such as campaign fundraising, that may more accurately reflect the fundamentals that will determine who will win in November. Unfortunately, the media tendency to personalize campaign stories, and to emphasize the horse race, personalities and controversy, is only going to accelerate in the next few months. This may be entertaining – but it will not be very useful in gauging the relative strengths of the two major party candidates as we head towards November. Bill Kristol may not agree, but all indications are that Romney’s single-minded focus on the economy is yielding huge – more than $100 million – in dividends. If that’s “bungling” the campaign, Romney needs more bunglers.

What It Means To Be An American On Independence Day

A long day of travel in order to celebrate our nation’s independence with family and friends, but I want to end it with a very short post that captures a bit of what I think it means, on this July 4^th, to be an American. Our national identity is not a function of a particular religion, or race, or ethnicity or even an ideology. It does not depend on one’s birthplace (even those born in Kenya can be American [although not President]!), language, or nationality. To be an American, instead, is to accept a set of political values. What are those values? Thomas Jefferson, who died 126 years ago today, on the 50^th anniversary of the signing of the Declaration of Independence (who could have scripted that?), wrote in that document these words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” When he wrote those words, Jefferson came as close as anyone to defining what it means to be an American: a shared belief that all Americans are equal, but that they also possess an inalienable right to liberty as a means to pursuing individual happiness. Liberty and equality and the rule of law under the Constitution that establishes the form of the Government whose powers are derived from the consent of the governed – those are the values that define what it means to be an American. If you embrace those values, you are an American – regardless of nationality, race, ethnicity or religion.

And herein lies the crux of the American dilemma – in their purest form, equality and liberty are in tension. Neither ideal can be fully achieved without endangering the other. This creates, as Samuel Huntington notes in his classic work The Promise of Disharmony, a gap between our ideals and what American government, based on the consent of the governed, can reasonably hope to accomplish. This gap means that Americans are inevitably dissatisfied with what our government does. Consider the debate over the individual mandate – a key component of Obamacare. Those who value liberty recoil against a government policy that forces us to either buy health insurance or pay a tax…er….penalty if we refuse to do so. It is an infringement on individual liberty. But for those who believe in equality, the mandate is necessary to insure that all Americans, regardless of wealth, have access to a minimal level of health care. Faced with these competing ideals, no governmental policy – as Chief Justice Roberts has found out – will satisfy all, or even most, Americans.

How do we reconcile this inherent tension in the American creed? Which value is paramount? The short answer is that we, as Americans, have decided to pursue both values simultaneously. That is the essence of the American experience which began in 1776, with Jefferson’s Declaration of Independence, and continues through today. So far, we have managed to balance, if not reconcile, the inherent tension in the values that identify us as Americans without tearing the polity asunder. We embrace both liberty and equality. And when we perceive a tilt toward one value at the expense of the other, we recalibrate our national politics to reestablish an uneasy equilibrium. It is an often messy process. Indeed, at one point we fought a civil war to uphold both values. It was in the midst of that epic struggle that Abraham Lincoln penned what I believe is the most succinct and memorable summary of what the American experiment is all about. In November, 1963, Lincoln presented his immortal Gettysburg address, which began with a restatement of the fundamental values cited by Jefferson in the Declaration: “Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.”

After laying out the fundamental tenets of the American creed, and testifying to the valor of those who gave their lives to uphold those values, Lincoln finished with these words:

“It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us–that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion–that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.”

That’s what I’m thinking about on Independence Day.

The “Hypocritic” Oath: What The Roberts Ruling Says About How Courts Function

Professor Murray Dry, my Middlebury colleague and an excellent legal scholar, takes issue with portions of my recent posts regarding the Roberts Court’s ruling on the Affordable Care Act (ACA). Murray writes, “I want to quibble a bit over your statement that ‘the Supreme Court is a political institution….’ In light of the statement in your previous blog, to the effect that ‘Roberts’ decision is best understood institutionally, in terms of its implications for the Supreme Court’s status and independence,’ rather than in terms of the ‘attitudinal’ and ideological approach to the Court, would it not be more consistent with your full position if you were to add ‘in part’ in your sentence about the Court as a political institution? After all, the institutional interest that you identify with the Chief Justice depends on the Court’s being perceived as something more than another political branch of our federal government, and perhaps that perception is best produced by the Court’s acting in a judicial manner. In this case, that means giving Congress the benefit of the doubt on the less coercive of two legislative powers.”

In order to respond to Murray’s main point regarding the Court as a political institution, I put aside for now the question of whether Roberts actually gave Congress “the benefit of the doubt” or – as Jack Goodman suggests to me in a separate email – he instead substituted his own interpretation of the Constitution for Congress’ (much to Kennedy’s chagrin). Murray raises an excellent point – if Roberts’ goal in upholding the ACA was in part to create the perception that the Court was above partisan politics, then didn’t he act in what Murray describes as a less political and more “judicial manner”? Indeed, isn’t it in the Court’s political interest to act “judicially” as a more general rule of thumb?

My response is that I think Roberts was, in fact, acting quite politically in trying to create the perception that the Court, in upholding the ACA, ruled judicially, without regard for partisan politics. In short, finding a constitutional basis to support ACA was in the Court’s institutional interests, and thus good politics. This is not to deny, however, Murray’s notion that there was an element of “judicial” reasoning in Roberts’ ruling as well. After all, his justification for upholding the individual mandate was rooted in his reading of constitutional law. I don’t think his detailed footnoting of the relevant case law was mere window dressing.

In short, Murray is right – there are elements of both political and judicial reasoning in Roberts’ argument. In making this claim, I hew closely to the argument advanced by my former Harvard colleague and now professor of law at Syracuse University Keith Bybee in his book All Judges Are Political – Except When They Are Not. In the book, Bybee takes note of an apparent contradiction in public opinion: most surveys show that Americans believe that rather than make decisions on the basis of some independent and commonly understood set of legal principles, judges at all levels instead substitute their own political preferences when rendering judicial rulings. And yet, these same surveys indicate that most people believe that judges can rule “impartially” to reach decisions based on a reasonable reading of the law, separate from their own personal preferences. (For what it is worth, when studying judicial decisions, scholars find support for both views.) Indeed, consistent with Bybee’s argument, note that most people continue to hold the Supreme Court in higher regard than the Presidency or especially Congress. How can we reconcile this apparent contradiction? Bybee’s answer: We can’t. Or, more accurately, we shouldn’t try. In fact, he argues that the stability of the judicial system depends on people embracing both perspectives simultaneously. As he writes elsewhere on this topic, “The resulting system endures not in spite of the contradiction between instrumental action and impartial principle, but because this contradiction suits the law to the people who are governed by it. This arrangement is not necessarily connected to justice. The judicial process is stable because it recognizes and responds to competing human needs, not because it ensures that that we live in a fair society….Thus the law is made to serve different purposes: on one hand, the law is pressed into service by interested parties trying to solve their problems; and, on the other hand, the law is shaped into a rational structure in order to give ‘the story of government’ meaning. The law operates in both registers at the same time, even though they point in incompatible directions.”

The notion that judges clothe their politically-driven decisions in the rule of law in order to render those decisions more acceptable may struck some as giving off more than a whiff of hypocrisy. Why not recognize that the Courts are political actors and treat them accordingly by, for example, making judges stand for election, or at least have them subject to periodic recall? (In fact, that is standard practice in some states.) Bybee’s argument suggests that we are better off by viewing the Court as both political and judicial, rather than trying to push our understanding to either extreme. By way of analogy, consider the rules of courtesy that govern how we interact with one another. When you greet me by asking, “How are you doing?”, you do not expect me to answer with a detailed recitation of the current state of my life – the bad ankle, the endless bluebooks, the overwhelming workload, the car repairs, and don’t get me started on the Roger Clemens’ decision! Instead, common courtesy dictates that I respond with a simple summary statement, such as “I’m fine. And you?” Nor am I insulted by your expectation that when you ask how I am, you really don’t want to know, at least not in detail. We both understand that this exchange serves a purpose – it is a common courtesy that although in some sense hypocritical, nonetheless greases the wheels of social interaction in a way that makes us all get along. We may sometimes wish that people would do away with these little niceties, and instead always speak the truth. (Yes, in fact that haircut was a dreadful mistake! What got into you?!) But, shorn of the norms of courtesy, our social system would break down in short order.

So it is with our understanding of the Courts. Roberts’ ruling was almost certainly political, in the sense that it strengthened the perception that the Court is, in fact, a judicial body – not a partisan one. But that sleight of hand – hypocritical though it may seem – is also a fundamental reason why we abide by the “rule of law”, and why we continue to view the Court more favorably than we do other political actors.