Category Archives: Political Science

Why Presidents Negotiate With Terrorists

Why do presidents negotiate with terrorists?

In January, 1984, President Ronald Reagan’s Secretary of State George Schulz designated Iran a sponsor of international terrorism and, under a program called “Operation Staunch”, the U.S. began actively pressuring allies to enforce an arms embargo against Iran, which was fighting a war of survival against Iraq. However, later that summer and fall, and continuing into 1985, U.S. diplomatic and intelligence specialists began to reevaluate U.S policy toward Iran. The internal reappraisal was prompted in part by the fear that the U.S. had little leverage to influence the power struggle in Iran that was likely to occur in the aftermath of the elderly Iranian leader Ayatollah Khomeini’s death, and that the post-Khomeini Iran might move closer to the Soviet Union’s sphere of influence. That reappraisal, moreover, was taking placing while the U.S. was debating how to secure the release of several kidnapped Americans, including the CIA station chief William Buckley, who were being held by shadowy extremist groups in the Mideast. (At least 17 Americans were kidnapped in Lebanon alone during the period 1982-1987.) Eventually Reagan officials’ concern over the fate of the hostages combined with their desire to increase their influence with “moderates” in the Iranian government led to the Iran-contra affair, a secret and ultimately politically disastrous effort authorized by Reagan to trade arms to the Iran government for the release of the American hostages. (The contra element refers to a related effort, masterminded by Reagan’s national security staff, but evidently without Reagan’s full knowledge, to use the proceeds from the sales of arms to Iran to fund the American-backed Nicaraguan contras who were battling the Soviet-supported Sandinista government in that nation.)

The on-going effort to trade arms for hostages, and the related diversion of residual funds to the contras, was ultimately ended by the public revelation of the secret negotiations and subsequent transactions in November 1986. In the firestorm that followed, Reagan’s public approval plummeted, Congress initiated a joint congressional investigation amid calls for Reagan’s impeachment, and an independent prosecutor was appointed to investigate the affair. Key members of his administration were forced to resign, and some were charged with criminal conduct. Ultimately, although Reagan regained his political footing, the Iran-contra affair permanently tarnished his presidency.

Why did Reagan undertake a policy that ran so manifestly contrary to his administration’s policy not to negotiate with terrorists – one that was opposed by many of his key advisers, including Secretary of State George Schulz and defense Secretary Caspar Weinberger? In the immediate fallout from the disclosure of the Iran arms trade, Reagan insisted he had not actually traded arms-for-hostages, since the U.S. only dealt indirectly with the terrorists through a third party (the Iranian government). Moreover, the initial overture to Iran had been couched in geopolitical concerns regarding the balance of power in the Mideast in the aftermath of Khomeini’s death. But as Reagan’s biographer Lou Cannon concludes in his brilliant President Reagan The Role of a Lifetime, the tipping point in Reagan’s decision likely took place when his aides allowed him in the summer of 1985 to meet with members’ of the hostages’ families, who pleaded for Reagan to do something to secure their release. Cannon concludes in an assessment supported by most of Reagan’s closest aides that “Reagan’s personal feelings about freeing the hostages was the principal cause, though not the only one, for his enthusiastic pursuit of the Iran initiative. “

One cannot help but see echoes of many elements of the Iran-contra affair in the fallout resulting from President Obama’s Rose Garden announcement on Saturday, flanked by Sgt. Bowe Bergdahl’s parents, that Bergdahl was being freed by his Taliban captors in exchange for the release of five Taliban fighters held prisoner at Guantanamo Bay. In initially defending the exchange, some administration officials framed it as one part of a broader effort to open up a dialogue with the Taliban forces. They note as well that they dealt only indirectly with those holding Bergdahl prisoner and that, strictly speaking, the Taliban may not be a terrorist organization – a distinction lost on Obama’s critics. However, as was the case with Iran-contra initiative, key members of Obama’s administration, including Secretary State Hillary Clinton, evidently opposed earlier efforts to negotiate a similar prisoner swap. Moreover, as did the Reagan administration, Obama’s officials are defending cutting Congress out of the loop because of the time sensitive nature of the hostage negotiations, even as questions are raised regarding whether in so doing Obama’s administration broke a law requiring him to give Congress 30 days’ notice before the release or transfer of Guantanamo prisoners. And, as was the case in 1986, the administration is walking back from initial statements justifying the trade, such as National Security adviser Susan Rice’s claim on Sunday that Bergdahl “served the United States with honor and distinction,” in order to sort out the facts surrounding Bergdahl’s capture more clearly.

To be sure, the Bergdahl swap differs in important ways from the Iran-contra affair, not least in the significance of the policy implications at stake. Nonetheless, the Obama administration is going to be dealing with the fallout from this exchange for days and months to come, particularly in light of the inevitable Congressional hearings which are already gearing up. Beyond the damage to Obama’s standing the fallout from the affair, which has drawn bipartisan criticism, is not likely to strengthen Democrats’ hands in the run up to the 2014 midterms.

Given the strength of the political backlash, it is worth asking: why did Obama agree to negotiate with elements of what many see as an organization that, if not a terrorist group, is at least affiliated with terrorism? In my view, particularly after watching an emotional Obama hugging Bergdahl’s parents after the Rose Garden announcement, Obama acted in large part on the same sentiments that motivated Reagan’s efforts to secure the release of the American hostages. Indeed, in his recent remarks at the end of the G-7 summit, Obama explicitly couched the prisoner exchange in humanitarian terms: “I make absolutely no apologies for making sure that we get back a young man to his parents and that the American people understand that this is somebody’s child–and we don’t condition whether or not we make the effort to try to get them back.”

On a personal level, we might find presidents’ willingness to subjugate political concerns to humanitarian ones a quite admirable trait. But when presidents are allowed to act on their “best” impulses, they often underestimate the political repercussions. This is particularly the case when presidents’, and their closest aides’, political sensitivity grows dull because they no longer worry about reelection. This does not mean humanitarian concerns are misplaced. Like it or not, however, the presidency is an inherently political office, one whose capabilities are determined by the willingness of those who share the president’s powers to support his (someday her) initiatives. This is not to say the presidents ought never to act on humanitarian impulses. But when they do so, they should be fully cognizant of what it will cost them in influence down the road. That is the very definition of how presidents gain and maintain power. At this point, based on what is known via media reports, it is not clear to me that Obama fully understood the price he would pay for negotiating a prisoner exchange with the Taliban.

About That Electoral College “Firewall”

I have been saying for some time now that if Romney began closing the gap in the national tracking polls, as the political science forecast models suggested would be the case, he would also gain ground in the battleground states.    This is precisely what has happened.  In the table below I show the change in the Rear Clear Politics composite polls in the seven tightest swing states across the last 10 days – that is, from shortly before the presidential debate to today.

State RCP Composite Oct. 3 RCP Today Obama Change
Ohio Obama +5 Obama +1.3 Obama -3.7
Florida Obama +2 Romney +2 Obama -4
Virginia Obama +3.5 Obama +.4 Obama -3.1
Colorado Obama +3.1 Romney +.7 Obama – 3.8
North Carolina Romney .8 Romney +3.3 Obama -4.1
Nevada Obama +5.2 Obama +1.2 Obama -4
New Hampshire Obama +6 Obama. +.7 Obama -5.3


As you can see, in his 10-day post-debate polling surge, Romney has gained an average of 4% across these seven battleground states, which collectively total 94 Electoral College votes.  This is a near-uniform surge, and it is consistent with what I have been harping on for so long now – a rising Romney tide will float all states’ polls, more or less.  (Keep in mind that the frequency of polling varies across each state.)   To be clear, there were signs that the race was tightening before the first presidential debate, but that event apparently served as a focusing point that pushed the race more rapidly toward where the forecast models, taken as a whole, suggested it should be.   I don’t expect that the Biden-Ryan debate will have nearly the impact on the state of the race as did the first presidential debate – but then, I didn’t expect the first debate to have quite the impact it did!   Still, if the post-debate instant polls are to be believed, Biden and Ryan fought to a draw.  That certainly was not the collective judgment of those who watched the presidential debate.

My larger point, however, is that I never put much stock in the notion that the Electoral College would serve as some type of firewall that would protect the President from a Romney surge in national polls.  In this regard, several of you have asked whether it is possible that Romney might win the national vote, but lose the Electoral College vote.  Sean Trende has an interesting analysis of that possibility here, and he concludes that while the possibility of such a split is higher this year, it is still exceedingly unlikely for reasons that I have discussed here before: historically, the popular and electoral college votes tend to line up very closely.

As evidence, Trende examines the last 15 presidential elections, and compares the winning candidate’s national popular vote margin of victory with his vote margin in the state that “gave” him his 270th Electoral College vote – the one that put him over the top, so to speak.  He finds that the difference in vote between the two measures is quite small – .9% on average.

Why is this important? Because Trende is essentially extending my logic regarding the link between national and state-level voting which, in turn, determines the Electoral College results.  I have argued that they tend to trend together.  Trende tries to measure that more directly by estimating how “biased” the Electoral College, which is based on state-level votes, is in any given election. To do so Trende looks at the difference between the national vote margin and the popular vote margin he winning candidate receives in the state that gives him the 270th vote.  That difference, he says, tells us how much the winning candidate was rewarded (or penalized) by Electoral College.

To follow Trende’s argument, let’s look at the current race and estimate the Electoral College bias, as of today. Romney currently leads in the national vote, according to the RCP composite average, by .7% (in an earlier version of this post I had that number wrong).   If we add up all his strong and leaning states based on polling so far, he is likely to win at least 181 Electoral College votes.   To pick up the additional electoral votes necessary to get to 270, he has to win some combination of the 12 or so battleground states.   Let us assume he wins the ones in which he leads as of today – Missouri, Florida, Colorado, and North Carolina. That gives him an additional 63 Electoral College votes – still 26 votes short of victory.  If we look at the remaining tossup states, he runs closest to Obama in Virginia, where he is down by .4%, New Hampshire at .7% and in Ohio by 1.3%.  Virginia has 13 E.C. votes, New Hampshire has 4, and Ohio 18.  Based on these biggest polling deficits, Ohio is the tipping point state – the one that if Romney wins he will go over 270 votes. Romney has to gain an additional 1.4% nationally to overcome Obama’s lead in Ohio.  Assuming a uniform vote swing, that gain would also give him victory in Virginia and New Hampshire as well and he would clinch the Electoral College.   Put another way, if you compare Romney’s current lead in the RCP national poll – .7% – with Obama’s lead in Ohio – 1.3%, using Trende’s logic the Electoral College, as of today, is biased toward Obama by 2%.   That’s a relatively large bias compared to the average of .9% that Trende finds for the previous 15 presidential elections.  It means that to avoid an Electoral College/popular vote split, Romney must win the popular vote by more than 2% (again, assuming a uniform polling swing between the national and state vote).

Of course, there are a lot of assumptions built into this argument, as Trende quite readily acknowledges, beginning with the idea that changes in national support are felt equally across the states.  More significantly, perhaps, it assumes the race will hold steady at its current configuration for the next four weeks.  However, as my table above indicates, it has been anything but steady in the last 10 days, and there are two more presidential debates to go.  There’s no sign that Romney’s surge has peaked, and he may very well cut further into Obama’s lead in Ohio and other battleground states.  On the other hand, Obama may regain his footing and retake the lead in the national polls, bringing them more in line with the state-level polling and thereby reducing the Electoral College “bias”.

This is all a very speculative exercise, of course – particularly this far out – but it is one way to think about the likelihood of a popular vote/Electoral  College discrepancy in outcomes. Taken as a whole, the political science forecast models project this to be a very tight race.  That certainly increases the probability that there will be a split. Note that Trende’s chart indicates that in 7 of the last 15 elections the Electoral College was biased against the popular vote winner.  Based on current national and swing state polling (remember – this could change), that’s the scenario that appears most likely this year – Romney does better in the national popular vote than he does in Ohio. Remember that in 2004 Bush also underperformed in Ohio, his tipping state, by .4% compared to his national vote total. Gore did so as well in Florida in 2000 by .5% – of course, he also lost the Electoral College vote despite winning the popular vote , while Bush held on to win.   Moreover, Obama over performed in the Electoral College tipping state of Colorado in 2008 relative to his national vote margin by a rather large 1.8%.  If the national vote is as close as the models project, and Obama is able to work similar magic in Ohio this time around by dint of a superior ground game, we could see a split.

But if this suggests the probability of a popular vote/Electoral College discrepancy is perhaps higher this year than in past elections, it still doesn’t mean it is likely to happen.  I still think it more probable that the state-level polls will continue to trend toward the national polls, thus reducing the possibility that we will see the winner of the popular vote lose the Electoral College.  Of course, I haven’t yet discussed an even more exciting scenario – an Electoral College tie!

UPDATE: Romney’s RCP national lead has gone up since I originally wrote this, but he remains behind in Ohio, which further increases the Electoral College “bias” in favor of Obama.  I have to think the Ohio race will see more tightening. Stay tuned.

Ash to Ashes: The Likely Fate of Obama’s Reorganization Plan

Roy Ash’s death was announced today.  Seventy-five years ago this week President Franklin Roosevelt unveiled his famous Brownlow Report (see Andy Rudalevige’s overview here). And today, as I write this, President Obama is slated to unveil his plan to consolidate six government agencies dealing with trade and commerce into a new department.  How are these events related?  All are characters in a long-running but often overlooked and underappreciated drama: the continuing efforts by Presidents to enhance their ability to “manage” the executive branch.

Under the Constitution (Article II, section 3), the President is charged to “take care that the laws be faithfully executed”.  In the modern era, with the proliferation of government agencies and programs, that charge has taken on new significance.  To fulfill the expectations associated with serving as the nation’s “chief executive”, presidents have sought ways to enhance their control of the executive branch.  One of the first, and perhaps the most successful efforts to do so occurred under Franklin Roosevelt, based on recommendations contained in the Brownlow Report which he commissioned to recommend ways to streamline the executive branch and enhancing his control over the major managerial processes – budgeting, personnel and policy planning.  That Report, published in 1937, led to the creation of the Executive Office of the Presidency (EOP), including the White House Office, and to the consolidation and restructuring of portions of the larger executive branch.  Significantly, however, much of Brownlow’s plan to streamline the executive branch in the name of efficiency was blocked by Congress, which sought to preserve its influence over key departments and agencies.

Flash forward to the Nixon Presidency.  He took office in 1969, and one of his first acts was to appoint his own Brownlow Committee – the Ash Council, head by industrialist Roy Ash. Over the next several years, the Council issued a number of reorganization plans.  (Ash later went on to serve as director of the Office of Management and Budget).  The most ambition plan to come out of the Ash Council was Nixon’s decision in 1971 to abolish several constituency-oriented cabinet-level departments and replace them with four new “super departments”, including a Department of Economic Affairs.  That superdepartment would absorb the Commerce Department, the Small Business Administration (SBA) as well as a variety of other economic-related programs then lodged in other government agencies.  When that plan went nowhere in Congress, Nixon sought to institute his own version of it by appointing five “super counselors” who would supervise all government agencies dealing with broad functional areas – national security, natural resources, community development, etc., and who would report directly to him. Roy Ash was one such counselor, charged with supervising government agencies dealing with economic affairs.  That plan eventually was scuttled by the Watergate scandal.

Today, according to news reports, President Obama will announce his own, more limited reorganization plan focusing on agencies dealing with trade and commerce.  Without knowing the details, I can’t comment on its substance, or on the likelihood that it will achieve its stated goals which almost certainly include promises to save taxpayer money and reduce bureaucratic inefficiencies. But based on previous efforts to reorganize government, which include plans to consolidate economic programs into a single department, I am confident that the following observations are accurate:

  1. The timing of this announcement, in the midst of persistent high unemployment, and with an election less than a year away, is no coincidence.  This is as much about election-year politics as it is about restructuring the executive branch.  The idea here is demonstrate the President’s commitment to doing everything he can to resuscitate the economy and create jobs.
  2. The reorganization plan, even if implemented in full, is almost certainly not going to achieve the projected cost savings, whatever those are. The reasons why are complex, but the single biggest explanation is that government agencies are not created to be efficient.  Their bottom line is not to make a profit.  Instead, they often have multiple objectives that are in tension.  Take the Small Business Administration (the SBA).  You might think its mission is to make loans in the most cost-efficient manner by, for example, identifying companies that are likely to do well and who can pay back the government loans quickly and, in the process, generate more tax revenues.  In fact, however, the SBA must consider other values when deciding which company to back. For example, it may have an interest in promoting minority-owned businesses.  There may be geographic considerations – for instance, targeting inner-city business located in poorer regions – that affect its decisions.  Should the SBA focus on promoting emerging industries that may have greater payoffs down the road, or emphasize loans to established businesses with a proven track record?  Given these conflicting missions, it is probably inappropriate to judge the SBA’s effectiveness solely on its “bottom line” however that is defined.  Similar arguments can be made regarding the other agencies involved in the reorganization effort.  (Thanks to Middlebury student Brittany Perfetti on whose research paper I drew for some of the SBA-related observations.)
  3. And that brings up a third, crucial point: Obama lacks reorganization authority to make these changes on his own.  Both FDR and Nixon issued reorganization plans under authority granted to them by Congress, but that authority lapsed after Carter’s presidency and has never been restored.   As a result, if Obama’s plan is to reach fruition, it will need congressional approval. This almost certainly will not happen.  One reason, of course, is that this is an election year, and a Republican-controlled House is not likely to sign on to this legislation for fear of the political repercussions.  In particular, the plan promises to upset key constituents groups that have close ties with Congress.  And that raises my fourth point:
  4. Previous reorganization efforts along these lines have foundered on the shoals of interest group resistance.  Note that this isn’t the first time a President has suggested folding the SBA into the Commerce Department.  This is a recurring suggestion that, despite it superficial appeal, never goes anywhere.  The reason is because the powerful small business lobby, including the National Federation of Independent Business, consistently opposes these mergers for fear that small business interests will get swallowed up in a department controlled by larger economic interests.  It is not clear to me that it will be any different this this time around.
  5. There is an additional obstacle to a successful merger along the lines proposed by Obama: it ignores issues of organizational culture and mission.  By culture, I mean the views held by the dominant group within an agency regarding what its mission should be.  Culture influences how agencies recruit and promote individuals, and how it defines its critical task.  And when agencies that have different cultures are merged in a single department, conflict often results.   It can lead to greater inefficiencies and reduced effectiveness.  Witness what happened to FEMA when it was merged into the newly created Department of Homeland Security, and its focus shifted from disaster relief to terrorist response.  While mergers may look logical on paper, it takes a keen understanding of the individual agencies’ operating culture to know whether a consolidation will take hold.  And that leads me to my final point:
  6. Both the Brownlow Committee and Ash Council recommendations came after a lengthy study process based on input from scores of experts both inside and outside of government.   It’s not clear to me that this more recent proposal put forth by the Obama administration has a similar genesis.  Instead, it seems to me more likely that someone dusted off a previous reorganization plan and decided it would make for good election year politics without really thinking through the implementation details.  It is possible I am wrong, but I haven’t heard of any study group at work that would produce a Brownlow-like Report.

Bureaucratic politics is inherently unsexy.  Ash, may he rest in peace, confided that when he would discuss details of his reorganization plan with Nixon, the President’s eyes would glaze over.  But the reality is that, despite the lack of glamour, how presidents “manage” the bureaucracy is perhaps the most crucial determinant of their power, broadly defined.  Obama is but the latest in a string of presidents dating back to Teddy Roosevelt who have sought to use their reorganization authority to strengthen their control over the implementation of government programs.  History suggests, however, that this latest effort will produce much less than promised – not just in cost savings, but more importantly in enhancing the President’s administrative power.

Addendum: According to  this Politico story the President is seeking fast-track authority which would allow him to submit reorganization plans to Congress and it would have 90 days to either reject or accept the plan in its entirety.  Presidents use to have this authority for trade agreements, but not for reorganization authority as far as I can remember.  I don’t believe Congress will grant any reorganization authority that doesn’t allow them to edit the proposal before accepting it.   Again, my guess is this means the plan will go nowhere prior to 2012.

An Imperial Presidency? Obama, Signing Statements and the Unwritten Constitution

Last Friday Barack Obama signed into law H.R. 2055, the “Consolidated Appropriations Act, 2012,” which is an omnibus year-end spending bill. While signing the bill into law, however, he issued a statement that declared several provisions within the bill as either unconstitutional or as infringing on his executive powers. These include provisions limiting his flexibility in dealing with enemy combatants now held at Guantanamo Bay prison, and others that forced him to consult with congressional committees before authorizing military exercises costing above a specified dollar amount or that required congressional approval before allowing U.S. forces to operate under U.N. command.   In the signing statement posted on the White House website, Obama notes, “My Administration has repeatedly communicated my objections to these provisions, including my view that they could, under certain circumstances, violate constitutional separation of powers principles. In approving this bill, I reiterate the objections my Administration has raised regarding these provisions, my intent to interpret and apply them in a manner that avoids constitutional conflicts, and the promise that my Administration will continue to work towards their repeal.”

As the name suggests, a signing statement is simply a declaration by the president explaining how he interprets the legislation that he has signed into law.  Sometimes those statements merely clarify language, but often they declare a president’s intent to, in effect, disregard those portions of the law that he deems unconstitutional.  Although presidents dating back to Monroe have made use of signing statements, they became controversial during the Bush presidency, in part because of a highly-publicized Boston Globe article by Charlie Savage in 2006 that claimed “President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office.”  More accurately, as the Globe later acknowledged, Bush had in fact challenged about 750 provisions contained in about 125 bills during his first six years in office, although this correction was often overlooked by Bush’s critics. The distinction is not inconsequential; for example, using Savage’s original method of counting, Obama would have challenged 20 “laws” alone in this one signing statement.  So we need to be careful how we define a “law.”

Savage, who later won a Pulitzer Prize for his work on this topic, linked Bush’s seemingly extraordinary use of signing statements  (in fact, Bush issued far fewer than did his predecessor Bill Clinton) to  Bush’s broader claim of enhanced executive power rooted in the theory of the “unitary executive”.  That controversy was not lost on candidate Obama who, in running for the Presidency, made it clear he would not follow Bush’s precedent. Signing statements, Obama proclaimed in 2008, are “not part of his power, but this is part of the whole theory of George Bush that he can make laws as he goes along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end-run around Congress.”

The reality, however, is that President Obama has been quite willing to utilize signing statements, albeit at a slightly reduced rate compared to recent presidents.  By one count he has issued almost 20 such statements to date.  For comparison purposes, Bill Clinton issued some 92 signing statements in his first three years in office – almost as many as Bush did in six years – and close to 400 during his two terms.   However, as this Congressional Research Service report suggests, a focus on the number of signing statements alone can be misleading.  Indeed, constitutional scholars on both the Left and the Right are in basic agreement that signing statements themselves are not the issue – it is the president’s intent when issuing the statement that is of concern.   In particular, beginning with the Reagan administration there has been a marked increase in the number of signing statements issued by presidents that raise constitutional objections to laws.  According to the CRS report issued in 2007, “President Reagan issued 250 signing statements, 86 of which (34%) contained provisions objecting to one or more of the statutory provisions signed into law. President George H. W. Bush continued this practice, issuing 228 signing statements, 107 of which (47%) raised objections. President Clinton’s conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn, President Clinton made aggressive use of the signing statement, issuing 381 statements, 70 of which (18%) raised constitutional or legal objections. President George W. Bush has continued this practice, issuing 152 signing statements, 118 of which (78%) contain some type of challenge or objection.” To date, based on a quick read of his statements, I estimate loosely that about half of Obama’s signing statements contain constitutional objections but, until I do a more systematic analysis, this should be viewed as a very rough estimate.

It appears, then, that Obama has had a significant change of heart when it comes to signing statements during the transition from candidate to President and instead has adopted the view of every president going back to Reagan that their use is not only acceptable but necessary.    But why?  The answer, I think, is that Obama – as he did with other precedents centered on the War on Terror – has realized that signing statements serve a useful purpose in the modern lawmaking process. Rather than a grab for power, signing statements instead illustrate what Don K. Price called the unwritten constitution: adaptations in how the President and Congress interact that, by filling in interstices in the written Constitution, helped adapt that document to the exigencies of governing in the modern age. In this case, the signing statements serves as a means through which presidents can influence the legislative process.

However, doesn’t the Constitution’s veto provision specify what a president should do if he finds a bill constitutionally objectionable? The problem from a president’s perspective with the veto is that it  is often an all-or-nothing alternative.  Because presidents cannot selectively excise those portions of a bill they find objectionable, a veto means rejecting the entire piece of legislation, even though it may contain many provisions the president supports. Congress, of course, realizes this, and in the modern era has become adept at larding bills with extraneous provisions to which they know the President may object. This is particularly the case with appropriations bill, which now frequently contain non-budgetary policy-relevant provisions that presidents – as Obama did with the 2012 omnibus appropriation bill – cannot accept on constitutional grounds.  But if they include enough legislative sweeteners, or attach the provisions to bills that must pass every year, they calculate the president will be forced to accept the entire dose of legislative medicine.   Faced with this strategy, presidents have adapted by signing these bills into law while publicly stating which provisions they accept, and which they find objectionable on constitutional grounds. Note that Congress can and does grumble about this, and more than once members have threatened legislative retaliation. But these bills have gone nowhere – an implicit acknowledgement, I think, that legislators view signing statements as consistent with the system of shared powers rather than a repudiation of it. They recognize why presidents’ issue these statements, and as long as the dispute in interpretation stays at the level of rhetoric, both sides are willing to look the other way.

And, of course, this is the crucial question: are these mere rhetorical disputes, or have presidents’ signing statements had a measurable impact on how legislation has been implemented?  Alas, it is difficult to answer this question. For one such effort, see this GAO study which looked at the implementation of 10 provisions in laws signed by George Bush but which included a signing statement.  The bottom line? The GAO found no evidence that the signing statements hindered implementation; in their words “Although we found that three provisions have not yet been implemented, we cannot conclude that agency noncompliance was the result of the President’s signing statements.”

The lack of systematic evidence that signing statements have altered the balance of power has not stopped critics from viewing their use as evidence of the rise of an imperial president.  Of course, who makes these charges depends on whose ox is being gored; under Bush, the charges emanated from the Left.  Today, they come from the Right.  Rather than an imperial presidency, however, I think signing statements are better viewed as the latest manifestation of how the President and Congress adapt the lawmaking process within a system of shared powers.  The increase in the use of signing statements for constitutional reasons really starts with Reagan, not Bush, and it does so because this is when an increasingly polarized Congress begins to make greater use of the budget process to push broader policy goals. Obama has followed in Reagan’s – and Bush’s – footsteps not because he embraces an imperial presidency.  It’s because in the current governing context their use follows logically from the Constitutional-based incentives that give him a stake in the legislative process.

6:30 Addendum: I just noticed that Andy Rudalevige has a related piece up here at the Monkey Cage site.

The Pipeline Controversy: Keystone Cops in Washington?

The Obama administration may have set itself up to disappoint supporters on the Left still again. In so doing, the President may also have weakened his sources of bargaining power.

Earlier this morning the Senate, by an 89-10 vote, approved a two-month extension (until February 29th of next year) of the payroll tax cut enacted last year. The Senate legislation also includes language authorizing approval for the controversial Keystone XL pipeline unless President Obama decides the pipeline is not in the national interest. (The bill, which must pass the House, also includes the so-called “doc fix” by postponing a 27% cut in pay for doctors serving Medicare patients, and it extends jobless benefits. To cover the lost revenue and increased spending, the Senate will levy new fees on the Fannie Mae and Freddie Mac.)

But here’s the catch. You will recall that the Obama administration has been pushing for an extension of the tax cut, which was enacted a year ago and lowered the payroll tax to 4.2%, saving families earning $50,000 about $1,000 a year. In an election year, voting against a tax hike would appear to be a winning issue. Tea Party activists, however, have expressed ambivalence about signing on to an extension, arguing that the loss of revenue furthers undercuts the Social Security and Medicare programs which depend on payroll tax revenue for funding. To sweeten the deal for Tea Party-backed Republicans, House Speaker John Boehner linked an extension of the payroll tax reduction with provisions expediting review of the controversial Keystone pipeline project.  When this proposed deal was first raised in a House bill (H.R. 3630) that linked the Keystone project to an extension of the payroll tax cuts Obama promised a presidential veto: “If the president were presented with H.R. 3630, he would veto the bill.”

To be sure, in the administration’s Statement of Policy (SAP) containing the veto threat Obama didn’t mention Keystone by name.  Instead the SAP referenced opposition to Republicans’ “choice to refight old political battles over health care and introduce ideological issues into what should be a simple debate about cutting taxes for the middle class.” Nonetheless, the reason for the veto threat was clear to see. And that veto threat, in my view, was a mistake. Remember, the Obama administration was initially on board with approving the Keystone project, but last November, under heavy pressure from environmental activists, it reversed course and put off a decision until after the 2012 elections, citing the need for further environmental review of the  project.  That decision was intended take the divisive issue off the table during an election year.

Here’s the problem. Obama issued his veto threat without in my view fully gauging how Republicans – and members of his own party – might react to the Keystone proposal.  In fact, it’s quite possible that some Senate Democrats will support a bill extending the tax cut even if it is linked to expedited consideration of the Keystone project.  The reason why is not hard to understand; it will be hard for many Democrats, in a time of 8.5% unemployment and dwindling energy resources, to go on record opposing a bill that backers promise will create jobs and reduce energy dependence on foreign imports. Several labor unions that typically support Democrats have gone on record as supporting the Keystone project as well.  To be sure, a vote for the Keystone bill will again alienate environmentalists but – their dire threats to enact retribution notwithstanding – does anyone really think they will vote against Obama come 2012?

In two months, then, (if I understand the legislative process) when the current extension expires Obama is going to find himself in a very difficult position: he either stands by his veto threat and blocks an extension of the payroll tax because of the Keystone linkage, after pushing for it during the last several months, or he signs on to the legislation and incurs the wrath of environmentalists and the left wing of his party once again.  All this presumes, of course, that some version of the Senate bill passes the House, which will likely vote on the bill later this week.  Based on his past record, if these are his only two options, I am confident I know which one he will choose. But the veto threat makes this a far riskier choice than it otherwise had to be.

To be sure, if Obama wants to stand by his threat, he may get some political cover from the State Department, which must issue the permit approving the Keystone project. It has said it cannot conclude a review of the pipeline project within the next 60 days.  So in theory Obama can claim that his hands are tied and reject the project come next February.  This maneuver, however, won’t stop Republicans from using this as a campaign issue by portraying Obama as anti-jobs and in hock to environmental extremists.

I’ll leave it to those more knowledgeable than I regarding the merits of the Keystone project.  But politically, Obama has boxed himself in with his veto threat.  This is still another reminder that we often confuse the exercise of a president’s formal powers, in this case the veto, with actual power – effective influence on political outcomes.  There was no reason for Obama to put his political reputation on the line by personally issuing the threat.  Instead, he could have reprised the more limited threat he used in the military detainee debate, in which his advisers, but not Obama, recommend the veto threat.  This allows the president to signal his preferences, but leaves some wiggle room for negotiating a compromise. Instead he has put his political reputation on the line.

The choices a president has in his own hands are his only means of guarding his power prospects. Given the limited opportunity to influence events, presidents must be acutely sensitive to the likely impact of those choices on their sources of power.  I could very well be wrong but from my vantage point it’s not clear that in this instance, Obama fully gauged the long-term risks in making his veto threat.