The other rule 22

November 14, 2011

Last Tuesday, former president Clinton gave his support to altering the 22nd amendment so that it only limited the number of consecutive terms a person could serve as president, allowing people to leave office and serve again later:

I’ve always thought that should be the rule … I think as a practical matter, you couldn’t apply this to anyone who has already served, but going forward, I personally believe that should be the rule.

How should we think about presidential term limits? Five points.

1) The presidency is different than other offices. I’m totally against any term limits for Representatives or Senators or other officeholders. For all the usual reasons.

But the presidency is far more politically powerful and, more importantly, more ripe for highly-consequential abuse. As Jonathan Bernstein noted while thinking about this a while back, presidents are in a unique position of influence across all policy areas, with lasting effects on the systemic power structure. Someone who could build even a modest House-like incumbency advantage would gain a whole lot of discretion without much of a check from popular elections. And that could have long-term consequences, for both the presidency and for the relative power of the presidency within the system. It’s not clear what kind of incumbency advantage first-term presidents gain — for what it’s worth, David Mayhew thinks it’s pretty significant, and Larry Sabato’s shop has hilariously calculated it at 4.4% — but it’s hard to imagine it’s nothing.

But the thing that scares me about a four-term president isn’t that he might be winning the elections due to an artificial incumbency advantage. It’s that the lack of rotation in the most powerful office might have a seriously corrosive effect on the democratic character of the system itself. The American system does not differentiate between the head of state and head of government, and the fusion of those two roles creates a presidency that not only embodies the nation, but also comes to define it. Ever been in the same general vicinity of a president who you didn’t vote for and really don’t care for? It’s not uncommon for people to just start spontaneously clapping. That sort of gut-patriotism alone is enough to creep me out when I think about undoing the 22nd amendment; then I imagine someone turning 18 who can’t ever remember anyone else being president.

2) The 22nd amendment has some negative consequences. Despite everything said above, there’s little doubt that the 22nd amendment (or the norm that preceded it) has a few serious negative consequences, which can be broadly placed into three different buckets. First, second- term presidents have no electoral incentives to constrain their actions. Sure, public opinion polling matters and presidents certainly prefer to be in good standing over bad. And people like to talk about “legacy” as the constraint. But the observable actions of 2nd term presidents —like  proposing politically-risky policies (like Bush re: SS privatization) or making inexcusable pardons — point toward these alleged constraints being quite different than the electoral connection. You might, of course, think these are good things, and it’s true that they would be available to any president who knew he wasn’t running again, but my instinct is that a higher percentage of presidents would leave office due to electoral defeat absent the 22nd, and so there would be an overall aggregate mitigation of these concerns.

The second issue is that the lame-duck status of the president tends to  hamper his political effectiveness during his second term. Especially by the second Congress of his second term, the president begins to lose public attention and standing as the competitors for the nomination in both parties — as well as their policy prescriptions — arise. Similarly, the various tools of political leverage — patronage appointments, campaign assistance, greasing the skids for specific legislation — become less valuable and less effective, because presidents can’t make future guarantees about anything that happens after the are out of office, and because they tend to run out of chits before then anyway. This point (as well as the first) is not a specific function of the 22nd amendment — it would be true of any last term president who made his intentions known prior to nomination season — but the amendment guarantees that half of any re-elected presidency will function under this cloud.

Finally, there’s the crisis issue. It’s a silly political saying, but there’s a lot of merit to the don’t-change-horses-midstream logic.  I think FDR’s decision to run in 1944 was quite justifiable. Much more so than in 1940. Roosevelt was managing a global war and had personal relationships with the leadership of our allies. It was a tough enough transition when he abruptly died; to crate 2+ months of lame-duckness followed by a change in command might have seriously impacted our global strategy and prospects. The point is that I think it would be a tough situation to be trapped in a long war or crisis situation and be constitutionally required to change leadership. This was one of the key minority arguments against the amendment in the committee report that came to the House floor with it.

3) We never really got to see the post-two-term world. When you stop and think about it, there was a very strange dynamic at play when the amendment was ratified in 1951. In effect, a constitutional amendment was passed to enforce a norm. But that raises the question: if the norm was so widely believed, what need was the amendment? And if the amendment was popular enough to pass, why wasn’t the norm good enough? The answer, of course, is somehow related to FDR and/or the depression and the war. But it’s an open question as to whether 3rd terms — or even presidents seeking 3rd terms — would have become commonplace.

It’s true that the approval ratings of Eisenhower, Reagan, and Clinton were high enough during their last Congresses to plausibly have made reelection possible (Bush 43’s were not). But there’s too much endogeneity to know for sure, and 2nd term presidents might benefit from good feeling once they are out of the electoral game. But even though the norm had been crumbling for the better part of a century — Grant sought a non-consecutive nomination in 1880, TR ran for what would have more or less been a non-consecutive 3rd term in 1912 — it would still have had an impact, judging from the fact that the amendment was ratified. So it’s far from clear that FDR would have opened the floodgates to 2nd term presidents automatically standing for re-election the way 1st term presidents do.

In effect, we’ve had four historical phases regarding the terms. First, in the patrician era there was strong elite opinion against the 3rd term, stemming from some combination of political theory, Founding thought, and Washington’s example. Following Jackson’s presidency and the onset of the powerful mass political parties, there was an institutional constraint on the 3rd term — the parties were loathe to nominate candidates even a second time, out of fear that the president could build his own patronage system and come to dominate the party, rather than be beholden to it. Later, in the later 19th and early 20th century, there existed a popular norm against the 3rd term, even as the parties warmed to the idea of multi-term candidates. Finally, beginning with the Eisenhower presidency, there is the constitutional rule.

4) Clinton’s plan does not strike me as an improvement. There are two distinct ides in the 22nd amendment. The first is that no one should be president for more than 8 consecutive years (or 10 in the case of inheriting the office). The second is that no one should be president for more than 8 years (or 10) during their lifetime. Clinton’s proposal is to scrap the second idea, and allow former presidents to stand for the office. There’s an intuitive appeal to this; it certainly mitigates the incumbency-advantage issue. But it doesn’t do anything to address the problems of the 2nd term president or the changing-horses-midstream problem.

And I think it comes with it’s own problems. Former presidents in the modern age are not, by and large, political animals. They are around as statesmen and such, but they don’t hang huge shadows over the political parties. If they were allowed to run again, but not run for a 3rd term, you might end up in a situation where they very much were shadows. That might not be a bad thing, it’s pretty fuzzy. But my intuition is that presidents are quite influential in shaping the party ideology these days, and when combined with the open possibility of running again but having to sit on the sidelines, might create a mess. Could it work out well? Sure, I think Clinton in 2004 might have been a good and winning candidate. But we don’t really know what a Clinton shadow over the party would have meant from 2001-2004.

5) On balance, I think it’s a very close call on repeal. I’d probably end up opposing a straight repeal of the 22nd amendment, because I’m both risk-averse and very much an opponent of expanded presidential power. And that’s what really worries me, the worst-case scenario: someone developing a personal cult, serving for seven terms, and then having his son elected to the office upon his death. It’s farfetched, but in the age of the runaway executive I think any move that expands the power of the presidency has to be approached with an eye toward the worst-case scenarios. It’s naive to think that a contemporary four-term president wouldn’t develop a personal power that went beyond anything we’ve ever seen. And that’s very troubling.

Still, I would be pretty torn about it. The problems with the unlimited system are, like the above hypothetical, almost completely theoretical, whereas the problems with the limited system are well-known and consistently evidenced in two-term presidencies. On this I agree with Bernstein; the best world would be the post-Jacksonian and pre-FDR world, where the norm was either culturally strong among voters or institutionally enforced by political parties jealous of the power multi-term presidents might acquire at their expense. And while the latter is unlikely to ever be coming back, the cultural/electoral norm could theoretically be resurrected.

Still, the ship has sailed on a two-term system held together by norms. Not because I don’t think the norm exists in the modern mindset, but because the only plausible situation in which  the 22nd amendment could be undone is one in which  there is a groundswell against both the amendment and the norm. Nor do I think there are other workable solutions. I don’t like Clinton’s plan. I think a three-term limit would be completely counterproductive, embodying the worst of both an unlimited system and the 22nd amendment system.  And you don’t have to live in Virginia to know that all the proposals for a single 6-year term are insane.


One Response to The other rule 22

  1. Matt on November 16, 2011 at 8:01 am

    Great points, Matt. I especially like your summary of how norms/rules limiting presidents to two terms changed over time (point #3). Point #4 reminds me of ex-president Teddy Roosevelt shadowed President Taft (and, to a lesser extent, Wilson). Imagine if Obama faced a real possibility that Bill Clinton would challenge him in the 2012 primaries…

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