Senator Howard Baker
C/O BAKER, DONELSON, BEARMAN & CALDWELL
Market Square, Suite 800
801 Pennsylvania Avenue N.W.
Washington, DC 20004
Dear Senator Baker:
As a Senate leader and former Chief of Staff, your experience and wisdom are widely respected and I have the greatest admiration for you. When you spoke on TV recently I really appreciated your comments, and began to think about the possibility that you could make a major contribution toward the strengthening of our constitutional system, without any formal amendments, that might lead us in the direction of parliamentarism. It is precisely the intensification of partisanship, about which you spoke, that threatens the ability of our system to make decisions when civility in Congress and bi-partisanship are so urgently needed.
I was a bit surprised when you referred to the impeachment process against President Clinton as having BECOME very partisan. Some commentators refer to it as moving in the direction of parliamentarism as though that would be a terrible thing. I thought it was highly partisan from the very beginning in a way that is not at all parliamentary but symptomatic of a deep pathology in our separation-of-powers system.. However, a rather simple move in the direction of parliamentarism might be very helpful -- I'll speak about it below, but first I want to make some relevant points.
Because you were in London at the very seat of parliamentarism when you spoke on TV, I wish you could share your own thoughts about our two constitutional systems. Most American commentators speak in very derogatory terms about parliamentarism as though it jeopardized the rule of law and civil liberties, virtues more likely to be protected by our system. Would you agree that in England -- or for that matter, in Germany, Sweden, the Netherlands, Austria or any other industrialized democracy -- parliamentarism has been a failure in protecting the rights of citizens? I think in both systems democracy can be safe.
However, parliamentarism provides a solution for the basic problem that afflicts Washington today. The impeachment crisis is only a symptom of the constitutional crisis that can be caused by divided government. What we are now experiencing is not a move toward parliamentarism but a pathology due to its absence. Whenever a majority party in Congress confronts a minority party President, the potential for serious conflict arises? I believe such conflicts or violent efforts to prevent them have been at the root of the failure of all the 30 or so countries that have adopted our separation-of-powers formula. The results have been disastrous for their nations -- none of them have been able to industrialize successfully. I believe America is the only presidentialist (separation-of-powers) country that has been able to industrialize and has, until now, remained stable.
We have succeeded in the past because, in part, whenever we have had a divided government, bi-partisanship and moderation on both sides have enabled us, no doubt after some bitter disputes, to reach agreements between the President and the Congress. This was possible because members of Congress could "vote their conscience" and the party was often not decisive. When Newt Gingrich and his Contract with America triumphed in the House, a new era of partisanship dawned. Or perhaps it was Clinton himself who blundered when he was elected in 1992 thinking that, with a majority in Congress, he could push through far-reaching CHANGES -- for that was his campaign promise. Perhaps his experiences in England as a Rhodes Scholar misled him into thinking that our system could be parliamentary in the sense that party discipline would deliver the votes to support the reforms he hoped to achieve. If so, his efforts backfired because they not only failed, on crucial issues like comprehensive health reform, to secure the necessary Congressional support, but they also antagonized the Republicans and provoked the effort that produced a victory for them in 1994. For the first time in American history, I believe, an opposition majority in Congress decided to use the impeachment weapon against an incumbent president and took advantage of the independent prosecutor to hunt for a plausible pretext.
They were aided in this effort by a subvisible group of anti-Clinton lawyers who have escaped publicity, but were identified by the NEW YORK TIMES in an article published on January 24. I don't have the original text, but I copied it from my Web Page at: www.nytimes.com/library/politics/012499jones-lawyers.html/ Their efforts were modestly bankrolled ($80,000) by Peter W. Smith, a major donor to Gingrich's Gopac, and therefore, I assume, a strong hand behind the Republican strategy that brought Gingrich to the Speakership and informed his partisan leadership.
The Smith group included Jerome M. Marcus, a Philadelphia lawyer, who wielded the "wrecking ball... [that] managed to drive Paula Corbin Jones's allegation of sexual misconduct into the courtroom and beyond." Strangely, I've seen no follow-up media references to this revelation, but it seems clear that a group of Republican anti-Clinton activists were able to catalyze the project that, after its early failures, eventually unearthed the Lewinsky scandal and set the traps which led the President into his alleged acts of perjury and obstruction. The House committee hearings and the decision to impeach reflected this extreme partisanship -- rarely, I think, has any division in Congress been so sharply partisan.
The contrast with the Nixon case is striking. In that case, the president's actions provoked sharp reactions among members of his own party as well as the opposition majority. The impeachment effort, therefore, met the standards set by the Founding Fathers. The impeachment project followed the presidential abuse of power. By contrast, in the present case, it was not any of his actions that produced a Congressional response -- rather, it was a prior decision by the opposition majority to look for some grounds that could be used to impeach the president. I suspect they were not so much interested in replacing him with Al Gore as in the effort to pressure him to accept their decisions or, failing that, to enhance their prospects for electing a Republican president in 2000.
Although it now seems clear the Senate trial will not result in the removal of the President, it will surely blacken the cloud hanging over his administration and hamper his efforts to secure legislative support for his policies -- and, certainly, it will not induce him to look more favorably on Republican policies that Congress may approve. The country will suffer, and bitter memories may make it more difficult to return to the civility that helped members of Congress reach bi-partisan agreement on many laws enacted in the past. More importantly, this situation can easily recur in the future, especially whenever we have a divided government.
This brings me back to the parliamentary question. All other industrialized democracies can avoid this kind of fiasco by the simple rule that a majority in parliament can vote out a minority Administration and replace it. We cannot do that. What, then, can we do?. No doubt, to avoid such a seriously disabling conflict in the future, we should abolish the independent prosecutor law and I expect Congress will act to amend or terminate it. Perhaps more importantly, we need to get the Supreme Court the reverse its decision that citizens can bring civil suits against a sitting president. According to the NYTimes story, "No one was more important to the Jones case than Marcus." A subvisible group like his can surely find citizens with grievances against any president and support their inclination to bring a civil suit against him. Paula Jones was just a pawn in the kind of struggle that any opposition majority in Congress could decide to exploit in order to find reasons to impeach a president. It was this group also that backed the Supreme Court case in May 1996 which paved the way for their civil suit ruling against the presidency.
Of course, we should also take steps to restore the cross-party civility that facilitated bi-partisan agreements in the past. But can we count on these measures to succeed after all the damage done by the current impeachment crisis? It seems to me that we ought to start a national discourse anchored in the question: "What's to be done to prevent opposition majorities from resorting to the impeachment weapon to force a minority president to cooperate .with them"? Such a discourse might lead to useful suggestions and corrective action without any formal amendments to the Constitution.
First, however, we need more widespread understanding of the idea that parliamentarism is only a political application of the principle of executive accountability that is almost universally accepted in our public corporations, and also in many council-manager cities in the United States.. Why should not the same principle be applied in our state and national governments? Our discourse need not refer to. Rather we could focus on the principle of executive accountability as it is so widely practiced in America..
I think the basic obstacle to executive accountability in the American government is the fusion of the roles of head of state and head of government in one person. We resist the parliamentary option because we want our Presidents to remain in office as head of state. To move in the direction of executive accountability, do we not need to separate the post of chief executive from that of head of state? We already have the potential for such a division in the role of Chief of Staff which you have occupied -- in addition to the role of Senate leader. The president now has a free hand to name his chief of staff without Senate confirmation. If the position were to be elevated to Cabinet status -- and I don't know why that could not be done in the same way our UN. representative was -- then the office could only be filled with Senate approval. And if that approval were lost, the Chief could be replaced by the president, preserving our "separation-of-powers" image. I suppose the French Fourth Republic could be used as a model -- though I think that could also be dangerous.
If this were done, then I suspect that in cases of divided government, the president would want to nominate someone acceptable to the opposition party -- perhaps even a member -- otherwise it could never be filled. A Chief of Staff sitting with Cabinet Members would also, I think, be more able to help develop policies that could be accepted by the opposition. If the current impeachment crisis leads to greater emphasis on personal conduct and less on leadership ability in the nomination of presidents, it might also have the effect of bringing into office persons likely to enjoy the dignity and prestige of their office while delegating responsibility for executive leadership to the Chief of Staff. If the government's policies prove unacceptable to Congress, the Chief of Staff could be replaced by someone more able to bring about bi-partisan agreements.
Finally, to explain why I am writing this letter to you, let me say that I cannot imagine anyone more highly qualified than yourself to hold such an office. After all, the incumbent, like our distinguished Secretary of Defense, could easily be someone recruited from the ranks of the opposition party. This would not be parliamentarism, but it could involve a move in that direction that would help us resolve what I see as a dangerous trend that could lead to a real collapse of constitutional democracy in our country, as it has in all other countries using our constitutional system.
I can anticipate many problems and obstacles such a step might provoke, but I think each of them can also, step by step, be handled without any formal amendments. Indeed, they should be viewed as steps needed to preserve our Constitution. The key to focus on now is how to detach the office of head of state from that of head of government. If that step could be accomplished, we might then be able to move toward executive accountability. In corporate America, the CEO is not the Board Chairman. .The Board can replace the CEO, but not very easily if the CEO also chairs the Board.
With all best wishes and highest regard,
Sincerely, Fred W. Riggs
Fred W. Riggs, Professor Emeritus
Political Science Department, University of Hawaii
2424 Maile Way, Honolulu, Hawaii 96822, U.S.A.
See linked pages: Impeachment
Written on 2 February 1999
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