Senators Orrin Hatch and Pat Leahy, representing the Senate Committee on judicial affairs, spoke recently on TV about the implications of presidential harassment. They made the point that recent presidents have been subjected to a growing storm of personal attacks attributable to the fact that the party in opposition to the president's party held a majority in Congress. They wondered out loud whether or not this had negative effects for the country and ought to be stopped -- perhaps by legislation their committee could consider. They suggested the question had constitutional implications, but they did not elaborate on this point.

I was delighted to hear these statements but disappointed they did not elaborate on the constitutional questions which they merely hinted at. I hope they will raise this subject in the future and thought it might be useful to call their attention to the fact that in all other industrialized democracies, a parliamentary majority is able to replace the chief executive (prime minister and cabinet) by a no-confidence vote based on public policy questions. In the United States (as in other countries following our "presidentialist" separation-of-powers principles) a Congressional majority party in opposition to the President can only bring down a chief executive by impeachment (or threats of impeachment). Since policy issues provide no grounds for replacing the chief executive in our system, efforts are frequently made to use the threat of impeachment as a weapon to harass the president, hamper his effectiveness as head of government, and undermine his political party so as to enhance the oppositions prospects for winning that office at the next national elections. Since the criteria for impeachment involve "high crimes and misdemeanors," they usually offer pretexts for personal attacks on the president rather than criticisms of his policies. The dangerous consequences of this strategy, which has now escalated to a greater degree than ever before, deserve public attention and debate. I attempted to bring them to the Senators' attention by means of the letter which follows:

Date: Wed, 29 Jul 1998

From: Fred W. Riggs

To: Senators Orrin Hatch and Pat Leahy

Subject: Constitutional Issues Involving the Presidency

Dear Senators Hatch and Leahy:

I was deeply impressed this morning by your press statements about the Judiciary Committee's interest in problems involving presidential harassment. As you pointed out, the harassment of President Clinton has reached new heights (or depths?) but the practice goes back to earlier presidencies. It involves constitutional issues, as you suggested, but I wish you would probe more deeply into the underlying dynamics of this process and explain it to the American public.

As I see it, harassing the president is endemic in any presidentialist type of constitutional system based on the separation of powers. Whenever an opposition party has a majority in Congress in such a system, it is unable to replace the chief executive by a policy-based vote of no confidence -- something that can be done in all of the industrialized democracies except ours. Following the basic principles of parliamentarism, a parliamentary majority has the right to replace the cabinet and prime minister with a new government that has majority support. Our system denies us that right for reasons that go back to the 18th century origins of our system, something I have commented on in print on various occasions -- I could send you a bibliography, if you wish -- see the links given below

Although our constitutional rules permit Congress to impeach a president, this is a step that only works if both parties agree that the president has genuinely committed "high crimes and misdemeanors" that truly disqualify him to serve as our chief executive. When it's a partisan maneuver, however, impeachment does not work for an opposition majority because it only replaces the president with the vice president, thereby retaining the same party in command at the White House.

However, the threat of impeachment is a potent Damocles Sword to hang over the president's head as a way of harassing him in order to distract him from the conduct of public policy and to weaken his administration and party so much that the majority party in Congress may hope to secure the presidency for a candidate of their party at the next election. Whether or not harassing the president works for the majority party in Congress, it certainly damages the interests of the American people. We cannot count on all presidents having the stamina to ignore such harassment and focus steadily on the people's business. Some become paranoid and start to see enemies on every street. As presidential harassment escalates, a likelihood that your statements today presage, we may expect well qualified candidates to be increasingly unwilling to subject themselves to it, and the quality of future presidents will decline, a second reason why harassing a president seriously harms the national interest.

I was encouraged by your statements today to think that you might be willing to recognize the constitutional grounds for our difficulties and take steps to reduce the level of presidential harassment, now and in the future. There has been a great deal of emphasis in recent years on reducing the harassment of women in the workplace, and of course, I think that's wonderful. However, it seems ironic that no one questions everyone's right to harass the President -- a man who is the "employee" of all Americans and, ultimately, we do need him to do the job he was elected to do and we should give him every opportunity to do it as well as he can.

To introduce myself, let me say that I am a professor emeritus of Political Science at the University of Hawaii and I have written a good deal about the constitutional problems of presidentialist regimes -- virtually all of which, except the United States, have experienced catastrophic breakdowns and military rule or presidential authoritarianism. This has long been true in Latin America, but recent experience in Eastern Europe and the former Soviet Union demonstrates that those countries which chose parliamentary governance have done significantly better than those following our separation-of-powers principles. Not long ago, I made this point in a short article for the Magisterium Encyclopedia, an international project based in Moscow. They were worrying about how to design a workable constitution in all the ex-Soviet states and asked for my thoughts which you can find on my Home Page at: Costs of Presidentialism

A more detailed discussion that focuses on why our American presidentialist constitutional system has not suffered the same fate as the score of other countries that followed our example can be found in a book, COMPARING NATIONS, edited by Mattei. Dogan and Ali. Kazancigil (Blackwell, 1994). My article is called, "Presidentialism in Comparative Perspective," pp. 72-153. Unfortunately, our constitutional scholars and political scientists never compare our experience with that of other countries that followed our separation-of-powers example. If they did, they would have found that our system is a recipe for disaster simply because of the inability of the majority in Congress to hold the chief executive accountable. This can easily lead to an impasse that often leads to a breakdown of democracy and military authoritarianism or presidential autocracy, while the legislature is abolished or reduced to a puppet of the ruler.

Since both of you have Web Pages on which you offer information relevant to the deep concerns of your constitutents and of all Americans, may I suggest that it would be appropriate to add some links to scholarly work that seeks to explain the problems you are now confronting in Washington with the implementation of our constitutional system -- I'd be glad to offer suggested references. I have been struck that in all the furor generated by the present grand jury inquries into the President's conduct, there has been virtually no discussion of the constitutional reasons for this painful process. Why is that? Can you not, through the Senate Judiciary Committee, open up some inquiries into these matters? They deeply affect all of us.

With high regard and all best wishes,

Sincerely, Fred W. Riggs

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Updated: 29 October 1998