A torrent of charges and counter-charges involving the President, Monica Lewinsky, the
independent counsel, and others focus attention on the soap opera dimensions of this case while
ignoring its constitutional implications. Yet the fate of democracy in America may well hinge on
our ability to cope with complex and dangerous issues, both national and international, that
require the careful and sustained attention of our leaders, especially our Chief Executive. To
threaten him with impeachment, to call for his resignation, or simply to put him severely on the
defensive, may well punish all of us. To understand why this is so, we need to look at the open
secret that we call our "Constitution." It is an "open secret" in the sense that everyone knows
about it yet refuses to discuss it -- like a "skeleton in the closet" that we hide from ourselves.
In the current highly partisan climate, it's the threat, not the act, of impeachment that counts.
Opponents of the President talk a lot about the possibility of impeachment or presidential
resignation without, in fact, acting to bring it about. Indeed, impeachment would harm their
interests and they know that, but they are unlikely to mention this conflict of intentions. Since
impeaching Clinton would bring Gore to the presidency, thinking Republicans will not want to
empower a new president who would probably be harder to defeat than a lame-duck. However,
they might count on the threat of impeachment to unnerve the president enough to shake his
administration and enhance their electoral prospects -- such thoughts do not lead to attacks on a
successful president's policies but they support efforts to criminalize him. No commentator or
journalist I have heard recognizes this fact -- instead, they appear to take calls for impeaching the
President quite seriously.
SEPARATION OF POWERS. To understand the paradox of American politics as it is playing
out today in the "bedroom farce" of Clinton and Lewinsky, one has to understand the dynamics of
the American "separation-of-powers" constitutional system, something that can be best
understood by making comparisons with the "accountable-chief-executive" system. Such systems
involve a balance of power between elected representatives who are members of an assembly, and
a chief executive presiding over the administrative apparatus designed to administer an
organization's policies. This structure is applicable at many levels -- private corporations, cities,
and national governments.
In most corporations, a board of directors representing stockholders is able to discharge the
manager (chief-executive officer) whenever their members feel that s/he is not doing a good
enough job. The same principle applies in a council/manager city whenever the elected
commission seriously faults the manager. All industrialized democracies (except the U.S.) also
have such a system which they call "parliamentary" -- it enables a new majority in the elected
assembly to oust the C.E.O. (called a prime minister or cabinet) by a simple vote -- as Blair
recently replaced Major in the UK. In the January 28 issue of the Christian Science Monitor, Kent
Weaver of the Brookings Institution calls our attention to many other contemporary instances
where a parliamentary majority has discharged the incumbent Government.
By contrast, as Weaver notes, in the U.S. "We elect presidents for fixed terms... a wounded
president can stay in office until the end of his term.." He quotes Lloyd Cutler -- a leading lawyer
who has been seen on recent talk shows where the President's situation is being discussed -- as
writing that the great problem is how to discharge presidents "who have outlived their usefulness
to the country" He sees this as "one of the central weakness of our current institutions." If the
CEO or the city manager had a fixed term in office, the board/council could find itself in a bind.
Because I shall make many references to this type of balanced organizational structure, I shall use
ACE ("accountable chief executive") to refer to it by contrast with SOP ("separation-of-powers") to name the alternative system that prevails in the U.S. and its constituent states as well
as in many cities with strong elected mayors. Although parliamentary regimes, such as the British
and Canadians have, are examples of an ACE form of governance, we need not look abroad for
examples of this institutional pattern which is also commonplace in the United States.
The problems of any SOP system -- such as that created by the U.S. Constitution -- can center on the status of an unaccountable chief executive, as noted by Lloyd Cutler. What happens in any such system where the chief executive has a fixed term and can only be ousted before his term is up by resort to impeachment? This process requires criminal behavior, not policy differences? It hinges on judicial, not political processes -- even though Congress itself becomes the judge and the jury. Even when a majority of the electorate supports the president they elected, or when the opposition party has a Congressional majority, the democratic processes that work well in any ACE system are inoperable under SOP rules.
SOP systems set the stage for a frustrated legislative (city council or
board) majority to try to criminalize the chief executive -- e.g. by a
Watergate or Lewinsky scandal? However, I think the frustrated majority
in opposition does not really want to impeach the C.E. because, under our
rules, if a president (governor, or mayor) is impeached, s/he is replaced
by someone belonging to the same party, and the partisan division of power
between the executive and a representative assembly is perpetuated.
FORMALISM. Although an opposition
party may not really want to impeach a C.E., it may have good reasons for
appearing to do so. That's an example of formalism, i.e., a
situation in which one says one thing but means something different. Why
should anyone want to do that in the United States? Consider that, if you
can harass the C.E. enough, s/he will lose h/er composure, get rattled,
and make mistakes leading to growing public policy errors, demoralization
of subordinates in the public service, and a chorus of media attacks --
these may also swing public opinion against the C.E.'s political party and
induce supporters to vote for an opposition candidate to replace the C.E.
at the next election. Of course, members of the assembly who are eager to
be re-elected will also think about the effects of de-stabilizing the C.E.
on their own political ambitions. How will members of Congress be
affected if Gore replaces Clinton? I assume they have to think about
that. Does not the SOP structure put them into a double-bind -- if they
press hard enough for impeachment, they will worsen their political
prospects at the next election, but if they don't ask for impeachment,
they will permit the maintenance of their opponents in office.
If one accepts the existing system as
impervious to change, one may well decide to ignore it as a fixed
constraint that we ought to ignore. Yet even if that is true, are there
other options to consider. Kent Weaver, in the piece mentioned above,
suggests that if the president were willing "to put the interests of his
country and party above personal considerations..." he might be willing to
resign in favor of a replacement. But would that really create an
accountable chief executive (ACE). When partisanship and having a
legislative majority is at stake, substituting one member of the
president's party for another will scarcely satisfy the opposition.
VIABLE CONSTITUTIONALISM. Can we
really afford to ignore our constitutional system as an irrelevant
parameter? I, for one, would like to see a public debate mounted as a
context for the current scandal. Perhaps the immediate issues could also
be evaluated in a more objective way if we shifted our focus of attention
from the current charges and counter-charges to a discussion of their
constitutional context. Such a discussion might take into account a number
of useful considerations. One of them is based on comparisons with other
regimes following the SOP model. All of them, I believe, have been
extremely vulnerable to disruption and replacement by a military
dictatorship or presidential autocracy. Statistical analysis shows that
parliamentary (ACE) regimes are much more likely to survive than SOP
systems. Some considerations about these matters can be found on my Web
Page at http://www2.hawaii.edu/~fredr/6-lap9a.htm, a draft of the article
on "Presidentialism versus Parliamentarism" later published in the
International Political Science Review, 1997 (18:3) pp. 253-278.
Consider the fact that virtually all
industrial democracies now have parliamentary regimes and can scarcely
understand why Americans persist in maintaining an anachronistic system
that reflected a stage in 18th century British constitutional history when
King and Parliament were still involved in a deep struggle for power. The
U. S. republicanized that system by placing an elected "president" on the
throne as both head of state and head of government -- a citizen"king."
Our "checks and balances" were intended to make an unworkable system work,
even though badly, on the premise that a government that governs weakly
with countervailing power is safer than one that can govern vigorously.
Practical as that may have been in the pre-industrial 18th
century when self-subsistence farming and petty trade prevailed by
contrast with the highly globalized and technologically complex world we
now inhabit, it has become anachronistic as the 21st century
Shortly after the American Revolutions,
Parliament won out in England and royal powers became ceremonialized, and
a prime minister/cabinet in charge of governance became subject to
discharge by majority vote at any time. As constitutional democracies
replaced monarchic absolutism during the 19th century, the
republics or constitutional monarchies that followed all adopted an ACE
pattern which enabled some admired person -- whether elected or hereditary
-- to symbolize the state while someone else who was responsible to the
electorate, through parliament, was empowered to run the government.
Although the forces of inertia blocked basic Constitutional reform in the
direction of executive accountability in the U.S., they did not prevent
the rise of accountable governance in many American cities where a viable
form of council/manager rule was adopted -- and after public corporations
evolved in the U.S., most of them also adopted forms of management based
on the accountability of CEOs to elected boards.
The REPUBLICAN DILEMMA. The
anachronistic difficulties inherent in the SOP system are reflected in the
current crisis. Consider the position of the Republican opposition in
Congress. Although their members are eager to replace the president, they
cannot put him out of office by any "no-confidence" vote, despite their
majority standing, as they could in any ACE system. Instead, they must
remain frustrated for at least two more years while hoping that a
Republican President will succeed Clinton. They thought they had a good
chance until the economy improved and Clinton's popularity ratings rose.
Then they saw their prospects for success declining and they became
desperate -- any kind of dirty tricks seemed justifiable. Actually, I
suspect, some Democrats also feel ambivalent about the Clinton presidency
-- as a lame-duck, his coat-tails become ever more fragile and if he could
be replaced by Vice President Gore, they might begin to feel more secure.
I suspect that the hidden motive of
Republicans in Congress is not to impeach the president or even induce him
to resign, but rather to shake his regime enough to produce a serious loss
of public confidence. If so, it has now become a war of nerves. If you
can undermine the self-confidence of the president and destroy his ability
to focus on complex policy issues, you might also destroy confidence in
the ruling party -- if a rattled President will make some gravely faulty
decisions, the bad results will shake the public's confidence. Of course,
everyone will suffer -- we will all be victims. But the opposition will
enhance their electoral chances, and the media will substantially increase
their income -- the larger the audience, the more they can charge the
advertisers. They can appear to be disinterested by sponsoring talk shows
on responsible journalism without ever facing up to the ultimate costs of
the current media frenzy.
A recent "60 Minutes" show highlighted the
incident not long ago when President Yeltsin had 10 minutes to decide
whether or not to launch nuclear weapons against the U.S. in response to
what soon turned out to be a false alarm -- a Norwegian experiment -- and
it was with only two minutes to spare that we were saved from a
catastrophic event which might well have launched the new "World War"
Yeltsin is now worrying about. Whatever his flaws, can we afford to
rattle an incumbent president so much that he will make serious errors of
judgment about Iraq, Palestine, financial crises or Medicare -- a host of
important questions that will affect most if not all Americans. Unless a
president is handling his public duties in an irresponsible way, should he
not be given every possible benefit of the doubt to enable him to carry
out his official duties as best he can.?
The CULTURE OF PRURIENCE. Apparently
no one in the media appreciates or is aware of these constitutional
issues. They act as though the only question is whether or not the
charges are true and exactly what was done, by whom to whom -- who screwed
up? -- the prurience of a prudish culture enlarges their audience and
increases their ratings. I think no European public would blink an eye --
in the Philippines a politician who doesn't have a querida is thought to
be unmanly, but of course no one discusses his affairs openly. Is the
excessive zeal of the independent counsel not only embarrassing the
president but also undermining the foundations of democracy in a
precariously balanced SOP regime where helping the president regardless of
his personal limitations may be crucial for the survival of democracy
because of the C.E.'s fixed term in office
The question we need to ask each other should not be who's right or wrong in the current scandal -- let that be resolved by the injured persons after the president's term in office ends. Meanwhile, should we not be talking about the constitutional implications of this episode, discussing what can be done to make democracy in America work better and more effectively? Perhaps we have been so conditioned by soap opera farces and media frenzies that we are willing to focus our attention on what a young White House interne has done and said as though the president's alleged infidelities were more important than the life, health and future issues whose solution affects all of us and may well hinge on presidential decisions..
See linked pages:  Some thoughts on the constitutional basis for presidential impeachments
An analysis of the relative capacity of different constitutional systems
A bibliography of works by Riggs 
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