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by Fred W. Riggs
NOTE: This is a pre-publication draft. The article was published as:
Impeachment vs. Harassment a guest editorial in the Public Administration Review 59:1 (1999) pp.1-4.
In all the current drumbeat of publicity about the President's alleged crimes no commentator or
scholar whom I've heard or read in the mass media takes into account the constitutional
constraints under which this "scandal" has evolved. Yet these constraints have far-reaching
implications for public administration and for the general welfare of the American people and
our democracy. The basic point is easily understood. In all the industrialized democracies where
parliamentarism prevails, a legislative majority can oust the chief executive by a vote of no
confidence based on any controversial public policy issue. By contrast, in the American
constitutional system, presidents are elected for a fixed term and can only be ousted by a
legislative majority through the painful and prolonged process of impeachment, a process that is
clearly impractical, costly, explosive and unsuccessful.
Is impeachment, therefore, the real goal of the current Congressional majority? I think not.
Instead, they seek to harass the president so long as he remains in office, thereby hoping to
disconcert him enough to cause such serious blunders that his reputation and that of his party will
be irreparably damaged. Perhaps the opposition's prospects for electoral victory will thereby be
enhanced, but at what cost? No doubt some politicians hate the president so much they just wish
to punish him. However, I believe the majority seek electoral success for themselves and their
political party but find themselves blocked by the rules of a constitution based on the separation of
powers. We need to understand what is going on, therefore, as a political game.
Although many of the President's political opponents talk a lot about impeaching him, or compelling him to resign, I believe this is not their actual intention because, as everyone knows, it could only empower the vice president, someone belonging to the president's own political party. In fact, therefore, actual impeachment would probably hamper the Congressional majority -- a new and vigorous president would surely become a difficult candidate to defeat. Shrewd members of the congressional majority in a politically "divided" government might better enhance the prospects for bringing a member of their own party to the presidency if they focused on undermining the vice president. If they could seriously handicap him as a presidential candidate, they might provoke a bitter intra-party primary struggle that could undermine his prospects for electoral success even if he were to be nominated. But if he were to serve for a while as interim president, his prospects for becoming the next nominee without an intra-party conflict would be increased. This would not only conserve his energy and resources, but help to unify his party in the next presidential campaign. The current attacks on the vice president, however, appear to be half-hearted -- perhaps because they generate no popular enthusiasm and could easily become a political boomerang
Actually, impeachment can also boomerang against the opposition majority as demonstrated in the November 1998 election which reduced its numbers in the House of Representatives. This caused intra-party questions that led to the decision by Newt Gingrich to abandon the Speakership and even to withdraw from Congress. The reason seems clear enough: its preoccupation with the impeachment struggle hampered the normal Congressional processes of law-making to such a degree that urgent policy issues were neglected. This appears to have concerned voters more than the continuing focus on presidential wrong-doing, morally reprehensible but inconsequential politically.
Further evidence of the Congresional impact can be found in a statement by Senator Arlen Specter which appeared in the New York Times on Nov. 11, 1998. He wrote that it is now "difficult to decide how to deal with the pending issue of impeaching the President. Starting with the constitutional interpretation of 'other high crimes and misdemeanors,' respectable arguments can be made on both sides of whether perjury and/or obstruction of justice, if proved, are impeachable offenses." Later that day, on the Burden of Proof program, Specter asserted that the Senate would no doubt be unable to secure the two-thirds majority needed for actual impeachment.
This point is no surprise, but it is significant that a leading Senator should acknowledge the fact because it underlines the fact that the preoccupation of the House with impeachment proceedings and its open partisanship were designed to harass but not impeach the president. A hidden agenda may even have been to strengthen the resolve of the Senate minority to block a two-thirds majority! Both assertions by Specter can be understood as trial balloons designed to permit Congress to gracefully terminate the impeachment proceedings.
The current position can be clarified by a contrast with the Nixon hearings which were necessarily bi-partisan because the majority in Congress anticipated that enough members of the minority party would support the decision to make the president's removal by a Senate vote feasible. All the discourse about criteria for determining what offenses are impeachable was clearly a facade for the underlying process which was surely political -- how can any majority party in the American system ever compel a minority president to comply with its policy preferences? The only constitutional weapon they have is impeachment based on personal wrong-doing, not public policy issues.
To understand this paradox of American politics, one has to recall the dynamics of the American
separation-of-powers constitutional system as taught in every introductory text on our system of
government. It is important to distinguish clearly between this principle and the notion of a
divided government which refers to the situation in a separation-of-powers system where
different parties control the Executive and Legislative branches. Such a division is avoidable in
parliamentary regimes because a no-confidence vote can prevent it -- admittedly, when too many
parties fragment parliament, weak governments arise subject to frequent crises, but that's not the
same thing. We need to remember that all of today's industrial democracies were created a half
century or more after our 18th century model was born. At that time, kings and parliaments were
battling for power and our founding fathers assuming that this condition was necessary to prevent
autocracy, relied on elaborate checks and balances to avert serious crises. However, during the
19th century, parliaments discovered they could prevent autocracy by holding a ruling cabinet
accountable to the elected representatives of the people, while reducing their monarchs to figure-head status. This enabled a stable center of political legitimacy to be established in the form of a
king or president who was not vulnerable to attack because the throne had lost real power. By
contrast, a politically accountable head of government could be freely criticized because s/he
could easily be replaced. The paradox of presidentialism is that attacks on a president not only
hamper the executive power of government but undermine the legitimacy of the state.
Strangely, although we retain this archaic model in our national and state governments, we have
rejected it in local government wherever we have city managers. In most of our corporations, the
chief executive is continuously accountable to a board of directors elected by shareholders.
Moreover, in our voluntary associations -- like ASPA -- the executive secretaries responsible for
managing the organization are subject to dismissal by a council composed of elected members.
The principle of executive accountability is familiar to Americans, therefore, even though we do
not think of applying it to our most important levels of self-government for the nation and the
states. Why? And at what cost?
Most Americans are well aware of the way Tony Blair replaced John Major after his party won a
Parliamentary majority in England but we scarcely ask ourselves about the cost of not being able
to make our president politically accountable to the legislative majority. Moreover, because our
system has survived, we ignore the fate suffered by the score or more of constitutional systems
based on our separation-of-powers (presidentialist) system. Most of them are in Latin America,
and there are also a few in Asia and Africa. In all of them, catastrophic breakdowns have
occurred in which, normally, a military coup group seizes power although sometimes a president,
with strong military backing, is able to discharge the Congress and become an autocrat. The case
we know best is that of the Philippines under Ferdinand Marcos, but the same story was recently
repeated in Peru where Alberto Fujimori, who was elected president in 1990, seized power and
dissolved Congress two years later after a turbulent conflict with the legislature. If we are not
careful, could our system not suffer a similar fate? Should we not, therefore, think more carefully
about the conditions which permit our system to survive, exceptionally, in the United States?
We rationalize our indifference to the fragility of our presidentialist constitution by assuming that
all the countries where this kind of system has failed were victims of non-constitutional factors
such, for example, as their economic backwardness, their peculiar religious or cultural traditions,
their climate or geographic conditions, etc. Perversely, we also excuse ourselves for not paying
attention to the failures of separation-of-powers constitutional systems by protesting that their
failures make them unworthy of serious attention. The apparent success of restored democracies
in Latin America have induced further complacency by providing support for those who think of
democratization as an evolutionary process in which these unfortunate countries have finally
matured. We do not ask about the conditions that may facilitate the survival of regimes seeking
to achieve democracy by means of an inherently fragile constitutional system.
Our comparativists reinforce this gap in our knowledge by focusing on parliamentary regimes, an
unconscious tribute to their relative success. If comparisons are only useful when we are looking
for good examples to emulate, then our focus on parliamentary systems at the expense of
separation-of-powers systems may reflect a kind of envy that was, indeed, made explicit by such
American observers as Woodrow Wilson and Charles Hardin.
More generally, perhaps, as the current "scandal" illustrates, we don't bother to ask how the rules
of the game affect the way any game is played -- those who play bridge or watch baseball simply
know the rules and don't discuss them even though, of course, every play is predicated upon the
application of these rules. Would it not be silly, however, to try to explain behavior in a game
without knowing what its rules are?
If we studied our constitutional system seriously by comparing it with others based on the same
fundamental rules, we might see how essentially precarious it is and how truly exceptional is the
capacity of the American system to survive. We would then also understand how crucial for our
success is the balancing act that has enabled our presidents to maintain the dignity required of any
viable head of state while also serving effectively as an embattled chief of government. To
undermine the president is, in our system, both to hamper the effective administration of
government and to jeopardize the legitimacy of a regime that is under growing attack from many
quarters. To put this point more positively, we need to preserve a precarious balance between
holding the president accountable for his performance as chief executive while shielding him from
attacks that, in effect, undermine the authority of our system of governance.
I think the parochialism shown by our failure to analyze our constitutional regime comparatively is
primarily responsible for our blindness. However, it is also due to our complacency in assuming
that because our system has lasted over two centuries, it will not collapse. This leads us to ignore
important questions that we need to ask. Think about the costs to our system of the continuing
threat of impeachment as a kind of Damocles sword -- a perpetual yet never realized threat
against any U.S. president. Yet talk about that threat and the charges offered to support it make
the president a subject of ridicule and provide ammunition for all the enemies and critics of our
government, from talk show hosts and rebellious ethnic minorities to armed militia groups and
increasingly powerful criminal gangs. Delegitimizing our government compels us to rely more
heavily on law enforcement, threats of police violence and ever more prisons. Voluntary respect
for the law is replaced by growing fear of punishment. Increasing resistance and anger against
government increases the difficulties faced by all public administrators.
Moreover, to hamper the president's work as the main bulwark for integration of a highly
fragmented structure of public administration is acutely counter-productive. Both the legislative
and judicial branches disperse power among their committees and courts, creating insuperable
problems of coordination between rival agencies that, in its extreme form, sustains separate
subgovernments (iron triangles) that defy integration. The Public Administration literature is full
of accounts documenting this fact as though it were an American eccentricity and a product of
our cultural traditions by contrast with what is normal in other industrialized democracies. In
fact, however, I see it as a built-in result of our constitutional system whose success actually
requires both Congress and the Judiciary to distribute power among powerful comonents, each
able to shape policies in response to a host of special interest constituencies. Instead of having the
unity of authority called for in administrative theory, our constitutional system institutionalizes a
system of highly divided authority, not just between the three branches but, actually, between a
host of competing and jealously autonomous power centers in each of these branches.
In this context, the only branch that has a potential for linking the disparate components of our
administrative system is the Executive. Presidents cannot rely on career civil servants to
accomplish this integration, however, because, if they did, their executive power -- which is
inherently much weaker than the power of a Parliamentary cabinet -- would easily be captured by
a small group of top-level permanent officials. To maintain executive power, therefore, it is
necessary for each president to appoint a powerful coterie of personal supporters to the Office of
the White House. As Cabinet members have become increasingly responsive to their
Congressional supporters and bureaucratic establishments, the need for a more powerful
executive office staffed by transient in-and-outers has increased.
Needless to say, their effectiveness hinges completely on their loyalty and their willingness to
support the president as the essential bridge between his executive leadership and a vast and
complex apparatus of government by permanent career officers who, in our system, are primarily
responsive to their agencies rather than to "governance" as a whole. This is a function our
agency-oriented career civil servants cannot perform. In this truly exceptional non-mandarin
career system, turf loyalty is rewarded -- it undermines solidarity for any integrative process of
government such as permanent undersecretaries can provide for their political leaders in a cabinet
(parliamentary) system of governance. The separation of powers makes such a system impossibly
powerful for us and the authors of the Pendleton Act wisely transformed the British mandarin
model when they created our career services.
If this argument is valid, then any project to undermine the president, any president, is a threat to our whole system of government since harassing the president also disrupts the White House staff and reduces its capacity to help integrate an essentially dispersed structure of public administration.
This vision is diametrically opposed to the soap opera scenario in which the battle between an aggressively independent counsel and a recalcitrant president has taken on epic proportions and, precisely because it hinges on a bedroom story, it seems to have titillated the public's imagination and sustained the interest of a fascinated, even if reluctant, mass media -- they have become so accustomed to looking for embattled heroes and villains that they scarcely see how their own interests are jeopardized by this continuing saga to say nothing of how the public interest is thereby also seriously undermined.
Fred W. Riggs, University of Hawaii, Honolulu, HI 69822.
NOTE: This essay is based on earlier works that examined the American constitutional system in greater detail, including the following:
1997. "Public Administration in America: A Comparative Perspective." Public Administration Review. See the abstract and full original text
1997. "Presidentialism vs. Parliamentarism: Implications for Representativeness and Legitimacy." International Political Science Review 18:3, pp. 253-278. This is a truncated version of the full text.
1995. "Modernity and Bureaucracy." Public Administration Review, Vol.57/4, pp. 347-353. See the original draft.
1994. "Conceptual Homogenization of a Heterogeneous Field: Presidentialism in Comparative Perspective." Comparing Nations: Concepts, Strategies, Substance. Mattei Dogan and Ali Kazancigil, eds. Oxford, UK: Blackwell. pp.72-152.
1994. "Bureaucracy and the Constitution." Public Administration Review. vol. 54:1, pp.65-72.
1991 "Public Administration: A Comparativist Framework." Public Administration Review. 51:6, pp.473-7..
1986. "The Survival of Presidentialism in America: Para-Constitutional Practices." International Political Science Review. 9:4. pp.247-278.
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 related works by Riggs 
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