News Release
Poli Sci Profs Say Benjamin Ginsberg and Matthew Crenson, professors of political science and co-authors of the book, "Downsizing Democracy: How America Sidelined Its Citizens and Privatized Its Public," (Johns Hopkins University Press, 2002), are currently working on another collaboration, this time a look at the growing power of the U.S. Presidency. They recently sat down to talk about their book and the 2004 Presidential race. The following is an edited version of their conversation.
Collaborating again: Political science professors Benjamin Ginsberg and Matthew Crenson discuss the power of the presidency, the subject of their next book. PHOTO BY HPS / WILL KIRK
Crenson: One is that in order to become president today, as opposed to the 19th century, you have to be almost insanely ambitious. It used to be that people were nominated on the 36th ballot and came out of nowhere and all of sudden they were presidential candidates. Now you have to go through a grueling process, not just the primaries but public exposure. You have to have a very thick skin. You have to be extremely ambitious. So it's changed the character of presidents. And the other thing that's happened is participation in American politics has gone down, which is what Ben and I talk about in our previous book. And the result of that is to disempower those branches of government that depend on popular mobilization, most notably Congress. The president has within his power the wherewithal to carry out his own wishes. Congress has to rely on the executive to carry its will, and the only thing it has working for it is popular support. That's the only way it can keep the president under control.
Ginsberg: And we conducted with one another a little thought experiment and it was really inspired by the events of 2002. If you recall, there was an attack on the Congress, the anthrax attack on the Congress, which resulted in Capitol Hill being closed for a long period of time. If you walked over to the hill, it was rather eerie. It was empty except for security guards. And yet, unless you happened to live in Washington, you never noticed this. The government of the United States went on. Congress was sort of irrelevant to things. So that inspired a little thought experiment on our parts; namely, if you imagine a polity in which popular participation is widespread, in which groups are actively and busily involved in the political process. In that kind of setting, both president and Congress might benefit. Presidents like to be popular, but basically that would be a setting in which Congress would be busy and active. If on the other hand you imagine a polity in which no one participates, there's not much politics at all. Congress would have nothing to do. The president wouldn't care, because the president controls armies and bureaucracies and can govern without a single person participating. I think you would have to call it a King, but nevertheless, he would work perfectly well. And which of these two polities is closer to the United States? Well, unfortunately we're heading in the direction of the second, in which participation is low and presidents have been the beneficiaries of that change.
Crenson: It means you don't have to draft a lot of people. It means you don't have to go to Congress for a lot of stuff. The whole thing can be carried on within the executive branch. That's one of many examples of the same thing.
Ginsberg: For example, presidents rely very heavily these days on executive orders. They rely very heavily on something called regulatory review, making use of an agency that hardly anybody in the United States has ever heard of, an agency called OIRA, the Office of Information and Regulatory Assessment. And if you google OIRA, you get very few hits. Well, OIRA, which is an office within the White House Office of Management and Budget, is charged with overseeing the president's regulatory agenda. Presidents today, President Bush, before him President Clinton, before him the former Bush, President Reagan — these presidents have claimed the right to submit through OIRA, a regulatory agenda to the federal bureaucracy ordering bureaucratic agencies to engage in rulemaking processes to bring about the implementation of the president's agenda. In other words, they tell agencies what rules and regulations to adopt. Now this might not seem very important, unless you realize that in our system of government, Congress enacts a small number of rather vague pieces of legislation every year. So the Congress wants to clean up the environment, for example, Congress passes a bill that says, 'The environment shall be clean." And then appropriates a lot of money, which it gives to various agencies, including the Environmental Protection Agency, and says, "Do something about it. Clean up the environment." Well the agency proceeds to write thousands and thousands of pages of rules and regulations, which have the force of law. The courts treat these as law. Well if the president can control that rulemaking process, he can write the law himself. He doesn't need Congress. And that's what presidents have done. For example, President Clinton, as he was being impeached and as he couldn't get anything through Congress — he couldn't have had the Marigold declared the national flower — President Clinton had most of his environmental agenda written into law, through rules and regulations.
Crenson: And what this means is it's really important who gets to be president, because today the president is more powerful than he's ever been, more able to act unilaterally than ever before. And yet participation has been very low.
Ginsberg: But that's what we think is important. We think about democratic politics, but not democratic governance. We can elect a president every four years and yet the presidency is not a very democratic institution, because presidents exercise power in often very secret ways, in covert ways, in ways we don't know anything about. Presidents take issues out of politics.
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Crenson: The Constitution says, if the president vetoes a bill, when Congress is in session, the president has to send a veto message to Congress. So what the presidents started doing on a regular basis, starting with Reagan, was to write a statement, even when they signed a bill, explaining how they interpreted the legislation. Then they got this published and it becomes part of the legislative history that's used to interpret the law and what these signing statements often say is, "I believe ... I'm going to sign this piece of legislation, but I think that sections 101 and 105 are unconstitutional and I won't enforce them." So in 2002, when it passed the appropriations for the budget for the Justice Department, Congress added a provision, which said, if the executive branch is not enforcing provisions of federal law, because it says it thinks they're unconstitutional, then it has to inform the Congress. So President Bush signed it, then he wrote a signing statement that said, he would tell Congress whether they were enforcing the law, unless it was against national security, executive privilege, the president's control of bureaucratic agencies and about three other items. So in effect, he said, "No dice."
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Ginsberg: Well, of course, it was the president. And presidents have gradually taken hold of the war power to the point that Congress plays a very little role now, and this started during the Truman administration, when the North Koreans invaded South Korea. Congress was ready to declare war. But President Truman's advisors urged him not to ask Congress for a declaration of war, but instead to go to war on his own authority, in order to begin to establish the principle that it was the president and not the Congress who possessed the war power. And Truman did just that. The leadership of Congress came to him and said, "But we want to declare war," and he said, "No. I'm sending the troops to war." So, since that time, presidents have every year expanded the war power. Congress finally in 1973 enacted the War Powers Act, which created a mechanism through which Congress nominally was to take back some of the war power. But of course as critics pointed out, the War Powers Act gave the president powers that weren't in the Constitution. The Constitution did not say that the president can go to war for 30 days — it's 90 days altogether, 30 days and then 60. So the Constitution doesn't say 30 days, it doesn't say 60 days, it doesn't say 90 days, it says Congress declares war. But presidents didn't like the War Powers Act, either, and made a determined effort to eliminate it, most particularly President Reagan who embarked on a policy of what we call in the book, "successful fait accompli". In other words, Reagan endeavored to use American military forces in ways that would be popular and successful and that Congress couldn't oppose. And each time he did so that would be a precedent for subsequent use. So the classical example is the invasion of Grenada, where American forces occupied Grenada for reasons that never made too much sense. We were preventing the Cubans from building an airstrip there. But when Congress objected, President Reagan said American forces had gone there to rescue American medical students, who were rescued whether they wanted to be rescued or not, but the first medical student off the returning aircraft, knelt on the tarmac, and said, "Thank God for President Reagan. He saved us." And Congress said, "Oh. All right, you can invade Grenada, but don't do anything else." But of course, presidents did a lot of other things. President Reagan sent troops to Lebanon. The first President Bush invaded Panama and resisted the Iraqi invasion of Kuwait. President Clinton went to war in Bosnia, even though Congress was totally opposed. President Clinton got NATO approval and if NATO hadn't approved, he would have gone to the Rotary Club. And, of course, the most recent President Bush went to war in Iraq. No one has ever mentioned war powers. The War Powers Act is a dead letter. Congress has never been asked to declare war. We've had these rather mechanical votes to authorize presidential action. But each president has made it a point to assert that he didn't need congressional approval, was going to war anyway and if Congress wanted to approve, that was nice.
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Crenson: And so you get to craft an electorate the way you want it and that's not a way to expand participation, but to control it.
Ginsberg: BICRA, as you know, outlaws so-called soft money, that is, money contributed directly to the political parties. Soft money was the conduit for tens or even hundreds of millions of dollars in campaign contributions, mainly from corporate America and mainly to the Republican party. In place of soft money, we now have money raised by so-called 527 groups and these are named for the section of the Internal Revenue code that defines them. These are nonpartisan, issue advocacy groups. Now 527s have turned out to be major vehicles through which wealthy individuals are able to contribute unlimited amounts of money and this has benefited the Democratic Party, because corporations are reluctant to form 527s because of potential tax complications. A 527 is a nonprofit. Although it's technically possible for a corporation to form a subsidiary that is a 527, the chances of that bringing an audit are very high, if you do that. So in this election, the Democratic Party has been able to raise about as much money as the Republicans. It's wiped out the advantage.
Crenson:
Ginsberg: The other interesting phenomenon in this election was, I would say, the 9/11 commission. In recent years, each party has endeavored to create investigative mechanisms to discredit presidents of the other party. So if you go back a few years, Democrats created the Watergate commission and the Iran Contra investigation. Republicans, of course, created an impeachment process and the special prosecutor to investigate Clinton. Well, in this particular race, Democrats had a serious problem and that is they didn't control either house of Congress, which meant they didn't have investigative machinery with which to attack Bush. The Democrats were extremely clever. They were able to set up an ad hoc machine, namely the 9/11 commission and Democrats were, I think, more politically astute than Republicans in their appointment of commission members. The Democrats were able to place on the commission at least two very rigorous former prosecutors, who I think were able to turn the 9/11 commission into a fairly effective forum designed to diminish Bush's advantage in the realm of national security. They were able to show that the Bush administration had not been as vigilant as it should have been. Of course, the problem for the Democrats was that this was not a congressional committee, but was an ad hoc procedure; it's gone out of business already.
Crenson: So I think even though it's not a congressional body, Congress is already going to stay in session until August to discuss its recommendations. The president has now announced that he will try to enact as much of this as he can, through executive orders without going to Congress. The best illustration I saw during the hearings of the prosecutorial bent, when Richard Ben-Veniste asked Condoleezza Rice to read the title of the briefing that came in almost one month before Sept.11. That's an old prosecutor trick to put something in the mouth of the witness, something that you want to come out. After that she was somewhat wounded for the rest of the hearing.
Ginsberg: That was a very interesting strategy on the part of the Democrats, because, until that time, if you read the polls, Bush had a commanding lead over the Democrats on the issue of national security. With that commission and its findings and the tactics of the prosecutors, the Democrats were able to erode Bush's standing. Of course, Bush eroded his own standing through the conduct of the Iraq war. The Iraq war was a great military success, but it has been a political failure. The stated goals of the war, to seize weapons of mass destruction, turned out to be untrue or a mistake and there continue to be casualties. That has wounded the president grievously.
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Crenson: Kerry has to pick up states that Gore didn't win, in order to win this election.
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Crenson: If he can carry Ohio and Illinois, there's a good chance he'll win. But President Bush has been to Ohio something like 22 times.
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Ginsberg: Now, the difference is significant, but not insurmountable. Yet if you had to handicap the race, you would make Bush a slight favorite, whatever the polls are saying at the moment.
Crenson:
Crenson: Holding the convention in New York, just a short time before Sept. 11, is going to look. First of all, it looks like the president is doing exactly what the Democrats accuse him of doing, capitalizing on 9/11. But holding the convention in New York means that, it's a city that's generally hostile to Republicans, even though they've been voting for Republican mayors for quite some time. But where there's going to be a lot of protestors. It's going to be a mess.
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Ginsberg: There will be protests; there will be disruptions. The media will focus on the protests and disruption.
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Crenson: It's not sniping if you're asked.
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Crenson: Just as the Republicans tuned in in 1968 and cheered on the Chicago police.
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Ginsberg: Now, you know, I always love to ask people the day after the debate, who do you think won? And wouldn't you know it, the Republicans think the Republican won and Democrats think the Democrat won. The one time this wasn't true was the first presidential debate in 1984 when poor Ronald Reagan, obviously was suffering first attacks of Alzheimer's; he just sounded horrible. He was terrible. And even the most committed Republican partisan could not say he had won. However, after the second debate, when he was merely dreadful, people said, "Oh, you see."
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Ginsberg: So Kerry's not a jerk. He'll be very presentable, so it's hard to believe that a fair-minded person will walk away thinking that Bush was a brilliant debater.
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Ginsberg: Now a terrorist attack is a wild card and the effect of that could go either way.
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Ginsberg: That's a wild card. The economy does what it's going to do. There's a business cycle. Both parties try to screw it up in different ways.
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Crenson: Also I think that liberal Democrats who were tempted to vote for him last time have seen what happens in that case and, except for a few stubborn ones, I don't think he'll get nearly as many. Right now, I think he's going to get about 2 percent.
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Ginsberg: Edwards is just such a conventional choice to me.
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Crenson: So I really think he had to choose Edwards. But the fact is that who gets chosen as vice president has almost never made any difference to the outcome of the presidential election. The only exception was Lyndon Johnson in 1960.
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Crenson: The people who plan presidential elections don't plan to make them interesting.
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