Archive | Presidency

Too Hidden a Hand

Front CoverIt’s nice to see Peter Baker writing in today’s New York Times about alternate modes of presidential leadership – notably the “hidden hand” style utilized by Dwight D. Eisenhower. The idea is that Obama is exercising power from behind the scenes by exploiting personnel and process rather than from a bully pulpit. This is a more complimentary way to describe, albeit similar in practice to, “leading from behind.”

I’d like to correct one odd shortcoming of the article: it does not mention the 1982 book by Princeton’s legendary Fred Greenstein that put that phrase on the academic map. Greenstein’s The Hidden Hand Presidency seems to have been a victim of its own success in re-writing the academic conventional wisdom about Eisenhower and bringing its title into shorthand usage. (Perhaps it is the ‘xerox’ of presidential studies?)

Pre-Greenstein, scholars assumed that Eisenhower was too passive to be president – that he did not understand or exercise presidential power as Richard Neustadt had so memorably laid it out – Ike was no FDR! Afterwards, they were convinced “that behind Eisenhower’s seeming transcendence of politics was a vast amount of indirect, carefully concealed effort to exercise influence” (Greenstein, p. xx). Even Neustadt reassessed Eisenhower in a later edition of Presidential Power, in a chapter dealing with Eisenhower’s efforts to avoid American entanglement in French Indochina (aka Vietnam) in the 1950s. A direct contrast of Eisenhower’s tactics and advising structures in that arena with Lyndon Johnson’s a decade-plus later would become the basis for Greenstein’s later book with John Burke (along with Richard Immerman and Larry Berman), How Presidents Test Reality.

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Why It Matters that Obama’s Approval Rating Is Falling

Despite ridiculous hype about a recent CNN poll that showed an exaggerated 8-point drop in Obama’s approval rating, there’s no doubt that his approval rating is about 4 points lower than it was in January 2013.  There’s lots of speculation as to why—see, e.g., Nate Silver.  But I want to say why it matters.  Justin Wolfers, for one, is dubious.  And a journalist also emailed me on this subject today.  [Update: That journalist was John Dickerson.  See his piece here.]

The decline matters for three reasons.

First, it matters for the 2014 election.  A simple model of House election outcomes constructed by political scientist Gary Jacobson shows that the share of seats controlled by the president’s party depends in part on presidential approval.  You can see some discussion of that in Jacobson’s post-mortem on the 2010 election.  Obviously, other factors matter too.  But a less popular president certainly provides headwinds for Democratic candidates.

Second, it matters for the 2016 election.  Of course, that’s a long way away, and a lot can happen between now and then.  But again, simple forecasting models show that, controlling for other factors, the incumbent party does better when the incumbent president is popular.  (See, for example, what Lynn Vavreck and I report in Chapter 2 of The Gamble.)  Approval appears to matter more when the incumbent president is running for reelection, but it still appears to matter even when that president is not running.  Let’s quantify that.  I estimated a model of presidential election outcomes from  1948-2012 that included change in gross domestic product over the first two quarters of the election year, presidential approval as of June of the election  year, an indicator for whether the incumbent is running, and the interaction of approval and incumbency.  This model suggests that when the incumbent is not running, a 7-point drop in approval is associated with a 1-point drop in the incumbent party candidate’s share of the major-party vote.  If I were Hillary Clinton or any other Democratic hopeful, I’d want Obama to be as popular as possible when he leaves office.  And if I were Obama and I wanted the legislative achievements of my presidency to last, I’d want a Democrat to win in 2016.

Third, it matters for whether the President gets what he wants from Congress—with some caveats.  Here’s a sense of some of the scholarly literature on the relationship between presidential approval and legislative success.  One question is whether Congress simply passes legislation that the president supports.  In one study (gated) of 208 roll call votes in the House between 1989-2000, political scientists Brandice Canes-Wrone and Scott de Marchi found the House was more likely to do what the president wanted when the president was more popular.  This effect was only significant among legislation that was both salient (mentioned a lot in news coverage) and somewhat complex (focusing on regulatory matters in particular).  But, of course, that’s exactly the kind of legislation—e.g., immigration, gun control—that Obama would like to sign right now.

Another question is whether the legislation that passes is actually substantively close to what the president wanted.  That is, the president may support legislation as long as it is closer to his preferences than the status quo, but still may not get what he wanted.  Political scientists Andrew Barrett and Matthew Eshbaugh-Soha examined (pdf) 191 different major laws passed between 1965 and 2000 and measured how similar they were to what the president had asked for.  Was the law basically a rubber stamp of the president’s position?  Did the law force the president to compromise with congressional leaders?  Or did the president sign it even though it was nothing like what he wanted?  Barrett and Eshbaugh-Soha find that presidential approval was associated with laws that looked more like the president’s preferences.

Of course, approval is just one factor among many.  And it may be less relevant now in this era of highly polarized parties.  In this article, Jon Bond, Richard Fleisher, and B. Dan Wood find that presidential approval seems to matter less for legislative success as partisanship in Congress increases.  One interpretation is that in highly partisan eras, presidents will get most of their party’s support but little of the opposing party’s support no matter how popular or unpopular there are.  So right now it may matter less whether Obama’s approval rating is 50% or 46%.

With those caveats noted, I still think that, on balance, presidential approval matters—for elections and for policy—even in a president’s second term.

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The Perils of (Vague Delegations of) Power

Related (and complementary) to John’s earlier post

So why could the Obama administration collect data on – as it appears – pretty much every phone call you make? The answer seems to be a lesson in legislative drafting – since it resides in the wide grant of power Congress delegated to the administration in the Patriot Act (sorry, the USA PATRIOT Act: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) originally passed in October 2001. (This is before we get to PRISM, which appears to operate using different legal authority. Sorry, it’s hard to keep up… but here, too, it appears that Congress – though possibly unwittingly – granted new powers to the president.)

The relevant piece of the Patriot Act (P.L. 107-56) is Section 215, entitled “business records,” which amended the Foreign Intelligence Surveillance Act (FISA) of 1978 to include the following text:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

The investigation shall “be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order)” – this E.O. deals with intelligence gathering, and basically says it has to be legal (which the Patriot Act says it is, so…) To be approved by the FISA court, the application need only “specify that the records concerned are sought for an authorized investigation conducted …to protect against international terrorism or clandestine intelligence activities.”  If that’s done—and that’s a pretty easy bar to clear, given a Justice Department willing to sign off on such a broad program—then the judge would seem to have little discretion.

Nor does it seem likely that the program, at least as publicly described (e.g. in the court order, see here), violates the Fourth Amendment. This seems odd given that amendment’s ban on “unreasonable” search and seizure procedures. But as it happens the Supreme Court ruled in Smith v. Maryland back in 1979 – in a majority opinion that brought together justices as disparate as Harry Blackmun and William Rehnquist – that the kinds of records tracked in the present case are not subject to the 4th amendment (thanks to Harry Pohlman for pointing this out). Their reasoning was that you have “no reasonable expectation of privacy” when it comes to the numbers you dial, since you know that the phone company keeps track of such information.  In any case, the majority held, “even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as reasonable. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

One could argue that in the cell phone age the conception of location and numeric data is quite different (we are as far removed from 1979 as 1979 was from operator-controlled party lines). But so far as I know, Smith is still good law.

So, we can complain about the policy choice, but the lack of limits in the law’s language does constitute a policy choice, not an administration “going rogue” outside the law. (Whether you should read the law the way the administration wants to, you could.) We could blame the rushed process by which the act was passed in October 2001, given the stress (and yes, terror) of the time, but since then this text has been renewed at least three times (in 2006, 2010, and 2011), and there has been quite a lot of argumentation over Section 215 (a useful background piece for the ‘11 debate is here.) As John pointed out below, Congress has signed off on this language quite explicitly.

Just for fun, you can read Senator Obama’s speech on the 2006 reauthorization here (“I will be supporting the Patriot Act compromise. But I urge my colleagues to continue working on ways to improve the civil liberties protections in the Patriot Act after it is reauthorized.”)  President Obama, once in office, was rather less concerned with said improvement; AG Eric Holder said in 2011 that the administration strongly supported extending Section 215 “for as long as we possibly can.” That turned out to be to 2015 – though current events may change that calculation.

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Special Prosecutors: Be Careful What You Wish For

There have been various calls in recent days for the appointment of an independent counsel to explore and expunge the IRS’s selective investigation of conservative groups seeking tax-exempt status after 2009.

From the right, Peggy Noonan in the Wall Street Journal claims, for instance,that “we are in the midst of the worst Washington scandal since Watergate.” If you can get past this cheap hyperbole (Ms. Noonan herself worked in a White House marked by a worse scandal, Iran-contra, and in 1998 she thought President Clinton deserved impeachment), her point is worth noting:

“Independent counsels should not often come in and distract the U.S. government from its essential business…. [but] what happened at the IRS is the government’s essential business. The IRS case deserves and calls out for an independent counsel, fully armed with all that position’s powers. Only then will stables that badly need to be cleaned, be cleaned.”

From the left, Bill Keller in the New York Times agrees: such an appointment would show the president truly takes any IRS wrongdoing seriously, he says, and “it’s the surest way to get answers the public might trust.” But most crucially, and here he intersects with Noonan, “The third reason for a special counsel is that the government has serious business to conduct, and the scandal circus on Capitol Hill is a terrible distraction.”

This all sounds very high-minded (Noonan even denounces as “shameful and shallow” any effort by “any Republican operative or operator to…turn it into a mere partisan arguing point and part of the game. It’s not part of the game. This is not about the usual partisan slugfest.”  Keller one-ups her by calling for the appointment of Clinton nemesis Ken Starr to the post.)

But if we know anything about the history of special counsel investigations, it is that we know that they are not, in fact, either high-minded or apolitical. The investigation may be nonpartisan, but the effects are not. The sideshow saga surrounding the investigation of the “outing” of Valerie Plame during the Bush II years is sufficient to give one pause on this point; but ponder, too, of course, the investigations by Starr or Lawrence Walsh or the five other independent counsels at work during the Clinton years. (Wake Forest political scientist Katy Harriger’s book on the topic gives much more detail.)

In short, appointing a special prosecutor may be the right thing to do. But the idea that this would partition off the IRS scandal from the rest of Washington and allow some sort of ‘space for governance’ is very dubious indeed.

To be sure, the structuring of any given special investigation could differ; but Noonan and Keller both call for a broad remit and total independence. Along these lines it is worth remembering the 1988 Supreme Court decision Morrison v Olson. By a 7-1 vote (Justice Kennedy did not participate) the Supreme Court upheld the constitutionality of the Independent Counsel Act (ICA), part of the Ethics in Government Act, a post-Watergate reform package passed in 1978. The ICA allowed for an odd quasi-judicial/executive appointment power for independent counsels, and IC target Ted Olson (yes, that Ted Olson) argued this structure violated the separation of powers by buffering counsels from the presidential removal power (and also wandered into Article III by the creation of a separate court). The Court held these were permissible infringements given the broader governmental interest in promoting the public trust and fighting executive branch corruption.

Only Justice Scalia dissented from this finding, a dissent which provided both a full-throated defense of “unitary executive” theory” and, more crucially for present purposes, a prescient vision of the use of the ICA as political weapon:

“The context of this statute is acrid with the smell of threatened impeachment…. [B]y the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts and is worth the cost in money and in possible damage to other governmental interests….

“How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds—or, for that matter, how easy it is for one of the President’s political foes outside of Congress—simply to trigger a debilitating criminal investigation of the Chief Executive under this law…. Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution….”

The brief filed in the Morrison case by three ex-Attorneys General, from the Ford, Carter, and Reagan administrations (Edward Levi, Griffin Bell, William French Smith) also seems apropos:

“[T]he institutional environment of the Independent Counsel—specifically, her isolation from the Executive Branch and the internal checks and balances it supplies—is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests.”

Or, as Ted Olson himself put it, “If you are given a fishing license which has the name of a fish on it, and you don’t come back with that fish, you’ve failed.”

Certainly, in the present case, if there are criminal issues they should be investigated and charges brought. But simply calling someone a “special prosecutor” does not in itself cordon off a ‘safe space’ outside of which normal policy-solving political bargaining (if that’s normal now) can continue unaffected.  There are good reasons that the ICA was allowed to expire unceremoniously, with the blessing of both parties, in 1999.

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Improving the First Draft of History

Just wanted to note a quick and surely incomplete census of scholars providing some heft to “scandal” coverage that badly needs it over the weekend.

Please add other similar links in the comments section.

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Challenges in categorizing others on a continuous ideology scale

From p. 213 of the book, “After the Music Stopped” (blurbed on cover as “A masterpiece—simple, straightforward, and wise”—President William J. Clinton), by economist Alan Blinder:

On December 19, the ultraconservative President Bush let pragmatism trump ideology and tapped the TARP for multibillion-dollar bridge loans to both GM and Chrysler. . . .

“Ultraconservative” . . . isn’t that a bit strong. I think we can all agree on “conservative.” And, to the extent that you believe Bush didn’t handle the economy well, you could add “incompetent.” But “ultra”conservative? That sounds a bit strong.

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Revisiting the AUMF

During the April 2004 oral arguments in the Hamdi v Rumsfeld case about whether an American citizen could be detained indefinitely as an enemy combatant, Supreme Court Justice David Souter sought to probe the breadth of the Authorization for the Use of Military Force (AUMF), which the Court ultimately held did support Hamdi’s detention, albeit with some procedural rights attached.

Souter asked:

“Is it reasonable to think that the authorization was sufficient at the time that it was passed, but that at some point, it is a Congressional responsibility, and ultimately a constitutional right on this person’s part, for Congress to assess the situation and either pass more specific continuing authorization or at least to come up with the conclusion that its prior authorization was good enough. Doesn’t Congress at some point have a responsibility to do more than pass that resolution? …. You come with an authorization that the President relied on and which I will assume he quite rightly relied on at the time it was passed. But my question is a timing question. Is it not reasonable to at least consider whether that resolution needs, at this point, to be supplemented and made more specific to authorize what you are doing?”

Congress has ignored this broad hint from the bench for nine years. During that time, the Bush and especially the Obama administrations have stressed that a wide range of executive actions are justified by the continuing statutory language of the AUMF. (Obama’s team has done this more explicitly, and sought to distinguish their rationale from the Bush administration, which sometimes relied instead on inherent executive authority grounded in Article II. Whether it is better to do the wrong things for the right reasons, or vice versa, I will leave to T.S. Eliot. )

The AUMF’s text is very broad, resolving “that the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” That last clause is particularly sweeping. Still, given the link in the resolution between the President’s authority and the 2001 attacks, is it broad enough to cover ongoing drone strikes (against American citizens, and not) in Yemen, Somalia, Pakistan? Intervention in Syria?  How closely connected to the 9/11 attackers, or to Al Qaeda, or to its affiliates, does someone (who could have been of grade-school age at the time) have to be, to count as someone who “aided” those attacks? Could the AUMF apply to the Boston marathon bombers?

These are the kinds of questions Souter presciently raised, and the Senate Armed Services Committee will hold a hearing today at 9:30 am to start a potentially important conversation about their resolution. The list of those testifying is here. Today’s Washington Post editorializes in favor of a new AUMF; Lawfare has a useful summary of some of the arguments here.

UPDATE – 2:36 pm, 16 May – a webcast of the hearing (3 hours plus) can be found here.

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Why the “Permission Structure” Makes Obama Smart (and Too Many Pundits Dumb)

It’s really extraordinarily pleasing to watch a terribly misinformed view of presidential power finally get its comeuppance.  Various political scientists—Brendan Nyhan, Jon Bernstein, Andy R., me, and others—have been pushing back at this view for years.  And now, as Andy pointed out, beware the pundit who ventures forth with calls for the president to exert “leadership,” to “rise above circumstance,” to be “hopeful” and “show he still enjoys his job,” to “throw his back into it,” and so on.  (And note those are links not just to the usual punching bags—Dowd, Fournier—but to people who seem to understand that presidential power is limited but just can’t help themselves.)  These pundits get hit, and quickly, with realtalk from the likes of Jamelle Bouie, Jonathan Chait, Elizabeth Drew, Ezra Klein, and Greg Sargent.

But what’s increasingly striking about the residual Green Lanternism is not that it’s wrong in some academic sense, but that it completely misunderstands what Obama is actually doing right now.  Obama—who was once mystifyingly naive about how much presidents can change the political process—now gets it.  Hence his comment about “the literature on presidential overreach in second terms.” Hence his comment about the “Jedi mind-meld.”  Hence his comment about the “Aaron Sorkin liberal fantasy.”  Hence his comment about “permission structure.”

Now Brian Beutler actually does, you know, some reporting and tells us what “permission structure” means:

In this instance, the “permission structure” refers to Obama’s efforts to convene a bipartisan group of senators who can reach a budget deal without his direct imprimatur, according to both White House and Senate aides. His recent dinners with members of both parties were designed to ferret out the Republican and Democratic senators who are likeliest to agree to a mix of higher taxes and lower spending, much like the defunct gang of six did in 2011.

“Obama’s trying to see if he can’t get some of those rational actors from the dinners — or at least the people who came across as being earnest and willing — to tackle the grand bargain talks again,” said a Senate Democratic leadership aide. “The White House trying to set up a process where rank and file Republicans are working with rank and file Democrats and once that’s done, step back [and] create the space for those discussions to take place among rank and file lawmakers outside the context of another Obama-Boehner style negotiation.”

Obama’s putative absence is key to creating the political space Senate Republicans need to negotiate in good faith.

Obama’s “putative absence” is exactly what drives Green Lanternists like Dowd up the wall, but it’s entirely in line with the political science, notably Frances Lee’s finding that the very act of a president taking a position on an issue can polarize members of Congress even further.  So will it work?  Maybe, maybe not.  But it’s a much better strategy than the beautiful words and body language that too many pundits still seem to want.

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“Juice” Meets the “Permission Structure”

underpants gnomesIn his press conference today, President Obama was asked about his “juice” by ABC’s Jonathan Karl in light of recent legislative votes and non-votes on gun control and the sequester (“So my question to you is do you still have the juice to get the rest of your agenda through this Congress?”)

In reply, Obama laid out the Republican (and some Democrats’) dilemma, and channeled his inner jargon creator. “Jonathan, you seem to suggest that somehow, these folks over there have no responsibilities and that my job is to somehow get them to behave…. They’re worried about their politics,” he said. “It’s tough. Their base thinks that compromise with me is somehow a betrayal. They’re worried about primaries. And I understand all that. And we’re going to try to do everything we can to create a permission structure for them to be able to do what’s going to be best for the country. But it’s going to take some time.”

Not much of a ring to it, I admit: can’t see “permission structure” catching on over at ESPN (“Touchdown! Brady sure got some permission structure on that throw!”) But Obama is right that members of Congress are not in a position to evade their constituents’ preferences – even if he jumps rather quickly to the assumption that, if they were only freed of such burdens, they would (obviously!) choose to vote for his preferences. Changing their “permission structure” really means “beating a lot of them in 2014 and replacing them with more amenable Democrats,” at which point they would have permission to play golf rather than cast disagreeable roll-call votes.

Now I had hoped to use President Obama’s weekend comedy segment on his “charm offensive” to draw a line under this particular “political science vs punditry” narrative that is becoming repetitive to write, and surely worse to read. Then, at the very same time, the Washington Post weighed in with yet another iteration of the punditry side.

Luckily Brendan Nyhan has taken the opportunity to expand on the MSM’s “underpants gnome” theory of presidential action (see the illustration above) while summarizing some useful links discussing the political science relevant to a series of assumptions too often made about presidential success in Congress.

But an honorable mention must go to a veteran stalwart of the MSM, Elizabeth Drew—who in the New York Review of Books goes after what she calls “the myth of arm-twisting.” Drew, who was the Washington correspondent for the Atlantic when Lyndon Johnson was president, notes that “Johnson would be laughed away if he tried to govern now the way he did then. Moreover there simply aren’t many arms for Obama to twist…. The power to persuade diminishes with the diminution of persuadables.” Continue Reading →

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“Trapped in a Taylor Swift Album”

This post’s title is not designed to drive web traffic to The Monkey Cage from TMZ. No, really: President Obama has made it not only possible but necessary for me to take Ms. Swift’s name in vain as part of a quick follow-up to recent blogosphere commentary on the Obama “charm offensive” towards Congress.

To wit: this weekend’s White House Correspondents’ Dinner featured President Obama himself taking aim at Maureen Dowd’s assertions last week that his efforts at swaying legislators were pale perversions of those undertaken during the towering presidency of Andrew Shepherd.

Michael Douglas, who played Shepherd in the film The American President, was present at the dinner. Obama asked – to laughter, though with what the video shows was something of an unamused edge – “Michael, what’s your secret, man?  Could it be that you were an actor in an Aaron Sorkin liberal fantasy? Might that have something to do with it?”

Obama regained his light touch for a riff on his outreach efforts:

I know Republicans are still sorting out what happened in 2012, but one thing they all agree on is they need to do a better job reaching out to minorities.  And look, call me self-centered, but I can think of one minority they could start with.  Hello?  Think of me as a trial run, you know?  See how it goes.

If they won’t come to me, I will come to them.  Recently, I had dinner — it’s been well publicized — I had dinner with a number of the Republican senators.  And I’ll admit it wasn’t easy.  I proposed a toast — it died in committee….

My charm offensive has helped me learn some interesting things about what’s going on in Congress — it turns out, absolutely nothing.

But the point of my charm offensive is simple:  We need to make progress on some important issues.  Take the sequester.  Republicans fell in love with this thing, and now they can’t stop talking about how much they hate it.  It’s like we’re trapped in a Taylor Swift album…

The video is here (necessary if only for the photo of the future Obama library), a transcript here.

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