Foreign Policy Research Institute A Nation Must Think Before it Acts The Election, Sausages, and Foreign Policy: The Virtues and Limits of Legalism in American Politics

The Election, Sausages, and Foreign Policy: The Virtues and Limits of Legalism in American Politics

  • Jacques deLisle
  • November 17, 2000
  • Center for the Study of America and the West

The aftermath of the November 7 U.S. presidential election has been a boon to prominent lawyers with strong partisan ties and a dream come true for law professors with a penchant for the outlandish hypothetical. Within the week and a half following the election, we have seen Lawrence Tribe, the Harvard constitutional law scholar and pre-Bork-era Supreme Court nominee-apparent for a Democratic president, square off in federal court against Ted Olson, the early Reagan-era head of the Justice Department division that handles questions of presidential power and other constitutional issues. Planeloads of lawyers descended on hapless Florida, with former Secretary of State and veteran attorney Warren Christopher heading the Democrats’ corps and with the Republican legal crew reportedly becoming the conjoined twin of the Bush political team in Austin.

Predictably, they filed or joined suits in courts across the electorally crucial state, asserting broad constitutional principles, probing the arcana of local election law, and grappling with the legal significance of a taxonomy of chads. Without a quick resolution of the situation in Florida, the prospect loomed that such scenes would be replicated in Iowa, Wisconsin, New Mexico or Oregon.

Meanwhile, pundits and academics reveled in spinning out sometimes-fanciful possibilities and parsing long-obscure legal provisions. One scenario had Treasury Secretary Lawrence Summers becoming president. (The electoral college deadlocks and the House and, then, the Senate are unable to reach closure by January 20, when the constitution requires that President Clinton and Vice President Gore leave office. This triggers the Presidential Succession Act which holds that Speaker of the House Dennis Hastert and, after him, President of the Senate Pro Tempore Strom Thurmond assume the presidency temporarily. But, because they are not “Officers” of the United States — ordinarily construed in constitutional law as meaning only relatively high-ranking presidential appointees — the statutory provision is unconstitutional. If the rest of the statute is allowed to stand, the office falls to Secretary of State Madeleine Albright, who cannot assume the presidency because she is not a native-born citizen, and then, finally, to the Secretary of the Treasury.)

Somewhat less far-fetched analyses contemplated what would happen if two rival delegations from Florida purported to be the state’s electors, as would occur, for example, if a court order enjoined Governor Jeb Bush from certifying the Republican slate but he did so anyway, perhaps in the face of belated and disputed recounts from a few counties that would give Gore a win in the state. (A complex and long- neglected federal law drafted in reaction to a similarly messy presidential election in 1876 indicates that the Republican electors would be recognized, assuming the highly likely course of events that the Florida legislature or governor and at least one House of Congress supported that outcome.) Still others brought the full and increasingly pickwickian force of legal analysis to bear on some sparse and apparently contradictory sections in Florida’s laws concerning manual recounts and the State Secretary of State’s discretion with respect deadlines for certifying votes, and on the Florida courts’ generally unfavorable but somewhat ambivalent precedents that govern the overturning of election results in the presence of outcome-affecting errors but in the absence of electoral fraud.

The counterparts of future President Bush or Gore and other observers abroad looked on with a mixture of glee at the U.S.’s apparent comeuppance, perplexity over how the U.S. could have gotten into this mess, and concern over the U.S.’s ability to get out of this predicament before causing great unease among allies and overseas markets.

Exaggerated Fears of a Crisis

Americans and foreign heads of state and commentators have wondered what will result from all this courtroom and armchair lawyering, the political and legal uncertainty that gave rise to it, the delay in firmly designating a president-elect that it seemed to portend, and the expectation that the ultimate loser and his supporters would see the outcome as unjust. Some have foreseen a constitutional crisis or a crisis of democracy. These worries are misplaced. There will be no constitutional crisis because there is a deep commitment to legalism in American political culture. When the dust finally settles, the American people will accept as the next president whichever name — Bush or Gore — emerges from our constitutional and judicial processes and institutions.

The public will do this because — and only so long as — those procedures and organs operate, without evident corruption, to implement legal rules set in place before the troubled election season began — applying the rules straightforwardly where they clearly dictate determinate results, interpreting more ambiguous rules in ways that can be justified by reference to established principles of legal and constitutional analysis (even if the interpretations are not, causally, the product of “neutral” application of those principles), and exercising whatever discretion the rules ultimately confer (even if that discretion is exercised, lawfully, to serve the most transparently partisan ends). In short, popular acceptance will follow inasmuch (and insofar) as our constitutionally grounded system functions in its characteristically legal — and, indeed, legalistic — way.

There almost certainly will be outbursts of outrage and protests in the streets regardless of who wins. In the seemingly possible event of the winner of the popular vote losing the presidency, there will be complaints that the will of the people has been thwarted and that the electoral college should be scrapped for future elections. But there will be no serious constituency for the view that the winner is not or should not be accepted as the forty-third president of the United States because of the allegedly superior justness or justice of the rival’s claim to the larger number of votes, whether popular (if, say, Gore loses the electoral vote without losing his lead in the national tally) or electoral (if, for example, Gore loses Florida but would have won if credited with many of the Buchanan or double-punched ballots in Palm Peach County). There will be no substantial support for the position that the new president-elect is not or should not be regarded as the president on the grounds that our legal rules and institutions will have produced in this election a substantive result arguably at odds with the broader democratic principles that those rules and institutions were designed to implement. A thirty-year-old anecdote from a prominent academic at one of the U.S.’s leading universities nicely captures this bedrock legalism that will stave off a constitutional crisis today: Amid the campus turmoil of the 1960’s and his colleagues’ fears that the American political order might be crumbling, this foreign-born professor listened with concern as a leading campus firebrand addressed a crowd of students with a lengthy indictment of the government’s misdeeds in Vietnam, closing with what was clearly meant to be the most damning charge, “. . . and it’s unconstitutional!” Hearing that, the professor went happily on his way, realizing that the revolution was not nigh when a self-proclaimed radical so passionately invoked the existing order’s fundamental legal norms.

There also will be no crisis of American democracy. First, it is hardly a profound and portentous thwarting of democracy if (again, absent fraud or clear abuse) a candidate who failed to win the majority of the votes cast loses an office to a rival who trailed him in the (constitutionally irrelevant) popular vote by a margin that seems to be within the margin of counting error. And it shows unwarrantedly little confidence in the resilience of American democracy to suggest that its fate might hang on whether or not one plunks the “right way” in a contest that was a statistical dead heat and in which many voters seem to have done little better than flip a coin in deciding how to cast their ballots.

Second, and of more immediate relevance and greater political significance, an arguably undemocratic result in a presidential election is not likely to lead to a crisis of democracy in a political order that is primarily but not exclusively democratic. The American polity is, after all, a constitutional and democratic republic. Its republican principles and the constitutional provisions embodying them and other undemocratic features — including those tolerating a “split verdict” between the electoral college and the popular vote and permitting electors not to follow the instructions of a majority of their state’s voters — impose many limits (both familiar and obscure) on raw majoritarian democracy. And, given the legalism at the core of American political culture, a constitutionally mandated not-fully-democratic result in a presidential race is an acceptable (and precedented) anomaly — not a crisis — of American democracy.

The Real Dangers

The current situation may yet spell lasting trouble, however, in two ways that reflect the limits to law’s and legalism’s exceptional place in American politics. First, the maneuvers of the Bush and Gore minions risk an especially costly public reminder that making aggressive legal arguments can be bad politics. That, surely, was a lesson taught by the politically tin-eared but legally artful contretemps among lawyer-president Clinton, presidential lawyer Bob Bennett, presidential nemesis-lawyer Ken Starr, and lawyer-(or would-be-lawyer) members of Congress in the Lewinsky scandal and impeachment mess. With the public still reeling from those events, the post- election round of lawyering in Florida looks in some respects like more of the same. Tellingly, the Bush campaign seemed to score political points by portraying the Gore camp as exploiting the judicial process to seek selective county-level recounts, to drag out the election process, and to take advantage of any legal angle or loophole that would help them get the outcome they wanted. On the other hand, the Gore side seemed to gain politically from a sense that Florida’s Secretary of State and the Bush camp were rushing to court or invoking questionable interpretations of murky statutes in order to prevent the recounting of votes (or the crediting of recounted votes) that were intended for Gore — in effect, using (or abusing) the law to do the equivalent of sticking their fingers in their ears and shouting, “I can’t hear you.”

The unusual politics of the situation gave this dynamic of political lawyering and litigious politics an exceptional momentum: Gore’s apparent victory in the national popular vote and his claim to have been the real intended recipient of the largest share of votes that Florida voters thought they had cast provided a moral force that kept at bay pressures not to litigate the election ad infinitum. So too, the exceptionally close ties to candidate Bush of the pivotal Florida official — Jeb Bush cabinet member and Florida Bush presidential campaign co-chair Katherine Harris — made credible some rather cynical views of her claims merely to be fulfilling her legal duties or to be exercising reasonably and lawfully her discretion to disregard late or revised county vote tallies.

The danger here stems from the fact that Americans’ views of law are the obverse of our views of Congress: While we may hate Congress but love our congressman or congresswoman, we love the rule of law but do not much like lawyers and lawyering. Thus, the more the wrangling over the outcome of the presidential election looks to be about overreaching or deeply cynical lawyering and the less it looks to be about upholding and applying the laws, the worse it is for the deep regard for law and legality that has generally served the American political order well, and that will have gotten us through the present difficulties, but that we would be foolish to take too much for granted.

Second, after designating a president elect, we may well face a political morass that will be, ironically, a product of our not having descended into a constitutional crisis or a crisis of democracy. The legalism and constitutionalism that have warded off those crises and that will yield a president whose claim to the office Americans will recognize as (minimally) legitimate are not enough to confer political strength or effectiveness on a president whose incumbency may be traced to a determinative but debatable judicial interpretation of Florida’s hand recount law, or Florida’s vote-certification statute, or Florida’s law governing state administrators’ exercise of discretion. With America’s legalistic and not-purely-democratic political culture and political structures having denied politics its outlet in a systemic crisis, politics may get its revenge, as it were, in the quotidian business of governing. Formal constitutional and legal powers and the most scrupulously observed and neutrally implemented rule of law, of course, do not (and are not supposed) to break the governmental gridlock or remedy the presidential weakness that many predict will characterize the coming environment of an evenly split Congress, a president with no claim to a popular mandate, and an out-of-power party that feels it was robbed of the presidency.

Foreign Policy Implications

The initial response from abroad has ranged from worry about the risks of a leaderless United States unable to lead in the world to a sometimes-vindictive reveling in the flaws and fumblings of an American system that has held itself out as a model to the world. The former reaction has been reflected in the tone of whistling past the graveyard that has crept into some foreign sources’ overly insistent assurances that the U.S. will survive its electoral indecision, and in the concerns that such assurances have sought to allay. The latter reaction has been on more prominent display in foreign media, in European amusement at America’s sojourn as (in the words of one account) a banana republic, and in Asian harangues about how the newly exposed irregularities, scope for partisan influence and an impression of nepotism in the American electoral process show the U.S.’s lack of standing to lecture other nations on their democratic shortcomings.

The first type of response is understandable, particularly in the wake of a presidential campaign that was conducted with an almost willful indifference to foreign policy — an omission that seems bizarre and deeply troubling to foreign observers in an era which most perceive as one of accelerating international interdependence. The second type of response is hardly surprising, given the resentment that has been engendered by the post-Cold War America’s penchant for casting itself as the world’s principal model and provider of advice on democracy and political reform (as well as economic reform). Both reactions, however, are misdirected. Like the views of many within the U.S., they overestimate the possibility of a constitutional or democratic crisis and, relatedly, they misperceive the place of law and legalism in American politics and institutions. In so doing, they risk missing the real foreign policy problems that might flow from the U.S. presidential election mess.

First, if plausible predictions about the political feebleness of the next president prove accurate, a real peril for American foreign policy may lie in post-inaugural paralysis borne of the generally proper and relatively orderly functioning of the U.S.’s constitutional and legal processes and institutions. The foreign relations consequences of such a weak executive are likely to be especially serious in the circumstances that the next administration is likely to face. Although often exaggerated, globalization has tightened the connections between American foreign policy and American domestic politics, with the former often subordinated — or held hostage — to the latter, even under presidents who command congressional majorities or high job approval ratings. The pattern will be predictably more pronounced with a president who labors under the infirmities likely to afflict the next occupant of the office and who will have come to office after a campaign that failed to articulate a foreign policy vision or agenda or to generate a mandate for any intelligible approach to America’s role in the world.

Although forecasting sources of international trouble is a speculative business, it is reasonable to expect that the challenges of the next several years may be moderately serious ones — that is, significant but not full-blown crisis-level conflicts with major powers, or more thoroughgoing but relatively contained meltdowns in troubled states and regions that do not clearly or inevitably endanger key U.S. interests. These are precisely the conditions under which the effects of presidential weakness are likely to have the most impact. In the relatively trouble-free world that Americans recently have enjoyed (or at least perceived) and that made acceptable a nearly foreign-policy-free presidential campaign, there is little immediate or obvious harm from a hamstrung presidency’s deleterious impact on the U.S.’s ability to act and lead internationally. On the other hand, a truly grave crisis might well produce the traditional bipartisan rallying around the president, even an otherwise feeble and besieged one. In the intermediate (and likely prevalent) cases, strong and effective presidential leadership is likely to be needed and unlikely to be forthcoming from a president who is burdened by the legacy of his clouded victory in the recent election.

Second, the U.S.’s quest and claim to be a “city on the hill” in the post-Cold War world and the new Rome for an era of democracy may be affected by the recent exposure of warts and weaknesses in the American system. But the lesson to be drawn is not likely to be quite what the authors of derisory editorials in Malaysia or Italy or China have imagined. The nonoccurrence of a constitutional or democratic crisis, the capacity of the American people to accept the outcome of a flawed and embarrassing process, and the ability of the U.S. to muddle through with a possibly weak and embattled president are ultimately testaments to the strengths of the American political and legal order. And one might hope that the follies of the 2000 presidential election and its fall- out would make clear to potential emulators — and aspiring purveyors — of American models abroad that less-than- perfect legal and democratic institutions can do pretty well and are a good deal better than none at all. At the same time, this awkward episode also will have underscored for us that formal constitutional structures, institutional arrangements and legal processes do not do all — or even most — of the work in preventing a crisis in the United States While those elements will have been shown to be indeterminate or incomplete, vulnerable to partisan manipulation and prone to embarrassing breakdowns, the designation of a president-elect that they produce nonetheless will win public acquiescence despite those flaws and because of America’s law-centered and legalist political culture. Perhaps the most lasting and sobering lesson for the U.S.’s role in the world will be the reminder that these vital traits in the American model are ones that are exceedingly difficult — and far more difficult than formal laws or institutions — to export or replicate.