THE CAUSE OF OUR FRACTIOUS POLITICS: PRECEDENTS FOR THIS BITTERLY FOUGHT ELECTION

By MICHAEL C. DORF

Wednesday, Nov. 29, 2000

These are heady days for experts in the American Presidency and the Constitution. Presidential impeachments and contests over the results of Presidential elections are rare enough. One of each within two years is unprecedented. If one did not know better, one might conclude that the United States is in the midst of some grave national crisis — a war, a depression, or some tumultuous social movement.

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Yet we do know better, and what we know is that these are quiescent times. During the Presidential election campaign, the candidates tried to convince the public that they disagreed on fundamentals. However, their debates revealed relatively minor disagreement, principally over how to spend an exaggerated budget surplus. Given the seemingly narrow differences between the parties and their candidates, what accounts for the recent constitutional turmoil?

The Deeper Ideological Divide Between the Parties

Part of the answer is that important differences between the parties actually remain. In an effort to attract the all-important swing voters, candidates for national office run towards the middle in general election campaigns, emphasizing centrist labels like "New Democrat" or "compassionate conservative," but party activists know or hope that after the election, these labels will not stand in the way of the respective party agendas on contentious issues.

Where the core Democratic constituency favors regulation and litigation as checks on business in favor of the environment and consumer safety, the core Republican constituency sees these devices as stifling economic growth. So too, on such questions as school vouchers, affirmative action, abortion, and a range of other issues, party activists rightly see a great deal at stake.

Thus, Ralph Nader was wrong to suggest that there is no difference between the parties. The party stalwarts fighting it out in Florida are driven by more than just a naked desire to see their team win. They understand that winning the Presidency will advance a particular, substantive agenda — one quite different from that of their opponents.

But the fact of real ideological differences hardly explains recent events. Real differences between the parties have been a fact of American political life since the 1790s, when the Presidential contest was fought by Federalists and Democratic-Republicans.

And even if policy differences account for some of the ferocity of the post-election battle of 2000, they hardly explain the Republicans’ effort to remove President Clinton from office in 1998 and 1999. As President, Bill Clinton’s major domestic policy successes were all standard Republican fare: he balanced the budget, aggressively promoted free trade, repealed the federal welfare guarantee, and committed federal laws and dollars to fighting crime. Although Republicans tended to view Clinton himself as the embodiment of 1960s irresponsibility, they found little fault with the substance of his public initiatives. Indeed, Republicans angrily charged that Clinton had appropriated their agenda.

Hence, at the time of the impeachment, the Republicans’ actions looked like they would backfire. Had Clinton been removed from office, Gore would have succeeded him and then could have run for President with the advantages of incumbency. And by pursuing an unpopular and ultimately unsuccessful campaign against Clinton, the Republicans appeared to hand Gore a campaign issue (although as it turned out, "Clinton fatigue" probably hurt Gore more than "impeachment fatigue" helped Bush). Finally, even if the Republicans intended only to cripple Clinton, and not in the end to impeach him, the Presidential agenda they harmed was, as noted above, generally a moderate Republican one.

In short, Republicans in Congress pushed for Clinton’s ouster despite the fact that it was likely to harm the causes Republican party activists most favored. Ideology alone can hardly explain their bitterness. More broadly, policy differences alone do not explain the partisanship of recent Presidential politics.

Law Intertwines with Politics in the Impeachment and the Election

If there is a theme common to the 1998/1999 impeachment and the 2000 election imbroglios, it is the prominence of legal maneuvering in politics. Paula Jones’s civil lawsuit proved a handy vehicle for exposing the dark side of Clinton’s personal charm, while Independent Counsel Kenneth Starr’s investigation in turn converted what might otherwise have been merely a sex scandal into arguably criminal acts. And the articles of impeachment approved by the House began where the Starr report left off.

Meanwhile, in the election fight, the Bush campaign has repeatedly charged that Gore’s resort to legal action amounts to an effort to steal the election — that any intervention by the courts is illegitimate.

Here we have the possible basis for a détente. Both parties seem to agree that using the courts to gain political advantage is dirty pool — the Democrats condemning the tactic in the impeachment, the Republicans condemning it in the post-election fight. Once tempers have cooled, might new legislation be enacted on the foundation of a mutual interest in keeping partisan political battles out of the courts?

Agreement is likely to prove elusive, however, for even as each side condemns the other’s resort to the courts, it does not hesitate to file or support its own lawsuits. Thus, as more than one commentator has noted, in virtually the same breath as they have denounced Gore supporters’ suits in Florida state courts, the Bush campaign has filed its own actions and appeals in federal courts — and now is taking its cause all the way to the Supreme Court.

Here is the nub of the problem: There is no easy way to distinguish a "political" lawsuit from any other legal action. Consider Paula Jones’ suit. She undoubtedly received considerable support from long-time political enemies of Clinton, but that does not mean that the allegations in her complaint were false. Her case was ultimately dismissed because she failed to provide evidence that she had been tangibly harmed by Clinton’s alleged conduct; whether the conduct in fact occurred as she alleged was never resolved. If it did occur, and if Jones suffered as a result, surely she would be entitled to compensation, just as any other victim of sexual harassment would be, regardless of the fact that the perpetrator was later elected President.

It was this principle of equality that led the Supreme Court to permit Jones’ case to go forward during Clinton’s Presidency, and even if that decision looks naïve in retrospect, a decision to insulate the President would not put an end to all "political" lawsuits — only to those against the President himself.

Similarly, the Florida Supreme Court’s decision requiring Secretary of State Harris to waive the filing deadline to allow for the inclusion of manual recounts was hardly a "political," as opposed to a legal, decision. It applied longstanding principles of statutory construction and election law — albeit in a way that the Bush campaign argues was unfair. Even if the U.S. Supreme Court agrees with Bush’s objections, that will not put an end to legal contests over elections. Until foolproof voting technology is in place everywhere, close elections will continue to give rise to legal wrangling.

Why Law and Politics Have Been Intermingling More Frequently in Recent Years

The perception that the legal system and the political system have merged only recently is partly false. Based on his travels in the United States in the early 1830s, Alexis de Tocqueville famously observed: "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate." Why then do so many people believe that there has been a recent change?

To some degree, this is a matter of media coverage. Each of the blockbuster news stories of the last several years has focused around one or more court cases: the criminal and civil trials of O.J. Simpson; the Lewinsky affair; the fate of Elian Gonzalez; and now the election battle. The twists and turns of each day in court permit reporters to treat the events like extended sporting events, with their back-and-forth drama, and thus to hold the rapt attention of the public.

But it would be no more fair to blame the media than to blame lawyers and judges. There is a real phenomenon emerging here. The Supreme Court ruled against the President in Clinton v. Jones because the Justices were out of touch. They did not understand why Clinton needed an immunity that none of his predecessors had required. Something had changed, but it was not the law; it was the culture.

If Americans’ penchant for suing one another has been with us since the dawn of the Republic, until recently, at least, Presidents were considered largely off limits. The idea that one respected the office of the President even if one held its occupant in low esteem has virtually vanished. When George W. Bush says that he will restore honor and decency to the White House, he simultaneously invokes this forgotten ideal while coyly disowning it (because he implies that his opponent will further tarnish the office, demeaning not just himself but also the Presidency).

The precise moment when the office of the Presidency ceased to command respect is difficult to pinpoint, but it cannot have been very far from President Nixon’s resignation. Once Presidents were no longer placed in a special category and venerated with special respect, it is hardly surprising that they, like everyone else, became subject to the legal system — indeed, became juicy targets for lawsuits. And what holds for Presidents is doubly true of mere Presidential candidates, who are expected, at least until they take office, to be fully subject to the fray.

Watergate produced surprisingly little in the way of lasting political change. Campaign finance limitations enacted in its aftermath were substantially invalidated by the Supreme Court in Buckley v. Valeo. The Court upheld the Independent Counsel Act in Morrison v. Olson, but in the wake of the Clinton impeachment, Congress decided not to renew it. The most lasting impact of Watergate may well be its effect on the cultural status of the Presidency. In this sense, our two most recent constitutional watersheds — the Clinton impeachment and the Bush/Gore election — are cultural products of the one that came before.


Michael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University. He and Charles Sabel are currently working on a book, to be entitled Democratic Experimentalism.

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