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The Contemporary Presidency

“An Excess of Refinement”: Lame Duck Presidents in Constitutional and

Historical Context

DAVID A. CROCKETT Trinity University

Well into President George W. Bush’s second term, history appears to be repeating itself—second terms are far more problematic than first terms. Are problematic second terms inevitable, and if so are they caused by the Twenty-second Amendment? In this article I explore the constitutional and historical dynamics of presidential term limits, focusing on the leadership and clerkship roles the president performs in the constitutional system, constrained by the dynamics of political time. The article examines the classic arguments for and against term limits, comparing Hamilton’s focus on stability to Jefferson’s concern for tyranny. It then surveys the scholarship on second term problems to tease out the effects of term limits from the more general problem of second terms. I conclude with an analysis of second term and term limit problems from a political time perspective, suggesting that presidents are more constrained in the pursuit of their constitutional functions by the dynamics of regime cycles than they are by term limits. It appears that term limits add little to the functions of the presidency in the constitutional order.

There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence, the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive.

Federalist No. 72

As this article is being written, the nation is well into the final quartile of President George W. Bush’s presidency, and it would appear that history is repeating itself. Despite a reelection win that was clearly stronger than his first victory, and despite claiming

David A. Crockett is an associate professor of political science at Trinity University and author of The Opposition Presidency: Leadership and the Constraints of History (2002), Running against the Grain: How Opposition Presidents Win the White House (2008), and numerous journal articles.

Presidential Studies Quarterly 38, no. 4 (December) 707 © 2008 Center for the Study of the Presidency

political capital he was willing to spend, Bush’s second term has witnessed plunging public approval, a troubled policy agenda, and significant midterm election losses. The administration entered its second term having undertaken a study of previous second terms to stave off the inevitable, to no apparent avail (Balz 2007, 25). History demon- strates that second terms are far more problematic than first terms, afflicted with “sixth year itches,” “sixth year curses,” and the more generic “second term blues” (Sabato 2008; Shogan 2006; Fortier and Ornstein 2007).

One explanation for this phenomenon is the president’s status as a lame duck due to the term limits imposed by the Twenty-second Amendment. This article examines the impact of the two-term limit on the president’s ability to do his job, exploring this question from a constitutional and historical perspective, focusing on the leadership and clerkship roles the president performs in the constitutional system, constrained by the dynamics of political time, concluding that term limits are, in Hamilton’s evocative phrase, “an excess of refinement.” That is, while not the harbinger of doom some portray, they in fact add little to the functions of the presidency. The argument is in four parts. The article begins with a brief review of the president’s function in the constitutional order, moving away from a presidency-centered approach in favor of a systemic one, arguing that this is the best way to evaluate presidential effectiveness. Second, it outlines the classic concerns about term limits, both pro and con, comparing Alexander Hamil- ton’s focus on energy and stability to Thomas Jefferson’s concern for tyranny and health, arguing that each makes strong and weak arguments, but that Hamilton wins the day. Third, it surveys the scholarship on second term problems, highlighting arguments concerning reelection hubris, administration fatigue, and leadership failure to demon- strate that some problems are due more to the existence of successive terms than to term limits. The article concludes with an examination of term limits in a broader historical context, comparing second term problems to the constraints and opportunities all presi- dents face at various points in political time, arguing that presidents are limited far more by larger historical forces than they are by a lame duck status.

Presidential Functions in the Constitutional Order

As Jeffrey Tulis outlines in his book The Rhetorical Presidency, the separation of powers system created by the American Constitution helps provide for several different objectives of republican government. By separating various functions of government into distinct groups of officials, the framers hoped to provide for more effective governance, and the three branches of government are structured to make more likely the provision of these functions. Congress is a plural institution designed to represent the people and enact policies in response to the popular will through a complex deliberative process. The federal court system is composed of small bodies of learned experts who have job security that enables them to interpret the law and protect the rights and liberties of the people. Most important for this analysis, the presidency is a unitary institution designed to ensure the security and stability of the nation by acting energetically to set goals, respond to crises, and provide for the steady administration of the law (Tulis 1987, 41-45). Tulis

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points out that the separation of powers system is designed to regulate the natural tension that exists among these various functions. The three branches of government are struc- tured differently to make more likely the fulfillment of these objectives, and their priority of concerns differs.

Any analysis of presidential effectiveness, then, must begin with a clear understand- ing of the functions the office performs in the constitutional order. “Success” on the president’s own terms may be an understandable goal for the individual inhabiting the office, but individual success may or may not be desirable for the polity as a whole. Far more important is the question of what the presidency as a constitutional office provides to the nation. Inspired by the poor performance of the national government under the Articles of Confederation, Publius clarifies the place of the presidency in the political system, stating that energy in the executive is “essential to the protection of the com- munity against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property . . . to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” It is in part the unitary nature of the office that makes possible this energy, which brings with it such qualities as “decision, activity, secrecy, and dispatch,” constituting “the bulwark of the national security” (Hamilton et al. 1999, 391-95). According to Publius, the function of the executive consists of “the execution of the laws and the employment of the common strength, either for this purpose or for the common defense” (418).

Scholars have noted that in the performance of his duties the president wears the dual hats of leader and clerk (Neustadt 1990, 3-9). In his leadership capacity the president sets and clarifies goals and reacts to crises. In his clerkship capacity the president pursues steady administration of the law. Richard Neustadt emphasizes the president’s leadership role at the expense of his clerkship role, for leadership tends to be the arena in which the president demonstrates greater strength, however that word is defined. It is important, though, not to ignore either aspect of presidential duty. Herbert Storing argues that the leadership and clerkship roles embodied by the presi- dent coexist uneasily with each other, in inevitable and unavoidable tension. Energy is essential for both functions, but the leadership hat worn by the president implies a level of independence and equality with respect to Congress, while the clerkship hat implies a more subordinate role as the president serves the nation by effectively admin- istering laws passed by Congress (Storing 1995a, 370-72; Storing 1995b, 393-94). These dual hats of leader and clerk clarify the various constitutional tasks facing the president. As a leader the president sets the national agenda, principally by giving information to Congress on the state of the union and recommending legislation for its consideration. As a leader the president also responds to crises, particularly in his capacity as commander-in-chief. Linked to this crisis manager role is the larger concern with security and stability, and here the president has the power to make treaties with foreign countries and receive ambassadors. His oath of office also gives him the explicit duty to “preserve, protect and defend the Constitution of the United States.” By con- trast, the president as clerk pursues the steady administration of the law, fulfilling this function by staffing and managing the executive branch, and taking care that the laws are faithfully executed. The constitutional power to veto legislation resides

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under both hats. Both the leader responsible for stability and the clerk responsible to execute the laws are interested in preventing what Publius calls “the enaction of improper laws” motivated by “some common passion or interest” (Hamilton et al. 1999, 411). The president as leader can also use the veto power to influence the national agenda.

The question of term limits and presidential effectiveness in second terms is important not because of the president’s desire to be successful by winning specific policy battles or getting his way, but because the various functions described above are impor- tant for the effectiveness of republican government in general. The qualities provided by energetic leadership and clerkship—the broader goals of security and stability—ideally would not be contingent upon election cycles and duration in office. That is, perhaps, too ideal a vision, but the framers of the Constitution wrestled with these questions at the constitutional convention, recognizing the connection between the selection process, tenure of office, and the ability of the president to fulfill these functions. Multiple terms would make a president selected by Congress too dependent on that body, defeating the theory behind separation of powers and doing great harm to the function of leadership. If being eligible for reelection, for whatever reason, is desirable, selection would have to be done by some other mechanism (Milkis and Nelson 2003, 33-34). While the original debate was over whether the president should be limited to one term only, the existence of any term limit has the potential to impact these important and essential functions. It is to the question of term limits that we now turn.

Term Limits: The Core Debate

Although the Twenty-second Amendment to the Constitution was ratified in a largely partisan effort with surprisingly little substantive deliberation in Congress (Kyvig 1996, 327-31), the argument for term limits has a solid and respectable pedigree. Contrary to popular belief, however, that pedigree does not begin with George Washington. The first president did not intentionally establish the so-called two-term tradition; his departure was motivated by a desire to demonstrate that the country could function without him and to retire to Mount Vernon. He made no principled argument for limiting presidents to two terms, and in fact disagreed with Thomas Jefferson on this point (Peabody 2001; Milkis and Nelson 2003, 84; Corwin 1957, 333). While Jefferson made use of Washington’s voluntary retirement, calling it “the sound precedent set by an illustrious predecessor,” it was Jefferson himself who gave philosophical justification to the two-term limit ( Jefferson 2004, 64). In his 1807 letter to the Vermont Legislature, Jefferson outlined two major concerns behind his belief in some sort of fixed limit of terms. First, Jefferson articulates the common American fear of excessive executive power, arguing that unlimited reeligibility would cause the presidency to become monarchical and degenerate “into an inheritance.” Second, Jefferson mentions his concern for the effect of age on the body and the mind, fearing the “decline which advancing years bring on.” To summarize, Jefferson’s twin concerns are with the potential for tyranny and the health and vitality of the chief executive. The concern about tyranny can be interpreted as a fear

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that the leadership function of the presidency would be corrupted in monarchical directions. The concern about health relates to the weakness any institution would experience when it is composed of one person who is not operating at full strength and capacity.

Jefferson’s heirs followed his lead, particularly James Madison, James Monroe, and Andrew Jackson, but it can hardly be said that a two-term tradition was clearly settled in the 19th century. In fact, the philosophy of the Whig Party was even stricter, calling for a one-term limit, something the two elected Whig generals complied with by dying in office. Other presidents from both major parties pledged at various times to serve only one term, including James K. Polk and Rutherford B. Hayes. There were also presidents from both parties—Ulysses Grant, Theodore Roosevelt, and Woodrow Wilson—who attempted to gain the nomination for a third term, though all failed. In spite of these exceptions, however, the two-term tradition was established enough to prompt significant comment when Franklin D. Roosevelt chose to run for a third term in 1940.

By contrast, the argument for unlimited reeligibility was made most powerfully by Alexander Hamilton, writing as Publius in Federalist No. 72. Where Jefferson is most concerned with tyranny and health, Hamilton is focused primarily on the desire for stability in the administration of government. He sees term limits as a device that would require change both in leadership and the administration of the laws. All presidents have an incentive, in Hamilton’s view, to reverse the policies and change the personnel of their predecessors. Their need to establish their own legacies and reputations results in “a disgraceful and ruinous mutability in the administration of the government” (Hamilton et al. 1999, 404). At the same time, the impossibility of reelection would reduce the incentives for presidents to pursue worthy projects, since they would not be able to take credit for them. This second argument links the discussion of term limits to the larger one of accountability in the executive branch. Publius makes the case in Federalist No. 70 that it is easier to hold a unitary official accountable for the conduct of the office, whether through impeachment or simply “the restraints of public opinion” (397). Such “restraints” work in two directions—to prevent presidents from engaging in misconduct that would damage their reputation and to provide incentives to pursue laudatory measures for the public good. These restraints are most powerfully manifested in the electoral process, where “inducements to good behavior” encourage presidents to perform their job well. Hamilton’s argument against term limits rests in part on this incentive, counting on popular judgment to influence presidential behavior in a positive way, and assuming that such a restraint would be absent if the president cannot stand for reelec- tion. In fact, the presence of a term limit might prompt a president lacking the necessary civic virtue to use his time in office for selfish gain (405-6). Finally, Hamilton argues that term limits might rob the nation of the service of the most experienced individuals, especially in an emergency (406-7). To summarize, barring a compelling reason it is better to maintain stability and avoid rapid and constant change in the administration of laws. It is good to keep experienced people in power and give them an incentive to pursue good works. Such a provision should foster strong leadership and sound clerkship on the part of the president.

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Evaluating Jefferson’s Argument

Having laid out these core arguments, it is a simple matter to evaluate them in light of the central functions of the executive branch established by the framers. What little deliberation took place about the Twenty-second Amendment centered on the first of Jefferson’s concerns. Republicans and conservative Democrats, agitated by the “dicta- torship” set up by Franklin D. Roosevelt and Harry Truman, made reference to Jefferson’s precedent and the fear of executive tyranny (Kyvig 1996, 327-34). It is difficult to take Jefferson’s argument seriously, however, in light of the constitutional structure. The foundation for his argument against tyranny is his belief that “a representative govern- ment, responsible at short periods of election, is that which produces the greatest sum of happiness to mankind” ( Jefferson 2004, 64). The framers of the Constitution may have agreed with him, but they chose to focus the greatest amount of accountability in the House of Representatives. Publius recognizes that republican government in general needs to have “an immediate dependence on, and an intimate sympathy with, the people,” and that link can only be accomplished by “frequent elections” (Hamilton et al. 1999, 295). That is why members of the House serve for only two years—it is the most democratic and responsive of the federal institutions.

The structure of tenure in the other branches of government demonstrates that there are other goals in addition to responsiveness. Tenure during good behavior in the judicial branch allows justices to protect the integrity of a limited constitution against encroachments by the other two branches (Hamilton et al. 1999, 434). Lengthy terms in the Senate allow that body to serve as “an anchor against popular fluctuations,” resisting populist impulses in an attempt to “blend stability with liberty” (353). Similarly, four-year terms for the president allow the chief executive to protect “the interests of the people” when their inclinations endanger them (400). A strong concern for security and liberty lies at the heart of the structure of tenure, with the goal of simple democracy secondary in the branches that have lengthier terms of office. Jefferson’s argument ignores the fact that the presidency is not designed to be a purely representative institution, and forced rotation in office is not a top concern for a branch focused on security and stability. Conversely, while the unitary nature of the presidency allows for greater accountability to the people as the chief executive performs his function, term limits reduce that sense of accountability as the president realizes he no longer has to face the proverbial music. This incentive is not completely eliminated, for presidents desire to establish a legacy and reputation, and one way of doing that is to ensure the election of a successor from their party. However, the very attempt to secure a legacy can run counter to the interests of the heir apparent, who may have his own vision of what the incumbent should be doing to help secure his election.

Jefferson’s second argument, concerning the physical and mental debilitations of age, is more interesting, especially in light of history. Franklin D. Roosevelt, whose four straight electoral victories prompted the move toward term limits, died very early in his fourth term, and it was known at the time he ran for office in 1944 that he would not survive another term. Dwight Eisenhower suffered three serious health scares during his presidency, including a heart attack and a stroke, and Ronald Reagan’s gunshot wound,

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coupled with his age, raised questions about his vitality. Even the much younger Bill Clinton suffered a severe health crisis less than four years after leaving office. The experience of the Democratic Party under Woodrow Wilson demonstrates that the party organization can resist a president’s efforts to secure a third term, especially one as ill as Wilson after his major stroke, and one would expect that the rigors of the modern candidate-centered nomination system would screen out exceptionally unhealthy incum- bents. Both Eisenhower and Reagan spoke up in favor of rescinding the Twenty-second Amendment at various times, but one has to wonder whether their health would have held up in a hypothetical third term. Once Roosevelt broke with precedent, it is logical to assume that later presidents would be more willing to do so, making health an increasingly important factor in nomination decisions, and a topic that would be covered extensively by the news media. From a functional perspective, then, Jefferson’s argument of health is far more compelling than his concern with monarchy.

Evaluating Hamilton’s Arguments

Term limits, in Hamilton’s view, work against all the major objectives of the presidency. First, they require a change in agenda-setting where one may not be necessary. Hamilton fears that term limits will prompt presidents to ignore worthy projects, since the president will not be able to take credit for them. Whether that fear is true, the conventional wisdom is that term limits prevent presidents from pursuing bold projects, even if they want to. Indeed, perhaps the most common criticism of the two-term limit is that it makes the president an instant lame duck, thus reducing the power and influence of the president as a policy leader. Because they cannot run for office again, presidents have a diminished ability to shape the policy agenda. We know with certainty that George W. Bush will no longer be president at noon, January 20, 2009. There is no mystery about that fact. As that time approaches, political actors both at the national and international level may opt to wait for the next administration for action. While this type of reasoning could take place during any contested election, the absolute certainty of departure that comes with term limits encourages such gamesmanship far more than a first term contest where reelection is a real possibility. This seems especially true after the sixth year, when the political class begins to look forward to the next presidential election—a process that begins earlier and lasts longer with each passing election cycle. The election drama occupies more and more news media space, and the result is that the president has little power to start new projects, whether social security reform, immi- gration reform, or comprehensive health care reform. Perversely enough, a president is most powerful in agenda-setting as he starts his first term, when he is least experienced and knowledgeable. When his knowledge and experience are at their highest, starting a second term, his political capital—contra George W. Bush—only gets lower (Light 1991, 36-39). The president does not lack incentives to pursue bold projects—his desire to establish a legacy and reputation overrides the dampening effect of term limits—but the structure of the system works against that desire. Accounts of Roosevelt’s decision to run for a third term—something he did not declare definitively until the 1940 Demo- cratic National Convention—demonstrate his ability to retain political influence through

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most of his second term simply because of doubts about the succession (Parmet and Hecht 1968). Of course, the veto remains a powerful agenda-influencing tool, even if it is a negative one, throughout a president’s administration, and recent research demon- strates that a president’s ability to pursue unilateral policy-making through executive orders gives presidents additional leadership tools (Mayer 2001, 96-97). Successful efforts to secure balanced budgets by Eisenhower and Clinton and the 1986 tax reform act signed by Reagan demonstrate that significant things can be accomplished after first terms have ended. Nevertheless, term limits mark a weakening of this aspect of leader- ship, one that often appears to begin the day following reelection.

Second, Hamilton believes term limits could require a change in leadership during a national emergency, thus threatening the security of the nation. This is precisely the argument Roosevelt used to justify running for a third term (Parmet and Hecht 1968, 174-77). Of course, the nation has changed hands before in the middle of a war, and the experience of George W. Bush after the terrorist strikes on 9/11—his rapid rise in popular approval—demonstrates the tremendous power even a constrained president can wield when performing his leadership function in the service of national security. In fact, the constraints term limits presumably place on a president’s agenda-setting abilities in the domestic arena may prompt him to take more vigorous action in the foreign policy realm, where his power to lead is naturally less constrained. A short list of significant activities proving that energy does not have to dissipate with term limits would include Eisenhower’s second-term efforts to “wage peace,” Reagan’s Berlin Wall speech and successful intermediate nuclear force (INF) treaty with the Soviet Union, and Clinton’s military action in Kosovo and Middle East peace efforts. The issue for Hamilton has less to do with the ability of presidents to act in times of crisis than with forcing change in the middle of a crisis, whether the country desires that change or not. Roosevelt’s own experience testifies to the ambiguity Americans feel about this question, for his reelec- tions to third and fourth terms came by smaller and smaller margins, but he was, nevertheless, strongly elected all four times, demonstrating the public’s relative satisfac- tion with his leadership. Presidents may suffer the conceit of thinking they are indis- pensable, as Roosevelt reportedly did prior to 1940, but that vice may prove a relatively minor one if the benefit is continued leadership by an experienced hand. Of course, popular disapproval of crisis management will lead to a change in leadership.

Third, Hamilton believes term limits require a change in administration where stability is the preferred quality. He feared term limits would force change in policies and personnel simply for the sake of change. It is difficult to credit Hamilton’s concern here, due to the remarkable consistency of change and stability in the presidency throughout American history. It is his weakest argument. To quantify this issue, I calculated the average term length for pre–Twenty-second Amendment presidents and post–Twenty- second Amendment presidents. I controlled for premature death and resignation by counting a vice presidential succession as the same term as his predecessor. For example, the Harrison-Tyler administration is counted as one four-year term, not one one-month term and one nearly-four-year term. The average term length for pre-amendment presidents—twenty-nine presidents over 164 years—is 5.66 years. The average term length for post-amendment presidents—nine presidents over 56 years through 2008—is

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6.22 years. The post-amendment presidents, thus, show a 10% rise in average term length over their predecessors. Of course, this simply testifies both to the influence of the unofficial two-term tradition prior to Roosevelt and to the power of political parties to control the nomination process in the pre-candidate-centered era. A better indication of the consistency in administrative change over time is to examine the average number of presidents in a given period. For example, in the one hundred years between 1789 and 1889 the country witnessed 18 presidential administrations. In the next hundred years, the number is 17. On average since 1789, the nation has seen 3.45 presidents every 20 years. The only 20-year period that saw a smaller number was the period between 1929-1949; counting Truman’s first stint as finishing Roosevelt’s fourth term, the nation saw only two presidencies.

One common suggestion to reform the presidency has been to move toward a system of six-year terms with no reeligibility. Had that system been put in place from the beginning, the nation would have seen an average of 3.33 presidents every 20 years— very close to the historical reality. Given Hamilton’s original proposal that the president serve for life it is doubtful that this rate of change would be satisfactory to him (Madison 1969, 135-36), but it is clear that the institution of term limits has had little effect on rotation in office. Of course, whether or not the presidency itself changes hands, it is common for any administration to witness significant change in cabinet and advisory positions. Term limits, with the sure knowledge of impending change at the top, may prompt a larger number of resignations as bureaucratic leaders seek employment else- where (Grossman, Kumar, and Rourke 2000, 228-30). Hamilton would question why there is a requirement for change when, for all the reasons stipulated above, it is unnecessary.

From a constitutional perspective, then, it would appear that term limits provide little to the political system. They introduce the element of forced rotation where the original design of the office was biased in favor of stability and longevity, assuming competent performance, especially in the areas of administration and crisis management. They work to hamper the president’s agenda-setting function in the second term, though presidents can compensate for that fact somewhat through the use of other executive tools. They do not act as much of a constraint in the foreign policy arena, where the president’s natural structural advantages favor independent action. They allow a presi- dent to pay less attention to “the restraints of public opinion,” since they know they have won their last victory, though presidents remain interested in helping their partisan heirs ratify their reputation with a victory. Other than a mandated rotation in office, then, the only thing term limits provide is a hedge against the political leader whose ambition may prompt him to serve beyond his physical and mental abilities.

Term Limits and Second-Term Blues

If term limits do not provide much to the political system, it is important to acknowledge that they are often blamed for things that are not their fault. The litany of second term problems in the twentieth century is well-known: the catastrophic fight over

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the Treaty of Versailles, Roosevelt’s court-packing plan and intra-party purge attempt, the Sherman Adams scandal and U2 incident, Watergate, Iran-Contra, the Clinton impeachment, Katrina and Iraq—while they vary in intensity and level of debilitation, all are listed as proof of the fact that second terms are far more problematic than first. One scholar notes how many of these problems seem to crop up in year six of a presidency, coinciding with typically dramatic losses by the president’s party in Congress (Shogan 2006). Of course, the list above includes pre-amendment presidents, so although term limits may create political problems for modern presidents, second term problems would seem to have other causes.

One of the explanations for second term problems is reelection hubris. Presidents who run for reelection tend to make the contest a referendum on their performance. This retrospective focus—very much a performance evaluation—does not typically concen- trate on new issues. When presidents then win comfortable or landslide victories (such as Roosevelt, Eisenhower, Nixon, Reagan, and Clinton), they assume they have a popular mandate, when in fact they have not made the case for a new agenda. The result is that presidents are tempted to ignore Congress and seek controversial policies without con- sultation (Grossman, Kumar, and Rourke 2000, 224-36; Shogan 2006, 96; Fortier and Ornstein 2007, 2). Landslide victories are not required for this phenomenon to take place—all it may take is a president announcing his willingness to spend political capital earned in the campaign. Presidents then suffer a second midterm election loss that is usually worse than the first, leading to further loss of congressional support. None of this is caused by the Twenty-second Amendment, and Shogan ably demonstrates that these problems have been faced by such pre-amendment presidents as Grant, Wilson, and Roosevelt (Shogan 2006, 90-96). In fact, these problems may be symptomatic of the constitutional system. Publius argues in Federalist No. 71 that presidents will pay more attention to the popular will in their fourth year as they attempt to win reelection (Hamilton et al. 1999, 402-3). From a systemic perspective, the incumbent president sacrifices the agenda-setting aspect of his leadership function to the quest for electoral victory. This natural political incentive, which causes the original and reelection cam- paigns to be fought along different lines, has an impact on the entire second term. One solution to this problem is a constitutional amendment mandating a one-term limit, which would eliminate the incentive problem raised by Publius, but that would require careful reflection on whether the cure is worse than the disease, for a president limited to one term never has to face “the restraints of public opinion,” and is an instant lame-duck from the first day in office.

A second explanation for second term problems is administration fatigue. Presi- dential politics is tough work, and the team that leads a president to victory and then works toward reelection may be worn out by the beginning of the second term. They experience burnout and exhaustion, at the cost of ideas that made the first term a success. If the advisors stay they may not be as sharp. If they leave they may not be replaced by equals. The presence of term limits exacerbates this problem, as cabinet members and advisors exit the administration in a search for more lucrative employment (Grossman, Kumar, and Rourke 2000, 227-31; Fortier and Ornstein 2007, 2-4). This does not seem to be an inevitable problem, however. Just as Reagan arguably suffered when James Baker

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and Donald Regan executed their swap of executive branch positions in the second term, so his administration got a proverbial shot in the arm when Regan departed and was replaced by Howard Baker. Administration fatigue is not inevitable or never-ending as long as presidents are mindful of the need for rejuvenation. Often complaints about second terms are less about fatigue than about policy, the current dissatisfaction with American policy in Iraq being a prime example. Stubbornness or perseverance, depending on one’s partisan perspective, may explain more about second term discontent than fatigue. The dynamics of term limits, however—the certain knowledge that an admin- istration is coming to an end—may make it difficult to recruit quality replacements for those who depart.

The question of fatigue raises a third explanation for second term problems, and that is early leadership failure. Scandal is a common feature of second terms, but the failure of leadership more generally often finds its origins in the first term. Roosevelt’s antipathy for the Supreme Court in his first term led him to attempt his court-packing plan in his second. Nixon’s paranoia and exaggerated fears over the 1972 reelection effort gave the green light for the Watergate break-in, a first term decision. Reagan’s unwill- ingness to fight Congress over foreign policy powers concerning Central America led subordinates to think that clandestine support of the Contras was legitimate—a first term problem. Clinton’s impeachment problem began in his first term, either in admin- istration habits developed to obstruct earlier investigations such as Whitewater or Filegate, or his decision to re-sign the independent counsel statute, or his own personal weakness in succumbing to sexual temptation during the first-term government shut- down in 1995. Of course, the biggest problem George W. Bush faces in his second term—the unpopularity of the war in Iraq—is due to decisions he made in his first term. Again, none of these problems is due to term limits—they were factors of decisions taken in the first term, before fatigue set in, that simply took time to develop and mature. One can make a strong argument that many second term problems are caused by short-term thinking in the first term—the problems simply take some time to manifest themselves. This problem is one that cannot be solved by institutional mechanisms. It requires the political virtue of prudence. Presidents need to take the advice of political philosophy and watch for potential future difficulties in the decisions they make, both for the sake of the president (channeling Machiavelli and Neustadt) and for a healthy, well-functioning office later in the term.

These observations also demonstrate that disaster in the second term is hardly inevitable. Presidents need to be more mindful of their leadership and clerkship functions in their decision-making, diligently protecting them, whether by guarding their agenda- setting ability while running for reelection, being proactive to provide steady adminis- tration even as the roster of advisors changes, or ensuring that first-term decisions will not lead to a blowback several years later. Many two-term presidents went on to notable successes despite their troubles, and Roosevelt moved on from his very difficult second term to a successful third term prosecuting the war effort. It is impossible to generalize from one example, but the experience of the Roosevelt presidency indicates that it is possible to recover and adjust from “second term blues” to run a capable administration, working to fulfill the constitutional functions of the office.

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Term Limits and Political Time

Examining the question of term limits from a constitutional and systemic perspec- tive clarifies how the Twenty-second Amendment impacts the leadership and clerkship functions of the presidency. There are multiple levels of analysis, however, and it is helpful to expand the scope of the examination to incorporate the broader historical context of the presidency. The constitutional and systemic perspective sees presidents performing a leadership function (through agenda-setting and employing the common strength) and clerkship function (through steady administration of the law) in the constitutional system. The historical perspective recognizes that presidents exercise these functions under constraints placed upon them by historical forces. Presidents are prod- ucts of their place in history, which determines how energetic they can be and how they can balance their leadership and clerkship duties. Different times—crisis periods as opposed to times of normal politics—may call for different mixes of presidential lead- ership and clerkship. Presidents are not created equal when it comes to historical contingency, and the emphasis they place on the different aspects of their constitutional functions may vary depending on the larger context. For example, realignment swings give certain presidents tremendous opportunities to redefine the political agenda, while their heirs and opponents face greater constraints during times of normal politics.

There are different ways of understanding historical context, but one of the more influential examinations of this issue is Stephen Skowronek’s analysis of political time (Skowronek 1993). Skowronek argues that American history can be understood as a series of regime cycles in which one party and its governing philosophy set the basic policy agenda in American politics for a specific era. Presidents of reconstruction, such as Abraham Lincoln and Franklin Roosevelt, are followed by their partisan affiliates, who work to manage these regimes and carry their party’s political agenda into the future. Opposition presidents attempt to preempt the agenda of the dominant party, and eventually the regime collapses as the party fails to account for emerging issues and divisions. The stage is set for another reconstruction. Skowronek’s work demonstrates the importance of political time in understanding the constraints presidents operate under. What does political time suggest about the question of term limits?

At first glance the forces of political time would seem to tell us little about the impact of term limits on the president’s clerkship function. The president is charged to execute the law, and the modern chief executive has plenty of resources to do that, regardless of regime timing or term status. Similarly, the president’s leadership task to employ the common strength, especially during times of crisis, does not seem to be as affected by political time and term status. When the president employs the common strength, the nation and other political bodies naturally look to him for leadership, and properly managed, a second-term president under any placement in political time ought to be as competent as a first-term president of reconstruction. A short list of examples of crises would include Truman and the Korean War, Eisenhower and the Quemoy-Matsu crisis, Kennedy and the Cuban missile crisis, Johnson and the Pueblo incident, Nixon and the Yom Kippur war, Ford and the Mayaguez incident, Carter and the Iranian hostage crisis, Reagan and the invasion of Grenada, George H.W. Bush and the first

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Persian Gulf war, Clinton and Kosovo, and George W. Bush and the response to 9/11. These examples reveal a wide mix of historical and constitutional contexts, with varying results that do not seem obviously connected to placement in political time. Skillful crisis management can trump the constraints of political time and term limits.

Where political time does tell us something about the impact of term limits is in the leadership task of agenda-setting, and there the dynamics of political time are more powerful than the constraints of term limits. According to the regime cycle model, only a few presidents—the reconstructors—have the opportunity to set the long-term agenda for the nation, and they tend to do so in their first term. Presidents of reconstruction are then followed by orthodox innovators, who are forced to operate in the shadow of their political patron saints, and opposition presidents, who are also forced to operate in the shadow of the regime’s reigning governing philosophy (Crockett 2002). For the articu- lators and preemptors it does not matter whether they are serving their first or second term—they will have only a marginal ability to set the long-term agenda in any significant way. More often they are free only to advance or trim the dominant agenda established by the reconstructor.

What is often overlooked is the fact that even the reconstructors have a limited ability to continue bold agenda-setting moves once they have reset the political clock. Andrew Jackson’s 1832 reelection bid was premised on his anti-bank move. Lincoln’s job after his reelection, had he lived, would have been to manage what he had set in motion in his first term. Roosevelt exhausted his New Deal efforts in his first term, being reduced to partisan and institutional warfare in his second. Reagan arguably accomplished his greatest domestic achievements during his first two years of office. In a sense, the great redefiners of American politics transform themselves into their own first articulators as their presidencies progress and age. Regime founders become their own regime manag- ers. Roosevelt is less the reconstructor, from an agenda-setting perspective, in his second term than he is a president who is trying to manage the very regime he established. We do not consider these presidents to be unsuccessful because of this dynamic—they simply make their most significant agenda-setting changes early, and neither they nor their successors can change direction until political time runs its course.

The question of term limits, then, becomes largely irrelevant from an agenda- setting perspective. It does not matter if a president is starting a second or even a hypothetical third or fourth term (or a first term, if the president is not a president of reconstruction). The long-term parameters of political time have been established, and it is up to the individual presidents to adjust their leadership posture accordingly and manage the era responsibly. To expect bold visions and dramatic leadership in such a dynamic is to raise our expectations too high, and to expect a president to deliver what he simply cannot provide, given the constraints of history. Agenda-setting constraints have less to do with term limits than they do with the natural rhythm of the regime cycle.

The influence of political time also calls into question Jefferson’s concern about monarchy. Recall that Jefferson feared that unlimited reeligibility would cause the presidency to become monarchical and degenerate “into an inheritance.” In a sense, that is precisely what happens. To use a well-known phrase, all Democratic presidents after 1945 have been forced to operate “in the shadow of FDR” (Leuchtenburg 1983). Simi-

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larly, Reagan’s partisan heirs have operated as genuine scions of the conservative revolu- tionary. If Jefferson’s goal in seeking term limits was to inject new blood in the presidency, he succeeded only in a genetic sense (notwithstanding the two Bushes, of course). If his goal was to prevent the office from becoming “an inheritance,” he failed dramatically. Skowronek’s use of the term “regime” to describe the dynamics of political time is telling, for in a very real sense presidents “inherit” a set of issues and definitions from the regime builders. The forces of political time seem to channel this aspect of presidential leadership in dynastic ways—literally so in Jefferson’s case, who founded the Virginia dynasty. Just as we speak of a “House of Windsor” in the British monarchy, so we can speak metaphorically of a “House of Lincoln,” a “House of Roosevelt,” and a “House of Reagan.” One could even argue that the flow of political time gives us precisely the stability Hamilton wanted from the presidency, for even though term limits force presidents out of office, they do not really alter significantly the long-term agenda, until that agenda has run its course and exhausted its force. Thus, long before term limits (and in spite of the two-term tradition), presidents became far more constrained by the dynamics of political time.

This analysis of term limits from a functional and historical perspective provides one more piece of evidence that the Twenty-second Amendment does little for the constitutional system. It does not appear to impact significantly the president’s crisis management duties or his clerkship function. It does not typically give us opportunity for fundamentally redirecting our politics through forced rotation in office—the constraints of political time override most considerations of broad agenda-setting changes, which come with the crisis moments and trigger events that give rise to reconstructors. Neither do term limits prevent presidents from engaging in bold plans in their second terms— the pulse of political time tends to do that on its own. It appears unquestionable that second terms are more problematic than first terms, but that seems to be a problem inherent in a republican system that allows for reelection, and not tied to the existence of term limits, and they are not inevitably disastrous. At most, term limits force a rotation in office that allows for short-term agenda-setting variations on a broader theme, at the expense of the larger agenda-setting function in the second term. Thus, if term limits are that inconsequential, doing little good and some mild harm, they would seem to be precisely what Hamilton said they were at the end of his argument against them in Federalist No. 72—“an excess of refinement” (Hamilton et al. 1999, 408). It is the historical context that places greater barriers to the goals of American presidents, who should recognize those constraints and work to adapt their leadership and clerkship functions accordingly.

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