Federalist 73
In the last essay I discussed the duration of presidential terms and the possibilities for reelection. How a person gets into that office and for what length of time are, of course, consequential matters. They would be less consequential should the president have no actual power, but any discussion about the acquiring of office must necessarily relate to what a person does once in office. Both of those questions, in turn, relate to the question of why someone would seek office.
In general the office of the presidency probably can’t be entrusted to someone willing to do all the unseemly work involved in acquiring it. Pandering to the public, giving up one’s private life, 24/7 campaigning, non-stop fundraising along with the self-humiliation involved, all the carping and criticism – the constant indignity of the process suggests there is something seriously wrong with a person who willingly engages it.
My general approach to candidates is to vote for the one who seems like he wants it least. I won’t dispute that all human motivations are mixed and that some people do want to serve “the public.” But, as the character Willie Stark observed in Robert Penn Warren’s All the King’s Men: “Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud. There is always something.” Our actions result from the war taking place in our own hearts, the impure thoughts always bleeding into the pure ones. No matter how well-intentioned a person might be in seeking office, self-interest has a way of making its secretive visits, the unannounced thief in everyone’s soul.
The three obvious corrupting impulses are the desire for status, for power, and for wealth. The framers of our Constitution may not have been able to do much about the first problem, but they thought they had solved the second problem by locating most of the power in the legislature and then creating the system of “checks and balances.” I’ve discussed in previous essays how Hamilton shilled for a more energetic (that is, powerful) executive and how Anti-federalists feared one, but Hamilton’s expansive vision indicated that he feared the office wasn’t powerful enough to attract the right sorts of people.
There are three ways in which holding the office could increase one’s wealth: by providing levels of compensation well above the household median; by providing “emoluments” that enrich the office-holder; by creating opportunities to leverage the office and its prestige into wealth-making opportunties. These ventures might include manipulating foreign investments, funneling monies into privately held enterprises, or outrageous speaking fees once out of office. Hillary Clinton gets close to $300,000 a gig for losing the presidency.
Presidential Compensation
Article II, sec. 1 of the Constitution provides that “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” One of the more interesting moments at the Convention occurred when Ben Franklin, the high priest of abstemiousness, addressed the issue of presidential compensation. Franklin worried that the persistent passion for money would turn the presidency from a place of honor to a place of profit. The tendencies of politicians to pursue office in order to enrich themselves were “the true sources of all those factions which are perpetually dividing the nation, distracting its councils, hurrying sometimes into fruitless and mischievous wars, and often compelling a submission to dishonorable terms of peace.” It would not be “the wise and moderate” lovers of liberty and peace who would seek the office but rather “the bold and violent, the men of strong passions and indefatigable activity in their selfish pursuits.” The worst of us would “thrust themselves into you Government and be your rulers.”
Just as Socrates claimed that his poverty was evidence of his virtue, so also should a politician demonstrate his commitment to public service by not seeking compensation for it. I think there is something a little off in thanking someone for performing a service they are paid to do, especially if I don’t know whether they are doing it well or for me personally. Granted, as Franklin observed, Washington had demonstrated genuine service and patriotism by seeking neither power nor money, but such men were rare. In any case, we shouldn’t be ruled by people who would seek the office because it paid well, and for that reason Franklin recommended no compensation for the President. Franklin’s speech was admitted into the record and seconded by … Alexander Hamilton.
Other members of the Convention were not as concerned as Franklin. They believed that compensation was an essential part of maintaining the executive branch against legislative encroachments. Unless the president had a salary that the legislature could not change while he was in office, legislators couldn’t use money to either encourage his compliance or withhold it for his not cooperating. “A power over a man's support,” Hamilton wrote in 73, “is a power over his will.” And further: “They [Congress] might, in most cases, either reduce him by famine, or tempt him by largesses.” Since Congress did all appropriations, including their own salaries, it would have the final say in what a president makes. I can’t say we have seen presidents who sought the office because they needed the money, but there is always the danger that presidents can enrich themselves and their friends in other ways. As I indicated above, ex-presidents have done very well for themselves, especially charging exorbitant rates for appearance fees – started, so far as I know, by Gerald Ford – and sweetheart book deals, such as Obama’s $60 million signing.
The Veto Power
Hamilton proceeded to discuss the second way of protecting the executive: a qualified veto power. The king in England had an absolute veto: he could veto any act at any time without providing a reason. Once the law was vetoed Parliament had no further say. As many of the delegates at the convention pointed out, this was a power the king had not used for a long time, and if a king wouldn’t use it why would a president?
As Edmund Burke pointed out, the significance of the king’s veto power rested not in how he used it but in the fact that he had it. In Burke’s telling, this had an upside – “its existence may be the means of saving the constitution itself, on an occasion worthy of bringing it forth” – and a downside – the abuse of kingly power. Most Convention delegates saw it the same way: they feared the possibility of its profligate use, but they also considered that unlikely. Pierce Butler warned the delegates about imperious executive power and for that reason opposed the veto, but he was in the minority. “Why might not,” he wondered aloud, “a Cataline or a Cromwell arise in this Country as well as in others.” Franklin, opposing the veto, saw how the it had been abused by Pennsylvania’s governors, warning the delegates that “The negative of the Governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him.” Just as he opposed compensating the president, Franklin also opposed the veto power.
No one entertained the idea of an absolute veto; as a result, much of the debate concerned how to qualify that presidential power. One idea seriously discussed was that all congressional acts would have to go to a committee formed by members of the executive and the judiciary. This committee would have the power to revise all legislation, not just to insure its constitutionality but to keep the legislature from expanding its powers. One reason this plan was rejected was because, as Luther Martin pointed out, it would effectively give the judiciary a double-negative since it would have a second opportunity to reject legislation, its other means through the process of judicial review.
The Federal Farmer perhaps best summarized the reason for the veto: “The negative, in one case, is intended to prevent hasty laws, not supported and revised by two-thirds of each of the two branches; in the second, it is to aid the weaker branch; and in the third, to defend the executive and judiciary.” Hamilton argued much the same thing in Federalist 73:
The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design.
This meant, Hamilton continued, that many good laws would not be passed as a result, but that was a price we were willing to pay to prevent the passage of bad ones.
Qualifying the Power
The Constitution, outside of the veto, gives the president no legislative power, which explains disagreement about the veto power itself. Delegates were obviously concerned about over-blending executive and legislative power, and most considered giving the president revisionary authority went too far in granting him legislative power. A qualified veto, however, meant that a president could either sign the bill into law or veto it, giving his reasons for doing so. The further qualification concerned Congress’s power to override the veto and what kind of supermajority proved desirable. The final 2/3 number seemed a reasonable compromise: a simple majority would render the veto power toothless while ¾ meant that a malicious minor faction could gum up the works entirely.
Those who approved the Constitution assumed the existence of the veto would be enough to keep Congress from passing bad laws, and also that it would be a power seldom used. The most active vetoer of all presidents was Grover Cleveland, who vetoed 584 bills during his two terms. FDR had 635 vetoes, but had an additional term to do so. For his 895 days in office, Gerald Ford did more than his share, although a quarter of his were overriden. Washington only used it twice, and Adams and Jefferson not at all. Clearly, however, the threat of the veto means that members of Congress realize they probably need enough numbers for an override on any controversial piece of legislation. There isn’t a whole lot of downside to presidents profligately exercising the power, other than the court of public opinion and the creation of a recalcitrant Congress.
There has been talk about giving the president a line-item veto, which would allow him to veto only the parts of the legislation he doesn’t like. The argument for the line-item is that it would help in keeping budgets under control, the argument against it is that it would increase presidential power even further.
The Constitution explains the veto power this way: “If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.” But presidents have increasingly issued “signing statements” when they sign bills into laws, and these signing statements operate as de facto line-item vetoes since presidents will typically identify which provisions of a piece of legislation they will refuse to enforce.
Hamilton’s arguments in Federalist 73 captured well the general sense of the importance of both the veto power and fair compensation for the executive, but it also captured the general sense that the legislature was the branch of government to be feared and that little was to be feared from the powers given to the executive. Those who feared the imperial presidency were largely prophets not heard in their land.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
Related Essays
