John McCain has all but sealed the Republican nomination, while on the Democratic side, the race remains too close to call. On "super-duper" Tuesday, as good news for the Hillary campaign started to emerge, the PA system at headquarters in New York pounded out "Blue Sky" by Big Head Todd and the Monsters, with its refrain: "Yes, you can change the world!"
Change is, of course, the one thing the Republicans and the Democrats can agree upon. While George W Bush serves out the meaningless remainder of his term, both parties are competing to show how different they will be from his tired and tarnished administration. The American people are desperate for new direction, and the candidates are falling over themselves to oblige. Each has a solution to the Iraq quagmire, the bankrupt social security fund, the hordes of illegal immigrants, the sub-prime mortgage debacle, the 47m Americans without health insurance and economic slowdown. They have solutions to problems no one has even thought of yet. They are going to light a fire under the Washington establishment and they are going to get things done.
This myth of the all-powerful president persists. The electorate believes that the president can alone right all the wrongs that afflict the nation. Americans view their former presidents through a nostalgic haze in which the merely adequate appear to have been great while the great appear to have been superhuman. The slate of candidates is anxiously assessed to see if any of them could be the next FDR or Kennedy or Reagan, presidents whose myth has substantially overtaken their record. Nostalgia for Reagan is particularly acute this year, even among Democrats.
Yet the fact is that no one can live up to these expectations. Both the candidates and the electorate are guilty of a loss of constitutional perspective. In reality, the president of the US has a distinctly constrained constitutional authority. He cannot make laws, at least not in the all-encompassing way that congress can. He cannot raise taxes, nor declare wars (Iraq was authorised and continues to be funded by congress). He cannot make treaties with other nations. Unlike the British prime minister, he cannot even appoint his own cabinet without approval. The US constitution offers little more than an outline of the presidency, saying more about how the president should be appointed, paid and impeached than about the extent of his powers. On the election of General Dwight Eisenhower as president in 1952, his immediate predecessor, Harry S Truman, laughed. "He'll sit there all day saying, 'do this, do that' and nothing will happen," he said. "Poor Ike—it won't be a bit like the army."
The essential power of the president is, in the words of presidential scholar Richard Neustadt almost 50 years ago, "the power to persuade." The president must persuade congress to enact laws, he must persuade the vast federal bureaucracy to execute those laws (like civil services everywhere, America's can have a mind of its own), he must persuade the American people of the merits of his policy initiatives in order that they will, in turn, put pressure on their members of congress to support him. In the American system of separated powers, the authority to make legislation is reserved to congress. The president's vague constitutional brief is limited to the execution of congress's legislative output. The president can, of course, make his own legislative proposals to congress. Ultimately, however, if congress is not persuaded by the president's argument, it will not acquiesce to his request. It may simply sit on its collective hands and do nothing, as George W Bush discovered with his plans to partially privatise the beleaguered social security fund and to introduce a "path to citizenship" for America's underclass of illegal immigrants. Congress may even issue legislation that is precisely the opposite of the president's suggestion, and then have him execute it on their behalf. The old maxim that the president proposes and congress disposes is not as accurate today as it once was, but it is still a useful summation of the American legislative process.
So how will the newly elected president begin his or her campaign of persuasion come January 2009? Well, there are certain things that presidents can do for themselves. They can, for example, issue executive orders: these are regulations and instructions that have the full force of law, but which are narrowly focused upon the administrative activities of the federal government. They are analogous to statutory instruments in the Westminster context. On the face of it, executive orders may seem like a pretty poor substitute for congressional legislation, but the creative president can use them to make significant policy choices. Harry Truman, for example, ordered the racial desegregation of the military after the second world war by means of an executive order. Lyndon Johnson initiated the concept of affirmative action by government contractors by the same means. Indeed, some scholars argue that civil rights were essentially developed through the 1950s and early 1960s by means of presidential executive orders, while congress sat idly by. Executive orders are, however, more commonly used for mundane purposes. In general, meaningful public policy requires legislation, and legislation requires that a simple majority of the 435 members of the House of Representatives, and at least 60 of the 100 members of the Senate, agree on a particular policy outcome.
Still, the president does enjoy certain advantages. A bill does not become law until signed by the president. "I am part of the legislative process," President Eisenhower was fond of reminding congress. If the president refuses to sign a bill into law, or fails to do so within a prescribed time scale, the bill is vetoed; it cannot then become law unless the president's veto is overridden by a two thirds vote of both the House and the Senate, a tough proposition in the narrowly divided chambers of recent years—since 1980, only 13 presidential vetoes out of a total of 111 have been overridden. More importantly, the president has the advantage that he is but one person, with one set of ideas and one national constituency. Congress, meanwhile, is a highly heterogeneous body. The sheer diversity of the electoral, constituency and election timetable concerns of its 535 individual members is labyrinthine. Expecting them to agree on anything has become unrealistic as society and government have become ever more complex. So in the last 40 years, congress has effectively ceded the setting of the policy agenda to the president. It relies upon him to produce draft legislation, propose the federal budget and to prioritise among conflicting issues. It is the president who responds to the nation's political pulse; the nation's public policy priorities are substantially his priorities. The president's power is the power to set the agenda.
Yet in a system of separated powers, the making of public policy is an unavoidably collective exercise, and it has been the failure of the Bush administration and the Republican leadership in congress to recognise this that lies behind the failure of much of the Republican agenda, from immigration reform to social security. The political and electoral risk of tackling such difficult issues is so great that unless they are approached in a bipartisan manner, they cannot be solved at all. On potentially electorally damaging issues, a bipartisan approach is essential, so that blame is shared and electoral risk is not heaped on to one side alone. When I spoke to former senator Bob Dole recently, he bemoaned the passing of bipartisanship between congress and the White House. Congress has become, Dole argued, "more confrontational, more personal in terms of name-calling, and less bipartisan."
The American system of government was always designed to be an inefficient producer of laws. The inefficiencies—the disparate constituencies and electoral terms, the over-representation of smaller states in the Senate, the high threshold required to overcome a presidential veto—were designed into the system from its inception. The authors of the constitution were at great pains to blunt the political force of an organised majority; James Madison summed up the concern of the founding fathers thus: "If a majority be united by a common interest, the rights of the minority will be insecure." America has a sovereign constitution that is almost impossible to change. All legislation must ultimately be made and read in accordance with a document that was written over two centuries ago. It is a quite different political dynamic to the one that we are used to in our parliamentary democracy, with our fused executive and legislative branches and our unwritten and infinitely flexible constitution. Co-operation between the president and congress, and between House and Senate, is everything in the American system. The new president's first priority must be to reopen the lines of communication with both parties, to re-enter the presidency into the persuasion business.
Which of the current crop of candidates is best placed to do this? Prediction on the basis of past experience and intellectual temperament might suggest an old-fashioned Washington insider: John McCain perhaps, or Hillary Clinton. Yet one of the most obviously qualified candidates for the highest office in the past 40 years was a Washington professional of 20 years' standing. He had served his apprenticeship as a member of the House for Representatives, as a senator, and as vice-president for eight years. His name was Richard Nixon. So maybe an outsider would be better; a state governor or a successful businessman. Mitt Romney fits the bill on both counts. But former Georgia governor Jimmy Carter's single-term presidency produced a antagonistic relationship between the White House and a congress controlled by his own party. Carter has gone on to be the best ex-president America has ever had, but America is not seeking an ex-president.
Obama would be the most intriguing choice. There is no template among previous presidents for him. He is black, he is young (although both John F Kennedy and Teddy Roosevelt were younger when they became president) and his experience in Washington is limited to four years in the Senate. He has never been a state governor, and he has never been in business. He would truly be an experimental president. The fact that he is competing so strongly against Hillary Clinton only serves to underline America's enormous appetite for change.
There is no work experience that will ensure success in the oval office, no key personality traits, no obvious formula. What is clear, however, is that the president who understands and accepts the constitutional limitations of the office, and who works to overcome them by means of bargaining and persuasion, will stand the best chance of success.
