Implications of the VP as a Legislative Office

Glenn Harlan Reynolds, of Instapundit fame, has a thoughtful op-ed about the Vice Presidency in today’s New York Times, which is a shorter version of an article he wrote for the Northwestern University Law Review. (I can blog, I can write an op-ed, and I can write scholarly articles – but not all at once – oh, I envy him.)

His core argument is that the Vice President is in fact part of the legislative branch, and not the executive. The only Constitutional description of the Vice President’s role is to preside over the Senate and cast the tie-breaking vote when necessary – strictly legislative in function. Some folks are pretty excited about this, since it means Cheney was not out of bounds in claiming to be a “legislative officer” rather than an executive branch official (to avoid disclosing some documents), that Sarah Palin’s understanding in the VP debate of the VP's role was more accurate than Biden’s understanding, and more broadly that the chattering classes that scoffed at Cheney’s gambit are in fact wrong.

Interesting so far, but Reynolds takes this debate much farther, noting that if the VP is a legislative officer, then the President cannot grant him executive authority (due to separation of powers) and the Cheney model of an activist Vice Presidency is not permitted. Reynolds notes that it is unlikely that the Supreme Court will take on this issue – but that there are sound reasons for an inactive VP. Reynolds refers to the VP as a “spare tire” that “should be kept pristine, for when they are really needed.” When Presidents resign or are impeached, “a vice president who is enmeshed in the affairs of the president cannot offer a fresh start for the executive branch.”

These are sound arguments, and for most of the country’s history this was effectively how it worked. Vice presidents were marginal figures of little consequence. But, in an era of instant communications and truly global national security problems the Vice President needs to be “kept in the loop.”

Reynolds grants this, citing the infamous example of Truman who was unaware of the atom bomb when he took power (Truman was also unfamiliar with FDR’s diplomatic strategy for the post-war era.) But still, he calls for a VP not engaged in day-to-day governance.

Running the Numbers

Day-to-day involvement is an advantage for a VP who takes office on the death or incapacity of the President. But this same involvement is to the detriment of the nation in the case of an impeachment or resignation.

Eight presidents have died in office and there were at least four other close calls (Wilson was incapacitated, Eisenhower and Johnson were both seriously ill while in office, and Reagan was shot.) Only two Presidents have been impeached and a third resigned. So the odds would favor an engaged VP as the best course because Presidents appear substantially more likely to die than to be forced or resign from office. But, in general, people today are healthier and live longer (and Presidential security is far tighter) so the likelihood of a death in office – while always possible - is less and less likely.

At the same time (working with an admittedly tiny dataset) two of the three cases of impeachment or resignation have occurred in the last 35 years - so it can be plausibly argued that the future may hold more impeachments and resignations. In the case of Nixon’s resignation, the VP had resigned only a short time before (for unrelated reasons) thrusting an unelected President onto the scene. As difficult as this was, if Agnew’s crimes had come out a bit later, he might have become President (bad enough) and then been impeached or forced to resign in his own right. The Nixon-Agnew era was trauma enough, but actually having the Speaker of the House step into the Presidency would have been worse for the nation as a whole.

Recent history makes the spare tire metaphor for the VP’s role compelling and worth considering.

Middle Ground: Mondale vs. the Metaphor

But people are not tires and rarely do people become better at something while sitting and waiting. Is there some way of getting the best of both worlds? That is a VP engaged in the process but not overly enmeshed in it.

That depends on what being “in the loop” means. For the VP to sit over in their Senate Office and receive the daily briefings is better than nothing, but much of the policy process is informal – and the roles of specific personalities is essential. To truly be in the loop, the VP has to be in the process, dealing with the key players on a regular basis as debates take place and policies take shape. In an emergency transition the key people will still be there – it is important that the VP have a certain level of familiarity with them.

Reynolds cites Mondale approvingly, writing that he maintained a distance from public decision-making. However, Mondale was very engaged in the process – but he maintained a very light touch and was extremely discreet. Bush 41 (as Reagan’s VP) and Gore followed this model. (Gore did not jump to take on Gore-Chernomyrdin – he made sure it was the President’s idea.) While Gore’s links to Clinton may have hurt him in the 2000 elections, had Clinton resigned or been forced from office, Gore would have been accepted as President. In fairness, this may be due to the nature of Clinton’s offenses – he was not impeached over policy matters.

Unlike his activist predecessors, Cheney held no future political ambitions, consequently he was less concerned about being associated with particular policies and could operate with a heavier hand on the policy process.

Both Cheney and Mondale drew inspiration for their roles as VP from a similar source, the failed Vice Presidency of Nelson Rockefeller. Rockefeller, a well-known national figure, was selected by Ford to add credibility to his own accidental Presidency. As VP, Rockefeller attempted to run domestic affairs by taking control of the Domestic Policy Council – a high profile position. Instead it became a burden and Rockefeller himself became a lightning rod in the internecine White House power struggles. Mondale talked extensively to his predecessor and probably took the lesson of not being heavily associated with any given policies or taking on formal responsibilities and instead operating behind the scenes.

Cheney had been Ford’s chief of staff and ran interference on Rockefeller. He may have taken different - more operational - lessons about how to make the Vice Presidency a power base.

Returning to Reynolds’ analysis, the VP is an odd position – a prominent nationally elected office with almost no real power, but a very real and essential role. Simply warehousing the VP may not be an option, but in playing a policy role Vice Presidents should hold fast to the motto:

Discretion is the better part of power.