His Fraudulency the Second?

Until recently there was no particular contemporary relevance to the nicknames of some of our less-favored presidents. Rutherford B. Hayes, victor in the hijacked electoral vote of 1876, was known as "Old 8-7" or "His Fraudulency." John Tyler, promoted from vice president when William Henry Harrison died of pneumonia after only one month in office, was referred to as "His Accidency." After the events of November and December 2000, however, a big question of the new year is whether the Democrats will have the guts to coin and circulate a comparable name for George W. Bush.



If there were but one or two dubious elements to Bush's ascension, a question like this would be churlish. But the dubious elements of Bush's victory are so numerous that questions regarding his legitimacy are appropriate--even urgent.



First, George W.'s election represents, both literally and symbolically, a restoration--a return to power of a ruling family earlier thrown out of office. Such restorations have been ill fated even in the monarchical systems of seventeenth-century England and nineteenth-century France. In American democratic politics, the idea of such a restoration is absurd. (No one should consider John Quincy Adams, the other son to follow his father to the presidency, a parallel restoration. He had served as James Monroe's secretary of state just before getting the presidential nomination in 1824--24 years after his father's defeat, and as a member of a different party to boot.) Second, only three times previously in U.S. history has a president been elected without a plurality or better of the popular vote--and the lack of a popular plurality today matters even more than it did the last time it happened, which was in 1888. Third, there are the questionable means by which Bush the younger "won" Florida's electoral votes. In 1876 the Republicans stole Florida to win the presidential contest. For it to be grabbed away in much the same way 125 years later is another stain on Bush's legitimacy. The fourth point of illegitimacy derives from what I call December's "Scalia moment"--the sad occasion by which Bush became the first U.S. president to be picked by the Supreme Court. The five-to-four decision was described as patently unconscionable even by two of the Republican justices (David Souter and John Paul Stevens) on the bench.



The excesses of the Republican Party on behalf of such an average or mediocre talent may seem odd. But in the case of Bush the younger, the explanation is at once simple and disturbing: the drift of GOP thought processes toward hereditary claim and opportunity, toward family over talent.



Restoration Comedy



Restorations in the England of the Stuarts and the France of the Bourbons involved the following sequence: The ruling house became extremely unpopular and was dethroned (Charles I in 1649, Louis XVI in 1793). But the revolutionary forces and successful interlopers--Oliver Cromwell and Napoleon--soon became even more unpopular, hated by the displaced power structure and referred to as "the monster." After years of preparation, the gathering forces of the old ruling house found the public forgetful enough of old disdains to permit a tenuous restoration of the old family (Charles II in 1660 and Louis XVIII in 1814).



Encapsulating so much history in one paragraph necessarily strains precision. But substitute Bush the elder for Charles I/Louis XVI, Clinton for Cromwell/Napoleon, and Bush the younger for Charles II/Louis XVIII, and the parallels are striking. In all three cases, both the overthrown and the restored family members were minimal to middling talents, a sandwich of mediocrity around a flawed but greater talent.



The Stuart and Bourbon restorations didn't work out (both houses were chased out again) because the new rulers shared family failings--and because restoration is one of the purest forms of reaction, however camouflaged by witty courtiers or compassionate-conservative flackery. I would further argue that in a republic like the United States, a restoration poses a critical danger to democracy itself.



Yet a restoration is what we're witnessing. Republicans turned to George W. in the winter of 1996-1997, only four years after his father had left office in a sweeping popular rejection. The Republican Party--in losing to Bill Clinton again in 1996 after believing him finished by the 1994 GOP congressional triumph--became convinced that a regretful public could again be regrouped around "America's family," the Bushes. Polls did show Bush the elder regaining popularity. And polls in 1998 and 1999 suggested that Vice President Al Gore, as Clinton's chosen successor, would bear Clinton's taint and therefore be easy prey for the younger Bush.



Of course, in recent years there's been a hereditary tilt in both parties. The Democrats have the Gores, the Kennedys, the Cuomo-Kennedy putative dynastic marriage, and the decision of Hillary Clinton (who surely has her eye on the presidency) to run for the Senate. But the Republicans, who are even more focused than the Democrats on their nepotistic elite, have had a Bush or a Dole on every ticket since 1976. In 2000 the two Republican presidential nominees of the 1988-1996 period, George Bush the elder and Bob Dole, had immediate relatives seeking the available presidential nomination--Bush's eldest son and Dole's wife, neither of whom would have commanded any attention with a name like George Walker or Elizabeth Hanford.



In a monarchy, such pass-alongs might be acceptable; in a democratic republic, they represent an illegitimacy with worrisome implications. In both ancient Rome and the Dutch Republic at the end of the seventeenth century, when too many offices became hereditary it was a sign of political decay.



The essence of the American system, as Abraham Lincoln explained in 1863, is a "government of the people, by the people, for the people." If hereditary politics mocks that idea, so too does the selection of a president who has failed to carry the popular vote. (Prior to George W., we have had only three: John Quincy Adams in 1824, Rutherford B. Hayes in 1876, and Benjamin Harrison in 1888.) But Republicans contend W.'s lack of a popular plurality does not in any way impugn his legitimacy.



The American people might say otherwise. Poll after poll has shown that a majority--sometimes a whopping majority--of Americans favor a constitutional amendment to replace the electoral college with a selection by the popular vote. Citizens preferring direct election will likely consider a Bush presidency at least a tad tainted by its popular-vote deficiency.



The examples of the three previous presidents to win the Oval Office without securing the popular vote certainly bear this out. Adams and Harrison were each defeated four years later by the popular-vote victors they had edged in 1824 and 1888, respectively. And Hayes, winner in the stolen electoral-vote travesty of 1876, was not even renominated by his own party in 1880.



Here's a telling point: The Bush administration is the first in many years to be elected in the face of a loose ideological majority--the more than 50 percent that supported Al Gore or Ralph Nader--that favors moving the nation's policies and politics in a direction largely different from what the nominally victorious regime represents. Even the George Wallace vote of 1968 and the Ross Perot vote of 1992 did not represent comparable polarities against the new administrations, since in many ways the policies favored by these third-party candidates did not cut against the ideological grain of the winning candidates (Richard Nixon in 1968, Bill Clinton in 1992). The striking Democratic gains in the Senate and the small gains in the House reinforce that 2000 was something of a Democratic year. Indeed, the 2000 election was arguably the first since 1964 to give a popular-vote majority to the center-left. Because of these circumstances, the election--or rather, Supreme Court selection--of a Republican president is a vulnerable anomaly.



Florida Follies, 1876-2000


And then there is Florida.



Many people remember that the Democrats may have stolen Illinois in the 1960 election. What's been forgotten is the parallel history in Florida--the state the Republicans stole for Hayes in the bitterly contested election of 1876, in a series of events eerily similar to what transpired this past November and December.



In 1876 the Democratic nominee, Samuel Tilden, had carried the nationwide popular vote by some 250,000, but because the outcomes in Florida, Louisiana, and South Carolina were all in dispute, the votes in the electoral college looked to be extremely close. If the Republicans could bank the electors in all three contested states, they could eke out the presidency by a single electoral vote. While historians agree that South Carolina and Louisiana may have legitimately gone for the GOP, eminent southern historian C. Vann Woodward years ago conclusively demonstrated that Democrat Tilden had actually won Florida and should have won the electoral vote by 188 to 181.



The task of resolving the disputes that year was given to a 15-member bipartisan commission that consisted of 10 members of Congress and five Supreme Court justices--two of them staunch Democrats, two staunch Republicans, and one an independent Republican justice, Joseph P. Bradley, who had pledged to be impartial. But Justice Bradley voted with the Republicans against looking into the Florida returns and examining the ballots. The result was an eight-to-seven party-line vote to award all three states to the Republicans--a decision that gave Hayes the presidency by a single electoral vote.



The 2000 election is more than a little reminiscent. The Supreme Court's involvement on behalf of George W. is a case in point. Democratic nominee Al Gore won the popular vote by more than 300,000 votes and, Florida aside, had 267 electoral votes, just three short of victory. Only by holding Florida for Bush--through refusal to pursue irregularities or to count uncounted ballots--could the Republicans secure for their nominee the electoral votes needed for a hairbreadth victory. Moreover, the governor of Florida, Jeb Bush, was the brother of the GOP presidential nominee; and the Republican secretary of state, who certified the dubious count, was Bush's campaign co-chair.



The problem does not end there. At least three factors, by now well known, suggest that more Florida voters intended to vote for Gore. First, the infamous "butterfly" ballots in Palm Beach may have confused several thousand would-be Gore voters into voting for Pat Buchanan. (Palm Beach gave Buchanan one-fifth of his statewide total!) Also, there were irregularities in the processing of absentee ballots in Seminole and Martin Counties. And worst of all, there is substantial evidence that the black vote was suppressed in various ways throughout Florida--for example, by the dissemination of inaccurate lists of "possible felons," which led some blacks to be turned away. In Duval County alone, the suppression of black voting in Jacksonville combined with a refusal to count 9 percent of the votes may have cost Gore 2,000 to 4,000 votes. (In that county, 30 percent of the undercounted ballots came from heavily black precincts that had gone almost 10 to one for Gore.) The best evidence of a suppressed Democratic vote in Duval County lies in how George W. managed to get as big a majority there in 2000 as his father did in 1988 when the elder Bush swept the state by 900,000 votes.


Because the press and other election researchers will eventually count some of these ballots--in fact, newspaper reporters from The New York Times, The Washington Post, and The Wall Street Journal have already descended on Florida with a team of accountants and expect to have a count completed before the end of January--we may rapidly be heading toward the very eventuality that Antonin Scalia, the superpartisan Supreme Court justice, was trying to avoid: the embarrassing (for Bush) revelation that Gore actually carried the state. The first time the Republicans stole Florida, only a small ripple was left in the history books; a second time could leave a deep and damning stain on the party.



The direct political involvement of a partisan Supreme Court adds a many-filamented strand of illegitimacy to Bush's victory. There was the innately anti-democratic thrust of Justice Scalia's assertion that the intent and primacy of ordinary voters is not important. During arguments before the Court on December 1, 2000, Scalia raised the point that Article II of the U.S. Constitution gives the right to choose electors to state legislatures, not to voters. Professor Alexander Keyssar, author of The Right to Vote: The Contested History of Democracy in the United States, responded, "If you follow the logic through, the implication is we have no guarantee of a right to vote in presidential elections, which is astonishing."


While Scalia's argument in this vein was not the direct basis of the Court's five-to-four ruling for Bush, it fits in neatly with the generally elitist bent of the Court's right wing: the idea that money has a virtually equal right with people to participate in elections and that a fat check to politicians should have protection similar to a speech for or against them.



And where in the Constitution--it certainly wasn't in the intent of the framers--does the Supreme Court get its power to decide presidential elections? Because the simple fact is that George W. Bush is the first president to be chosen by the Supreme Court--by a single vote. This decision, aside from contributing broadly to the larger question of the legitimacy of Bush's election, raises more specific questions about how appropriate it is that, as president, Bush will likely be able to reward the partisans (Scalia, Clarence Thomas, Anthony Kennedy, Sandra Day O'Connor, and William Rehnquist) who procured him the office, by naming more like-minded conservative justices to the court. This argues for the Senate, Democratic senators especially, to formulate their own new standard to guard against abuses and paybacks.



The Court's decision in Bush v. Gore is also delegitimizing for Bush in another way. The Supreme Court has historically been a lagging indicator of U.S. politics. Thus, the majority's decision--issued by justices packed onto the Court by the dominant presidential party over the past 32 years--can be seen as a last-ditch effort by a now-fading party to thwart the rising party's would-be administration. This is similar to the situation that confronted Lincoln in the early 1860s, FDR in the 1930s, and Nixon from 1969 to 1972: Each of these presidents found his agenda stymied by ideologically unfriendly justices and judges who were appointed by his predecessors from the opposite party. But the current situation is the first in which a Court dominated by the ebbing party has gone so far as to void an election result the majority deemed unacceptable.



An Emerging Democratic Majority?



How much will the politics of the next four years be affected by these sundry illegitimacies? This is difficult to predict. The "corrupt bargain" of 1824--in which John Quincy Adams and Henry Clay struck a deal that gave Adams the presidency--led to the rise of a great leader, Andrew Jackson, who had won the popular vote that year by 41 percent to 31 percent. By fuming publicly that "Corruption and intrigues at Washington ... defeated the will of the people," Jackson inspired voters to launch a four-year campaign to vindicate popular sovereignty, an effort that carried Jackson to the White House the next term.



Do today's Democrats have the Jacksonian guts and smarts to produce a similarly great victor in 2004? There's good reason for skepticism. Gore, in contrast to Jackson, is the Tennessean who couldn't carry Tennessee, the stiff policy wonk with a Harvard degree and no common touch. Indeed, much of the blame for the Democrats' presidential defeat belongs with the candidate himself, who shares with Michael Dukakis the dubious distinction of being such a weak campaigner that he couldn't beat a Bush.



Another cause of Gore's loss, of course, was Bill Clinton's moral turpitude. (Many voters told pollsters that in voting against Gore they were voting against the Ozark Casanova himself.) And then there is the current Democratic Party, too full of officeholders--reformist rhetoric notwithstanding--who would rather hear the rustle of white envelopes with campaign checks than the risky sound of trumpets. Over the past two decades, the party has shown more of an instinct for the capillaries than for the jugular.



The possible electoral opportunity, however, is great. I believe that the cycle I predicted more than 30 years ago in The Emerging Republican Majority--and that was subsequently born out by five GOP victories in the six presidential elections from 1968 to 1988--basically ended in 1992, when George Bush the elder fell 16 percentage points below his 1988 showing, a drop analogous to Herbert Hoover's 19-point dive between 1928 and 1932. Bush's 37 percent of the total vote in 1992 was the weakest showing for an incumbent president seeking re-election since William Howard Taft's in 1912.



The 1992 election should have finished the Republican era at 20 years out of 24. Bush Republicanism had run out of useful ideas as well as commitment to the average voter. Given how successfully technology and productivity flourished between 1992 and 2000--not to mention the first uninterrupted peacetime eight-year growth cycle in U.S. economic history--the Democrats had a record that should have sealed the election months before November. But the immorality of the messenger--Clinton, that is--got in the way of the message, and not for the first time.



In the early 1970s, the GOP watched the early stage of its own presidential cycle warped by Watergate and the Nixon impeachment; a quarter of a century later, the Democrats in turn saw their own potential minicycle--12 years at least, maybe 16--warped by a comparable phenomenon. Now the Republican era has been artificially restored, just as the old Democratic sway at first seemed renewed by the post-Watergate victory of Jimmy Carter in 1976. The denouement of defeat four years hence could also recur because the GOP of 2001 has even less mandate and considerably less legitimacy than Carter, who at least managed to win 50 percent of the popular vote.



The Democrats have good cause for optimism. If you think of the candidates as proxies for the issues they stand for, then the electorate that voted for Gore and Nader represents a loose majority opposed to Bush's incredible $1.3-trillion tax cut plan and to the GOP drive to privatize Social Security. Bush is nevertheless now pushing ahead on both. But his illegitimacy as well as lack of mandate should underscore the cavalier behavior of campaigning for such extremes. And if he tries to pack the Court with more justices like Scalia, Thomas, and Rehnquist, he'll be inviting his own defeat along with that of his nominees. Finally, 2001 and 2002 look like years when three related dimensions of necessary election reform--uniform national voting, campaign finance overhaul, and the elimination of the electoral college--may give the Democrats the chance to remain on the side of the angels while hammering issues that will keep the specter of Bush's various political illegitimacies dancing on the horizon.



If history is any guide, the Democrats, buoyed by these Bush weaknesses, will likely take back the Senate and House in 2002 and then in 2004 regain the White House they should not have lost in 2000. Recent evidence also suggests, however, that they will be timid and uncertain enough to keep that outcome in doubt down to the wire. ยค

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