A fun what-if from author William Mattox, who notes that enacting his idea as a constitutional amendment would set up a second Trump/Clinton election — Bill Clinton, that is.
Don’t laugh. The Clenis is two months younger than Trump and several years younger than both Joe Biden and Bernie Sanders. America deserves a chance to see if the Clintons collectively can go four-for-four on winning the popular vote without ever actually winning a clear majority.
Mattox’s idea is a bad one on balance but his core concern, raising the cost of trivial impeachment attempts, is valid enough. And maybe prescient given the drift in American politics towards hyperpartisanship.
In that spirit, here’s an idea for dealing with impeachment fatigue. In the National Football League, teams can challenge a call on the field—but there’s a risk. If instant replay doesn’t merit overturning the call, the challenging team loses one of its three timeouts. That discourages frivolous challenges and keeps the game flowing, while also providing a way to reverse egregious errors.
Why not amend the Constitution so that any president who is impeached and acquitted is permitted to serve a third term? That would allow him to make up for the time lost advancing the agenda that voters elected him to enact. It would preserve impeachment for genuine offenses but discourage its use for disputed ones and for mere politics. Absent such an amendment, and in an era when government is divided more often than not, impeachment seems likely to become an increasingly common means of opposition.
The first objection comes from Alex Griswold. At a minimum, an amendment like Mattox’s would need to specify that the president is eligible for a third term only when he’s impeached in the House by a *different* party, not his own. Otherwise…
See, I don’t actually hate the theory behind this as much as everyone else, but I do see the unintended side effect: parties impeaching and acquitting to give their guy another term. https://t.co/aBXpHMpYEr
— Halloween Name Griswold (@HashtagGriswold) October 25, 2019
Paul Ryan’s GOP would have impeached Trump last year in order to make him eligible for another term, knowing that the Republican-controlled Senate would then perfunctorily vote to acquit.
The second objection is the flip side of that. What if, and I’m speaking hypothetically here, a House controlled by the other party impeached the president on defensible grounds but a Senate controlled by the president’s party was so slavishly loyal to him that it refused to consider even valid articles of impeachment? Mattox’s rule would reward the president’s party for refusing to take the House’s evidence seriously. All they’d need to do in order to make the president eligible for a third term is close their eyes and vote to acquit. They could nominate him again and enjoy all the advantages of having an incumbent at the top of their ticket. It’d be nice if we could say, “Ah, but the voters would recognize the strength of the evidence and vote the president out in the next election!” That’s not really how it works in a hyperpartisan age. And if all you want to do is make impeachment and removal reeeeeeeeally hard, triggered by only the most slam-dunk cases, you could do that by boosting the number in the Senate needed to convict to, say, three-quarters of the chamber.
All of which is to say, although we want the House to be averse to a process as grave and disruptive as impeachment, we don’t want to make them so averse that presidential behavior that does warrant impeachment gets a pass because the risk of impeaching and failing is simply too high. Imagine if, instead of losing a timeout, the penalty for a failed challenge in the NFL was the other team being given a free field-goal attempt. Or the other team having three points added to its score straightaway. Or seven points! The more draconian the consequences become, naturally the less willing a team will be to risk challenging a call — even when it has solid grounds to do so. They just can’t take the risk of losing.
Entitling a president to run for a third time would be pretty draconian given the benefits of incumbency. An impeachment inquiry that cost him a few months of his term in distractions could produce four more years of governance, enough time to remake the country in all sorts of ways. It’s possible if not likely under Mattox’s scheme that Bill Clinton would have been eight months into his third term when 9/11 happened. It’s also not clear in our hyperpolarized era that impeachment is so damaging to a president that a draconian deterrent would be warranted in the interest of fairness. Trump’s approval rating hasn’t moved much to date, and the risk of an electoral backlash against Democrats is sufficiently great that Pelosi held off on impeachment for two years, believing that it would cost her party more politically than it would Trump. That backlash may yet arrive if Democrats’ evidence at Trump’s trial looks weak. That is, weak impeachment cases are to some extent self-punishing.
Mattox may be onto something, though, in fearing that impeachment will become more common as the parties drift further apart. Maybe not — Bush and Obama were each despised by the other party and no serious attempt to impeach either ever got off the ground. But if you think the future will be different, if only because the current attempt to oust Trump will normalize the process going forward, why resort to a deterrent as strong as making the impeached president eligible for a third term? Why not something simpler, like requiring a two-thirds vote in the House in order to pass articles of impeachment? That’s the logical reform to deter bogus impeachment attempts. If anything, that too would be too draconian since it would probably produce the same scenario in the second objection above — the president’s party, slavishly loyal to him, would have sufficient numbers in the House that they can and would block any impeachment attempt no matter how meritorious.
Really, in an age of vast and growing executive power, there’s at least as good an argument for making impeachment easier as there is for making it harder. If Congress wants to dare usurp the people’s right to choose the president by tossing the incumbent out of office mid-term and the people conclude that they’ve done so on frivolous grounds, they can deal with the usurpers in the next election as harshly as they like. Wipe ’em out, hand power to the other party, and let that party run wild with its agenda.