Congress and the Succession

...Because it has become almost impossible for a political party to deny renomination to an incumbent President who wishes another term (no incumbent President has lost a renomination bid since 1884), if given a voice in the naming of an "interim" President, Congress would in effect be taking over the role of the nominating convention of the interim President's party...

...and a Congress where grossly disproportionate power is in the hands of a few key, wellentrenched leaders, is the worst possible body to entrust with the critical question of Presidential succession...

...Not since 1888 has a man been elected President without a plurality of the popular vote...

...The late Speaker Raybum, who was for many years third in line for the Presidency, represented only 216,000 people...

...In the normal course of events, there are two ways in which men become President...

...Ever since the late 1930s, as is well known, Congress has been dominated by a conservative coalition of Republicans and Southern Democrats...

...Traditionally, as its President Pro Tem...

...One is by receiving a majority of the votes, first at a party nominating convention and then in the Electoral College...

...The Democratic 79th Congress ignored Truman's proposal, but, ironically, after the GOP won control of both Houses in the 1946 mid-term elections, Congress proceeded to write the Truman suggestion into law, making a Republican, Speaker Joseph Martin, next in line during the last two years of Truman's first term...

...All of this could have profound effects on ExecutiveLegislative relationships if Congress were to gain any say whatsoever over the machinery for choosing a President...

...The case against Congress where succession is involved does not rest solely on mathematical inequities...

...The only exception since the modern election system evolved came during the disputed election of 1876, when the President was picked by a speciallyappointed commission...

...There are two ways to avoid such tampering...

...Indeed, in the area of domestic policy, we now tend to measure Presidential effectiveness by the yardstick of "how much of his legislative program the President has been able to get through Congress...

...The United States cannot afford the grave risks inherent in an unrepresentative Presidency...

...Several of them, including John Hay, Charles Evans Hughes and George C. Marshall, were unquestionably of Presidential caliber...

...The United States has been without a Vice President on 16 different occasions, and for many more years than most people realize...

...If Congress were, say, given the power to name a new Vice President when a vacancy occurs in that office, the men in Congress who occupy positions of great power —the Speaker, the Senate Majority Leader, the Chairman of the House Rules Committee, the Chairmen of the Appropriations Committees— would be in an ideal position to attempt to strike bargains with a potential President...

...Indeed, while his selection did require the convention's confirmation, its approval was far more perfunctory than the required consent of the Senate when a President chooses a member of his Cabinet...

...But we are pressing our luck...

...Among other things, this would avoid many of the sizable costs of holding a special election when no other major offices were being contested...

...While this statute was in effect, seven Secretaries of State came within the proverbial "heartbeat" of the Presidency...

...The fact that Congress is less representative (and, as a result, more conservative) than the President should suffice to point up the dangers inherent in giving Congress any power to decide who shall be President...

...Perhaps the most interesting proposal is that vacancies be filled by holding a special election—especially where a significant period remained before the next regularly scheduled election...

...If a vacancy occurred during the first year or early in the second year of a term, a special election could then be held at the same time as the mid-term Congressional elections...

...The nation has thus lacked a Vice President for some 40 years, or almost a quarter of its entire history...

...In 1945, President Truman proposed that Congress change the law and make the Speaker of the House, rather than the Secretary of State, first in line after the Vice President...

...The other is by being picked as a running-mate by a Presidential candidate who is subsequently elected and then dies in office...

...2. The assumption by many who should know better that Congress, because it is "representative," is the best body to deal with the Presidential succession question...

...This debate has been waged intermittently since the Constitutional Convention of 1787, particularly during those periods when the nation had no Vice President...

...bargains, for example, concerning the composition of the party ticket at the next election Interestingly, on each of the two occasions in American history when Congressional votes decided who would occupy the Presidency, selfseeking motives apparently played major roles...

...Congress today tends consistently to be more conservative than the country...

...Many persons, including former President Eisenhower, have advocated a return to the pre-1947 system of succession through the Cabinet in a prescribed order...

...In the Senate, the representatives of Alaska's 226,000 people have as much power as the representatives of almost 17 million people in New York...

...A Congress which is so frequently ideologically out of tune with both the President and public...

...Even where the numerical disproportions are not so striking, cleverly gerrymandered district boundary lines—deliberately designed by state legislatures to achieve partisan advantage for the party in control— distort the representative character of Congress...

...the Congressman from an adjoining Texas district represented 952,000...

...The President Pro Tem...

...a Congress whose representative character is distorted by the advantages which exist for some states over others, for some areas within states over others, and for some political parties and factions over others...

...Lyndon Johnson is President today because one man, John F. Kennedy, chose him at Los Angeles in 1960...

...Thus, the winner of a Congressional "Presidential Election" could conceivably hold office for as long as 10 years...

...Congress and the President are differently oriented for the simple reason that they represent quite different constituencies...

...Thus, on 16 occasions in nine different states in the last decade alone, the candidates of one party have won a majority of the votes for Congressional seats while the other party has won a majority —often a large majority—of the seats...

...Instead, it simply passes the ball to Congress: Article II says that if both the Presidency and Vice Presidency become vacant, "Congress may by law provide what officer shall then act as President...

...It is worth noting, in this connection, that the original Constitutional provision referring to Congress' right to provide for the succession beyond the Vice President spoke of such a successor acting as President "until a President shall be elected...

...In sharp contrast, both houses of Congress are grossly unrepresentative...

...But the case against Congress being involved to any significant degree in the process seems progressively more overwhelming the more one examines it...

...Two of the three groups (presumably the usual two) could unite on a candidate who was neither of the same ideological nor of the same political persuasion as the originally elected President or Vice President...

...The Constitution does not determine the succession beyond the Vice Presidency...

...The distortions which the electoral vote system can produce notwithstanding, the President is, both in theory and practice, far more "representative" of the people than is Congress— collectively or individually...

...it seems almost to be inherent in the changing nature of the Presidency on the one hand, and the relatively unchanging nature of Congress on the other...

...This has been true for most of our history...

...Gus Tyler, a long-time contributor to this magazine, is Assistant President of the International Ladies Garment Workers Union...

...This leads to the second of the disturbing aspects mentioned above: the tendency to assume that Congress is the body best-suited to deal with the whole question of Presidential succession...

...The numerical inequalities which give some people far greater representation than others, and the gerrymandering which gives one political party an unfair and unwarranted advantage over another, destroy Congress' claim to a truly representative character...

...The "tri-partisan" nature of Congress—Republicans, conservative Democrats and liberal Democrats—presents an additional hazard...

...Thus, Executive-Legislative antipathy may well have become an almost permanent feature of the American political scene...

...it has been especially true in recent decades...

...The very nature of Congress makes it a uniquely unstated body in which to vest any power over the question of who shall hold the office of President...

...Because Congress is usually oriented in a direction different and often diametrically opposite from that of the President, it could, if it were to exercise the power to determine who shall serve as President, significantly alter or even completely reverse the whole direction of government...

...a succession system based on who is Speaker or Secretary of State in 1964 may be intolerable for 1974, good again for 1984 and disastrous for 1994...

...Certainly, therefore, the President himself has a far more valid claim than that of a co-equal and often hostile branch of government to the right to decide who shall take charge in the event of his death...

...In actual performance (or lack thereof), Congress reveals its unrepresentative character—particularly when contrasted to the Presidency...

...While many arguments are now being marshalled for and against various methods of succession, two especially disturbing aspects of the situation demand detailed examination: 1. The tendency to change the succession system to meet the temporary problems which arise because particular individuals fill particular offices at particular times...

...Although it is a more difficult and time-consuming process to amend the Constitution than simply to rewrite a law, by the same token it will be more difficult and time-consuming to change such a system once it is part of the Constitution...

...was ranked next, followed by the Cabinet starting with the Secretary of State...

...Undoubtedly, there will be still other feasible proposals to insure a successor President who will "carry on" the original mandate...

...Senator Kenneth Keating (R.-N...

...All the "strong" Presidents of American history, going back to Wilson, Teddy Roosevelt, Lincoln and Jackson, have encountered strong Congressional opposition...

...But in our times, the very nature of the Presidency itself has made a "weak" President almost inconceivable...

...This idea appears to have a number of serious drawbacks, most of them stemming from the anachronistic nature of the Electoral College system itself...

...and Adams subsequently made Clay his Secretary of State...

...It is not at all certain whether this meant that a successor should act as President until the next regularly scheduled election, or whether the intention was to give Congress the power to call a special election...

...Consistently, the winner of a Presidential election takes office only to be confronted by a Congress—almost always controlled by his own party—which is virtually insensitive to the outcome of the national election and which proceeds to set up roadblocks in the President's path...

...There can be only one still more valid claim: that of the voters themselves...

...This was as true of the Republican Congress swept in with Eisenhower in 1952 as it was of the Democratic Congresses elected with Truman in 1948 and with Kennedy in 1960...

...Former President Truman, though still in favor of the present system, has also suggested that vacancies might be filled by reconvening the Electors chosen in the last Presidential election...

...Senator Birch Bayh (D.-Ind...

...If Congress were to supplant the role of the nominating convention in this way, the power of selection would unquestionably be in far more conservative hands, for the nominating conventions of both parties have for many decades consistently been well to the Left of their respective parties' Congressional leadership...

...Y.) has proposed the election of two Vice Presidents at every Presidential election—an "Executive Vice President," somewhat on the model of the European Chef du Cabinet, who would be first in line of succession, and a "Legislative Vice President," who would preside over the Senate and be second in line...

...The widening dissimilarity of orientation between President and Congress is not only ideological and political...

...PERSPECTIVES Congress and the Succession By Gus Tyler and David Wells The fact that President Johnson suffered a severe heart attack nine years ago has given special poignancy to the present debate on the question of Presidential "succession...

...Events surrounding the enactment of the 1947 law provide an excellent example of how the succession system has been juggled to meet temporary political situations...

...and it has a powerstructure of its own, internal politics of its own, and operational procedures of its own...

...Similarly, the performance of a particular Congress is now generally judged largely in terms of how many of the President's proposals it has acted upon...

...When the public elects a President it presumably endorses his policies and places some degree of faith in his judgment...

...The other is by establishing a new system not by legislation but by Constitutional amendment...

...This raises still another aspect of the danger of allowing Congress to determine the succession...

...it is today mathematically as well as politically unrepresentative...

...VicePresidential vacancies since 1947 have placed first Joseph Martin and now John McCormack one step away from the White House...

...Tom Wicker, in a recent New York Times Magazine article, referred to "the 20th-century alienation between [the Presidency] and a Congress that has steadily lost its status as a co-equal branch and become more nearly an opposition...

...A variety of alternatives to the present system, all of which avoid running the line of succession through Congress, have been suggested...

...Such disparities mean that Congress as a whole is not representative of the people as a whole...

...There have been 24 years during which the originally elected Vice President served as President due to the death of the man in the White House and 16 years when the Vice Presidency was vacant due to the death or resignation of the Vice President himself...

...Not only does Congress tend to be considerably to the political Right of the President, but far more often than is realized it is not even controlled by the President's party...

...At the time the Speaker was Sam Rayburn, a Democrat and a man whom Truman held in the highest regard...

...In 1886, however, Congress passed a new law which placed the line of succession in the Cabinet and made the Secretary of State next in line after the Vice President...

...Were Sam Rayburn still alive, many who now view the present law as short-sighted would undoubtedly consider it just and wise...

...One is by enacting a succession system on the basis of long-term political experience rather than short-term political expediency —on the basis, that is, of valid governmental principles rather than fleeting considerations of personality...

...And Congress has been kicking the ball around periodically —and politically—for almost two centuries...

...A Coolidge would be as anachronistic in 1964 as a Model A Ford...

...Consequently, the largely honorary position is almost automatically filled by someone of advanced years...

...Not surprisingly, therefore, the two most recent changes in the succession law were enacted in 1947, while President Truman was filling out President Roosevelt's unexpired term, and in 1886, when Vice President Thomas Andrews Hendricks died less than a year after taking office...

...David Wells is Assistant Director of that union's Political Department...

...of the Senate first in line for the White House after the Vice President...

...A Presidential candidate's choice of a running-mate, of course, is almost automatically accepted by nominating conventions...

...No system, statutory or Constitutional, can guarantee against such changing circumstances, but constant tampering with the governmental framework merely weakens the entire structure...

...On issue after issue, reliable public opinion polls indicate that far more often than not the public lines up with the President and against the controlling forces in Congress when the two are at odds...

...In 1868, one of the leaders of the almost-successful move to impeach Andrew Johnson from office was Ben Wade, the President Pro Tern of the Senate who, under the succession law then in force, would have become President had the attempt to impeach Johnson been successful...

...In this connection, it is interesting to recall that Harry Truman, who suggested the 1947 changes in the order of succession because he thought a President should not have the power to pick his own successor, showed no qualms about naming his own running-mate—and potential successor—at the Democratic convention a year later...

...In any event, there seems no reason why 20thcentury Americans must wait for periods of up to four years before they can have the opportunity to name their Chief Executive...

...Even such arbitrary selection by one man is not only more consistent with the principle of separation of powers but, ironically, it is also more in the tradition of representative government than election by Congress would be...

...In the absence of a Constitutional Amendment, Congress will still have the power—and the temptation—to continue to "kick the ball around" every few decades...

...has urged that when a Vice President succeeds to the Presidency he be given the power to name a new Vice President, subject to Congressional confirmation...

...In 1947, the succession law now in force was enacted, placing the Speaker of the House immediately behind the Vice President...

...Yet during most of this period liberal Democrats have held the Presidency...

...In 1824, when a threeway Presidential election had to be decided by the House, Henry Clay's action in throwing his powerful support to John Quincy Adams was decisive...

...The statute on the books until 1886 placed the President Pro Tem...

...The recent Supreme Court decision requiring Congressional districts in each state to be substantially equal in population may improve the situation in the House, but the basic problem will remain...

...For 18 elections in succession, and in all but three of the 35 Presidential elections held since the popular vote was first recorded, the President has been the man for whom the largest number of people voted...

...In the House, there are Congressmen within the same state delegations who represent such widely varying numbers of people as 177,000 and 803,000 (Michigan), 198,000 and 664,000 (Arizona), 196,000 and 654,000 (Colorado...

...But there are other reasons, too...

...Congress has, in fact, had majorities of one party while the White House has been under the control of the other for almost half the time since World War II, and for just about a quarter of the time over the last 100 years...

...Even during the eight years when the White House was under GOP control, the President's political orientation was generally more liberal than that of his own party's leadership (and rankand-file) in Congress...

...In recent times it has been held by such veterans as Kenneth McKellar, Styles Bridges and Walter George, with the current holder being 86-year-old Carl Hayden of Arizona...

...Again today we hear many proposals based almost exclusively on the personality and capabilities of the present Speaker...

...has suggested that the President nominate a number of persons to fill a Vice-Presidential vacancy, and that Congress then choose one from among those nominated...

...If in 1963, for example, Congress had had the power to name a new Vice President, and if that Vice President were to succeed to the Presidency it would be difficult for his party's convention to deny him renomination in 1964—and even in 1968...

...the Senate elects that Senator belonging to the majority party who has been in the Upper House longest...

...Indeed, when one considers that eight Presidents and seven Vice Presidents have died in office, it seems almost a mathematical miracle that there has as yet been no occasion when both the President and Vice President have died during the same term...

...Senator Frank Church (D.-Id...

...It is essential, however, that the succession not be based on ephemeral considerations: A law that is good in terms of the personalities of the '40s may be bad in terms of the personalities of the '60s...