Jimmy Carter rode to victory in 1976 on promises of greater morality and efficiency in government. “We were responsible for Jimmy Carter,” Richard Nixon admitted in 1977.6 The historical accident of Watergate produced President Carter, but unlike the Great Depression, Watergate by itself was not an issue that could sustain power. Carter seemed to offer little in the way of a program that would broadly appeal to the nation, his seeming aimlessness reflecting the Democrats’ lack of cohesiveness and purpose. Altogether, the situation was a prescription for disaster. Meanwhile, the Republicans united behind Ronald Reagan, a candidate who attractively expressed the conservative ideology which had been dominant in the party since 1964 but which had always lacked a charismatic leader. Reagan led his party to two presidential triumphs and a six-year control of the Senate, and he successfully transferred his aura and image to George Bush in 1988. Three consecutive presidential defeats left the Democrats floundering in search of their identity as a party. Perhaps that identity might have been found nearly two decades earlier, had Watergate not diverted the party from the quest.
Watergate spurred demands for “reform” to prevent future abuses of power, as scandals inevitably do, but, paradoxically, the affair also produced assertions that “the system worked.” In the spring of 1974, a distinguished academic panel headed by Yale Law School professors Alexander Bickel and Ralph Winter warned that Watergate was a “poor vehicle” for addressing major reforms. The panel’s report contended that both existing law and legal institutions had responded adequately to the crisis. The failures had been those of an individual and not of the political-legal system itself. Yet the panelists warned that reducing presidential power required Congress to reform itself and to accept its proper responsibilities for shared governance, rather than damaging the institution of the presidency. Watergate, they concluded, might result in “history less in danger of being ignored than misunderstood.”7
Still, the temptation to rectify lawbreaking with more law was irresistible. Ethical standards, guidelines for institutional behavior, restraints on power, and the enforcement of the new rules flowed from Congress in the aftermath of Watergate. The results produced years of bickering over the meaning of the reforms and the willingness to follow them. Samuel Johnson once characterized patriotism as the last refuge of a scoundrel. Roscoe Conkling, a scandal-plagued nineteenth-century Senator, added that Johnson had “underestimated the potential of reform.”
The Federal Election Campaign Act of 1971, establishing limits on campaign contributions and forcing more detailed public disclosure of those contributions, had provided the opening wedge for the Senate Select Committee’s investigation of the conduct of the 1972 campaign. The findings of the committee and the Special Prosecutor inevitably produced demands for further reforms. Senate Republican Leader Hugh Scott deplored the “deviousness” of CREEP and President Nixon’s fundraisers, and he agreed that the disclosure provisions of the 1971 law had proven inadequate. Politicians also piously railed against the excesses of campaign spending. Senator Walter Mondale thought that the Senate hearings had demonstrated that “Government and Government decisions [were] up for sale to the highest bidder.” Senator Edward Kennedy vigorously promoted public financing.
The Senate and the House hammered out different legislative proposals in 1974. Public financing was supported by some congressional Democrats aided by a variety of public-interest organizations, as they believed that it could offer them some parity against Republicans and special-interest groups. Other House members, including Republicans, who allied with incumbent Democrats from “safe” districts, had no desire to create opponents with financial parity. The opposition successfully prevented public funding of congressional elections, although it conceded such support for presidential candidacies. President Nixon strongly denounced public financing in March 1974, but his position probably helped the proposal.
If the purpose of the campaign-reform legislation was to curb extravagant fundraising and spending by political candidates, then failure is an inadequate description of its later history. The law limited political action committees (PACs) to a contribution of $5,000 per candidate, but it invited a proliferation of subsidiary PACs created expressly to circumvent the law. An interest group such as the American Medical Association, for example, could by law establish only one PAC per candidate; but its state and local affiliates could duplicate support throughout the nation. Since 1974, the number of corporations and interest groups establishing PACs has grown enormously. Sophisticated computer facilities created a major industry of political fundraising, one that proved particularly fertile for well-organized religious and conservative groups. Liberal Democrats had once profited from the energetic PACs of organized labor, but the decline of the house of labor substantially reduced its political clout. Incumbents particularly fostered and encouraged PACs, which provided a treasure trove for campaigning. No doubt the new financing laws augmented the natural advantages of incumbency.
The 1974 law regulated both contributions and expenditures. But in Buckley v. Valeo (1976), the Supreme Court held that expenditure limits violated the First Amendment, except for those imposed on grants of public funds. The Court ruled nine years later that PAC expenditures, if made independently of the candidate, could not be constitutionally limited. The net effect of the judicial decisions was to stimulate the flow of special-interest money. Increased use of the media, involving legions of “creative and support” staff, as well as expanded roles for pollsters and political consultants, made campaigning more expensive, which made the demands for increased cam-funds circular and even more extravagant. The 1974 legislation most clearly changed the fundraising pattern (such as that of CREEP), by substituting for the large individual contributor PAC dollars and large numbers of medium-amount contributors. But loopholes in the law still enabled individual, wealthy contributors to give extravagantly, using family and friends as conduits for individual contributions. Accounts of 1988 contributions indicated that the “fat cats” were back in force, with 130 Michael Dukakis supporters and 267 George Bush backers providing more than $100,000 each.8
Sociologist Robert Nisbet observed that “unethical” might well be the most difficult word to define in the American language. Ethical standards for public officials are subject to the whims of “ins” and “outs”; one man’s sense of opportunity is another man’s grasp of greed. Definitions are debatable; enforcing their applicability compounds the conundrum.
The reality of divided government in 1973 forced Richard Nixon to accept the idea of a Special Prosecutor, who was to be independent of the apparatus of the Justice Department, free to carry on his own investigations, and able to act at his own prosecutorial discretion. After the President summarily dismissed Archibald Cox, Congress and Leon Jaworski pushed for firmer guarantees of independence for the Special Prosecutor. When the Administration raised substantial constitutional objections centering on separation-of-powers doctrine, the move seemed to some observers merely a ploy to limit the authority of the Special Prosecutor.9
One year after the House Judiciary Committee had voted to impeach Nixon, Congress first considered institutionalizing the office of special prosecutor and codifying ethical standards. In 1978 it passed the Ethics in Government Act, a law that perhaps more than any other symbolized the lingering concerns of Watergate. When Congress first considered the bill in 1975, Senator Abraham Ribicoff (D-CT) declared that it had the responsibility to prevent future Watergates. In a subsequent hearing, a Justice Department official acknowledged, “in the shadow of Watergate,… the appearance of justice is almost as important as justice itself.”
The 1978 ethics law required financial disclosures by executive- and judicial-branch officials, although not by members of Congress. The law restrained the “revolving door” through which public officials readily moved into the private sector and immediately used knowledge and contacts gained in their previous positions for private gain. The act established the Office of Government E
thics to monitor its financial-disclosure and conflict-of-interest provisions.
Demands for such reforms antedated Watergate. But Watergate specifically inspired the creation of mechanisms for judicial appointment of a special prosecutor to investigate allegations of wrongdoing by executive-branch officials. The 1978 law first required the Attorney General to investigate such allegations and then to report to a three-judge panel within ninety days on whether the charges were unfounded or whether the judges should appoint a special prosecutor. The judges defined the prosecutor’s jurisdiction. Once selected, the prosecutor had authority to perform the investigative and prosecutorial functions of Justice Department officials. Finally, the prosecutor could not be removed, except by impeachment or conviction of a crime, or by the Attorney General in the event of extraordinary impropriety or physical incapacity. The Attorney General must justify such action to the Senate Judiciary Committee; moveover, the prosecutor might appeal to the courts for review. The Ethics Act institutionalized the memory of the Saturday Night Massacre.
The measure passed both houses overwhelmingly. Congressman Charles Wiggins, however, sounding what some viewed as irrelevant sour notes from the past, led a corporals’ guard of resistance in the House (joined, interestingly enough, by Robert McClory and Caldwell Butler, both of whom had voted to impeach Nixon). The minority contended that the government’s prosecutorial machinery had not broken down, that Watergate was exceptional and did not justify the creation of a new mechanism. “If an attorney general cannot be trusted to enforce the law against the executive,” the minority contended, “the remedy is impeachment and not the cloning of an additional attorney general to do the job of the first.” The responsibility, in short, rested with Congress. Henry Petersen, who regretted his “slowness” in recognizing the necessity for a special prosecutor in 1973, nevertheless opposed the bill as well, believing that “political safety” too often would result in narrowing prosecutorial discretion, with unfair consequences to the accused.10
Two Carter Administration officials became the first targets of the Ethics in Government Act, as a result of allegations of drug use and conflicts of interest. The lengthy, predictably sensational investigations resulted in no charges. Doubtless, their ordeals impaired the reputations and undermined the effectiveness of both men. When Congress reviewed the operation of the law in 1981, disenchantment was apparent. There were, especially, complaints that the special-prosecutor provisions were too easily triggered. Former Attorney General Benjamin Civiletti, who had served under Carter, warned that “we have selected a weapon which must be used with greater care.” He argued that the Justice Department could have conducted the necessary investigations of Carter’s men, and that applying the law against 480 executive-branch officials was simply too broad and expensive.
The Reagan Administration opposed the Ethics in Government Act, as well, and focused on constitutional and cost objections. Judicial appointments of prosecutors, the Justice Department contended, involved executive functions but did not allow executive control, an unconstitutional arrangement. But the need for a special prosecutor to provide the “appearance of justice” still had a powerful appeal. The Administration eventually dropped its opposition, although it proposed a wider latitude for removal of the prosecutor. (Interestingly, the Justice Department suggested adding the President’s friends and family as objects of attention of a special prosecutor.) Two years of wrangling produced a series of amendments to the Ethics Act in 1983. The changes renamed the Special Prosecutor an “Independent Counsel” (a less “inflammatory” title, one Senator suggested), gave the Attorney General more discretion in the decision to name a counsel, reduced the list of officials who might be investigated, provided for reimbursement of attorney’s fees for the subject of an investigation if no indictment were brought, and allowed the Attorney General to remove the counsel for “good cause.”11
Four years later, the legislation again had to be revised. By then more than half a dozen independent-counsel investigations had been launched. Now the Reagan Administration openly battled continuation of the office. William French Smith, Reagan’s first Attorney General, assailed the independent-counsel process as “probably unconstitutional.” He believed it negated the ends of justice and that it was “cruel and devastating in its application to individuals—falsely destroying reputations and requiring the incurring of great personal costs.” The investigations, he contended, resulted in media circuses and had yielded little at high cost to the taxpayers. Democratic senators accused the Administration of “re-interpreting” and weakening the law when it refused to apply the act on several occasions. For its part, the Administration stressed the unconstitutionality of the system. But pending investigations only strengthened the opposition to changes. Meanwhile, the Administration offered regular Justice Department appointments to the then-acting independent counsels on a dual basis, pending the settlement of court challenges to the constitutionality of the position.
Watergate reverberated as Congress debated extending the Ethics Act in 1987. The bill’s chief Senate sponsor, Carl Levin (D–MI), had no illusions about the Reagan Administration’s real attitudes. The Reagan Justice Department, he complained, “would have us return to the days of Watergate and Nixon’s ‘Saturday night massacre’ when public trust in our criminal justice system hung in the balance. We don’t want to go to the brink again.” On June 17—the fifteenth anniversary of the Watergate break-in—the Justice Department reiterated its opinion that all prosecutors must be responsible to the President. During the Senate debate in October, Levin reminded his colleagues that Watergate had raised doubts about the integrity and independence of criminal investigations directed at the President and his entourage. Since then, the statutory arrangements for an independent counsel, Levin insisted, had won wide acceptance from the American people. The ready support for an independent counsel in the pending Iran-Contra affair contrasted sharply with the “public’s consternation over the Watergate investigation,” demonstrating that the arrangement had restored “public confidence in the integrity” of the criminal-justice system. “That is an invaluable achievement,” Levin concluded.
The renewal measure passed overwhelmingly—by a margin making it veto-proof—and Reagan signed it on December 15, despite Justice Department opposition. Given four pending investigations of the President’s actions as well as those of his advisers, the “appearance of justice” compelled him to sign the bill. Coincidentally, one day later, an independent counsel secured the first conviction under the Ethics Act when a jury found guilty of perjury Michael Deaver, a former White House aide who had close personal ties to President Reagan and his wife. After Deaver’s conviction, Independent Counsel Whitney North Seymour complained that the Ethics in Government Act had too many loopholes and exemptions. Whatever its inadequacies, the law nevertheless remained imperative, he said, because there was “too much loose money and too little concern in Washington about ethics in government.” Seymour struck particularly at the Reagan Administration’s failure to instill an ethical sense throughout the government. Critics from another direction used the occasion to chastise Congress again for having immunized its members from outside investigations for violations of ethical standards.12
With the open support of the Reagan Administration, individuals under investigation pursued a constitutional challenge to the office of independent counsel. Three former Attorneys General and the Solicitor General lent their considerable prestige to the campaign. The issue boiled down to differences over the power of the executive branch to conduct all criminal prosecutions, on the one hand, and on the other the significance of constitutional language authorizing Congress to vest in the judiciary the appointment of “inferior officers.” Left largely unspoken in the formal briefs was any recognition of the importance of the “appearance of justice.”
In January 1988 the Court of Appeals, dividing two-to-one, invalidated the independent-counsel provision as an unwarranted intrusion on executive au
thority. Speaking for the majority, Judge Lawrence Silberman articulated a strict construction of separation of powers. The decision came down amid growing doubts whether the independent-counsel statute was workable. Critics charged that the counsels’ investigations had become at times outright harassment of public officials. Predictably, former Nixon aides assailed what one called an “orgy of investigation” and “prosecutorial politics.” But even former members of the Cox and Jaworski staffs noted that the independent-counsel operations had become elephantine, given the large expenditures and resources required for investigations, maintenance, and security. Still, public support for the probe of the Iran-Contra affair remained strong. And in the meantime, independent counsels secured convictions of two more former Reagan aides, lending some weight to the idea that only a disinterested prosecutor could proceed against the executive branch.
The Supreme Court put its imprimatur on the independent-counsel statute in a surprisingly firm and broad decision. Reversing the appellate court, Chief Justice William Rehnquist led the Court in rebuffing the Administration. The Justices found no violation of separation-of-powers doctrine. The Court held that the Ethics Act in no way inhibited the President from performing his constitutionally assigned duties. Further, unlike the lower court, Rehnquist rejected any notion that the law constituted “Congressional usurpation” of executive functions. In a lone dissent, Justice Antonin Scalia bitingly referred to “our former constitutional system,” as he lamented the Court’s refusal to uphold what he believed to be a proper and absolute scheme of separation of powers.13
The charges that President Nixon had abused his office by improperly using such powerful executive agencies as the FBI, the CIA, and the IRS produced a sharp reaction in Congress and in the nation. Loosening presidential controls, however, conceivably could enlarge the independence of those same groups, a prospect that gave pause to those who had watched the practically unbridled power of the bureaucracies.
The Wars of Watergate Page 86
