The Freedom of the Lame Duck: Presidential Effectiveness
In the Post-Twenty-Second Amendment Era
VINCENT A. PACILEO IV
University of Connecticut
Limiting himself to only two terms as president, George Washington established
what would become a long respected tradition. However, in a time of crisis,
Franklin D. Roosevelt ran for an unheard of third and fourth term, prompting the
Eightieth Congress of the United States to institutionalize a two-term limit on the
presidency. The ratification of the Twenty-Second Amendment in 1951 soon
popularized the phrase “lame duck” to signify a weakening of presidential power
during the second term and following the midterm elections. By way of five
indicators of presidential effectiveness, this paper seeks to examine the lame duck
presidency in order to determine if presidential power has been negatively
impacted since the amendment’s passage. I find that across all indicators, the
prevalence of any lame duck phenomenon is purely imagined and therefore
advocate repeal of the amendment.
“Duration in office…has relation to two objects: to the personal
firmness of the executive magistrate in the employment of his
constitutional powers and to the stability of the system of
administration which may have been adopted under his auspices.”
– Alexander Hamilton, Federalist No. 71
March 18, 1788
“It is a circumstance strongly in favor of rotation...If the office is
to be perpetually confined to a few other men of equal talents and
virtue, but not possessed of so extensive an influence, may be
discouraged from aspiring to it.”
– Melancton Smith, Delegate, New York
June 15, 1788
Several years after the passage of the Twenty-Second Amendment to the
United States Constitution, presidential scholar James MacGregor Burns declared,
“Virtually all political scientists and students of American history agree” that
“presidential influence” has been significantly weakened by the amendment (Korzi
2007, 4). The academic community accepted this point of view, regardless of its
accuracy, for almost two decades, at which time Paul Davis reassessed the
1
implications of the enactment of the Twenty-Second Amendment. Davis found
“there appears to be no unanimity of scholarly opinion as to whether the TwentySecond Amendment impeded, helped, or had no effect whatsoever” on the
president’s power (Davis 1979, 295). By the turn of the century, scholarship
changed yet again: Presidential historian Lewis Gould directly linked second term
failures in part to the Twenty-Second Amendment. He suggested, “Most chief
executives would have had a better historical reputation had they had contented
themselves with a single elected term” (Gould 2003, xv). Gould continued that the
amendment drains presidential power and produces the “lame duck phenomenon”
during the second term, creating “an environment in which the first term was only
seen as a prelude to the productive second term” that would supposedly “validate
presidential greatness” (Gould 2003, xv). The significant disagreement over time
among scholars regarding the consequences of the Twenty-Second Amendment
suggests that further study is needed not only to understand its impact on “lame
duck” presidents but also reassess whether the amendment is suitable for our
democratic system.
LITERATURE REVIEW
Little scholarship exists on the subject of lame duck theory, its application
to the presidency, or relationship to the Twenty-Second Amendment. However, this
may well be the result of the term’s varied use and application. A search of The
Merriam Webster Dictionary reveals both a traditional meaning of the term,
denoting a person “whose position or term of office will soon end,” as well as a
more ambiguous definition: “One that is weak or that falls behind in ability or
achievement” (Merriam-Webster). What precisely does this mean? In the context of
the presidency, the phrase has been used to describe presidents in their second term
of office that face a reduction in power and effectiveness and a waning influence in
policy matters.
Originally, “lame duck” was a business term used in the eighteenth century
“to describe anyone who was bankrupt or behind on their debt payments…By 1910,
newspapers began using the phrase in its current incarnation: a reference to an
elected official whose term is nearing an end and, freed from the accountability of
voters, could be prone to ineffectiveness or acts of self-interest” (Kocieniewski
2006). The term continued to grow in use, particularly following the passage of the
Twenty-Second Amendment. This Constitutional incorporation of term limitations
on the office of the presidency has given rise to much of the uncertainty and
scholarship surrounding the implications of the lame duck presidency.
Overall, the political science research concerning lame duck theory has
revolved around several themes. Foremost, scholars established methods of
identifying the modern lame duck president: First, when presidents announce that
they are not planning to run for office again; and second, presidents who may or
may not be eligible to run are lame ducks following the mid-term Congressional
elections (Neustadt 1990, 197). The latter is especially true if a president’s own
2
party loses ground in the midterm elections and therefore represents one key
indicator relevant to this study.
Additionally, much of the literature investigates the term “lame duck” and
its prevalence in the national media and the presidential transition period. Thematic
media analyses of the party overturn type have demonstrated how immediately the
news media’s attention shifts from the incumbent president to the president-elect in
an attempt to capture the “the sharpest problems of leadership, continuity, and
institutional adjustments” that accompany the complexities of presidential
transitions (Johnson 1986, 53). The news media largely treat any actions by the
incumbent during this period as “the pitiful, last gasps of a dying giant” that
attempts to maintain power through “useless acts of desperate political egos”
(Johnson 1986, 62). Content analyses of two major newspapers-of-record revealed
that certain issues and behaviors of the president set off the media’s use of “lame
duck” (Silber 2007, 1). In particular, “Concerns of lame duck status are mentioned
[by the media] early in a president’s first term,” which may indicate a lack of
confidence in the president from the very beginning (Silber 2007, 8).
Scholars also seek to differentiate the presidential transition from the
presidential interregnum – the former referring to the policy preparations of the
incoming administration and the latter to the policy activities of the outgoing
administration (Klotz 1997, 320). This distinction has shed light on the activities of
the outgoing president, who is relevant “only to the extent which their activity
facilitates or hinders” the transition of power to the president-elect (Klotz 1997,
320). More importantly, an incumbent president will refrain from erratic activities
during this time and instead focus on three key areas: “A foreign policy emphasis;
action taken in areas that are clearly identified with the administration; and greater
success in unilateral activity” (Klotz 1997, 323; Tseng 2003, 2). In all of these
areas, actions taken by the president are to sustain what little political capital he has
left due to his lame duck status.
The dynamics of political time and the advisability of second terms are a
final consideration. Political science research has investigated the six-year single
term presidency as an alternative to the status quo (Buchanan 1988). Reviewing the
scholarship on the subject, David Crockett writes, “History demonstrates that
second terms are far more problematic than first terms, afflicted with ‘sixth year
itches,’ ‘sixth year curses,’ and the more generic ‘second term blues’” suggesting
that perhaps there is some merit to the proposal (Crockett 2007, 708). Qualitatively,
a four-year term offers little political time for a president’s agenda. According to
one White House aide, “You should subtract one year for the reelection campaign,
another six months for the midterms, six months for the start-up, six months for the
closing, and another month or two for an occasional vacation. That leaves you with
a two-year Presidential term” (Light 1999, 17).
3
THE FRAMERS AND PRESIDENTIAL RE-ELIGIBILITY
The Constitutional Convention held in May of 1787 was designed to remedy
the weaknesses of the Articles of Confederation but ultimately resulted in an
entirely new governing document. Two dominant viewpoints emerged during the
debates over the Constitution: The Federalists, who claimed George Washington,
James Madison, and Alexander Hamilton among their ranks, believed a
Constitution that supported a strong central government would more closely unite
the states as a nation. Maintaining an effective and independent executive was key
to that success. The opposing Antifederalists were in favor of limited government,
fearing that the Constitution granted the executive too much power (Ketcham 1986,
13). Each argument is considered here in turn, stressing first the Antifederalist
argument against re-eligibility and then the corresponding Federalist response.
These arguments are critical to this study given that all future debates in Congress
concerning the re-eligibility of the president are based solely on concerns raised by
Antifederalists, who over time haven been labeled as “men of little faith”1 lacking
the visionary confidence of the Federalists (Johnson 2004, 649).
In New York State, where ratification was necessary, the Constitution
became the target of opponents who wrote dozens of public letters to support their
views. By no means an organized effort, the Antifederalists wrote articles
pseudonymously, using pen names such as “Cato” and the “Federal Farmer.”
Melancton Smith, a prominent New York City lawyer, is widely regarded as the
face behind the Federal Farmer, the best known of the Antifederalist pamphlets. A
comparison between the writings of the Federal Farmer and Smith’s speeches
during the New York ratifying convention stress a central theme of representation
and presidential tenure such that “two of Smith's four major speeches at the
convention (and several of his shorter comments) dwell on representation as their
major theme [much] like the Farmer” (Webking 1987, 515). Smith also believed
that unlimited terms for the executive was a threat to republicanism and that an
amendment should be attached to the Constitution restricting tenure. “The
amendment will have a tendency to defeat any plots against liberty and authority of
the state governments,” he said. “I think that a rotation in the government is a very
important and truly republican institution. All good republicans, I presume to say,
will treat it with respect” (Ketcham 1986, 350).
To combat authors such as the Federal Farmer, a more organized and
concerted effort was undertaken by three prominent Federalists, Alexander
Hamilton, James Madison, and John Jay. Together, they wrote eighty-five articles
in defense of the Constitution, which were published across New York State under
the pseudonym “Publius.” Hamilton first raises the issue of presidential tenure in
Federalist No. 71 and elaborates on his argument in No. 72. He writes that there is
an intimate connection between the duration of the executive and the ability of the
1
For further reading, see Cecelia Kenyon’s influential essay, Men of Little Faith: The AntiFederalists on the Nature of Representative Government, The William and Mary Quarterly
vol. 12, no. 1 (1955): 4-43.
4
system of administration regarding re-eligibility (Hamilton, 435). Duration allows
the executive an opportunity to succeed while re-eligibility allows the people to
keep a leader in office and secure “the advantage of permanency for government”
(Hamilton, 436). Directly addressing the Antifederalist position, Hamilton stresses
that limits on the presidency will have several ill effects: Limiting presidential
eligibility would diminish the inducements to good behavior; if a president is
particularly avaricious and should face a term limit, he may try to retain the office
through the exercise of violence; limits would deprive the public of the president’s
experience gained through holding office; if there was ever a time of crisis,
limitations will remove capable and experienced leaders from their positions,
robbing the people of their leadership; and constitutionally established limits would
necessitate a change in government, causing apprehension among the public, drastic
shifts in public policy, and inevitably, a weakening of presidential power
(Hamilton, 437). He concludes that indefinite term limits provide necessary
independence for the President and greater security for the people.
The convincing arguments and sheer speed at which the Federalist Papers
were distributed ultimately resulted in New York State’s ratification of the
Constitution in late July of 1788. Melancton Smith, “who had always considered
himself a moderate and reasonable man,” voiced his unconditional support for the
Constitution and urged his fellow delegates to do the same (Webking 1987, 511).
1789-1947: CONGRESSIONAL CALLS FOR TERM LIMITATIONS
Efforts to restrict presidential tenure did not disappear following the
ratification of the Constitution. Perhaps this is because Congressional interest in
institutionalizing the two-term tradition was not so much a protection for the
people, but a result of general legislative branch fears of losing power to the
executive (Willis 1952, 470). In any event, between 1789-1947 no less than 270
resolutions to limit re-eligibility were introduced in Congress. These resolutions
increased drastically at the turn of the nineteenth century, with an average of 2.5 per
Congressional session, exemplifying that the issue of presidential tenure was a
persistent concern for Congress (Willis 1952, 469).
Presidential term limits returned to the spotlight during President Jackson’s
administration. In his First Inaugural Address to Congress on December 8, 1829,
Jackson indicated his support of an amendment to limit presidential tenure stating,
“It would seem advisable to limit the service of the Chief Magistrate to a single
term of either 4 or 6 years” (Jackson 1829). Armed with the president’s blessing,
Congress considered 21 proposals to limit presidential tenure, but each proposal
was soundly rejected (Peabody 1997, 591).
The first real threat to the two-term tradition arrived during the midterm
election year of 1874, when the major political issue was a potential third term for
incumbent Ulysses S. Grant (Stathis 1990, 63). Republicans were critical of Grant’s
silence on the issue during the campaign season and ultimately blamed him for the
party’s midterm losses in key states such as New York, Ohio, and Pennsylvania
5
(Stathis 1990, 64). Nevertheless, rumblings of a possible Grant third term continued
beyond the election. But the movement was dealt a significant blow in December of
1875, when the House of Representatives overwhelmingly passed the “Springer
resolution,” so named for its author, Rep. William M. Springer:
“The precedent established by Washington and other Presidents of
the United States in retiring from the Presidential office after their
second term has become, by universal concurrence, a part of our
republican system of government, and that any departure from this
time-honored custom would be unwise, unpatriotic and fraught with
peril to our free institutions” (Peabody 1997, 591)
Not surprisingly, by the time of the 1876 presidential election Grant had
decided against running for a third term, citing increased political resistance
(Peabody 1997, 591).2
Decades passed before Congress took up the issue of term limits again. In
particular, the 69th Congress during the 1920s was very active in its push to limit
presidential tenure; several proposals even incorporated key phrases from the
Springer resolution (Peabody 1997, 592). However, it would not be until 1947 that
Congress would, at long last, achieve success with the passage of an amendment to
the Constitution.
THE 80TH UNITED STATES CONGRESS AND THE TWENTY-SECOND AMENDMENT
After Franklin Delano Roosevelt announced he would be running for a third
term, his 1940 campaign began to attract significant public interest. In Congress, a
subcommittee of the Senate Judiciary Committee held sixteen days of hearings
prior to the election to investigate the merits of a third Roosevelt term as well as the
potential to block Roosevelt’s ability to run. Republican presidential candidate,
Wendell Willkie, seeking to appeal to his party base, announced that if he were
elected his first message to Congress would be to pass a constitutional amendment
restricting presidential tenure (Stathis 1990, 65). Despite Willkie’s call for an
amendment, Gallup polling suggested that interest throughout the campaign was
“tied to the outcome of the election rather than any fundamental principle” (Stathis
1990, 65). On Election Day, Roosevelt carried 38 states and nearly 55% of the
popular vote. Four years later, despite declining health, Roosevelt decided to pursue
and eventually win a fourth term as president alongside running mate Harry S.
Truman. However, after less than three months in office, Roosevelt died in April of
1945 (Stathis 1990, 65).
2
For alternative explanations, especially that Grant simultaneously learned he had terminal
throat cancer, see William Farina, Ulysses S. Grant, 1861-1864: His Rise From Obscurity
to Military Greatness (Jefferson: McFarland & Co., 2007).
6
One year later, the midterm elections turned heavily in favor of
Republicans, who gained overwhelming majorities in Congress for the first time in
eighteen years. This allowed Congress to reopen of the debate over term limits. On
January 3, 1947, the first day of the first session of the 80th United States Congress,
House Judiciary Chairman Earl C. Michener introduced House Joint Resolution 27,
a presidential term limit amendment (Stathis 1990, 66). It is important to note that
President Truman did not play any role in the process from proposal to ratification
(since the amendment would not apply to his presidency), although he did covertly
express his support of the amendment through undated memoranda (Davis 1979,
290).
Debate and passage of the amendment in both chambers of Congress was
intensely political, propelled by “partisan concerns and regional interests…
posthumous revenge against Franklin Roosevelt for breaking the two term
tradition” (Koenig 1968, 70; Peabody 1997, 594). In the House, debate on the
amendment was limited to just two hours, drawing objections from the Democratic
minority, including Rep. Adolf J. Sabath of Illinois. “If I am not mistaken, this is
the first time that any resolution amending the Constitution…has been brought
under a rule which permits only two short hours of debate” (Congressional Record
1947, 841). One of Sabath’s colleagues from Illinois, Republican Rep. Leo E.
Allen, chairman of the Committee on Rules, responded by shrugging off any
suggestion of partisan maneuvering. He argued that the amendment was of
significant importance to the American people, who without a Constitutional
amendment would be exposed to a dangerous loss of freedom. “This is not a
political question. The importance of the problem [term limits] to the people
transcends all political implications and considerations” (Congressional Record
1947, 841). However, Democrats continued their objections over the proceedings.
Rep. Thomason of Texas claimed to be speaking for all of his Democratic
colleagues when he said, “I have never known or heard of any such enthusiasm for
this rush legislation” (Congressional Record 1947, 865). Others claimed that
limiting presidential tenure would “fasten a restriction upon the people, prohibiting
them from retaining in office for more than two terms a president they desired,”
citing Roosevelt’s high popularity as evidence (Willis 1952, 476).
When it was time to vote, forty-seven Democrats – thirty-seven who were
from the South – voted with all 238 Republicans and supported the measure,
perhaps refuting the conventional wisdom that the amendment was a partisan effort
(Brown 1947, 448). Debate in the Senate carried on for some time, but Republicans
were eventually successful. The measure, passed by Congress on March 21, 1947
and ratified by the requisite number of states on February 27, 1951, legalized limits
on presidential tenure and set in stone a character of predictability for the office of
the executive.
7
RESEARCH FINDINGS AND ANALYSIS
To determine whether the Twenty-Second Amendment has perpetuated the
“lame duck” label and weakened presidential power, five key indicators of
presidential effectiveness are considered: Those that are in direct control of the
president (vetoes and executive orders), Congressional relations (midterm election
results and treaties), and presidential performance (public approval ratings).3
1. Public Sentiments
Public sentiments are the first indicator to be examined. Presidents have
long been cognizant of the public’s degree of support for policy matters. Abraham
Lincoln famously said, “Public sentiment is everything. With it, nothing can fail;
against it, nothing can succeed. Whoever moulds public sentiment, goes deeper than
he who enacts statutes” (Blondheim 2002, 869). In his seminal work, Presidential
Power and the Modern Presidents, Richard Neustadt agrees, arguing that a
president must be popular if he is to successfully persuade and influence (Neustadt
1990, 83). According to historical polling data, most presidents leave office with a
lower approval rating than when they were first elected (Gallup 2008). After the
ratification of the Twenty-Second Amendment, the electorate knew by law a
president could not seek a third term. Therefore, expectations for the second term
would likely be lower, translating into decreased presidential popularity and
effectiveness. If public opinion should be lower in a president’s second term than in
the first, with the greatest decline in the last two years following the midterm
election, it would indicate that the lame duck theory holds under the TwentySecond Amendment. Conversely, a rise in popularity during the last two years
disproves the lame duck theory. Table 1 contains data collected from the Gallup
poll and the question asked was, “Do you approve or disapprove of the way [first
and last name] is handling his job as President?”
Table 1. Average Approval Ratings for Two-Term Presidents
President
Eisenhower
Reagan
Clinton
Bush II
Average
Year in Office
1
2
68%
65%
57
43
48
46
66
72
60
57
3
70%
43
47
60
55
4
72%
54
54
50
58
5
63%
61
57
45
57
6
53%
62
63
38
54
7
63%
49
61
34
52
8
61%
53
60
30
51
Source: Gallup Poll, as compiled by the American Presidency Project. Values rounded to nearest whole number.
3
These indicators were selected as they are more readily recognizable to the electorate than
are other possible measures, e.g., vote concurrence, executive agreements, judicial
appointments, etc. Future study of these measures may help further shed light on whether
there is a causal relationship to lame duck theory or the Twenty-Second Amendment.
8
Upon analysis of Table 1, the lame duck theory holds. With the exception of
modest increases during the Clinton and Reagan second terms, it is clear that twoterm presidents since the Twenty-Second Amendment saw declines in public
approval over the course of their presidency. Average approval ratings during the
first term (57%) were indeed greater than those in the second term (53%). Other
researchers have confirmed this disparity by looking broadly at all presidents over
the last century (ignoring potential effects of the Twenty-Second Amendment) and
demonstrated that presidential first terms have indeed enjoyed far greater approval
(55%) than presidential second terms (46.5%) (Abramowitz et al. 1986, 571).
Therefore, these findings suggest that the Twenty-Second Amendment’s
institutionalization of term limits is at least partially responsible for presidential
declines in popularity and waning power and effectiveness during the second term.
However, other factors may be at play, particularly relative levels of
Congressional support (Light 1999, 28). Even if public approval ratings fall, a
president can still be effective should he have strong support from Congress, or vice
versa. Paul Light (1999) explains the inverse relationship between congressional
support and public opinion, explaining although “public approval cannot create vast
gains in Congress, the absence of public approval eventually undercuts potential for
success.” Reagan’s presidency is a good example of this relationship. Reagan saw a
14.2% increase in popularity from his first term to the second, despite the fact his
support in Congress over that period actually declined by over 27% (Peters 2010).
2. Midterm Election Results
The midterm Congressional elections are generally viewed as a referendum
on the sitting president’s administration and his policies. With the exception of the
1934, 1998, and 2002 midterm elections, the president’s party has lost seats during
every midterm in this past century, with an average midterm loss of 30
congressional seats (Campbell 1985, 1140). Thus, it can be said that the midterm
loss is more than just a tendency, but a historical regularity; presidents who are
considered lame ducks should see greater party losses during the second midterm
congressional elections. In fact, several models have been advanced to test this idea
and each has demonstrated that the midterm congressional elections serve as a
check on presidential popularity, power, or effectiveness (Tufte 1975; Campbell
1985; Abramowitz et al. 1986; Erikson 1988). This finding holds heightened
relevance if applied to a discussion of lame duck presidents. Table 2 details the
losses and gains of all two-term presidents since the Twenty-Second Amendment.
9
Table 2. Seats in Congress Gained/Lost by the President's Party in MidTerm Elections
Midterm
Year
Eisenhower (R)
1954
Eisenhower
1958
Reagan (R)
1982
Reagan
1986
Clinton (D)
1994
Clinton
1998
Bush II (R)
2002
Bush II
2006
President
House
Seats
-18
-48
-26
-5
-52
+5
+8
-30
Senate
Seats
-1
-13
+1
-8
-8
0
+2
-6
Net
Gain/Loss
-19
-61
-25
-13
-60
+5
+10
-36
Source: Lyn Ragsdale, Vital Statistics on the Presidency.
What is immediately clear from the data is that there is a significant
difference between losses in a president’s first midterm and second midterm.
During the last century, the average seat loss in the first term has been 32 while the
seat loss during the second term has been 41 (Campbell 1985, 1152). In part, this is
inextricably linked to presidential popularity, the first indicator examined in this
study. Therefore, the low popularity of a second-term president should indicate an
increase in their party’s seat loss relative to the first term. Eisenhower and Bush II,
who both had lower approval in the second term, exemplify this relationship,
upholding the lame duck theory.
In the case of Reagan and Clinton, both actually lost more seats in the first
term than in the second term, corresponding to lower approval ratings during the
first term (see Table 1). The below average approval ratings during their first
midterm can account for the significant losses for their parties in those elections.
The subsequent rise in their popularity by the second midterm election translates
into a modest party loss and gain, respectively, disproving the lame duck hypothesis
regarding midterm election results. Perhaps the rise in approval and electoral
success for Reagan and Clinton during the second term corresponds to grassroots
campaigns during their respective presidencies to abolish the Twenty-Second
Amendment. For instance, over the last few months of his presidency Reagan began
speaking out against the amendment, telling supporters on one occasion that
Republicans during 1947 sought to tarnish Roosevelt’s legacy by enacting the
Twenty-Second Amendment. “People should be able to vote for who they want and
as long as they want,” he declared (Los Angeles Times 1988). Bill Clinton offered a
similar opinion saying, “Presidents should be limited to two consecutive terms, then
after a time out of office should be able to run again” (Leung 2003).
10
3. Presidential Vetoes
Woodrow Wilson once wrote that the president’s veto power is “beyond all
comparison, his most formidable prerogative” (Wilson 1956, 52). The exercise of
veto power is a well-known but infrequently used tool of the presidency; overuse of
the power has, over the course of the modern presidency, signaled increasing
weakness on the part of the president (Ragsdale 2009, 365). When a president does
employ the veto however, it is overridden rarely. In more than 200 years, Congress
has overridden presidential vetoes just over 100 times – seven-tenths of one percent
(Ragsdale 2009, 365). About half of these vetoes have occurred since 1946. If the
lame duck theory is true, it is expected that two-term presidents since the TwentySecond Amendment will have vetoed a greater number of bills in the second term
than in the first, with a rise in veto power over the president’s tenure. This is based
on the dwindling support a president may receive from Congress toward the end of
his tenure since he will no longer be able to hold office or influence policy matters.
Table 3. Presidential Vetoes
President
Year in Office
1
2
Eisenhower
10
42
Reagan
2
13
Clinton
0
0
Bush II
0
0
Total
12
55
3
4
11
7
11
0
29
5
23
17
6
0
46
6
12
6
3
0
21
7
39
14
5
1
59
8
20
3
5
7
35
24
16
7
4
51
Source: The United States Senate. Summary of Bills Vetoed, 1789-Present.
The data in Table 3 indicates that for all two-term presidents since the
Twenty-Second Amendment, the percentage of vetoes is greater in the second term
(54%) than in the first (46%). Including the second midterm congressional election
(during Year 6), the use of the veto power by the president increases to the end of
their tenure. In fact, two-term presidents employed the veto power 14.6% more
during the final two years of the second term than over the last two years of the first
term. This suggests that the lame duck theory is supported; presidents appear to turn
to the veto power during the end of their tenure in office.
One alternative explanation for these findings is the nature of the pocket
veto. By definition, a pocket veto is an indirect action on the part of the president to
veto a bill. Over time, this power has been employed by the president most
frequently at the end of a two-term congressional session or during intersession
adjournments (Spitzer 2001, 724). As a result, the use of the pocket veto will cause
the total number of vetoes to rise during the even years of a president’s term
(corresponding to the end of a congressional session). A review of Table 3 confirms
this cyclical effect; the presidency of Ronald Reagan offers particular insight into
this phenomenon. Thus, the pocket veto argument suggests that the term limits
11
imposed by the Twenty-Second Amendment are not as clearly responsible for the
increase in vetoes during the final years of a president’s tenure.
Another explanation may be the complex relationship between the President
and Congress. Particularly with respect to the veto power, the president’s relations
with Congress function to “define the success of a president’s performance” on any
single occasion (Ragsdale 2009, 367). Jong Lee, a noted scholar on presidential
vetoes, concluded by regression analysis, “A significant amount of variation in
presidential veto behavior is explained by the president’s background and partisan
or electoral factors” more so than any other possible indicator (Lee 1975, 545).
4. Executive Orders
Executive orders are the next indicator of presidential effectiveness to be
examined. An executive order is a “presidential directive that requires or authorizes
some action within the executive branch” and rarely requires approval of Congress
(Mayer 1999, 445). Scholars view executive orders as an important policymaking
tool that “reflects much more than simple administrative routines or random noise”
and demonstrates a president’s ability to “navigate around an uncooperative
Congress and combine constitutional and statutory power that is thought to be
available” (Mayer 1999, 462). If the lame duck theory is supported, it is expected
that two-term presidents since the Twenty-Second Amendment will have issued a
greater number of executive orders in their second term than in the first, with the
largest number following the second midterm election. This would indicate that
presidents perceive a loss of power and effectiveness towards the end of their term
and increasingly turn to unilateral powers.
Table 4. Executive Orders Issued by Two-Term Presidents
President
Year in Office
1
2
Eisenhower
80
75
Reagan
50
63
Clinton
57
54
Bush II
54
31
Total
241
223
3
4
5
6
7
8
66
57
40
41
204
44
41
49
45
179
55
45
38
26
164
50
37
38
27
152
60
43
35
32
170
42
40
41
30
153
Source: The Federal Register. Executive Orders Disposition Tables Index.
An examination of Table 4 indicates that all two-term presidents since the
Twenty-Second Amendment issued a greater number of executive orders in the first
term (57%) than the second term (43%). This is statistically significant; two-term
presidents are more likely to issue the bulk of executive orders during the first two
years of their presidency, with a decline in the number of directives for the duration
of their tenure. Since it was expected that the bulk of executive orders would fall
during the second term and after the sixth year, these findings do not support the
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lame duck theory; executive orders issued during the second term remain nearly flat
for each respective president.
One factor may be responsible for why presidents issued a greater number
of executive orders during their first few years. It may be that upon assuming the
presidency, new presidents view executive orders as the simplest and quickest way
to establish their political and policymaking agenda. For example, during the 2000
presidential campaign, George W. Bush spoke about expanding the White House’s
relationship with faith-based and local organizations that support many social needs
in the country’s communities. On the first day of the first full week of his
presidency, Bush followed through on this campaign promise by signing Executive
Order No. 13199 establishing the White House Office of Faith-Based and
Community Initiatives (Bush 2001). This administrative change exemplifies the
type of policy behavior evident in a new period of presidential tenure.
5. Treaties Approved
Treaty-making powers are contained in a single clause of the Constitution,
which states that presidents must obtain the advice and consent of the Senate in
order for a treaty to go into effect (Congressional Quarterly 2000, 196). This power
of the president has largely been an effective policymaking tool; between 1789 and
1999, “only twenty-one treaties were rejected outright” by the Senate
(Congressional Quarterly 2000, 197). If a lame duck phenomenon exists, the
number of treaties approved for two-term presidents since the Twenty-Second
Amendment should be higher in the first term than in the second term, as a result of
decreasing presidential effectiveness and cooperation from Congress.
Table 5. Treaties Approved
President
Year in Office
1
2
Eisenhower
14
17
Reagan
12
17
Clinton
17
24
Bush II
2
19
Total
45
77
3
4
7
23
17
14
61
5
15
15
48
14
92
6
9
8
37
8
62
7
10
17
26
17
70
8
12
12
18
10
52
5
21
35
13
74
Source: 1789-1998: Congressional Quarterly, Agreements and Treaties. 1998-2008: Library of Congress.
Based on the number of treaties per year for all two-term presidents since
the Twenty-Second Amendment (Table 5), more treaties were approved during a
president’s first term (52%) than in the second term (48%). Although this would
seem to support the hypothesis, during the last two years of the second term the
number of treaties approved by the Senate actually increases. This indicates that
presidential effectiveness and power has not been lost during the second term,
meaning there does not appear to be evidence supporting the lame duck theory.
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However, treaty success seems to follow the even-year cyclical pattern described
earlier regarding the pocket veto (see Table 3). A review of Table 5 shows in large
part this is the case: The number of treaties approved in Congress (more precisely,
in the Senate) rises during the even years of a president’s tenure, which corresponds
to the end of a two-term congressional session, before falling again during each odd
year.
It is important to address Bill Clinton’s presidency, since his treaty activities
are significantly higher than other two-term presidents. During Clinton’s
administration, the Senate approved more treaties (222) than the Eisenhower and
Reagan administrations combined (214). The Clinton administration is also unique
in that a larger percentage of treaties were approved during his second term (52%)
than in the first term (48%). This further refutes the lame duck hypothesis; the
greater number of treaties approved during Clinton’s final two years reinforces
earlier research that found presidents who perceive eroding presidential power turn
to foreign policy matters, including treaty ratification (Klotz 1997, 323; Tseng
2003, 2).
CONCLUSIONS
Upon analysis of the data, there does not appear to be significant evidence to
confirm that a presidential lame duck phenomenon exists as a result of the
enactment of the Twenty-Second Amendment. For each indicator of presidential
effectiveness examined, other factors appear to play a stronger role with respect to a
president’s willingness or unwillingness to alter his agenda. For instance, a majority
of the indicators studied – presidential popularity, vetoes, executive orders, and
treaties – relative levels of Congressional support, or simply the institutional
limitations between the legislative and executive branches, are correlated with the
degree to which a president is successful. Therefore, the Twenty-Second
Amendment alone has not caused a decline in a president’s power or effectiveness
during the second term.
Given that the data has not revealed strong evidence to support the lame
duck theory, it remains practical to repeal the Twenty-Second Amendment. There
are several reasons to support this argument, some of which were alluded to earlier:
1. As Hamilton argued in Federalist No. 72, limits on presidential tenure
may very well be “robbing the people” of capable and experienced
leadership during times of crisis, thereby tarnishing the principle of
democratic participation.
2. The Congressional Record demonstrates that the amendment was largely
a result of partisan politics. Commanding an overwhelming majority in
Congress, Republicans pushed for passage, believing the amendment an
effective way to invalidate Roosevelt’s legacy.
3. The electorate had no voice in the proposal or passage of the TwentySecond Amendment. During the drafting of the amendment, at least two
representatives expressed an “open distrust of the people” to decide such
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a critical constitutional issue (Willis 1952, 476). This was later reflected
in the wording of the amendment, which specified ratification by state
legislatures, rather than by state conventions.
4. In theory, the electorate has long favored term limitations on presidents
and representatives.4 In practice, however, the electorate’s behavior runs
counter to the data; incumbents are regularly returned to Washington.
In 2006, James MacGregor Burns, writing for The New York Times,
revisited his initial assessment of the Twenty-Second Amendment and offered an
equally harsh critique of its implications for American democracy:
“A second-term president will, in effect, automatically be fired
within four years…he does not have to care – he has, in effect,
transcended the risks and rewards of American politics…But
whether or not a president has a diminished second term, the
amendment barring a third term presents the broader and more
serious question of his accountability to the people…He will not run
again for office. The voters will not be able to thank him – or dump
him.” (Burns 2006)
Should presidents be allowed to govern without any accountability to the
electorate? Following Burns’ logic, any concerted effort to repeal the TwentySecond Amendment ought to attract bipartisan support. Republicans, who seek to
broaden the conservative movement, would certainly embrace a third-term
Republican president. Democrats on the other hand, would surely jump at the
chance to send another Franklin D. Roosevelt to the White House during a time of
world crisis. Repealing the Twenty-Second Amendment provides the best chance of
restoring accountability and removing the artificial weakening of presidential power
perpetuated by a fabled lame duck label.
4
The most recent poll on this issue, conducted by NBC News/WSJ in July 2003, found
67% of respondents “think term limits are a good idea” for officeholders. For additional
data see NBC News/Wall Street Journal, July 2003. The Roper Center for Public Opinion
Research at University of Connecticut. http://www.ropercenter.uconn.edu/data_access/ipoll.
15
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