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The West Wing and Presidential Succession
by Howard M. Wasserman
The television program The
West Wing followed the staff and administration of President
Josiah Bartlet, a popular two-term liberal-Democratic president
that real Democrats only dream about-imagine a President with
Bill Clinton's political skills, Michael Dukakis' policy goals,
Jimmy Carter's commitment to monogamy, and Daniel Patrick Moynihan's
intellect. The show ended its seven-year run in May 2006 with
the close of the Bartlet Administration and the start of the
succeeding administration of Democrat Matthew Santos.
The West Wing had a long-standing constitutional
interest, for no apparent reason, with the rules and procedures
for presidential selection and succession. Over seven seasons
depicting one two-term presidency (and the start of the succeeding
administration), the show presented to a popular audience many
of the obvious (and not-so-obvious) contingencies of succession
at the top of the executive branch. Consider the following.
Temporary Presidential Disability
In the cliffhanger from the
first to the second season, President Bartlet is wounded in an
assassination attempt and is rushed into surgery and placed under
general anesthesia. At that moment, the expectation (as has occurred
on several real-life occasions) is that the Vice President becomes
"acting president" and temporarily assumes the powers
and duties of the presidency until the President awakens and
is able to discharge his office.
 Unfortunately,
that formal transfer never occurred. Under § 3 of the Twenty-fifth
Amendment, the President must transmit a written declaration
to the Speaker of the House of Representatives and the President
pro tempore of the Senate stating that he is unable to discharge
his powers. But Bartlet never signed any letter prior to being
placed under anesthesia. This is understandable, perhaps, as
he had just been shot and was being rushed into emergency surgery
- it does not leave time (or inclination) to draft a letter to
Congress, a point Bartlet's staffers make.
Thus, as a constitutional matter,
the executive power never transferred to Vice President John
Hoynes. There was a constitutional power vacuum - the executive
power remained vested in a wounded and unconscious person. Vice
President Hoynes was nominally and presumptively in charge, although
he had no actual authority. There also was talk of the unique
role that the Secretary of Defense as the "principle assistant"
to the President on matters of national security, with the suggestion
that the Secretary should wield increased power in the vacuum.
Ultimately, everyone - the VP, the National Security Adviser,
the Joint Chiefs - looked for guidance to Chief of Staff Leo
McGarry, who, it was pointed out, no one voted for.
The power vacuum and who was
in charge or not in charge became a subject of continued controversy
in later episodes. And it reflected the genuine confusion that
surrounded actual assassination attempts, such as the 1981 shooting
of President Reagan. But that vacuum was not inevitable (or even
likely) under the circumstances. Under § 4 of the Twenty-fifth
Amendment, the Vice President and a majority of the cabinet may
provide that written notice of the President's temporary disability,
devolving power to the Vice President. Once President Bartlet
was under anesthesia and his staff had recognized that a proper
§ 3 transfer had not occurred, Vice President Hoynes and
the cabinet would have met and declared Bartlet unable to discharge
his duties because under anesthesia, allowing Hoynes formally
to assume the executive power.
Of course, that creates less
compelling drama than a power vacuum.
Vice Presidential Resignation
Toward the end of season four,
soon after Bartlet's re-election to a second term, Vice President
Hoynes resigned amid revelations of an extra-marital affair and
his paramour's plan to write a book revealing confidential information
that Hoynes shared as pillow talk. The primary purpose of the
Twenty-fifth Amendment, enacted just a few years after the assassination
of President Kennedy, was to address the real (and historically
regular) occurrence of vice-presidential vacancies. Section Two
gives the President the power to nominate a new Vice President,
with confirmation by a majority of both houses of Congress.
President Bartlet wanted to
nominate his Secretary of State, but faced opposition from Republican
House leadership (Bartlet confronted a Republican-controlled
Congress throughout his presidency), which threatened a confirmation
fight against the Secretary and several other of Bartlet's preferred
choices for the position. The Speaker pushed Bartlet to name
a Vice President who was more politically acceptable to House
Republications - a conservative Democrat named "Bingo"
Bob Russell, who had a reputation for being very cozy with big
industry, not very bright or experienced, and more conservative
than Bartlet. Bartlet accepted Russell in order to avoid a fight;
Russell was confirmed easily. But being out of step with (and
not respected by) the administration politically, he was isolated
and ignored. Indeed, Bartlet refused to endorse or support Russell
when the latter used his new position to launch a bid for the
Democratic presidential nomination during the show's sixth season.
It is not clear how realistic
such political bargaining would be over a vice presidential nominee.
Obviously our actual experience with vice-presidential appointments
is limited to President Nixon's appointment of Gerald Ford in
1973 and Ford's appointment of Nelson Rockefeller in 1974. Congressional
Democrats did not attempt to affect either choice, perhaps recognizing
that the President must have the leeway to select a Vice President
with whom he is personally and/or politically comfortable. We
would hope that the legislative opposition would not demand that
its preference supersede the President's. The vice presidency
remains a unique constitutional position, both because of the
Vice President's role as adviser (particularly more recently)
and immediate executive successor. We should hope that Congress
does not attempt to create a situation in which politics or policy
would change in the event the President dies or becomes disabled.
But political gamesmanship
with a vice presidential nominee is not out of the question,
just of a different form. House Democrats delayed Rockefeller's
confirmation for five months, not hoping to affect the choice,
but simply to keep the vice presidency vacant and thus to keep
Democratic Speaker Carl Albert next in the line of statutory
succession (see below). One also might expect congressional leaders
of one party to resist a nominee who could be a serious future
presidential candidate-knowing that candidate would have an advantage
running four years hence as a sitting Vice President.
Temporary Disability and
Statutory Succession
Immediately after Vice President
Hoynes resigned (but before Bartlet could nominate a replacement),
terrorists kidnapped Zoe Bartlet, the President's youngest daughter.
Feeling more panicked father than leader of the free world, Bartlet
invoked the Twenty-fifth Amendment and again declared himself
temporarily unable to discharge his duties. This time, he was
able to write and sign the § 3 letter to the Speaker and
President pro tem.
Unfortunately, there was no
Vice President to act as president under the Twenty-fifth Amendment.
Bartlet's action thus triggered not constitutional succession,
but the statutory provisions of 3 U.S.C § 19 for succession
below the Vice President. Under the current statute, the executive
power devolved to Speaker of the House Glenallen Walken, a hawkish
conservative Southern Republican.
The drama then focused on how
Walken would wield his temporary powers and how a White House
staff of Democrats loyal to Bartlet would interact with the new
man in the Oval Office. Leo McGarry sat in on Walken's policy
and strategy meetings, but found his counsel far less welcome
or followed. Walken also began talking about implementing substantive
policies-military and domestic-at odds with the agenda of Bartlet
and his administration. This led to a confrontation between Josh
Lyman, Bartlet's Deputy Chief of Staff, and a Walken staffer
about Walken using the situation for political and partisan advantage,
with the Walken staffer accusing Lyman of holding a "craven"
view of politics.
Zoe Bartlet was found after
72 hours, after which the President unilaterally reassumed the
executive power by sending a second letter to the Speaker and
President pro tem declaring that he was once again able to discharge
his duties.
Many legal commentators, including
me, have argued that having legislative leaders at the head of
the statutory line of executive succession is unconstitutional,
unwise, or both. The scenario depicted on The West Wing
demonstrates why.
Because members of Congress
are prohibited from serving in the Executive Branch, Walken resigned
the Speakership and his House seat in order to become acting
president for a brief period. After three days of minding the
store, Walken did not return to Congress. He became a private
citizen, out of public service - the reward for his stepping
into the breach in a national emergency.
On the other hand, the President
was replaced (however briefly) by his chief political rival,
with a different agenda and the opportunity (and perhaps desire)
to pursue that agenda for political advantage. If nothing else,
the show depicted the strange and unworkable situation created
by an acting president in the Oval Office surrounded by West
Wing staff not inclined to help him carry out any agenda and
on whom he is not inclined to depend. And there is the genuine
risk that someone would use the opportunity for partisan gain,
especially if in office longer than 72 hours. Perhaps this fear
is craven - but politics occasionally are.
The myriad problems with legislative
succession contrast with the relative smoothness of the alternative-succession
by the cabinet officers who already were helping the President
wield executive power, historically beginning with the Secretary
of State. On The West Wing, that means the acting president
would have been the very person Bartlet was hoping to make Vice
President.
Replacing a Vice President-"Elect"
Appropriately, the series ended
with one final foray into executive succession - replacing a
candidate for executive office who dies prior to Inauguration.
The dramatic move became necessary with the December 2005 death
of actor John Spencer, who played Leo McGarry.
During the final season, McGarry
was the Democratic nominee for Vice President, the experienced
veteran providing the younger Santos with gravitas. McGarry suffered
a heart attack and dies on Election Night, several hours before
polls close on the West Coast and ten hours before Santos was
declared the winner of the popular votes in states totaling 272
electoral votes, enough to give him the presidency.
Of course, formally it is the
votes of electors in the Electoral College and the acceptance
of those College votes by Congress that chooses the President
and Vice President. That process takes approximately two months
beyond Election Day.
The question was how Santos
and the Democratic Party would and should select McGarry's replacement
as Vice President. The procedure for doing this in fact involves
a complex and uncertain interaction of several federal constitutional
provisions, federal statutes, and state laws, and independent
actions by the states, the two major political parties, the Electoral
College, and Congress. As recently as 1994, the Senate Judiciary
Committee held hearings to clarify how the law should handle
the death of a presidential (or vice presidential) candidate
prior to Inauguration.
Santos argued that it would
be patently undemocratic for him or the Democratic Party to instruct
Democratic electors to vote for a new candidate or to have unnamed
and unknown electors select a Vice President who never stood
before the American people for democratic consideration. This
reflects a very modern view of the Electoral College-its original
design entailed independent electors with discretion to select
the best people for the jobs of President and Vice President,
without regard to the public will.
Instead, Santos waited until
after Inauguration to do anything. On January 20, McGarry would
not "qualify" for his vice presidential office under
the Twentieth Amendment to the Constitution, because of death,
creating a vacancy in the Vice Presidency. Santos then would
nominate a replacement under the Twenty-fifth Amendment, who
would be subject to approval by both houses of Congress.
This is one (the writers suggest
only) democratically legitimate way to find a new Vice President.
The series ended following the inauguration ceremony with the
understanding that this is what would happen.
But, in truth, a great deal
must have occurred (or not occur) behind the scenes under federal
and state law to allow the process to play out this way. Any
change in the underlying process might produce a very different
outcome - Democratic President Santos with Republican Vice President
Ray Sullivan, who had been the GOP candidate for Vice President.
Sullivan was a conservative Republican and darling of the religious
right.
First, Santos and the Democratic
Party must have declined to place a new vice presidential candidate
to replace McGarry before the Electoral College, which they did
on the stated belief that naming a substitute would be undemocratic.
But, in fact, both national parties retain the power to name
a new nominee in this circumstance and to instruct or urge electors
committed to their ticket to cast votes for the substitute. This
happened in 1912, when James Sherman, President William Howard
Taft's running mate, died just before Election Day and the Republican
Party urged its electors to vote for Nicholas Butler (of course,
the Republicans received only eight electoral votes in that year's
three-way race, thus the electors were not choosing the person
who would become Vice President).
Such a switch may have been
impossible, however, for electors from states with "faithless
elector laws," laws purporting to bind presidential electors
to vote a certain way in the College. Some laws require an elector
to vote either for the winner of the state's popular election
or for the person named as the party's candidate in the general
election. Either type would compel those electors to vote for
McGarry.
The problem arises if those
bound electors still cast votes for McGarry, but other Democratic-committed
electors vote for the DNC's new choice. This would deprive any
candidate of a majority in the Electoral College. The vice presidential
election would be thrown into the Republican-controlled Senate,
which, under the Twelfth Amendment, would choose between the
two top vote-getters in the Electoral College (likely Republican
Sullivan and the DNC's substitute). The Senate majority may have
been tempted to select Sullivan simply because it had the votes.
Second, in the absence of a
DNC-designated replacement, Democrat-committed electors all must
have cast their College votes for McGarry, even though he was
dead, rather than for some other candidate. If, in the confusion,
as few as three electors failed to vote for McGarry, denying
him a majority, the election again would have been thrown to
the Senate, with the same possible outcome.
Third, if all Democratic electors
voted for McGarry, Congress must have accepted and counted those
votes even though he was dead. There is precedent for Congress
not recognizing such votes-in 1872, Congress declined to accept
three electoral votes cast for presidential candidate Horace
Greeley, who had died between Election Day and the meeting of
the Electoral College. Had a majority in Congress disregarded
McGarry votes, the VP election again would have gone to the Senate.
Moreover, in this circumstance, the Senate's only choice would
have been the Republican, Sullivan; because he was the only candidate
to receive valid votes in the Electoral College (McGarry's votes
having been rejected by Congress), his would be the only name
submitted to the Senate contingency election.
A Final Note
For seven years, The West
Wing successfully dramatized, for popular consumption, the
vagaries and defects in our structural constitutional schemes,
defects that otherwise come to light only amid real-life tragedy.
Beyond the quality of the show (it earned four Emmy Awards for
Best Drama and 25 Emmies in all), it will be missed as a vehicle
for popular understanding of, and perhaps real political change
in, the uncertain and problematic processes of presidential selection
and succession.
Posted May 19, 2006
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