by John Marini
This budget, Nixon observed, “proposes a leaner Federal bureaucracy, increased reliance on State and local government … and greater freedom for the American people to make for themselves fundamental choices about what is best for them.”37
Nixon intended in his second term to avoid the “lethargy” that characterized the Eisenhower administration. He wanted to be explicitly partisan:
I had a sense of urgency about the need to revitalize the Republican Party lest the New Majority slip away from us. It was one thing for the Democrats to hold all four aces in Washington—the Congress, the bureaucracy, the majority of the media, and the formidable group of lawyers and power brokers who operate behind the scenes in the city. It was another thing to give them the fifth ace of a timid opposition party.38
Nixon’s decision to begin seriously the process of decentralization led to a politics of confrontation. This alarmed both liberals and conservatives. Liberals were committed to a necessary diversity in American politics, and conservatives insisted on consensus. Nixon polarized American politics in an unusual way: it was not Republicans and Democrats, or even liberals or conservatives, but friends and enemies.
Nixon noted in his Memoirs that his budget, “with its proposed spending ceiling was sending shock waves through Congress,” and his “plan for government reorganization was sending seismic tremors through the federal bureaucracy.”39 It was clear that Congress was determined to do battle: “No sooner had the Vietnam peace agreement been announced than the complaints began over the reorganization plans, the proposed budget cuts … and what was soon labeled as the attitude and style of the ‘Imperial Presidency.’”
In Nixon’s view, Congress could not lead but had developed an interest in preventing presidential leadership in the national interest, responsive to national majority. By 1973, he writes, “I had concluded that Congress had become cumbersome, undisciplined, isolationist, fiscally irresponsible, overly vulnerable to pressures from organized minorities, and too dominated by the media.”40 Nixon believed that Congress as a body had changed significantly in the years since he had served there. “In 1947,” he noted, “it was still possible for a congressman to run his office, do his homework, keep in touch with constituents, and have his eye on his political fortunes. But the federal government had become so big and the business of government so extensive that even the most conscientious congressman had to delegate a large part of his responsibilities to the personal and committee staffs.”41 Moreover, he suggests, the media “had demonstrated their power to make a politician a national figure overnight, putting a premium on color and controversiality, rather than steady industriousness.” The change in Congress not only transformed the relationship between the president and Congress, but affected “the traditional relationship within Congress itself.” Increasingly, he suggested, “members refused to accept party discipline and … went into business for themselves.”42
Perhaps the most decisive change in Congress, which strengthened the power of individual members, was the relationship the congressmen had developed with the executive branch bureaucracy. It was not long after Nixon’s attempts at reorganization that Congress began a counterattack. In Nixon’s words, “the Democratic leadership decided that the best way both to assert their party’s majority power and to recover Congress’s former prestige, would be to take a piece out of the executive branch’s hide.”43 Nixon notes:
The first battle lines were drawn in the ostensibly peripheral areas of procedural prerogatives. In early January the Senate Democratic caucus voted 35 to 1 to narrow the President’s traditional authority to invoke executive privilege. The same day a bipartisan bloc of 58 senators introduced legislation that would for the first time in our history limit the President’s war powers. On February 5, the Senate voted to require confirmation of the Budget Director, a position that had been filled by presidential appointment without confirmation for the 52 years since it had been created.44
As Chet Holifield noted in the congressional hearing for passage of the confirmation requirement for a director of the Office of Management and Budget, “the larger issue at stake is the prerogative of the Congress, its power and prestige as an institution.”45
As Nixon has written in his Memoirs, “in the midst of this developing confrontation between Congress and the presidency, the Senate Democratic Caucus called for a full-scale investigation of 1972 campaign practices.”46 It was on January 11, 1973, that the Senate Democratic caucus voted in favor of a Watergate investigation. Senator Mike Mansfield, the majority leader, “announced that Senator Sam J. Ervin Jr., the chairman of the Senate Committee on Government Operations as well as the Senate Judiciary Subcommittee on Constitutional Right and Separation of Powers … would head the investigation.” Mansfield had requested that Ervin “press for an investigation by a Judiciary subcommittee, saying: ‘the question is not political, it is constitutional.… At stake is the continued vitality of the electoral process.’”47 Needless to say, Nixon viewed it in a distinctly partisan light. He writes in his Memoirs: “Mansfield is going to be deeply and bitterly partisan without question. The Democrats actually are starting four years early for their run for the White House.”48
The details and outcome of Watergate are well-known. The political fortunes of Nixon and Congress were dramatically reversed. As the editors of the Congressional Quarterly noted in their review of the Ninety-Third United States Congress:
When the 93rd first convened in January 1973, President Nixon’s sweeping assertions of executive authority posed a threat to the viability of the legislative branch. Even as Congress braced for confrontations with Nixon over spending, war powers and other issues, its defiance was tempered by doubts as to whether it was indeed any match for the newly re-elected President. But by the time Congress adjourned December 20, 1974, the balance of power had shifted dramatically. Both Nixon and … Agnew had been driven from office in disgrace—replaced by men whom Congress had a hand in selecting. Meanwhile, moving into a vacuum created by the disintegration of executive leadership, Congress had staked out a commanding role for itself.49
Theodore White has noted,
the Watergate affair is inexplicable in terms of older forms of corruption in American history where men broke laws for private gain or privilege.… The men involved were involved at a moment, in 1972, when history was moving their way. They were trying to speed it by any means, fair or foul. By so doing, perhaps, they wrecked their own victory. And that, as history may record, compounds their personal felonies with national tragedy.50
If Nixon had history on his side in 1972, he also had adversaries who opposed his reading of those events. Watergate, to be sure, tended to obscure (to the public, at least) the collision course Nixon had embarked upon in early 1973; but, given the revolutionary nature of that course, the equivalent of a Watergate was an absolute necessity for the defenders of the New Deal order. As a result of Watergate, and after the resignation of several top White House aides, the press was advised, without fanfare, “that the President was reinstituting a ‘direct line of communication with the Cabinet’ and discontinuing the experiment with Counselors.”51 The attempt to reorganize and manage the bureaucracy was over. Gerald Ford, in his first address to Congress, pledged an administration that would seek “unity in diversity” and restore an open presidency. American pluralism and the constitutional order were apparently saved from the imperial presidency of Richard Nixon.
Afterword: January 15, 2018
This article was originally written for a panel on Watergate presented at the annual meeting of the American Political Science Association in Washington, DC, in 1984. At that time, there was little disagreement concerning the meaning of Watergate. It was and remains the political scandal by which all scandal is measured. Moreover, the political and intellectual elites of both parties, liberals and conservatives, agreed that Richard Nixon was the problem. His removal was meant to bring about the solution to a crisis of democratic government posed by execu
tive abuse of power. That view of Nixon, and the popular understanding of Watergate as the greatest constitutional crisis of all time, remains unshaken after more than forty years.
I was not convinced then, or now, that the crisis could be understood in purely personal or legal terms. Nearly every political scandal in American politics has been transformed into a legal one in order to expose and reveal guilt as violation of law. It is fought out in the public, or political arena, on legal grounds to establish culpability, again with reference to the law. If successful, it is justified as upholding the rule of law. Although it provides clarity in terms of simplifying the issues in a manner suitable for presentation to a mass public, it often obscures the deeper, or more fundamental, problems that give rise to the necessity of political scandal. Nearly every administration has potential scandal that lies just below the surface of public or political life. They rarely erupt into a full-blown crisis of the political order.
I thought then that it was not personality alone that made it impossible to establish a consensus on fundamental issues. Rather, it was precisely the inability to prevent such political disagreements between the parties and the branches of government that made Watergate possible, and perhaps necessary, for the defenders of the new order. Why did the political branches, and the parties, diverge in such a manner as made it impossible for them to pursue a common good in tandem? What was at stake was not merely the prerogatives of the branches, or the protection of partisan differences. Rather, what made consensus impossible was a disagreement over what constituted a fundamentally good or just regime. Was the modern administrative state—that progressive innovation that took shape in the New Deal and was greatly expanded in the Great Society—more fundamentally just than the political structures that had been established centuries before in the Constitution itself?
Although this was a theoretical disagreement, it revealed itself as a political problem during Nixon’s second term. As Henry Kissinger subsequently noted: “Nixon in the final analysis had provoked a revolution. He had been reelected by a landslide in 1972 in a contest as close to being fought on ideological issues as is possible in America.… The American people for once had chosen on philosophical grounds, not on personality.… For reasons unrelated to the issues and unforeseeable by the people who voted for what Nixon represented, this choice was now being annulled—with as-yet unpredictable consequences.”52 It was apparent then, and more clearly revealed subsequently, that the fundamental problem was that posed by the crisis of constitutionalism itself, brought about by the rise of the administrative state. The political essence of the Constitution is not contained in its written language but in its political structure, which requires a separation of the branches of government. It was the constitutional principle of separation of powers that had come to be undermined by the growth of the administrative state. The Great Society had changed the institutional dynamic of Washington politics. After the election of 1964, both branches participated in establishing greater political power in Washington, by expanding and centralizing administrative authority in the executive branch bureaucracy. That centralization of administrative authority created a political reaction in the electorate that began the process of undermining the policies that were established in the wake of the 1964 election. The Republican Party, led by Richard Nixon, established itself as the partisan opponent of centralized administration. Although Nixon’s first term required political concessions that often required the expansion of federal power, it was done primarily in order to garner support for the Vietnam War in a Congress controlled by the opposition party. His second term was not a continuation of the first. Even the New York Times noted that the transformation demanded by Nixon of his administration after his reelection was as extreme as if an opposition party had won the election.
By the time of Nixon’s reelection in 1972, he posed the greatest danger to the authority of the bureaucracy and the administrative state. Although he won one of the greatest popular and electoral victories in American history, he lost his office and power within the following two years. However, Nixon’s removal from office did not end the political turmoil that had roiled Washington. Ronald Reagan’s election in 1980 witnessed a renewal of the political animosity that had consumed the Nixon presidency. Although Reagan did not attempt a direct confrontation with the defenders of the administrative state, he did attempt to mobilize a public opinion based on the assumption that government is not the solution to our problems. His view that “government is the problem” resonated with a considerable portion of the electorate. Moreover, by the end of the second Reagan administration, politics in Washington had again become exceedingly contentious. The divisions between the parties and the branches seemed almost insurmountable. By the end of the twentieth century, it appeared to be the case that American politics could no longer be structured by the ordinary, or practical, operation of separation of powers. Rather, the actual conduct of the political branches of government was shaped by the ongoing necessity of accommodating, and ratifying, the actions of the rational, or administrative, state. In other words, it was an element of government itself, the bureaucracy, which had established the purpose and unity of the political branches, and with the blessings of the courts. In short, after nearly a half century of its growth, the bureaucracy has become the conservative defender of the liberal or rational state. Once established, the bureaucracy, and the political forces beholden to it, have sought to progressively replace politics by substituting administrative rulemaking for general lawmaking and rule by rational knowledge in place of political choices made by elected officials. In short, political rule of law gives way to executive or administrative discretion.
In our time, both political branches of government, and in some ways both parties, have accommodated themselves to the administrative state. Much greater authority resides in the administrative realm under executive control, often with the blessings of Congress. The growth of the administrative state has made it possible to politicize the culture by undermining the institutions of civil society, including the family, church, and nearly all private associations. That transformation was not brought about politically but administratively, through the bureaucracy and the courts. The various nationally organized interests, whether political, economic, social, media, entertainment, educational, scientific, cultural, or religious, have accommodated themselves to centralized rule. Moreover, they are well served by Washington, in terms of access to the political branches and the bureaucracy. But it is not clear that the American people are convinced that government now operates on behalf of a public good. For that reason alone, the administrative state has not been able to establish its legitimacy. But the difficulty of revitalizing political rule in a manner compatible with constitutional government remains a problem yet to be solved.
What did Watergate reveal? At the time, I thought it important to look at the institutional structures and the incentives of those who had become a part of the modern administrative state. I attempted to show the importance of the bureaucracy as an institution that could utilize its influence on behalf of one political branch or the other. The necessity to preserve those administrative structures had become essential to modern government. It led many within those organizations to consider institutional loyalty as fundamental to the defense of democratic government itself. For that reason, the nonpartisan character of bureaucracy, its avowed neutrality, could be cast aside. It became a defender of the administrative state, a faction on behalf of government that could no longer be regulated by government.
It was many years after Watergate that we learned the identity of the source of the leaks that led to the removal of a president. It was not surprising that Deep Throat, the source for Bob Woodward and Carl Bernstein, turned out to be a high-level official of the Federal Bureau of Investigation (FBI). Mark Felt had access to all of the classified information generated by the agencies of the government. He leaked that information to the Washington Post over the course of a year or mor
e. It served to delegitimize the president and alienate him from the electorate and his party. Although Woodward and Bernstein were lauded as investigative reporters, they served merely as a conduit by which the bureaucracy could undermine the authority of an elected officeholder. In modern organizations, those who work in the administrative structures often understand their interest in terms of institutional loyalty and their professional association, rather than the larger political good understood in terms of the nation or the Constitution. In short, the bureaucracies have developed the instinct for self-preservation at all costs. They do not, however, defend themselves on the basis of self-interest. Rather, they see themselves as defenders of institutional rationality, as a part of the social intelligence that establishes the legitimacy of rule within the administrative state.
PART THREE
THEORY AND HISTORY OF THE ADMINISTRATIVE STATE: THE “NEW DESPOTISM” REPLACES SELF-GOVERNMENT
Bureaucratic government has existed since ancient Egypt and Imperial China, but the modern version is different not only in its origins but also in its distance from the republican self-government. The administrative state is the modern face of tyranny—an issue on which thinkers as diverse as Leo Strauss and Carl Schmitt apparently agree. In his study of centralized administration in Democracy in America, Alexis de Tocqueville contrasts the types of humans found under that “new despotism” and in a free society. But unlike the American Founders, Tocqueville did not base his defense of liberty on natural right. Contrary to political theorist and Tocqueville interpreter Harvey Mansfield Jr., Marini does not rely on Tocqueville to “understand politics,” in particular American politics, even though Tocqueville anticipated many features of the administrative state.