The Purpose and Powers of the Senate, Part LII: “An Act of Divine Providence, or Otherwise”

    Returning to the Republican-controlled Congress in the late winter of 1947, it bears mentioning that the assembled legislators did have more to draw on by way of motivation than just lingering resentment towards their Democratic opponents and a record of the promises that they had made during the most recent presidential election. No doubt thanks in large part to their own efforts during that same public poll and the preceding Election of 1940 – during which time the Republican Party had expended no small amount of energy comparing a third term-seeking Roosevelt to contemporary European authoritarian leaders – the American people had begun to turn perceptibly against the continued absence of codified executive term limits. If Roosevelt’s reelections in 1940 and 1944 were any indication, the depth of this opposition took some time to build, but contemporary polling did show evidence of a definite trend in that direction. In April of 1943, when asked by Gallup whether they supported, “adding a law to the constitution which would prevent any President of the United States from being reelected in the future if he has already served two terms [,]” forty-five percent of respondents answered in the affirmative. Asked again in November/December, the “yes” vote increased to fifty percent. Asked for a third time in March of 1944, the response was fifty-seven percent in favor. Evidently, as time went on, the American people were growing less and less supportive of Roosevelt’s precedent-busting tenure in office. Or rather, they seemed to be turning against the idea of unlimited terms. Roosevelt, as aforementioned, clearly had popularity to spare. His victories in ‘40 and ‘44, it was true, showed a slow but steady weakening of support compared to his monumental win in ‘36, but it still would have been hard to argue that the country was about to turn against him. For the perspective of the American people, it seemed, Roosevelt’s third and fourth terms in office were more or less what he claimed them to be. That is, they were less attempts to set a new standard – as his Republicans opponents loudly claimed – as necessary concessions to contemporary domestic and international events. And once those selfsame events arrived at their rightful conclusion, so too, it seemed, would the indulgence of the American electorate for Franklin Roosevelt.

    Thus armed with a sense of their constituents’ increasingly ambivalent attitude towards the prospect of unlimited presidential terms – and having made more than a few promises to address the issue in exchange for electoral support – House Republicans accordingly set about using some portion of the first session of the 80^th Congress to formulate and approve a corresponding constitutional amendment. The result, House Joint Resolution 27, was quite straightforward. Notwithstanding several rounds of modifications, all that it sought to do was ensure that, “Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.” Once submitted to the House floor for debate, many Democratic members were unsurprisingly displeased, doubtless as they hoped to perpetuate their party’s control over an Executive Branch whose scope and power had become much enlarged under the stewardship of the late President Roosevelt. Notwithstanding these selfsame complaints, however, nearly fifty Democrats ultimately voted to support the measure, the majority of which – thirty-seven – represented Southern states.

    Such a turnabout was arguably a long time coming. While Democratic voters in the South had certainly benefitted from many of the social and economic programs that made up Roosevelt’s “New Deal” – from the hydro-electrification projects undertaken by the Tennessee Valley Authority to the price stabilization measures mandated by the Agricultural Adjustment Administration – the South was also traditionally home to the most conservative faction of the Democratic Party. And the leaders of this faction, while initially supportive of the President’s efforts to ameliorate the worst effects of the Great Depression, had come to regard Roosevelt’s rapid expansion of federal authority and his favorable attitude towards organized labor with mounting suspicion between his first inauguration in 1933 and his landslide reelection in 1936. The publication of the “Conservative Manifesto” in December of 1937 – in large part the brainchild of North Carolina Senator Josiah Bailey (1973-1946) – gave evidence of the depths of the discontent which this group had begun to harbor. As Roosevelt, in the eyes of men like Bailey, had begun to move the country towards a kind of state-run collectivization, the Manifesto called for tax cuts, a balanced budget, increased local control over New Deal funds and programs, and a recommitment on the part of the federal government to the basic principles of free enterprise. While Roosevelt and his allies were initially inclined to ignore this nascent insurgency, the return of a sizable bloc of Republicans to Congress after the 1938 mid-terms resulted in the formation of a bipartisan Conservation Coalition, the efforts of which ultimately succeeded in sinking many a New Deal initiative between the late-1930s and the mid-1940s. Roosevelt’s death in 1945 obviously removed the primary target of this ad-hoc congressional pressure group, but it certainly did nothing to erase his legacy. The New Deal Coalition was still very much ascendent, and it doubtless appeared to the aforementioned cohort of conservative Democrats that their work would not be finished until they had removed even the possibility that someone might successfully take up Roosevelt’s mantle.

    Received by the Senate on February 7^th, 1947, H.J. Res. 27 then slowly began to evolve into the final draft version known to history as the 22^nd Amendment. First, at the hands of the Judiciary Committee, the text of the proposal was altered to become substantially more specific. “A person who has held the office of President,” it now read, “or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.” Evidently, notwithstanding past efforts in pursuit of a constitutional amendment limiting presidential service, the assembled legislators of the 80^th Congress had settled on the two-term limit as the basis of their discussion. This was formally confirmed during a floor debate on March 7^th when a proposal to further modify the draft to create a single six-year term was defeated by a decisive margin of 82-1. Shortly thereafter, on March 10^th, Washington Democrat Warren Magnusson (1905-1989) then proposed perhaps the most meaningful modification yet, arguing to shift the focus of the draft away from service and towards election.

    There were, Magnusson asserted accordingly, at least two problems with the draft amendment as it then existed. First, it was too technical and begged certain complicated legal questions. If holding the office of President and acting as President amounted to the same thing in terms of disqualification from further service, it stood to reason that a rigorous definition of what it meant to be “acting president” would also need to be worked out. Likewise, it seemed unfair to place legal restrictions upon someone who had potentially never sought the office of chief executive but had rather been forced to accept it by way of constitutional necessity. If, say, in a moment of national crisis during which both the President and Vice-President either died or were incapacitated and the Secretary of State was forced to step into the role of chief executive – pursuant to the terms of the Presidential Succession Act of 1886 – the length of their emergency service would be counted against them if they ever decided to seek election in their own right. This theoretical individual had never pursued the offices of President or Vice-President and had only assumed the responsibility of the former in order to provide stable leadership in what would have had to have been a moment of unprecedented national calamity. Why, then, in exchange for performing their constitutional duty, should they be potentially disqualified from further public service? Such an outcome, Magnusson believed, was beyond the purview of the present discussion.

    The Senator’s second problem, broadly speaking, with the existing draft of H.J. Res. 27 was that it was more convoluted than it needed to be to serve the needs of the American people. The issue, he said, was not that certain individuals had attempted to make use of legal trickery to maintain their possession of the office of President. Rather, it was simply that the same man kept getting elected. Why not, then, just make it as simple as stating that, “no person shall be elected to the office of President more than twice [?]” Not only would the vast majority of the American people be able to understand such a restriction both in its purpose and its effects, but it would also speak directly and unambiguously to the issue at hand. Roosevelt had been elected four times between 1932 and 1944. Was that not the true cause of all the consternation that had followed? Was Roosevelt’s continual reelection not what Wendall Willkie and Thomas Dewey had both tried unsuccessfully to prevent? Barring more than a single reelection, it seemed to Magnusson, was likely to prevent this same scenario from occurring nine times out of ten. Granted, the question of what exactly constituted an “acting president” would remain unanswered, but that was neither here nor there. The 80^th Congress had committed itself to preventing another presidency like that of Franklin Roosevelt, not to pinning down the exact legal definition of all of the high offices of state. Magnusson’s proposal would serve, and so, he felt, it ought to.

    Some of Senator Magnusson’s colleagues, as it happened, tended to agree. The most prominent among these was Maryland Democrat Millard Tydings, who seemed to feel that Magnusson’s criticism of the existing draft’s complex formulation had hit the nail on the head. “What we are trying to do [,]” he said during debate,

Is to stop any man from being elected President more than twice […] But under the committee amendment a man could be prohibited from being elected President more than once, provided that he had served more than 1 year prior to the time he was elected President […] I think that provision is a little stringent.

Unlikely though it may have been to ever come to pass, the scenario put forward by Senator Tydings was indeed still possible under the terms of the existing draft amendment. The proposal, as it then stood, held that, “A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.” In practice, then, if a cabinet minister, during a national crisis of the kind cited above, was elevated to the office of President and served for a single year thereafter, they could only submit themself for formal election to that office once, placing a hard limit upon their tenure of service at five years in total. If they’d been elected in the first place, of course, rather than succeeded in the midst of calamity, no such limitation would apply. Was this right? Was this the outcome that the 80^th Congress had set out to ensure? Senator Tydings did not think so and argued vigorously to that effect alongside the aforementioned Senator Magnusson. Unfortunately for the pair of them, the majority of their colleagues remained as yet unconvinced.

    Whereas Magnusson and Tydings seemed to think that the various loopholes that a focus on limiting eligibility for election would have left open were so unlikely to ever be utilized that they could safely be ignored, most of their fellow Senators were of the opposite opinion entirely. That is to say, they appeared to feel that having discovered the potential for the aforementioned loopholes, it was their collective responsibility to close them for good. Thus it was that Iowa Republican Bourke Hickenlooper (1896-1971) spoke in opposition to Magnusson’s amendment proposal by seeking to drawn attention to the “peculiar situation” that its adoption might ultimately create. Under the terms of Magnusson’s draft, said Hickenlooper, “An individual who becomes President by accident, an act of divine providence, or otherwise, and who was not originally elected to the position, is the only person who can hold protracted office in the Presidency.” Another skeptic, Ohio Republican Robert Taft (1889-1953), then elaborated further on what this might mean in practice. If, as Magnusson would have preferred, individuals were only barred from being elected more than twice, it still would have been possible for a given Vice-President to succeed to the office of President on the death of their predecessor, serve three for three and a half years, and then stand for election twice more, granting them a total tenure in office of eleven and a half years. Was this not exactly what the membership of the 80^th Congress had assembled to prevent? Had the county not just been made aware of the need for a constitutional amendment by the continuation in office of a single man for twelve years? Magnusson’s response, while honest, did little to help his case. All of the scenarios which his fellow Senators were painting, he said, did indeed represent an accurate reading of his proposal. All the same, he still did not feel it necessary to draft an amendment proposal that would, “deal with contingencies whereby a man because of circumstances beyond his control is elevated to a high office.”

    Given his evident unwillingness to bow to the concerns of his fellow Senators, Magnusson’s proposal unsurprisingly went down to defeat. It was at this point that Senator Taft, evidently unwilling to allow the efforts of his fellow Republicans in the House to go to waste, decided to pen a draft of his own that might strike the necessary balance. Said draft, introduced on March 12^th, essentially combined elements of both the Judiciary Committee proposal and Magnusson’s subsequent amendment, the result of which was a text that addressed both election and service. “No person,” it read,

Shall be elected to the office of the President more than twice, and no person who has held the office of President or acted as President for more than 2 years of a term to which some other person was elected President, shall be elected to the office of the President more than once.

As far as splitting the difference between the various concerns that had thus far been expressed, Taft’s proposal would seem to have staked out a fairly reasonable middle ground. By the terms of the Judiciary Committee draft, someone elevated to the office of President through no effort of their own would have been limited to a tenure in office of five years in total. And by the terms of Senator Magnusson’s amendment, an individual placed in the same position might conceivably have remained in office for as many as eleven and a half years, all told. The former, as Magnusson argued, would seem set to punish those who only crime was serving their country in the midst of catastrophe. And the latter, according to the likes of Senator Hickenlooper, might conceivably allow someone not initially elected to the office of President to remain in that office for far longer than anyone else. By way of Taft’s proposal, an individual might serve as President for ten years at the utmost if the math worked out in their favor. But if they served for two years and one day of a term to which someone else had been elected originally, their maximum tenure would shrink to six years following a single reelection.     

    The floor vote that followed would seem to have amply validated the wisdom of Taft’s decision to seek a compromise. Every Republican present voted in favor of the amended resolution, as did another substantial cohort of Southern Democrats, providing for a final tally of 59-23. Several days later, after being sent back to the House so that the aforesaid modifications could be approved in turn, the resolution was endorsed by the assembled Representatives for a second time, likewise by a comfortable margin of 81-29. The result, on the part of congressional Republicans, was admittedly impressive. Not only had they managed to follow through on their promise to deliver the term-limit amendment they’d been talking about in some form since 1940 in the first session after they regained control of Congress in 1946, but they managed to do so within the space of only two months. And while the next stage in the process – that being ratification by the state legislatures – was almost entirely out of their hands, it nevertheless reflected upon them favorably that they’d held up their end. For seven years – since Roosevelt’s second reelection – Republicans had been calling attention to the dangers inherent in permitting anyone to remain in the office of President for an indefinite amount of time. And while, with the man’s death in 1945, they might very reasonably had declared that the aforementioned danger had substantially abated, the fact that they instead continued to pursue reform in the area of terms limits – instead of, for instance, trying to follow Roosevelt’s example – would seem to speak well of the party’s practical commitment to the scruples that its members claimed to uphold.

    Likewise to their credit, Republican legislators in the states showed themselves to be similarly dedicated to preventing the office of President from evolving into a kind of life-time possession. By the end of 1947, eighteen states had voted to ratify the approved draft of the proposed amendment, seventeen of which – Missouri being the exception – were solidly controlled by members of the Republican Party. With the ending of the annual legislative session in May of 1947, however, enthusiasm for the reform in question almost completely dried up. The following year saw only three states grant their approval (Virginia, Mississippi, and New York), followed by two more in 1949 (North Dakota and South Dakota), and only one (Louisiana) in 1950. Indeed, it was not until mid-winter in 1951 that the pace of ratification picked up again and finally carried the process to its conclusion. A further seventeen states voted to approve the draft proposal over the course of this final phase, the 36^th of which, Minnesota, secured its formal endorsement as the 22^nd Amendment. And while it is not clear exactly why this process proceeded, as it did, in two discreet stages with a trickle of activity in between – or why, after a period of relative inactivity during 1948, 1949, and 1950, interest suddenly seemed to reignite in 1951 – it is obvious at the very least that something about this particular amendment marked it out compared to its predecessors. No other constitutional amendment – save for the 27^th, which is its own special kind of anomaly – took as much time to ratify from the moment of its approval by Congress. In all, some four years passed between its second passage through the House in 1947 and its actual addition to the Constitution in 1951. And while it is true that, as aforementioned, the death of Franklin Roosevelt removed some amount of urgency from the contemporary discussion on the nature of presidential term limits, it nevertheless bears asking why things played out as they did.