The Wars of Watergate (113 page)

As President Ford continued the same policies, conservatives refused to submit to party loyalty and offer affection for an incumbent they had once admired. In May 1975 Ronald Reagan condemned Ford for a projected $51-million budget deficit.
Conservative Digest
reported a poll in June 1975 claiming that 71 percent of its readers thought Ford was doing a “poor” job, and 91 percent opposed his nomination for the 1976 election.
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The conservative fury against Nixon and his successor nearly resulted in denying the 1976 Republican nomination to Ford, an event that would have been unprecedented in the twentieth century. Senator James Buckley and Pat Buchanan called for an “open convention.” The conservatives massed behind a Reagan candidacy and failed to carry it through only by a scant margin; many believed that a second ballot would have given the nod to the former California governor. When Reagan spoke to the 1975 Conservative Political Action Conference, he invoked the sacred appeal of the “Mandate of 1972,” a mandate that conservatives believed had been given to them to implement their political and social agenda, and not to Nixon personally. The election, they claimed, had emphatically repudiated the ideology of “radicalism” and “social permissiveness” that had captured the Democratic
Party. “The mandate of 1972 still exists,” Reagan proclaimed. “The people of America have been confused and disturbed by events since that election, but they hold an unchanged philosophy.” Reagan and his advisers held to that faith. In the 1980 campaign, they used the conservative indictment against Nixon and Ford to telling effect against a Democratic President. Ironically, as President Reagan concluded his second term in 1988, conservative spokesmen, such as Buchanan, once more assailed the nation’s continued “leftward drift.”
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Richard Nixon’s Republican opponents finally enjoyed a measure of revenge. Fifteen years after he left the presidency, Nixon found himself out of the mainstream of his own party. Periodically, he invoked conservative slogans and labels, but he remained a distrusted and embarrassing figure. The former President had the unique distinction of not appearing at the four presidential nominating conventions of his party that followed his leaving the White House.

Watergate was chiefly responsible for swelling the ranks of congressional Democrats in the 1974 and 1976 elections. In 1974, at the height of interest in the scandal, the Democrats added seventy-five new members to the House. Many of the newcomers were elected on promises of electoral reform. In the meantime, however, the attention to procedural reforms ignored the growing schisms in the Democratic Party, schisms that reflected changing social and economic concerns among the electorate. The 1972 election pointed to the growing strains within the party; Watergate, however, obscured, then postponed, any real understanding or reckoning with the party’s dilemmas. “The Real Majority,” political analysts warned, no longer consisted of the “have-nots” who had formed the basis for Democratic coalitions for more than forty years. The “haves” had new concerns, which made the Democratic Party’s “politics of inclusion” paradoxical, even contradictory.
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Many of the new Democrats represented marginal districts, often suburban, middle-class, and domesticated to the politics of affluence. The programmatic concerns of the AFL-CIO, minority coalitions, and women’s groups had limited appeal in such districts. The reform-minded new representatives struck a Faustian bargain: the Democratic leadership gave them their “reform” proposals but demanded that they toe the line on policy concerns originating in the party’s traditional constituencies. The newcomers’ support for the leadership’s desired social and economic policies only aroused organized opposition in their local districts from pro-business organizations, as well as from ideological groups demanding a reduced welfare state and support for antiabortion measures.

Jimmy Carter rode to victory in 1976 on promises of greater morality and efficiency in government. “We were responsible for Jimmy Carter,” Richard Nixon admitted in 1977.
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The historical accident of Watergate produced
President Carter, but unlike the Great Depression, Watergate by itself was not an issue that could sustain power. Carter seemed to offer little in the way of a program that would broadly appeal to the nation, his seeming aimlessness reflecting the Democrats’ lack of cohesiveness and purpose. Altogether, the situation was a prescription for disaster. Meanwhile, the Republicans united behind Ronald Reagan, a candidate who attractively expressed the conservative ideology which had been dominant in the party since 1964 but which had always lacked a charismatic leader. Reagan led his party to two presidential triumphs and a six-year control of the Senate, and he successfully transferred his aura and image to George Bush in 1988. Three consecutive presidential defeats left the Democrats floundering in search of their identity as a party. Perhaps that identity might have been found nearly two decades earlier, had Watergate not diverted the party from the quest.

Watergate spurred demands for “reform” to prevent future abuses of power, as scandals inevitably do, but, paradoxically, the affair also produced assertions that “the system worked.” In the spring of 1974, a distinguished academic panel headed by Yale Law School professors Alexander Bickel and Ralph Winter warned that Watergate was a “poor vehicle” for addressing major reforms. The panel’s report contended that both existing law and legal institutions had responded adequately to the crisis. The failures had been those of an individual and not of the political-legal system itself. Yet the panelists warned that reducing presidential power required Congress to reform itself and to accept its proper responsibilities for shared governance, rather than damaging the institution of the presidency. Watergate, they concluded, might result in “history less in danger of being ignored than misunderstood.”
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Still, the temptation to rectify lawbreaking with more law was irresistible. Ethical standards, guidelines for institutional behavior, restraints on power, and the enforcement of the new rules flowed from Congress in the aftermath of Watergate. The results produced years of bickering over the meaning of the reforms and the willingness to follow them. Samuel Johnson once characterized patriotism as the last refuge of a scoundrel. Roscoe Conkling, a scandal-plagued nineteenth-century Senator, added that Johnson had “underestimated the potential of reform.”

The Federal Election Campaign Act of 1971, establishing limits on campaign contributions and forcing more detailed public disclosure of those contributions, had provided the opening wedge for the Senate Select Committee’s investigation of the conduct of the 1972 campaign. The findings of the committee
and the Special Prosecutor inevitably produced demands for further reforms. Senate Republican Leader Hugh Scott deplored the “deviousness” of CREEP and President Nixon’s fundraisers, and he agreed that the disclosure provisions of the 1971 law had proven inadequate. Politicians also piously railed against the excesses of campaign spending. Senator Walter Mondale thought that the Senate hearings had demonstrated that “Government and Government decisions [were] up for sale to the highest bidder.” Senator Edward Kennedy vigorously promoted public financing.

The Senate and the House hammered out different legislative proposals in 1974. Public financing was supported by some congressional Democrats aided by a variety of public-interest organizations, as they believed that it could offer them some parity against Republicans and special-interest groups. Other House members, including Republicans, who allied with incumbent Democrats from “safe” districts, had no desire to create opponents with financial parity. The opposition successfully prevented public funding of congressional elections, although it conceded such support for presidential candidacies. President Nixon strongly denounced public financing in March 1974, but his position probably helped the proposal.

If the purpose of the campaign-reform legislation was to curb extravagant fundraising and spending by political candidates, then failure is an inadequate description of its later history. The law limited political action committees (PACs) to a contribution of $5,000 per candidate, but it invited a proliferation of subsidiary PACs created expressly to circumvent the law. An interest group such as the American Medical Association, for example, could by law establish only one PAC per candidate; but its state and local affiliates could duplicate support throughout the nation. Since 1974, the number of corporations and interest groups establishing PACs has grown enormously. Sophisticated computer facilities created a major industry of political fundraising, one that proved particularly fertile for well-organized religious and conservative groups. Liberal Democrats had once profited from the energetic PACs of organized labor, but the decline of the house of labor substantially reduced its political clout. Incumbents particularly fostered and encouraged PACs, which provided a treasure trove for campaigning. No doubt the new financing laws augmented the natural advantages of incumbency.

The 1974 law regulated both contributions and expenditures. But in
Buckley v. Valeo
(1976), the Supreme Court held that expenditure limits violated the First Amendment, except for those imposed on grants of public funds. The Court ruled nine years later that PAC expenditures, if made independently of the candidate, could not be constitutionally limited. The net effect of the judicial decisions was to stimulate the flow of special-interest money. Increased use of the media, involving legions of “creative and support” staff, as well as expanded roles for pollsters and political consultants, made campaigning more expensive, which made the demands for increased cam-funds
circular and even more extravagant. The 1974 legislation most clearly changed the fundraising pattern (such as that of CREEP), by substituting for the large individual contributor PAC dollars and large numbers of medium-amount contributors. But loopholes in the law still enabled individual, wealthy contributors to give extravagantly, using family and friends as conduits for individual contributions. Accounts of 1988 contributions indicated that the “fat cats” were back in force, with 130 Michael Dukakis supporters and 267 George Bush backers providing more than $100,000 each.
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Sociologist Robert Nisbet observed that “unethical” might well be the most difficult word to define in the American language. Ethical standards for public officials are subject to the whims of “ins” and “outs”; one man’s sense of opportunity is another man’s grasp of greed. Definitions are debatable; enforcing their applicability compounds the conundrum.

The reality of divided government in 1973 forced Richard Nixon to accept the idea of a Special Prosecutor, who was to be independent of the apparatus of the Justice Department, free to carry on his own investigations, and able to act at his own prosecutorial discretion. After the President summarily dismissed Archibald Cox, Congress and Leon Jaworski pushed for firmer guarantees of independence for the Special Prosecutor. When the Administration raised substantial constitutional objections centering on separation-of-powers doctrine, the move seemed to some observers merely a ploy to limit the authority of the Special Prosecutor.
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One year after the House Judiciary Committee had voted to impeach Nixon, Congress first considered institutionalizing the office of special prosecutor and codifying ethical standards. In 1978 it passed the Ethics in Government Act, a law that perhaps more than any other symbolized the lingering concerns of Watergate. When Congress first considered the bill in 1975, Senator Abraham Ribicoff (D-CT) declared that it had the responsibility to prevent future Watergates. In a subsequent hearing, a Justice Department official acknowledged, “in the shadow of Watergate,… the appearance of justice is almost as important as justice itself.”

The 1978 ethics law required financial disclosures by executive- and judicial-branch officials, although not by members of Congress. The law restrained the “revolving door” through which public officials readily moved into the private sector and immediately used knowledge and contacts gained in their previous positions for private gain. The act established the Office of Government Ethics to monitor its financial-disclosure and conflict-of-interest provisions.

Demands for such reforms antedated Watergate. But Watergate specifically inspired the creation of mechanisms for judicial appointment of a special
prosecutor to investigate allegations of wrongdoing by executive-branch officials. The 1978 law first required the Attorney General to investigate such allegations and then to report to a three-judge panel within ninety days on whether the charges were unfounded or whether the judges should appoint a special prosecutor. The judges defined the prosecutor’s jurisdiction. Once selected, the prosecutor had authority to perform the investigative and prosecutorial functions of Justice Department officials. Finally, the prosecutor could not be removed, except by impeachment or conviction of a crime, or by the Attorney General in the event of extraordinary impropriety or physical incapacity. The Attorney General must justify such action to the Senate Judiciary Committee; moveover, the prosecutor might appeal to the courts for review. The Ethics Act institutionalized the memory of the Saturday Night Massacre.

The measure passed both houses overwhelmingly. Congressman Charles Wiggins, however, sounding what some viewed as irrelevant sour notes from the past, led a corporals’ guard of resistance in the House (joined, interestingly enough, by Robert McClory and Caldwell Butler, both of whom had voted to impeach Nixon). The minority contended that the government’s prosecutorial machinery had not broken down, that Watergate was exceptional and did not justify the creation of a new mechanism. “If an attorney general cannot be trusted to enforce the law against the executive,” the minority contended, “the remedy is impeachment and not the cloning of an additional attorney general to do the job of the first.” The responsibility, in short, rested with Congress. Henry Petersen, who regretted his “slowness” in recognizing the necessity for a special prosecutor in 1973, nevertheless opposed the bill as well, believing that “political safety” too often would result in narrowing prosecutorial discretion, with unfair consequences to the accused.
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