March 25, 2008
Clinton-Obama, Obama-Clinton—A Commentary by Akhil Amar ’84
The following commentary was published on Slate on March 21, 2008.
How they could run together and take turns being president
By Akhil Reed Amar
When Hillary Clinton recently floated the idea of choosing Barack Obama as her running mate, she won political points without being taken seriously (especially by Obama). The primary season has turned into the kind of slog and slugfest that makes opponents more opposed to each other, not less. But humor me, for a moment, and imagine that the kind of reconciliation that would allow them to be running mates is possible. Not to mention the best outcome for the party.
But which should it be: Clinton-Obama or Obama-Clinton? In fact, voters in November could actually endorse both versions of the ticket—truly, two presidents for the price of one. How? The Constitution's 25th Amendment allows for a new paradigm of political teamwork: The two Democratic candidates could publicly agree to take turns in the top slot.
Adopted in 1967 in the shadow of John F. Kennedy's assassination, the 25th Amendment allows presidents unilaterally to transfer presidential power to their vice presidents and enables presidents, with congressional consent, to fill a vacancy in the vice presidency should one arise. By creatively using the constitutional rules created by this amendment, the Democrats can, if they are so inclined, present the voters in November with a new kind of balanced ticket.
Here's how it would work: In August at the Democratic National Convention, the party would nominate one candidate for president and the other for vice president in the time-honored way. In their acceptance speeches, the nominees would announce that they intend to alternate. For example, they could tell the voters that the person heading the Democratic ticket would, if elected, take office in January 2009 but would serve as president for only the first three years of the four-year term. In January 2012, the teammates would use the 25th Amendment to switch places, and the person elected vice president would assume the presidency for the final year of the term. There is nothing magical about these dates. Almost any date would do. For maximal democratic legitimacy, however, the candidates should inform the voters before the election of the specific date when their planned shift of power will occur.
Of course, if this dream team proved popular in office, the teammates could run for re-election in 2012. This time, it might make the most sense for the ticket to be the inverse of 2008. Thus, the person at the bottom of the 2008 ticket could top the 2012 ticket. If re-elected, our initial-VP-turned-president might then serve until, say, January 2016—four consecutive years in all—and then our initial-president-turned-VP would resume the top spot for the final year of the second term. (Thus, this person, too, would end up serving four years, albeit not consecutively.)
And here's the icing on the constitutional cake: Nothing in the 25th Amendment or elsewhere in the founding document would prevent this team from presenting themselves to the electorate in similar fashion in 2016. If the voters were to endorse the pair yet again, then at this point one of the teammates would have been elected twice as president and would become ineligible in any future presidential race; but the other teammate would in fact remain fully eligible to run in 2020. With the result that, if voters so chose, the teammates could, between themselves, share power for a total of four full terms. (Under the 22nd Amendment, no person can be elected to the presidency more than twice; and under the 12th Amendment, vice presidents must meet the same eligibility and electability rules as presidents.)
Ticket-flipping, then, provides a brilliant way for the Democrats to leverage the advantages of incumbency after 2009 so as to stretch their potential presidential tenure over the ensuing 16 years rather than the standard eight. The arrangement requires two strong candidates, each of whom is very plausibly presidential and each of whom has a large and intense political base, whose enthusiasm would be needed to assure success in the general election. This year the Democrats are blessed with two such powerhouses.
Which of the two candidates should top the ticket in 2008? Whoever ends up with more delegates at the convention. But if the two can privately—or even publicly—agree now to run as a true team in the general election, both will have ironclad incentives to play nice in the remaining primaries and caucuses and at the convention itself. If you're ready to dismiss out of hand the idea that Hillary Clinton and Barack Obama would ever agree to run as a team, here's my argument on why they might find doing so to be in their mutual interest. Each will want to head the ticket, but because the person on the bottom will also become president if the pair wins in November, competition for the top spot will be far less likely to spiral out of control in the turbulent weeks and months ahead. And so for the party, the benefits are manifold: A dream-team, turn-taking ticket would ensure that the Democrats' two most popular leaders and their supporters behave themselves and then truly unite. Moreover, the policy differences between Clinton and Obama are so tiny that it would be perfectly principled to tell voters that the ticket will flip at some specified post-inaugural date.
Exactly how does the Constitution enable a sitting president and vice president to trade places? Whenever a president resigns, the vice president automatically becomes president, as when Richard Nixon stepped down and thus made Gerald Ford president in 1974. Under the 25th Amendment, the new president, in turn, picks a new vice president, subject to congressional approval. President Ford picked Nelson Rockefeller to be his vice president, and Congress said yes. Here's the twist: The 25th Amendment would allow the new president to pick the old president as the new vice president. Voila—the ticket, flipped! As long as the Congress approves, the 25th Amendment would thus enable the president and vice president to switch seats in a nimble transaction that could be completed in less than an hour.
As a matter of democratic principle, Congress should approve such a deal, given that the American voters would have blessed it long in advance, in the presidential election itself. But suppose a pigheaded Congress refused to play along, for example, because it was controlled by Republican naysayers. No matter. Instead of formally resigning, a president could accomplish the flip on his or her own, simply by transferring presidential power to the vice president under a different section of the 25th Amendment that allows the president unilaterally to transform the vice president into the "Acting President." In 2002 and again in 2007, George W. Bush used this section to hand over power to Dick Cheney before undergoing brief anesthesia. When Bush recovered, he resumed the reins of power.
To be clear: At every instant, America would have one and only one person acting as president and formally in charge. Hand-offs of power between teammates would occur much as they have when incumbents traditionally leave office, as when Reagan yielded in 1989, at the end of his second term, to his own handpicked running mate, the first George Bush. The 25th Amendment was specially designed to facilitate easy transfers of power back and forth between presidents and vice presidents. Its full potential to create a different kind of teamwork at the top—and to launch a new kind of presidential election strategy—has yet to be fully appreciated. Thanks to this amendment, the Demoocratic Party need not tear itself apart in trying to choose between two historic firsts. Instead, Democrats can offer the voters both—the first black president and the first woman president—via the first truly balanced presidential ticket.
Why should Sen. Obama promise to make Sen. Clinton his running mate and to share the presidency with her? Because half a loaf is better than none, and without this deal he may end up with nothing—neither the presidency nor the vice presidency nor a great shot at becoming president later in life.
This last point is worth stressing. If Clinton were to win the nomination and choose someone else as her running mate, what would happen to Obama? Were Clinton to lose to John McCain in the general election, Obama could of course run again in 2012. But among Democrats in the modern era, the only candidates besides incumbent presidents to have actually won the presidency were fresh faces—that is, candidates running for the presidency for the first time. Democrats love fresh faces—JFK in 1960, Jimmy Carter in 1976, Bill Clinton in 1992. Prominent non-incumbent Democrats on their second or third tries for the presidency have either failed to get the nomination—like Hubert Humphrey in 1972, Jerry Brown in 1992, and John Edwards this year—or lost in the general election, like Adlai Stevenson in 1956, Humphrey in 1968, and Al Gore in 2000. Presidential competition within the Democratic Party is thus especially fierce because each candidate realizes that, most likely, it is now or never. (Competition among Republicans, by contrast, is generally tamer because the GOP loves political encores and is better at electing decidedly unfresh faces. Several Republicans have won the top prize on their second or third try—Richard Nixon, Ronald Reagan, and the first George Bush, for example. McCain hopes to join their ranks this year.)
Alternatively, if Clinton heads up an Obama-less ticket this year and beats McCain, Obama's chances of making it to the presidency would become even worse. Challenging a Democratic incumbent in 2012 would be an uphill battle, so Obama would probably need to wait at least until 2016, at which point he could very well face stiff party competition from whomever Clinton picks as her running mate. The fact that Obama's presidential prospects would be worse if Clinton were to win on her own than if she were to lose to McCain highlights another tactical truth: Even if Clinton has the votes at the convention to prevail and the power to pick someone other than Obama as her running mate, it might be unwise to do so, given that Obama might have diminished incentives to deliver his ground troops for her come November.
Of course, everything in this analysis is symmetrical: We could switch the names Obama and Clinton in the preceding paragraphs and the points would be equally valid. A half-loaf for Clinton is better than none; and if Obama ends up on top of a Clinton-less ticket, she loses her own best chance ever to become president. Most important, were Obama to run without Clinton, she might actually be better off if he were to lose the general election to McCain; and this, in turn, gives him a good tactical reason to put her on the ticket, so that she and her most ardent supporters have the proper incentives.
Akhil Reed Amar teaches constitutional law at Yale and is the author of America's Constitution: A Biography and winner of the ABA 2006 Silver Gavel Award.