Legal Commentary

Coming as it does less than two months before presidential and congressional elections, the bailout debacle has been inextricably entangled with electoral politics. One issue that seems to have revived is the myth of the indispensable public official, the person who must be present and involved, electoral rules be damned.

The obvious example is John McCain's "suspension" of his campaign last week and his call for cancellation of the first presidential debate so he could return to Washington and be personally involved in negotiations, rather than "phoning it in" (a phrase that must be retired soon). At the time, I argued that the notion of halting our electoral processes to handle a crisis was the wrong approach, that our rules and procedures for selecting those who govern on our behalf had and must move forward even in the most dangerous times. We all know how well this move turned out, both for McCain and for legislative progress on the bill. Of course, economics and finance are not McCain's strong suits (a point I think he readily concedes), so he never was going to be able to offer much of substance (and news accounts of the White House summit confirm this). McCain was there to provide "leadership" in the negotiations process--his presence alone was both necessary and sufficient to get something done. But I always have doubted that leadership without substantive content accomplishes much and, to some extent, this bears that out.

Tim Zick points to a second example, as earlier this week New York Mayor Michael Bloombeg indicated plans to announce (probably today) that he would seek a third term as mayor, despite the city's two-term limit on mayors. Bloomberg apparently will ask the City Council to change the city's term limits, which was enacted by popular vote twice in the early 1990s. Bloomberg had insisted all year that he would leave at the end of his current term (at the end of 2009), but has changed his mind (with broad support in city government and city power structures) in the wake of the financial crisis that, while national in scope, could have its most direct effects in New York and requires his presence and involvement. Bloomberg is very popular as mayor, so his reelection seems a foregone conclusion. And commenter on Tim's post notes that Bloomberg's move is of a piece with those of his predecessor, Rudy Giuliani, who initially argued that he should remain in office past the end of his term, which was to expire several months after 9/11 (9/11 was to have been the day of New York's primary). Giuliani's idea was roundly rejected and quickly withdrawn. And, as expected, the city moved forward in its recovery without its hero.

I take less issue with what Bloomberg has planned than with what McCain or Giuliani attempted. From a procedural standpoint, Bloomberg is working to change the existing election rules and to run within those rules. And the new rules would apply prospectively to all other officer holders. I have no love for direct democracy, so I am not offended by the fact that a change in New York law would be made by the legislature over the apparent (although decades-old) will of the people. But both McCain and Giuliani argued that we should ignore or suspend current rules for their respective circumstances, because each was so essential to resolving the current crisis.

Ultimately, that procedural difference could help explain why the latter efforts fell flat, while Bloomberg's efforts likely will succeed (although much can change in a year). While the public buys the myth of the hero politician at some level, it also has an unstated respect for electoral rules and becomes suspicious of anyone who insists that he is so indispensable as to be able to work around those rules.

Cross-Posted at Concurring Opinions, where I am guesting this month.