How to Term-Limit Congress

Doug Bandow

Senator Ted Cruz (R., Texas) and Representative Francis Rooney (R., Fla.) hope to rejuvenate an old idea, proposing a constitutional amendment to impose term limits on members of Congress. The measure deserves to pass, but it won’t. However, states could take up the battle again by challenging a misguided 1995 Supreme Court decision that protected legislators from accountability to their voters.

America’s political problems run deep, and there is no panacea, but term limits offer at least a partial remedy. In effect, they do what elections once did, ensuring competition for power and rotation in office.

Running for the House of Representatives was once a blood sport. Passage of unpopular legislation sometimes led to mass political slaughter, the ouster of a third or more of the House in one election, such as in 1854. Some House members knew they had no chance of returning, so they retired. In contrast, today, even when polls show profound disillusionment with Congress, reelection rates typically top 90 percent and have gone as high as an astounding 98 percent. Even in so-called wave elections, more than 80 percent of members are reelected. The joke during the Cold War was that congressmen had higher reelection rates than members of the Soviet Union’s Central Committee.

Since Congress won’t restrict itself, individual states should be able to impose term limits.

Term limits most directly prevent politicians from turning office-holding into a career, spending 30 or 40 years as a congressman or senator, hanging on until they can barely function. Forcing rotation in office would also hinder the development of permanent relationships among members and interests/lobbyists. Even when these ties did develop, they would last only until the member’s term ends.

By churning offices and encouraging electoral competition, term limits discourage the creation of a permanent political class. Forced to run anew for different offices rather than for reelection as incumbents, a larger fraction of established candidates will be defeated. More contests will feature non-incumbents, which will yield a greater focus on issues than on, say, constituent service. “Disruptive” candidates, of the sort seen in the new Democratic caucus in the House, are more likely to succeed.

Critics worry that legislative turnover just increases the power of congressional staffers, but having essentially permanent chairmen and ranking members leads to near-permanent staff too. In practice, voters seem no better served by a 30-year legislator than by a 30-year staffer, since both tend to represent the political culture, influential interests, and the entrenched state more than anything approaching the public interest. Public-choice economics warns us that institutions have interests too, and long-serving legislators and staffers largely serve the institution to which they both belong. The argument that voters benefit from having more-experienced legislators is belied by the hash such legislators have made of everything from exploding deficits and uncontrolled entitlement outlays to unconstrained presidential war-making. Preventing lifetime legislators at least creates a possibility of change.

Perhaps the most significant evidence of the positive impact of term limits comes from Florida State University economists Randall Holcombe and Robert Gmeiner, who concluded that such restrictions in state legislatures slowed the growth of both spending and taxes. Growth rates ranged between 16 percent and 46 percent lower in states that imposed term limits.

The impact could be even greater at the federal level. Members consistently vote for more spending the longer they stay in Congress. Once-radical critics of the federal government essentially “go native” after serving a few terms in the nation’s capital. The problem of politics turning into a permanent career is worse at the federal level, where legislating is highly professionalized and largely impervious to public influence, let alone control.

The Cruz-Rooney constitutional amendment is similar to one proposed by Cruz two years ago. It would limit senators to two six-year terms and congressmen to three two-year terms. The measure has three Senate GOP co-sponsors. President Donald Trump has endorsed the idea, as has Beto O’Rourke, Cruz’s Democratic opponent last November.

In promoting his legislation, Cruz explained: “For too long, members of Congress have abused their power and ignored the will of the American people.” Term limits, he argued, “offer a solution to the brokenness we see in Washington, D.C.” Rooney cited the “overwhelming” support of the American people.

The latter is true, of course, but matters naught when it comes to an issue like term limits. Any amendment would have to be approved by three-fourths of the states, but that isn’t as high a barrier as it might seem. After all, 15 states already term-limit their legislators. (Voters in another six states voted to impose term limits, but the legislatures or courts subsequently overturned the measures.) However, the likelihood that two-thirds of the members of Congress will vote themselves out of a job by sending forth an amendment is only theoretically above zero. Satan’s demons are more likely to vote to close Hell.

There are other potential election fixes, but few would be any more palatable to current members. For instance, adding congressional seats — the number 435 is set by statute, not the Constitution —would make gerrymandering more difficult, increasing the number of competitive districts. More fundamental reforms, such as ranked-choice voting, multi-member districts, and proportional representation, and more, would add more diverse perspectives to the national legislature by enhancing the voting power of political minorities. But these would be even more radical departures from the status quo, and thus less likely to win both congressional and state legislative approval.

Article V of the Constitution does allow an alternative: Two-thirds of the states can request that a constitutional convention be convened. However, debate rages over whether such a gathering could be limited to the subject at hand. That leads even some fervent supporters of change hesitant to employ such an uncertain remedy. Conservative activists hoping to rein in spending and taxes have long fought bitterly over the wisdom of employing this tactic.

The best chance is to push for state-imposed term limits on members of Congress, usually through voter initiatives. By the mid-1990s 23 states had enacted such limits. Alas, in 1995 a 5-4 majority of the Supreme Court tossed these measures out, ruling that state authority over congressional elections did not reach that far. In that case, U.S. Term Limits, Inc. v. Ray Thornton, et al., frustrated Arkansas officeholders (Thornton was a Democratic congressman) sued to overturn restrictions imposed by state voters. Justice John Paul Stevens authored the opinion, which declared that states could not impose an additional qualification on candidates for federal office. He was joined by David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justice Anthony Kennedy completed the majority, penning a concurring opinion that included the hilarious complaint that the restriction would interfere with the “relationship between the people of the nation and their national government” and “disparage the republican character of the national government.” (It is jarring to realize that Republican presidents appointed Stevens, Souter, and Kennedy.)

Clarence Thomas authored the dissent, joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Sandra Day O’Connor. They contended:

Nothing in the Constitution deprives the people of each state of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the states or the people.

The issue was closely decided then, and two-thirds of the justices who decided that case have left the Supreme Court. Respect for precedent weighs against reversal, but the opinion enjoys no historical or legal gravitas, and no interests would be harmed by allowing voters to decide that they would be better served by a less professional political class. It is an excellent candidate for a legal rematch. (The high court overruled its own National League of Cities v. Usery, which in 1976 decided that the federal government could not regulate state workers, just nine years later.) All that requires is one state to reimpose restrictions on congressmen and senators, and an ensuing court challenge.

Term limits are no panacea. Only an aware, active, and enlightened citizenry can make a republic work. However, term limits would improve such a people’s chances of success. The current system is biased toward the ever-expanding, ever-more-expensive state. Weakening the political class would give the rest of us a chance.

Doug Bandow is a Senior Fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is author of Foreign Follies: America’s New Global Empire.