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How to Term-Limit Congress

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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.



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