Term Limits

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TERM LIMITS

After the 1994 elections, twenty-two states had acted to limit the terms of office of their federal legislators. Term limits supporters hope to rid Congress of professional politicians because they believe that such lawmakers inevitably act in ways contrary to the public interest. They seek to replace the professionals with amateurs who have little experience in politics but a great deal of experience as ordinary citizens. The democratic theories prompting support for term limits are diverse. Some advocates argue that lawmakers will become more responsive to the demands of the electorate. Others contend that term limits will insulate lawmakers from reelection pressures and allow them to fulfill a Madisonian vision of representative democracy. All believe that this reform will eliminate unseemly close relationships between elected officials and special interest groups.

Some analysts are skeptical that term limits will result in positive change. For example, a study of the political opportunities that remain open to term-limited lawmakers suggests that political careers will remain possible, although a careerist will be forced to adopt a strategy of "progressive" political ambition by moving periodically to a new political job. Even those who enter the legislature intending to leave after a short time will often decide to pursue longer political careers so that they can continue to benefit from the skills they have developed as lawmakers. Once legislators have developed the human capital to perform political functions, they may find the benefits of holding similar office are greater than the benefits of pursuing unrelated careers.

Some critics object to term limits because they will deprive legislatures of their most experienced members, thereby reducing Congress's ability to pass controversial or complex legislation. Reduced legislator effectiveness also may shift the balance of power between the branches of government. In the federal system, bureaucrats will represent a source of expertise for congressional amateurs, strengthening the executive branch relative to Congress. Similarly, term-limited politicians may rely more heavily on staff or on lobbyists. Finally, some opponents argue that interest groups will continue to influence representatives disproportionately by giving campaign money either to them or to political parties, and that term limits will provide special interests with an even more powerful tool for influence: post-service jobs for term-limited representatives.

At the same time that voters adopted term limits on federal legislators, they also voted in most cases to reelect incumbents. Einer Elhauge argues that this seeming inconsistency in voter behavior disappears when one understands the collective action problems facing voters. "Incumbents … have more seniority than challengers, and this seniority gives them more legislative clout. Any individual district that ousts its incumbent is thus penalized by a smaller share of legislative power and governmental benefits unless the other districts also oust their incumbents." Voters might prefer the ideological views of a challenger, but they will continue to vote for the incumbent who has more power in an institution like Congress that is organized according to seniority. On balance, voters will choose the more influential representative, who can send constituents a greater share of benefits. If, however, voters can be sure that no district can vote for incumbents because of term limits, the penalty of electing a challenger is greatly reduced.

As the debate about state-imposed term limits on federal lawmakers heated up, the Supreme Court declared them to be unconstitutional in U.S. Term Limits, Inc. v. Thornton (1995). The petitioner challenged a popularly enacted amendment to the Arkansas state constitution that prohibited the name of an otherwise eligible candidate for Congress from appearing on the ballot if the candidate had already served three terms in the U.S. house of representatives or two terms in the U.S. senate. The Court applied the reasoning of powell v. mccormack (1969) where it had held that Congress lacked the power to impose qualifications for federal legislators other than those set forth in Article I, section 5. State-imposed qualifications similarly undermine the "fundamental principle of our representative democracy" identified in Powell—the idea that "the people should choose whom they please to govern them."

The dissent by Justice clarence thomas found the Court's use of democratic principles "ironic" because the majority invalidated a provision that 60 percent of voters in a statewide election had supported. Moreover, he stated, "the authority to narrow the field of candidates … may be part and parcel of the right to elect Members of Congress. That is, the right to choose may include the right to winnow." The restriction on incumbents might actually increase the electorate's choices by leveling the political playing field and improving the chances that a challenger could mount a successful campaign for office. "The voters of Arkansas evidently believe that incumbents would not enjoy such overwhelming success if electoral contests were truly fair" and the advantages incumbents enjoy (such as greater name recognition) were balanced by the handicap of running as a write-in candidate.

The dissent contended that the Constitution's silence concerning the ability of states to add to the constitutional qualifications meant that the power was reserved to them under the tenth amendment. The majority's notion of reserved powers was different. Relying on Justice joseph story's treatise on constitutional law, the Court determined that the only powers reserved to the states under the Tenth Amendment were those that they had possessed before the Constitution was ratified and that they had retained. The states did not have an "original power" to appoint a national official; thus, the power to set qualifications for such offices cannot be a reserved power. Furthermore, the majority's reading of the history of the drafting and ratification of the Constitution as well as early congressional practice convinced it that "the Qualifications Clauses were intended to preclude the States from exercising [the power to adopt qualifications] and to fix as exclusive" the constitutional qualifications.

Importantly, the Arkansas amendment was phrased as a ballot access provision. Long-time incumbents could run for federal office but only as write-in candidates. The Court held that this phrasing was "an indirect attempt to accomplish what the Constitution prohibits [the state] from accomplishing directly." Because the state provision had the "avowed purpose and obvious effect" of evading the qualifications clauses, it was unconstitutional.

The majority acknowledged the intensity and importance of the debate concerning the merits of term limits, a debate that began at the time of ratification, when some argued in favor of a rotation requirement so that lawmakers would be forced to return to private life occasionally. Noting that a constitutional amendment had imposed term limits on the presidency, the Court concluded that such a "fundamental change in the constitutional framework" must come through Article V's amending procedures . Interest groups supporting legislative term limits at the federal level have responded to that challenge. For example, some states have tried to increase the pressure on federal legislators to propose a constitutional amendment by requiring that the election ballot reflect a candidate's opposition to term limits through designations like "Disregarded Voters' Instructions on Term Limits." Challenges to these "scarlet letter" amendments have been successful, with courts holding that the designations interfere with the deliberative process or violate candidates' First Amendment rights.

Term limitations are common in state and local government. Nearly half of the states place limitations on state legislators; forty states limit the number of terms of their governors; and many local officials face term limits. State term limits on legislators have generally been upheld. In the leading case, Legislature of the State of California v. Eu (1991), the California Supreme Court balanced the interests of incumbents to stay in office and of voters to have the choice of reelecting them against the state's interest in ending the advantage of incumbency. The court found that voters have no fundamental right to vote for a particular candidate and that the state's interest in structuring its own government was considerable. In some states, term limits have very little effect on the political dynamics because legislators did not tend to serve for long periods of time before the limitations were imposed. In states like California, however, where legislatures were full of career politicians, term limits have caused significant, and sometimes complete, turnover, helped bring to power new leaders, and may have affected the ability of legislators to pass controversial or significant laws. Such states are just beginning to feel the impact of limitations; with more experience over the next few years, researchers will be able to draw firmer conclusions based on empirical evidence about the consequences of legislative term limitations.

Elizabeth Garrett
(2000)

(see also: Initiative; Referendum.)