Why Legislative Term Limits Are Impossible

A popular argument, and one that I support, is the call for legislative term limits.

What I find paradoxical is that on the one hand, congressional job approval is at an historic low – 13% according to the RealClearPolitics average (compiling data from Fox, CBS, CNN, and Gallup). Yet on the other hand, come election time, we keep sending back to Washington the same career politicians who we criticize for being uncompromising, ineffective, and unrepresentative of their constituents. Many people believe a lot of Washington’s problems could be solved by instituting legislative term limits on our congressmen.

But after doing my research, I’ve concluded that such a measure is almost impossible.

When the framers of the Constitution were putting the document together, they noticeably omitted mandatory term limits for both executive and legislative office holders. This did not go without criticism. When the states ratified the Constitution in 1787–88, several leading statesmen regarded the lack of mandatory limits to tenure as a dangerous defect, especially in regards to the presidency and Senate.

But despite the lack of term limits mandated in the Constitution, it largely was not a concern during the early part of the country’s existence since most office holders operated on an honor system. Rapid turnover in Congress prevailed due to strong grassroots support for the principle of rotation. But that all changed in the 20th century. No president dared to violate the precedent of two terms set by George Washington until Franklin Roosevelt ran for and won four terms. And congressmen like Robert Byrd, Strom Thurmond, John Dingell, and Jamie Whitten shattered records for longest serving tenures in Congress during the 1900s.

While Congress saw fit to propose executive term limits with the 22nd Amendment in 1951 in the wake of Roosevelt’s tenure, they stopped short of imposing those same term limits on themselves. In the early 1990s, however, there was a a popular insurgency throughout America known as the “term-limits movement.” The elections of 1990-94 saw 23 states individually limit service in their delegation to Congress, with the general formula being three terms (six years) in the House and two terms (12 years) in Senate.

The Supreme Court changed all that in 1995. In U.S. Term Limits, Inc. v. Thornton (pitting a non-profit advocacy group against politician Ray Thornton, among others), the Supreme Court ruled that state governments cannot impose qualifications for prospective members of Congress stricter than those articulated in the Constitution. The 5-4 decision invalidated the congressional term limit provisions of the 23 states.

So nothing short of another constitutional amendment will ever instate legislative term limits. Amendments can be proposed one of two ways: Either by a two-thirds vote in each house of Congress, or alternatively, if two-thirds of the state legislatures demand one, Congress must call for a constitutional convention which would have the power to propose amendments (since no such convention has ever been called, it is unclear how one would work in practice). It must then be ratified by three-fourths of the states.

But that would require the same career politicians we would be kicking out of office with the amendment to propose it. If we draw the lines at three House terms and two Senate terms, that would automatically eliminate 45% of currently serving senators as well as 69% representatives currently serving at the House. I have no faith at all in career politicians making that kind of sacrifice.

And so we reach a dead end. It seems that the opportunity to institute legislative term limits has passed. So unless the majority is willing to vote their congressman out of office, we are going to have career politicians for years to come.

Photo Credit: Francisco Diez