Twenty years ago this month, the Supreme Court placed a huge roadblock in the way of a grass-roots, bipartisan movement that had been gaining strength, namely the term limits movement. In many states, voters had approved limits on the number of terms that state officials may serve. Back in the early 90s, there was similar pressure to limit the number of terms members of the U.S. House and Senate could serve.
And then, the Supreme Court said such limits were unconstitutional in U.S. Term Limits v. Thornton. By a 5-4 vote, the justices held that putting term limits on members of Congress (as Arkansas had voted to do) amounted to an additional “qualification” for holding office, which no state could impose because the Constitution’s stated qualifications are exhaustive.
In my view, Justice Clarence Thomas grasped the crucial point, writing “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 State or the people.”
That, however, was in dissent. Justice Stevens’ convoluted, pro-status quo opinion carried the day, much like his convoluted, pro-status quo opinion in the eminent domain case Kelo v. New London would ten years later.
Nevertheless, the Court has spoken and the only certain means of dismantling its roadblock against federal term limits is to amend the Constitution.
According to polling, a remarkably large majority of the American public would like to see term limits. A 2013 Gallup poll found that 75 percent of voters were in favor of having term limits for members of Congress, with only 21 percent opposed and 5 percent registering no opinion. Support was somewhat higher among Republicans and independents, but 65 percent of Democrats surveyed were in favor.
You might think that in a democracy, when such a high percentage of the people want a change in the law, it would be fairly easy to bring it about. But that is not the case. As we learn from the branch of economics known as Public Choice theory, elected officials have their own set of preferences that frequently are out of alignment with those of the people they supposedly represent.
When it comes to staying in office, that misalignment is especially severe. While the voters might think it best if the members of Congress had to rotate back into ordinary life after two or three terms, most members don’t want to leave once they’ve gotten the taste of Washington’s power and perks.
Congressman Ron DeSantis explains in this piece that “Term limits don’t have traction in Congress because the wishes of the public are at odds with the self-interest of individual members of Congress. The primary reason politicians seek to curry favor with the public is so that they can perpetuate themselves in office; heeding the desires of the public becomes much less attractive if it means forcing them out of office.”
So here’s the situation. Most Americans think they ought to be able to have a law that limits the length of time their representatives serve in Congress, but those same representatives would have to approve an amendment to the Constitution (thanks to the Supreme Court) before that can happen, and they don’t want to.
One of the few members of Congress who thinks that there should be a limit on how long he can stay is Arizona representative Matt Salmon, who has introduced legislation (House Joint Resolution 14) which would amend the Constitution to specify that members of the House can serve no more than three terms and members of the Senate no more than two. Predictably, that measure has gotten the support of only a tiny number of members.
Representative DeSantis suggests a means of breaking the logjam, namely to include a “grandfather provision” so that terms limits would only apply to future members of Congress. That might do the trick, but I suspect that no amendment will make it through Congress for the states to either approve or reject without a hard push from the White House. As long as it remains in Democratic hands, that isn’t going to happen. Long-serving House and Senate Democrats, even in the minority, are the friends of the federal mega-state, reliable enemies of efforts at scaling it back and repealing any of the vast number of laws we should repeal.
The longer politicians remain in Washington, the more likely that they’ll settle in comfortably with the lobbying community and decide that they really don’t want to rock the boat.
They also become increasingly estranged from real life; despite glitzy “listening tours” and such, they give less and less thought to how government affects the people back home. (The late senator George McGovern, years after leaving office, tried to run a bed and breakfast; that opened his eyes to how hard the government has made things for anyone who wants to earn an honest living in business.) That’s because they don’t foresee having to go “back home” at any point.
Gerrymandered districts and the huge advantages of incumbency mean that once elected, politicians can anticipate long careers in Washington. The effects of that are overwhelmingly bad.
America should have a national debate over term limits, a debate that would perhaps spill over into other important topics like the proper scope of government power. Unfortunately, that debate won’t take place unless we get some true political leadership.
Originally published on Forbes.com.