David Adler

Advocates of congressional term limits have strong arguments, as we observed last week of the ongoing effort to impose a ceiling on the number of terms that members of the US House of Representatives and US Senate can serve. But the arguments against term limits are also strong, and find support in the founding of our nation and in current debates.

 

The framers of the Constitution did not impose term limits in members of Congress, just as they refrained from constitutionally limiting the terms that someone might serve as president of the United States. The discussions and debates in the Constitutional Convention and the various state ratifying conventions reflect familiar themes.

 

The founders subscribed to the theory that the essence of popular government was captured in the right of voters to elect their representatives. Limitations on who might seek office, beyond the Qualifications Clause of Article I, which set forth the age, citizenship and residency requirements for representatives in the House and Senate, seemed foreign to the founders. Their reasoning was reiterated by President Woodrow Wilson, who wrote in 1913: “By seeking to determine by fixed constitutional provision what the people are perfectly competent to determine by themselves, we cast a doubt upon the whole theory of popular government.”

 

A constitutional ban on reelection struck many of the founders as counterproductive to good government. There was a widespread belief that service in office for a reasonable number of years was a prerequisite to the acquisition of knowledge necessary to become a good representative skilled in the art of making laws and policies. It was believed, moreover, that frequent elections — two-year terms in the House and six years in the Senate —insured accountability to the people and that poor performance could be corrected at the ballot box. At all events, they regarded elections as term limits.

 

The founders never contemplated the desire of anyone to serve lengthy terms in office, far from family and professional concerns. They believed that short terms would produce rotation in office, which would, they further believed, protect against corruption and the arrogance of power that often are byproducts of numerous terms in governmental positions. Modern-day opponents of congressional term limits offer several arguments against inorganic ceilings. There is a genuine concern that term limits will, for example , decrease the capacity and expertise of Congress, undercutting its ability to pass wise, effective legislation and policies. Experience matters, it is said, as it does everywhere else. The numerous and varied problems that Congress confronts requires skills often acquired through years of serving in Congress. Opponents of term limits are quick to note that freshmen members will be likely to defer to experienced lawmakers, those skilled in the art of making laws, which will have the net effect of extending or consolidating the power of those boasting years of experience.

 

Term limits, it is argued, will also create a disincentive for members to develop expertise in complex policy areas. Why spend the many hours, months and years acquiring knowledge in foreign affairs and national security matters, or developing expertise and learning in areas such as tax policy, if term limits will arbitrarily cut short members’ ability to create and pass legislation that will well serve the nation? The resulting “disinterest,” it is claimed, will lead to further legislative deference to the executive and the agencies that administer laws on a daily basis.

 

The theme of “arbitrariness” courses through the arguments of those who oppose term limits. It is one thing to defeat and thus remove from office incompetent members, but why punish those members who are hard working, competent, skilled and extremely valuable representatives on the behalf of the American electorate. Further, why punish the voters, and deprive them of their democratic right to select their representatives in the House and Senate? Punishment of effectiveness strikes these advocates as arbitrary and unwise.

 

Opponents of term limits also doubt that the mechanism will actually curb the corruption that advocates claim is directly tied to careerism. As a consequence, there is no reason to set term ineligibility in constitutional concrete. The assertion of undue influence of lobbyists on members of Congress won’t be allayed, but rather exacerbated, by term limits, they say. While advocates of limits believe that members might look more closely at the merits of legislation, without the overbearing presence of lobbyists, the reverse is true. Novice legislators will become more, not less, reliant on lobbyists once veteran legislators are removed from office. The loss of experience and expertise is reflected, they contend, in surveys conducted instates with term limits. In those states, lawmakers exhibit greater reliance on bureaucrats, agencies and lobbyists.

 

As citizens ponder the question of the relative desirability of term limits, they would do well to grapple with the pros and cons of such a proposition. Both sides have good arguments worth consideration.