by Rob Oldham
In the waning days of his campaign for president, Donald Trump stoked the anti-Washington sentiment that had drawn in so many of his original supporters. He promised to “drain the swamp” in Washington by throwing out the establishment, which was personified by Hillary Clinton and also many members of Congress. In mid-October, Trump came out in favor of a plan that would limit members of the House to six years in office and senators to 12 years. His campaign released the following statement:
Decades of failure in Washington, and decades of special interest dealing, must come to an end. We have to break the cycle of corruption, and we have to give new voices a chance to go into government service. The time for congressional term limits has arrived.
As a reform proposal, term limits are nothing new. Term limits were included in Newt Gingrich’s Contract With America, a list of campaign promises the Republicans used to win control of the House in 1994. As Speaker of the House, Gingrich tried to push through the term limits plan as a constitutional amendment, which requires two-thirds support of both chambers of Congress, and then must be ratified by three-fourths of state legislatures. Gingrich’s term limits plan received 224 votes in the House, a majority, but well short of the votes required to change the Constitution.
Shortly after the Gingrich amendment failed, the Supreme Court took away the states’ ability to term limit members, something that 23 states had done before 1995. In Term Limits Inc. v. Thornton, the court ruled that term limits passed by individual states were unconstitutional because they violated the qualifications for office standards in Article I by subjecting different members to different requirements. This ruling meant that any future term limits proposal would have to come through a constitutional amendment that would apply to all members.
The president has no formal role in the constitutional amending process aside from drumming up public support (which may not be difficult as 75 percent of Americans favor term limits). To institute his plan, Trump would need to rely on the support of congressional leaders willing to expend a large amount of political capital to push through term limits. (Florida Republican Ron DeSantis has an interesting idea on how to make term limits politically feasible.). Some high-profile leaders like Speaker Paul Ryan have voiced their support for a term limits amendment. Ryan said, “I've always believed that this should be something that you serve temporary, not for an entire lifetime.” Others, including Senate Majority Leader Mitch McConnell, have been less enthusiastic.
But before debating whether the Trump plan is possible, it is worth asking whether it is sound public policy. The general wisdom (captured by Speaker Ryan’s statement) is that of course term limits would be a good thing. Turnover in government hedges against legislative corruption and fulfills the nostalgic vision of “citizen legislators” that act in the best interest of their constituents and country rather than their own electoral ambition. Before Thornton, 15 states adopted congressional term limits in public referenda. These referenda typically garnered around 66 percent support from voters. There is already a two-term limit for the president via the Twenty-Second Amendment. This was instituted after Franklin D. Roosevelt was elected to the presidency in four straight elections. Is it not just as important to prevent a concentration of power in the legislative branch?
In a 1994 article, Dan Greenberg of the Heritage Foundation, a conservative think-tank, laid out the case for term limits. He argued that term limits would solve the problem of incumbency advantage, the systemic electoral advantages held by legislators running for reelection. These advantages might explain the dissonance between Congress’s high disapproval ratings and 90 percent reelection rates for incumbents. He also argued that it would increase the independence of members of Congress (special interest groups invest large sums of money in certain influential members) and put an end to congressional careerism, the phenomenon where members spend their entire lives in the D.C. bubble and lose touch with what life is like for the average American.
Greenberg also rebutted several common arguments made against term limits. One is that term limits would deprive Congress of some of its most experienced and effective members. Greenberg said that this fear is overstated as many incoming members would have already served in staff positions, and, moreover, the introduction of large numbers of less-experienced members could create an impetus to simplify the legislative process from its current form—another reform he views as necessary. Another is that less experienced members will cede more and more power to career bureaucrats in the administration and congressional staffers, a trend that is already underway without term limits. Greenberg said that this complaint misunderstands the relationships between Congress and staff (which is usually hierarchical and temporary) and Congress and the bureaucracy (which is based on a reward/punishment incentive structure). He sums up his views here:
Ultimately, critics who suggest that new Members will fall under the thrall of unelected Beltway insiders miss the point: term limits would create major changes in the way Congress works. Under term limits, Congress would attract talented candidates with demonstrated expertise and diverse life experience. Such candidates have little reason to seek election to Congress today, when it takes decades of incumbency to reach a position of legislative influence. Under term limits, citizen-legislators could exercise real policy influence for a few years and then return to private life.
The best place to look for evidence as to whether or not term limits have worked in practice is the 15 states that have implemented them (the Thornburg decision did not impact term limits for state legislators). Echoing some of the fears about unelected power that Greenberg addressed, Norm Ornstein of the American Enterprise Institute says that "[the] experience in states, including California, has been negative: assembly members look to run for the state senate or Congress, Senators look for congressional seats, or lawmakers look out for cushy jobs in the private sector afterward, thus giving more power to the permanent staff.”
Empirical research of states with term limits has found some surprising results. States with strict term limits tend to increase government spending. They also see decreases in the number of bipartisan sponsored bills, and a concentration in power in the upper chambers of the legislatures as members lengthen their careers by moving into higher office. Another study showed that the increased turnover from term limits did not lead to an increase in the number of female legislators being elected relative to the U.S. House and states without term limits.
A comprehensive look at the rise of term limited legislators in the early- to mid-1990s found that term limits did not influence the demographic or professional composition of the legislatures (undercutting the citizen legislator argument). They also failed to have an ideological effect, although it is unclear as to whether greater levels of compromise and bipartisanship were goals of term limit proponents. The study did find that term-limited members were more likely to put state needs ahead of district needs and devote attention to issues of conscience rather than securing state projects for constituents. Although elite supporters of term limits would expect term limited legislators to behave this way (and likely laud them for doing so), voters would probably be unhappy to see their elected representatives act against their interests.
Overall, it seems that term limits might bring some modest change to Congress, even if that comes by a further weakening of elected officials and empowerment of unelected civil servants. Voters might want to think very hard before deciding if these are the types of changes they want though. Most voters already their think highly of their member of Congress (although that number is sliding) and term limits do not give members an incentive to better represent or serve constituents.
Much of the disconnection between Americans’ desire for term limits and our likely distaste for what term limits would bring is rooted in Trump’s exaggeration of Washington corruption. He greatly overstates the extent to which lobbyists and special interests play a decisive factor in how members behave. More often than not, legislators vote how the majority of their constituents want them to, not how wealthy donors steer them. Now there is room for debate whether factors such as redistricting, partisan primaries, disenfranchisement, and voter apathy have distorted the cues members of Congress should be receiving from the electorate. But with the system we have, members are rewarding those who show up at the polls, a result in line with what one would expect from democracy. If what we care about is voters being represented, then Sen. McConnell said it best: “We already have term limits. They are called elections.”
Rob Oldham is a political writer interested in legislative politics at the state and national levels.