Limiting Terms of Office for Members of the U.S. Senate and U.S. House of Representatives

Mr. Chairman and Members of the Subcommittee:

Thank you for inviting me to testify on the issue of congressional term limits and specifically on the wisdom of amending the Constitution to limit the number of terms members may serve in the Senate and in the House of Representatives.

This is the third time I have been asked by this committee to review and assess the case for term limits. In my initial testimony on November 19, 1993 (a revised version of which was published as “Congressional Term Limits: A Bad Idea Whose Time Should Never Come,” in The Politics and Law of Term Limits, Cato Institute, 1994), I concluded that term limitation is a false panacea, a slam-dunk approach to political reform that offers little beyond emotional release of pent-up frustrations with the performance of the economic and political system. Whatever evil term limits were designed to counter—careerism, incumbency advantage, unaccountable power, or overspending—the evidence suggested that the actual consequences were likely to be far different and potentially harmful to our political system. I returned on February 3, 1995 to argue that the results of the 1994 elections strongly supported the position that term limits are neither necessary nor desirable for the healthy functioning of our democratic system. I noted that it would be a supreme irony if term limits were adopted at the very moment that Republicans had finally grasped the reins of power in Congress. The political marketplace operated efficiently in 1994, without arbitrary limits built into the Constitution, to accelerate membership turnover, end one-party dominance of the House of Representatives, and limit the automatic advantages of seniority.

Today the debate over legislative term limits has even less urgency and plausibility than it did two years ago. The House provided backers of the term limit amendment a full debate and vote on the floor; the intellectual force of the opposition, led by the redoubtable chairman of the full Judiciary Committee, provided a compelling, principled rationale for rejecting the amendment. Nothing has happened in the world of politics since that vote to strengthen the case for limiting terms. The rapid pace of membership turnover in the Congress continued unabated in 1996, dispelling any notion of a “permanent” Congress. Almost two-thirds of the members of the House were first elected in the 1990s; 40 of the 100 senators are in their first term (one of whom, with only two years of experience in the Senate, already chairs a major committee). The last election also saw a continuation of the trend toward more competitive congressional elections. Incumbent reelection rates and margins of victory in 1992, 1994, and 1996 were low enough to encourage future challengers and put fear in the hearts of members of the Senate and House who seek reelection. The two major political parties are now more competitive at the presidential and congressional levels than at any other time in recent decades. No longer do we speak of one-party dominance of either branch of government.

Those who embraced term limits as a last desperate attempt to cope with crushing budget deficits also have reason to reconsider their position. The argument that overspending by government is a direct result of careerism in Congress always rested on an exceedingly weak evidentiary base. Seniority is dwarfed by party and ideology in shaping spending decisions by members of Congress. Now we have declining deficits that make the fiscal position of the United States the envy of the world and good prospects for balancing the budget in the not distant future. While we face difficult decisions over how best to cope with the looming demographic pressure on our social insurance programs, there is no reason to believe a term-limited Congress would make wiser or more timely decisions.

Finally, the passage of time since term limits were considered by the House gives us a chance to learn from the experience of the 20 states whose state legislators are now term limited. It is still too early to draw any definitive conclusions. Only a fraction of members in the Maine and California legislatures ran up against limits in 1996; the pace will quicken in 1998. But there are already signs appearing that raise doubts about how beneficial (or even benign) term limits will be for the functioning of our democracy. The term-limited states vary by the type of limits imposed (lifetime vs. continuous service), their length (ranging from six to twelve years), and the pattern of turnover in state legislatures before term limits were imposed, making inferences hazardous. What we see thus far suggests that term limits may increase turnover, strengthen executives, shift power from lower to upper chambers (which tend to have longer terms), heighten partisan conflict, and increase reliance on experts, including staff and lobbyists. At the very least, Congress would be wise to defer action on a constitutional amendment to limit congressional terms until these state experiments have a chance to play out and the results can be evaluated.

Recent developments thus provide no basis for reevaluating past opposition to congressional term limits. In many respects term limits advocates have already succeeded in their most important objectives. Voters are less passively supportive of their own representative. Candidates are increasingly self-limiting their own terms, opting as incumbents to leave earlier and as challengers to promise to spend only a short period of time in public life. Changes in party control of the Congress are likely to be more norm than exception in future years. Reformers in both the House and Senate have taken steps to limit the automatic advantages of seniority. The president has been given a statutory line-item veto. Congress is grappling successfully with the budget deficit, thanks in part to the leadership of seasoned legislative leaders.

What remains for advocates is a romanticized yearning for a supposed golden era long past, in which selfless citizens, free from the unseemly quest for reelection, temporarily answer their country’s call to legislate in the public interest. But as countless students of Congress have demonstrated, the linchpin of the case for term limits—the desirability and feasibility of ending legislative careerism and returning to the citizen legislature originally conceived by the Founders—fails in every key dimension. Mandatory rotation was explicitly rejected by the Framers of the Constitution because it would destroy the primary incentive used to construct a deliberative democracy—giving members a longer-term stake in the institution so that they might look beyond the public’s immediate concerns. High turnover and amateurism in the nineteenth century Congress and in state legislatures did more to nurture parochialism, corruption, and special interest influence than enhance the public welfare. Professionalism is a necessary offshoot of the growth and specialization of the modern world. If the political rules are rewritten to make it impossible to build a career in Congress, then the institution will have to rely on the professionalism of others to do its job, whether they are staff members, bureaucrats, or lobbyists. Finally, any effort to use term limits to replace careerists with citizen-legislators is likely to produce some combination of itinerant professionals with weak institutional loyalties and elite amateurs whose resources and connections make a brief stint in Congress possible and profitable.

Term limits should be rejected not only because they would fail to achieve the objectives of their advocates. Their danger lies in the harm they might do to American democracy, by limiting the freedom now enjoyed by voters to end or continue the career of representatives who seek their continued support and by weakening the first branch of government by depriving it of experienced and knowledgeable legislators.