A recent back and forth between a friend and I on Facebook centered around the idea of term limits on Representatives and Senators in the Congress. While our comments to one another were certainly engaging, I thought it would be a good idea to examine this idea in more detail.
So first off, why did the Founding Fathers and others of the Continental Congresses opt out of term limits for representatives and the presidency? Term limits then, much like today, were controversial and the source of many debates between the earliest representatives of our Republic. The idea of term limits during our founding was known as “rotation in office” and was highly popular during that time. Citizens in that distant era of our history viewed term limits as a means to prevent corruption and distant interests, entrenched in their own causes, from staying permanently in power. They worried, perhaps correctly, that a lack of change in higher offices could be destructive to the republican government they were attempting to create.
Under the Articles of Confederation (prior to the ratification of the Constitution), term limits kept representatives to three terms in any six year period. Notably, this did not prevent people (read white landowners) from running for more terms outside that six year period. This idea was, obviously, abandoned during the construction of the Constitution since many of the Founders found the idea of forced rotation a skeptical notion. In 1788 a pseudonymous essay (likely written by anti-federalist Melancton Smith) it was argued that term limits would be unnecessary at the local levels of government but could be used to provide a check on the possible future powers of federal legislators who were “elected for long periods, and far removed from the observation of the people.” The author worried that lawmakers would “become inattentive to the public good, callous, selfish, and the fountain of corruption. Even good men in office, in time, imperceptibly lose sight of the people, and gradually fall into measures prejudicial to them.” Thomas Jefferson, arguably one of our most important Founders, wrote to Edward Rutledge in 1788, “I apprehend that the total abandonment of the principle of rotation in the offices and senator will end in abuse. But my confidence is that there will for a long time be virtue and good sense enough in our countrymen to correct abuses.” Even here, showing a wariness to jettisoning the idea of term limits, Jefferson shows his supreme confidence in the People to do the right thing and correct any wrongs committed by their representatives.
As this was during the period of crafting our Constitution, there were naturally advocates from the other side. Notably, James Madison wrote that frequent elections would be a far better check on federal and political power than forcing legislators out of their offices by law. (An important historical note here: there were no political parties in our Republic at this time. No political machines to fuel corruption from outside the spheres of federal and local governments before injecting it into those governmental systems through candidates they would hold sway over.). Madison wrote in Federalist 53 that the higher proportion of new representatives swept into office due to term limits could lead to poor decisions and corruptions from a wave of inexperienced legislators (something I think we are witnessing today, an unfortunate effect of the cause of viewing political experience as a fault rather than a virtue). Madison surmised later that the “greater the proportion of new members, and the less the information of the bulk of the member, the more apt will they be to fall into the snares that may be laid for them.” Obviously, the anti-term limits proponents won this debate and the Constitution was ratified without them.
The debate, however, did not die with the ratification. Throughout the 19th century elected officials regularly rotated in office, citizens that were served and their representatives believed that changes in public officeholders were healthy for the republic at large. No considerations were given to political party machines (yet) and the overall good of the republic won out. Seeking what we would term to be a lifetime appointment in Congress through incumbancy would have been seen as repugnant. It also helps that folks back then lived shorter lives, not until the 20th century did we see long-term incumbency increase at a substantial rate.
As our federal government began to grow in both size and power, along with our nation, attempts were made at various points to Constitutionally circumscribe the executive, legislative, and even the judicial branches of government with term limits. As we know, in 1951 the United States ratified the 22nd Amendment to the Constitution to strictly limit the chief executive to two four year terms. This amendment was passed in reaction to the unprecedented 13 year term of Franklin Delano Roosevelt, which had prompted fears from Republicans and many Democrats of an ‘Imperial Presidency”.
Activists and Constitutional reformers alike had begun to work on the Congress as well during this time, attempting to limit legislative incumbency just as they had the presidency’s. In the mid-1990’s these reforms attracted broad and bipartisan support across the country and a swath of states passed term limit restrictions on legislators. However, in U.S. Term Limits v. Thornton, the United States Supreme Court struck down these laws over conflicts with Article 1, Section 2 of the Constitution. Around the same time, several states passed term limits for their state legislators as well, but these results have been mixed.
Now, what do I believe? While arguments made over the course of our history and by our Founders and in the Federalist Papers seem to advocate for term limits in order to limit or eliminate corruption and “feeding off the government teat”, I have a strong objection to term limits in Congress. One I will endeavor to explain below.
Our original checks and balances, not to mention systems of governance themselves, have been undermined and twisted over the two centuries our Republic has existed. It is unclear what effects term limits would have on Congress other than solving the problems of Americans hating Congress but re-electing their own congressmen and women at an alarmingly high rate, regardless of performance or conduct (especially in the Trump era). The fears I hear expressed of a “permanent political class” or of representatives “living off the government” certainly hold some truths, but do not rise to the level of a Constitutional Amendment. The true fear I have of imposing term limits on our representatives is related to that fourth branch of government: the bureaucracy.
The Supreme Court case of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. ensured judicial deference to the bureaucracy in regard to regulation, and the Civil Service Act of 1883 has been used, over time, to make it almost impossible to fire or remove career bureaucrats except for extreme negligence or violations of law. These two forces have coalesced to make the fourth branch of government incredibly more powerful and a far less accountable entity than what the Founders could have ever foreseen.
While the arguments for term limits certainly are appealing and make for great political soundbites and ads, it is possible that they would have the effect of further eroding and outright reducing the powers of the legislative branch and it’s oversight capabilities. The power of the Congress would be severely curtailed, vis-a-vis the agencies, due to inexperienced lawmakers lacking the bill drafting abilities needed to tightly circumscribe agency actions. While term limits would add the “rotation in office” envisioned by some of our Founders to the legislative branch, this would only cede additional power to “a permanent class of bureaucratic staffers who do not stand for election.”
Studies on state-level term limits have shown very mixed results. Generally, the kinds of people holding office change very little barring some tectonic societal or political shift, perspectives and ideologies still reflect the electorate. In all states, the balance of power just as at the federal level, shifts towards the executive and bureaucracies. James Burnham wrote, “The bureaucracy…not merely wields its own share of the sovereign power but begins to challenge the older branches for supremacy. This emergence of the bureaucracy is a creeping growth, expressed most tellingly in the day to day, unpublicized activities of the governmental colossus…”.
While I do not view the government as a single-entity colossus, I do fear the powers of a bureaucracy that goes unchecked by the elected officials in place to monitor this necessary evil of the modern day nation-state, not to mention one with superpower status. Limits on this system must be maintained and enforced, bureaucrats must be held accountable to the People through elected officials with the experience and resolve to legislate their agencies’ actions and provide them with the mandates of the People.
So, while term limits may seem a solution to political corruption for some, I see it as a direct attack on the powers of Congress to oversee and curtail the massive fourth branch. A branch that is unelected and that would operate, with a weakened Congress populated by term-limited inexperienced representatives, with no oversight or accountability to the electorate. “Perhaps limits on this system-which is neither constitutional, nor democratic-should be the next step for those who want to return to the Constitution and a government of the people, by the people, and for the people.”
As an aside, I would also posit that term limits are a way for a lazy and disconnected electorate to ensure maximum change in their government with minimal effort. If you want to affect change, then you must educate yourself and get involved. Run for office. Vote in primaries and in elections, become a county or district delegate of your preferred political party. But do not try to impose a Constitutional amendment for the forced removal of elected representatives simply because that seems to be the path of least resistance when asked to educate yourself and to get involved. This government is ours, it is not made up of strangers or foreign entities (current President excluded) but made up of Americans, who all, at the outset, got involved to seek change and to make this nation better. I will continue to work and do my part to help keep that optimism alive.
Abraham Lincoln said it best, as he most always does, “Shall we expect some transatlantic military giant to step the ocean and crush us at a blow? Never! All the armies of Europe, Asia, and Africa combined, with all the treasure of the earth (our own excepted) in their military chest, with a Bonaparte for a commander, could not by force take a drink from the Ohio or make a track on the Blue Ridge in a trial of a thousand years. At what point then is the approach of danger to be expected? I answer. If it ever reach us it must spring up amongst us; it cannot come from abroad. If destruction be our lot we must ourselves be its author and finisher. As a nation of freemen we must live through all time or die by suicide.”
What are your thoughts? How would you answer the argument of a weakened Congress not able to curtail a strengthened bureaucracy? I hope this is informative, and I look forward to everyone’s comments!
Cheers, until next time…