by Bruce Dunlavy         

  (My blog home page and index of other posts may be found here.)

Throughout American history, one of the most popular pastimes of the citizenry has been criticizing and complaining about elected officials. Among the most frequently-cited displeasures is that elected officials serve too long, and that some law ought to be enacted to restrict the numbers of terms any elected official may serve.
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This goes back to the beginning of the Constitutional movement, when in 1639 the Fundamental Orders of Connecticut (which, by the way, were written – in the most literal sense – by my nine-times-great-grandfather Thomas Welles), forbade consecutive terms by the colony’s governors. The framers of the Orders and of the Constitution were undoubtedly well-versed in the histories of ancient Greece and Rome, whose laws often term-limited office-holders.

The USA’s Articles of Confederation (1781 – 1789) limited representatives to the Continental Congress to three years’ service in any six consecutive years. When the Constitution was established in 1789, however, term limits were not included, despite concerns expressed by Thomas Jefferson, Richard Henry Lee, George Mason, and others.

As it turned out, term limits were not much of an issue in the Nineteenth Century. The custom became one of parties awarding Congressional nominations in return for services rendered, with the seat being rotated regularly among party members. Abraham Lincoln served one term in Congress and then returned to Illinois because it was someone else’s turn.

The “rotation system” declined for the rest of that century and most of the next, in part because of the increasing professionalization of government work, in part because of the increasing responsibility and workload of the Federal government. Not much was heard of term limits except for the Twenty-Second Amendment, which limited the tenure of the president and was a strictly political move by the Republican Party to prevent “another FDR.”

The idea was resurrected in the late 1980s, again by the leaders of the Republican Party, who saw that Democrats had had uninterrupted control of the House since 1954 and doubted that they could remove the entrenched Democrats in elections. In 1994, however, the Republicans did win control of the House, and at that point they dropped their support for Congressional term limits. But the idea had been loosed upon the land, and had gained the traction it enjoys today, even though politicians themselves rarely talk about term limits any more.

A 1994 essay by Dan Greenberg for the Heritage Foundation outlined the original justifications for term limits in the modern era. Greenberg wrote that term limits would reduce the incentive to create “pork-barrel” legislation to benefit a representative’s home district at the expense of the nation at large, bring fresh ideas, reduce the power of incumbency in elections, and keep Congress members more in touch with their constituents and less beholden to an expanding Federal government.

A few Congressional candidates ran on a promise to serve a limited number of terms, and for many the promise brought victory. George Nethercutt defeated incumbent House Speaker Tom Foley in 1994 with his promise to serve only three terms. He was one of several who made such a promise, but reneged.  Nethercutt stayed on, getting elected to a total of five consecutive terms and leaving only in order to run for the U.S. Senate. Like Scott McInnis of Colorado, and many others, he was not held to his word. It seems everybody says they want term limits, but nobody votes that way.

Supreme Court Justice Louis Brandeis called the States “the laboratories of democracy,” identifying them as test subjects for new ideas which, if they proved worthwhile, would then be extended to the Federal government and the nation as a whole.

Between 1990 and 2000, voters in 21 States enacted term limits on the members of  their State legislatures.  Six of these laws were later either repealed by the affected legislatures or struck down in court, but fifteen remain. The effectiveness of term limits in producing better government can be examined there. Are State legislatures better because of term limits?

In some cases, such as Ohio, members of the Legislature are limited in the number of consecutive terms in each house. As a result, there is a lot of jumping from the House to the Senate and back again. Sometimes, a Senator and a House member have simultaneously resigned so that each could be appointed to the other’s vacancy and start the clock over. Current Ohio State Senator Randy Gardner, for example, is in his second Senate tenure and has previously served two separate times in the State House. So far he has been in the legislature for 31 years. Term limits have not returned him to private life after a short stint as a “citizen legislator.” [Update: in 2019, Gardner left elected office, but remained a political employee when new Governor Mike DeWine appointed him Chancellor of Higher Education.]

What about States that disallow that sort of job-hopping? Recently, Jack Lessenberry wrote an op-ed piece for the Toledo Blade in which he detailed the deleterious effects of term limits on the Michigan legislature, which has a lifetime limit of three terms in the House and two in the Senate. Lessenberry contends that this has made legislators less responsive to their constituents and more responsive to the corporate and lobbying interests that can provide lucrative jobs for them when their legislative career is over. As a “particularly blatant example” he uses the case of the legislator who carried water for Manuel “Matty” Moroun in the fight over a new bridge to Canada (a disgraceful episode itself that it would be charitable to describe as a “scandal.” You could look it up.).  After doing his dirty work and then being term-limited, he went directly to a job with Moroun’s company. [Update: In mid-November, 2015, Lessenberry revisited the issue in another op-ed piece pointing out another problem with term limits: they allow legislators to enact laws with consequences that will not become apparent until after the representatives who enacted them are term-limited out of office.]

Look around your State, if it is one of the fifteen which currently have term limits.  Can you say that your State legislature is better than it was before term limits? Have term limits produced better candidates?

Where are the “citizen legislators,” those who were to enter public service for a short time and then return to their private careers? The “citizen legislator” is a myth. If the idea is that legislators are to be everyday citizens taking time off to serve, it would largely restrict elected office to those who have great wealth, those with a family business to go back to, or – God help us – more lawyers.

One argument against term limits was that it would mean a bunch of inexperienced legislators being manhandled by lobbyists, but lobbyists are consistently opposed to term limits. Why? Because they know they would lose their jobs to all the term-limited legislators using their Congressional experience and connections to get into the lobbying business.

Limitations on time of service in legislative bodies will probably have the effect of legislators who would be more likely to:

* Initiate and support popular legislation with short-term benefits and long-term liabilities instead of unpopular legislation with long-term benefits. After all, they’ll be out of office by the time the chickens come home to roost.

* If they are seeking personal enrichment, enrich themselves as quickly as possible.

* Work on behalf of corporate interests who will offer them jobs when their term of service is over.

Article One of the Constitution specifies that House members serve two-year terms and Senators six-year terms. So the terms of national legislators are self-limiting. If voters want to limit the terms of their representatives, the power rests in their hands to vote them out. In my Congressional District (Fifth Ohio), most people say they want term limits, but our U.S. House representative is in his fifth term, and no doubt will be re-elected for as long as he wants to stay. His father was elected to the same post fifteen consecutive times. [Update: as of 2023, I have departed the District, but the Congressman has not; he is in his ninth term.]

Elections limit terms. Maybe if we were better constituents, more informed and active voters, we would get better legislators.