The Term Limits Question

Representative Henry Waxman (D, CA) has announced that he will not seek re-election to the House of Representatives this fall. Waxman represents California's 33rd Congressional District, which includes the western parts of Los Angeles. He was first elected to Congress in 1974.

Although he is quitting Congress, Waxman's case provides fodder for the term-limits movement. Although understandable, the idea for limiting the number of terms a Congress member can serve has several flaws.

This essay sets forth the backdrop against which the term-limits movement can be viewed, and then explains why the idea is mistaken.

According to the Cook Partisan Voting Index (PVI), California's 33rd Congressional District is safely Democrat (PVI = +12 points Democrat).

Waxman's district is illustrative of a growing pattern in the House of Representatives. According to Cook's PVI, there are fewer and fewer "swing," i.e., competitive, seats in the House. Cook defines a "swing" district as one with a Democrat/Republican PVI = <5 points. (At present, 190 districts have a GOP PVI of >5 points, while 146 districts have a Democrat PVI of >5 points.) Between 1998 and 2012, the number of competitive House seats fell from 164 to 90. In short, just over one-fifth of the seats in the House of Representatives are competitive.

Figures like these go a long way toward explaining why, since the end of World War II, 90% of House members seeking re-election have been successful.

Among other things, "safe" seats beget lengthy terms in the House. Sixty-six members of the 113th Congress have served in the House for 20 years or longer. Seven representatives have served at least 36 years. John Dingell, now representing Michigan's 12th Congressional District, which is in Detroit's western suburbs, is in his 59th year of continuous service.

"Safe" districts routinely re-elect even representatives who are under a cloud of ethics violations. Charles Rangel, from New York's 13th Congressional District -- which is in Harlem -- is an example. Rangel has been in the House since 1971.

An individual who has served in Washington for 20+ years runs counter to the old American notion of the "citizen politician," i.e., the man (or woman) who spends a brief period in public service, and then returns to private life. (Before the Civil War, most House members returned home after serving four years in Washington. Turnover after each election averaged 40-50%.) Congress-members who've been in Washington, DC for decades are often said to have "lost touch" with the folks back home.

One wonders how this affects the generally low regard Americans have for Congress. A recent (1/5-6/14) Rasmussen Reports poll of "likely voters," for example, found only 8% of the public think Congress is doing a "good" or "excellent" job, while 24% judge Congress' performance as "fair," and 66% rate its performance as "poor."

When CBS News/New York Times polls asked random samples of the public in 2006 and 2013 if they thought "most members of Congress" were more interested in serving their constituents or special interest groups, between 75 and 85% said "special interests. In 2013, only 9% selected "the people they represent."

When a Gallup poll asked a random sample in early December, 2013, to rate the "honesty and ethical standards" of people in different fields, only 8% rated Congress members' as "very high/high," which was on a par with "car salespeople" (9%) and "lobbyists" (6%). "Advertising Practitioners" (14%), "TV" and "Newspaper" reporters (20% and 21%, respectively), "lawyers" (20%), and especially "judges" (45%), were considered to be more honest and ethical.

It should not be surprising, therefore, to learn that large majorities of the American public favor limiting the number of terms a Congress member can serve. A Gallup poll in early January, 2013, for example, found that 75% of the public said they would vote for term limits for Congress. Polls conducted by Fox News/Opinion Dynamics in 2005, 2009, and 2010 reported that between 68 and 78% of Americans favored term limits.

Given the notion's popularity, it is not surprising that calls for congressional term limits are once again being heard. Former Arkansas governor Mike Huckabee, for example, now has a post on Facebook asking people to vote for or against the idea.

Before entertaining reasons for or against term limits, consider the following.

First, the notion of term limits -- then called "rotation-in-office" -- was in the Articles of Confederation, although the idea was not rigorously enforced. The Framers did not include rotation-in-office in the Constitution because they believed the people should be the judges of a legislator's qualifications. James Madison articulated the Framers' thinking on the issue in The Federalist #53.

Second, the U.S. Supreme Court has ruled (5-4) that, absent an amendment to the Constitution, congressional term limits would be unconstitutional (see U.S. Term Limits v. Thorton, 514 U.S. 779 [1995]). (It wasn't until the XXIInd amendment was ratified (1951) that presidents were restricted to two elected terms.)

Finally, the notion of congressional term limits is overwhelmingly opposed by the American ruling class, especially the representatives and senators who would have to vote on it.

For this reason Mark Levin has suggested using the Constitution's Article V provision empowering two-thirds of state legislatures to call for a convention that would propose amendments. His first "liberty" amendment is for congressional term limits.

Proponents of term limits offer a number of reasons. In 1994, Dan Greenberg, for example, offered several reasons for limiting congressional terms, including bringing "new blood" to Congress; counterbalancing incumbents' advantages over challengers; reducing Congress' well-known "culture of spending;" curtailing opportunities for House members to develop mutually beneficial commitments to lobbyists and special interests; and making representatives more attentive to constituents.

There are other reasons for term limits, of course, but these will do.

Term limits opponents also have several reasons.

One is that it would mean throwing out the "good" with the "bad." But how does one decide who's "good" and who's "bad"? Barack Obama, for example, thinks Henry Waxman hangs the moon. My opinion of Waxman shouldn't be expressed in polite company.

We come then to the most compelling reason against term limits: by restricting how long Congress members can serve, we inadvertently grant more power to congressional staffs and government bureaucrats. These would be the people with the experience and the expertise on whom fresh legislators are most likely to depend. Do we want to do anything to enhance faceless bureaucrats' and congressional staff's power, all unelected and, by virtue of Civil Service statutes, untouchable?

Students of American politics endlessly debate "the unintended consequences of reform." The notion of term limits may be "the mother" of all "unintended consequences of reform." A move to enhance government's responsiveness to public opinion could leave citizens even more at the tender mercies of unelected, and untouchable, elites.

The Constitution already provides one means for limiting how long Congress members remain in office. It's called elections.

Of course, for elections to work as instruments for term limits something will have to change: citizens' habitual indifference to, and ignorance of, Congress and its denizens.

I won't hold my breath waiting for that "reform" to happen.

Representative Henry Waxman (D, CA) has announced that he will not seek re-election to the House of Representatives this fall. Waxman represents California's 33rd Congressional District, which includes the western parts of Los Angeles. He was first elected to Congress in 1974.

Although he is quitting Congress, Waxman's case provides fodder for the term-limits movement. Although understandable, the idea for limiting the number of terms a Congress member can serve has several flaws.

This essay sets forth the backdrop against which the term-limits movement can be viewed, and then explains why the idea is mistaken.

According to the Cook Partisan Voting Index (PVI), California's 33rd Congressional District is safely Democrat (PVI = +12 points Democrat).

Waxman's district is illustrative of a growing pattern in the House of Representatives. According to Cook's PVI, there are fewer and fewer "swing," i.e., competitive, seats in the House. Cook defines a "swing" district as one with a Democrat/Republican PVI = <5 points. (At present, 190 districts have a GOP PVI of >5 points, while 146 districts have a Democrat PVI of >5 points.) Between 1998 and 2012, the number of competitive House seats fell from 164 to 90. In short, just over one-fifth of the seats in the House of Representatives are competitive.

Figures like these go a long way toward explaining why, since the end of World War II, 90% of House members seeking re-election have been successful.

Among other things, "safe" seats beget lengthy terms in the House. Sixty-six members of the 113th Congress have served in the House for 20 years or longer. Seven representatives have served at least 36 years. John Dingell, now representing Michigan's 12th Congressional District, which is in Detroit's western suburbs, is in his 59th year of continuous service.

"Safe" districts routinely re-elect even representatives who are under a cloud of ethics violations. Charles Rangel, from New York's 13th Congressional District -- which is in Harlem -- is an example. Rangel has been in the House since 1971.

An individual who has served in Washington for 20+ years runs counter to the old American notion of the "citizen politician," i.e., the man (or woman) who spends a brief period in public service, and then returns to private life. (Before the Civil War, most House members returned home after serving four years in Washington. Turnover after each election averaged 40-50%.) Congress-members who've been in Washington, DC for decades are often said to have "lost touch" with the folks back home.

One wonders how this affects the generally low regard Americans have for Congress. A recent (1/5-6/14) Rasmussen Reports poll of "likely voters," for example, found only 8% of the public think Congress is doing a "good" or "excellent" job, while 24% judge Congress' performance as "fair," and 66% rate its performance as "poor."

When CBS News/New York Times polls asked random samples of the public in 2006 and 2013 if they thought "most members of Congress" were more interested in serving their constituents or special interest groups, between 75 and 85% said "special interests. In 2013, only 9% selected "the people they represent."

When a Gallup poll asked a random sample in early December, 2013, to rate the "honesty and ethical standards" of people in different fields, only 8% rated Congress members' as "very high/high," which was on a par with "car salespeople" (9%) and "lobbyists" (6%). "Advertising Practitioners" (14%), "TV" and "Newspaper" reporters (20% and 21%, respectively), "lawyers" (20%), and especially "judges" (45%), were considered to be more honest and ethical.

It should not be surprising, therefore, to learn that large majorities of the American public favor limiting the number of terms a Congress member can serve. A Gallup poll in early January, 2013, for example, found that 75% of the public said they would vote for term limits for Congress. Polls conducted by Fox News/Opinion Dynamics in 2005, 2009, and 2010 reported that between 68 and 78% of Americans favored term limits.

Given the notion's popularity, it is not surprising that calls for congressional term limits are once again being heard. Former Arkansas governor Mike Huckabee, for example, now has a post on Facebook asking people to vote for or against the idea.

Before entertaining reasons for or against term limits, consider the following.

First, the notion of term limits -- then called "rotation-in-office" -- was in the Articles of Confederation, although the idea was not rigorously enforced. The Framers did not include rotation-in-office in the Constitution because they believed the people should be the judges of a legislator's qualifications. James Madison articulated the Framers' thinking on the issue in The Federalist #53.

Second, the U.S. Supreme Court has ruled (5-4) that, absent an amendment to the Constitution, congressional term limits would be unconstitutional (see U.S. Term Limits v. Thorton, 514 U.S. 779 [1995]). (It wasn't until the XXIInd amendment was ratified (1951) that presidents were restricted to two elected terms.)

Finally, the notion of congressional term limits is overwhelmingly opposed by the American ruling class, especially the representatives and senators who would have to vote on it.

For this reason Mark Levin has suggested using the Constitution's Article V provision empowering two-thirds of state legislatures to call for a convention that would propose amendments. His first "liberty" amendment is for congressional term limits.

Proponents of term limits offer a number of reasons. In 1994, Dan Greenberg, for example, offered several reasons for limiting congressional terms, including bringing "new blood" to Congress; counterbalancing incumbents' advantages over challengers; reducing Congress' well-known "culture of spending;" curtailing opportunities for House members to develop mutually beneficial commitments to lobbyists and special interests; and making representatives more attentive to constituents.

There are other reasons for term limits, of course, but these will do.

Term limits opponents also have several reasons.

One is that it would mean throwing out the "good" with the "bad." But how does one decide who's "good" and who's "bad"? Barack Obama, for example, thinks Henry Waxman hangs the moon. My opinion of Waxman shouldn't be expressed in polite company.

We come then to the most compelling reason against term limits: by restricting how long Congress members can serve, we inadvertently grant more power to congressional staffs and government bureaucrats. These would be the people with the experience and the expertise on whom fresh legislators are most likely to depend. Do we want to do anything to enhance faceless bureaucrats' and congressional staff's power, all unelected and, by virtue of Civil Service statutes, untouchable?

Students of American politics endlessly debate "the unintended consequences of reform." The notion of term limits may be "the mother" of all "unintended consequences of reform." A move to enhance government's responsiveness to public opinion could leave citizens even more at the tender mercies of unelected, and untouchable, elites.

The Constitution already provides one means for limiting how long Congress members remain in office. It's called elections.

Of course, for elections to work as instruments for term limits something will have to change: citizens' habitual indifference to, and ignorance of, Congress and its denizens.

I won't hold my breath waiting for that "reform" to happen.