The battle for congressional term limits was lost this year, on two fronts. In the House of Representatives, four versions of a constitutional amendment to limit congressional tenure went down to defeat. Soon after, the Supreme Court, in U.S. Term Limits, Inc. v. Thornton, struck down the attempt by state legislatures and popular majorities in the states to impose their own limits on the tenure of their federal legislators. As if to add an exclamation point, the Senate in mid-October turned back a resolution that would merely have expressed support for the concept.
Despite these losses, the war for congressional term limits goes on. Republican presidential candidates are hotly disputing the title of Most Eager to Limit Terms-witness Steve Forbes’s recent attacks on Bob Dole for allegedly dragging his feet; and House Speaker Newt Gingrich has promised to take up the issue promptly in the next Congress. Even so, the odds against passing a constitutional amendment (the only avenue left to reformers) are enormous; and before plunging the country into yet another futile, protracted struggle to amend the Constitution, conservatives ought to pause and rethink their strategy.
After all, the campaign for term limits has, in one sense, already achieved victory. As a political idea, term limits have been taken to heart by millions of Americans fed up with incorrigible politicians. Partly as a result, over the past six years congressional turnover has increased enormously (more than half of all House members have been elected since 1990), and, mirabile dictu, in 1994 Republicans took control of Congress for the first time in 40 years. The fondest dreams of many term-limits backers were thus realized.
Though I have always opposed term limits, I must admit that considerable good probably came from the agitation for them. The American people awakened to the danger of “permanent government” and recovered an active sense of the prerogatives of “citizenship. At the same time, however, they implicitly rejected the rigid consequences of formal term limlts by choosing, as if for emphasis, to re-elect every Republican incumbent running for national or gubernatorial office last year. In dramatic fashion, the voters warned politicians against developing a class interest separate from and hostile to the public’s, but they merrily indulged their freedom to re-elect veteran legislators in whom they had confidence. Thus, we now seem to have the best of both worlds: the ethos of term limits without the inconvenience of a constitutional restriction.
What then is left of the case for formalizing — for constitutionalizing — term limits? Why is this laborious, grave, and irrevocable step thought necessary, given that the anxiety over a permanent Congress has been allayed?
The case for formal term limits rests now on two attractive but dubious propositions: first, that they are needed in order to replace professionals with citizen-politicians; and second, that they are needed to restrict the power and scope of government. Neither proposition holds up under careful examination.
In the first place, the effect of formal term limits would not be to bring forth citizen-politicians but to breed a new species of itinerant professionals, switching from one political office to another. Even under term limits, the neophyte congressman would be eligilble for re-election up to five times and so would have to master the skills required to retain office. He would face the usual incentives to pour resources and attention into casework, constitutent service, and fundraising instead of lawmaking. Such an electoral gantlet would quickly beat the amateurism out of the most determined non-professional.
But with the clock running on his current office, the politician under term limits will inevitably be thinking of his next one. This itinerant disposition promotes most of the disadvantages of professionalism and few of its benefits. On the House floor, Rep. Henry Hyde criticized the dissipation of talent and experience that term limits would produce, when he denounced the “dumbing down of democracy.”
In exchange for a hecatomb of legislative talent, what advantages could term limits offer the country? It is claimed that term-limited legislators would be more likely to rise above the politics of immediate self-interest and seek to advance the common good. But surely it is more likely that they would feel less attached to long-term, arduous projects for the public good, because they would not be around to shape them and to take credit for them.
In fact, term limits are likely to harrow and distort the legislator’s self- interest. Faced with his approaching extinction, he has little reason to make common cause with his party colleagues, to have a regard for the long-term health of his institution, or even to keep faith with his constituents.
ln California we already see evidence of this. California voters helped inaugurate the term-limits movement by passing Proposition 140, mandating term limits for state assemblymen and senators, partly out of revulsion at business as usual in Sacramento — which meant largely out of antipathy to long-serving Assembly Speaker Willie Brown. Last year, the Republicans won a single-seat malonty in the Assembly and seemed to be on the verge of ousting Brown as speaker. At the last moment, however, Brown pulled a rabbit out of his hat: Paul Horcher, a Republican assemblyman, who renounced his party, declared himself an Independent, and backed Brown for speaker. To add insult to injury, Horcher had in the course of his just-concluded campaign frequently criticized Brown’s autocratic habits.
Why did Horcher risk this treacherous about-face? He was a term-limited legislator in his last term, facing imminent political demise. Hi had little to lose and, he must have figured, much to gain by betraying his campaign promises. (In fact, after his constituents recalled him from office, he became a paid consultant to the state Democratic party.)
Similarly, Doris Allen, the nominal Republican who in June succeeded Brown as speaker, did so with his blessing and the unanimous support of Assembly Democrats — plus her own vote. She, too, is a third-termer up against the limit who had already failed to move up to the state Senate in a special election.
To put it mildly, members of the California Assembly, all of whom are now covered by term limits, do not seem to have become a race of democratic statesmen as a result of Prop 140. Few are planning, Cincinnatus-like, to return to the plow. Instead, most are figuring out what new offce to run for when their six years are up. And many who supported Prop 140 now wish they had devised a better reform that would have made the legislature a more deliberative body, not merely a temporary one. There are plenty of such reforms around. At the national level, the House has adopted a package of them crafted by Rep. David Dreier, including term limits for committee chairmen — a term-limit measure that makes sense because it combines the advantages of rotation with those of experience, enabling the chamber as a whole to retain the benefits of fresh insights and long perspectives and so become more, not less, deliberative.
The second argument for constitutionalizing term limits is that without this drastic reform, Congress will never be compelled to restrain, much less to reverse, the growth of government. This argument, especially dear to conservatives, rests largely on the researches of James L. Payne, whose interesting book The Culture of Spending demonstrates that the longer congressmen serve, the more spending they tend to vote for. But Payne’s own data reveal that this propensity is dwarfed by the difference between Democratic and Republican spending habits.
On a scale in which the maximum score is 36 (for the highest discretionary domestic spending), Republican congressmen start out at 8 and after eight or nine terms spend their way up to about 14; Democrats start out nearly at 29 and after eight or nine terms spend their way up to 31. From these data, one would have to conclude that the most effective way to limit government spending is not to crusade for term limits but simply to elect more Republicans.
Americans should be concerned about the growth of the federal government, especially about the effects of the administrative state on our constitutional system. But the welfare state and the administrative state took over a century to build. They will not be dismantled in a day. Term limits would be a foolish way to pursue a strategy of reducing the size and scope of government. To quote The Federalist, which argued elegantly against term limits, “It is not generally to be expected that men will vary and measures remain uniform.”
Finally, and most tellingly, we ought to wonder whether term limits would have unhappy effects on the American people’s character. Constitutionalized term limits are a standing invitation to the neglect of that vigilance which citizens ought to exercise over their representatives. “Stop me before I vote again!” is the pathetic cry of the die-hard term limiters. In fact, the American people are not irresponsible; they can, and will, make serious political choices, if only they are presented with serious political alternatives, as the elections of 1980 and 1994 proved. The campaign to write term limits into the Constitution is now, at best, a distraction from the momentous effort to restore the constitutional grounds of limited government in America; at worst, it could become a delusive substitute for genuine political reform.
Charles R. Kesler teaches government at Claremont McKenna College in Claremont, Calif.
