Intelligence, Please…

It has been awhile since the Republican party has stood marginalized by more popular Democrats, the natural after affect of an unpopular foreign war, a tanking economy, and multiple-term control of the Executive Branch.  The (in)famous “Republican Revolution” of 1994 birthed the GOP’s “Contract with America,” an electoral platform that promised to change the way the First Branch did its business — everything from new ethics standards and campaign finance reform to sweeping changes in formal and informal rules of the game.  Sadly, this was the last time that legislative term limits took the national stage as a potentially viable reform that would end Congressional demagoguery if implemented well.  Unfortunately, too, was that under former Speaker Newt Gingrich, term limits took hold only in committee chair posts, and only Republicans have followed this informal rule.  Nonetheless, it would behoove all of us — since we all seem to be sick of Washington, no matter what ideological stripe we bear — to give it a little more consideration and revive the term limits debate.

Careerism is a term we take to mean “the tendency of legislators in the United State House of Representatives and Senate to vacate positions in the private sector and establish a permanent position in the national legislature, making a career of climbing the institutional ladder and seeking more prestigious committee posts.” The term carries a negative connotation; careerism lends itself to corruption, demagoguery, shirking, and irresponsible legislation (in the form of earmarking and unnecessary discretionary pork-barrel spending). Further, the incumbency advantage dissuades potentially more-qualified candidates from contesting seats or running for seats until incumbents retire.

Congressional campaign finance reforms have done little to help increase legislative turnover; the “whack-a-mole” theory suggests that with each finance reform, PACs and their legal advisors find new ways to circumvent regulations. A review of scholarly literature helps to lay the foundation for an argument that will suggest that legislative term limits not only minimize incumbency advantage, but will solve problems of irresponsible legislation, corruption, shirking, and a disconnect from constituent bodies. Further, I contend that legislative term limits will foster party discipline, more competitive elections, and increased voter turnout.

According to their text Congress and Its Members, Davidson, Oleszek, and Lee write that, in its infancy, “…Congress was an institution composed of transients…service was regarded more as odious duty than as rewarding work.” (2008, 33) What, then, transformed congressional service into the attractive and lucrative career opportunity that is has become? They argue that careerism was birthed by three major factors: Woodrow Wilson’s coining of the phrase “congressional government,” which brought federal service into the limelight, the advent of the modern air conditioner and its subsequent installation on the Hill, and the establishment of the seniority rule at the turn-of-the-century. (34-35) Seniority rule compels MCs to seek reelection to their congressional seat over and over again in the hopes that they might gain access to more powerful committees. Despite intra-party rules on both sides of the aisle that govern the length of service of committee chairs in Congress, Davidson, Oleszek, and Lee maintain that “Extended service, if not always strict seniority, remains a prerequisite for top party and committee posts.” (35) Daniel Enemark and John Cross, though, argue that senior members of the legislature tend to shirk more than junior members. (2002, 1) As the length of service grows, so does the tendency to ignore the very duties which we elect our representatives to perform on our behalf.

Incumbency reelection rates are in the high-90s in the House and the high-70s in the Senate. We can infer from David Mayhew’s The Electoral Connection that constituent casework takes precedence over policy formation, for part of the incumbency advantage entails being able to claim credit for performing certain constituent-related duties. Length of service, then, seems to correlate directly to how well a legislator allocates discretionary spending to his constituency or how well he logrolls. Doug Bandow reinforced in his piece Real Term Limits: Now More Than Ever, claiming that “Incumbents continue to win most elections, and casework usually trumps issues in campaigns.” He also reports that incumbents spend four times as much on their campaigns as do their challengers, they collect ten times as much from PACs, and they enjoy the franking privilege as well as “large, taxpayer-paid personal staffs- a de facto reelection apparatus.” (1995, 2) This is problematic, as Meinke and Hasecke illustrate in their work Term Limits, Professionalization, and Partisan Control in U.S. State Legislatures. They claim that “[Careerism]…is a primary cause of…divided government.” (2003, 900) Conventional wisdom seems to suggest that in instances of divided government, fewer pieces of legislation, while passed by both chambers, become signed into law. The line-item veto has reduced the effects of this drawback; the pocket veto has exacerbated it. David Mayhew wrote a critique of this conventional wisdom entitled Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-2002 (2005), but to argue effects of divided government on policy formation or to address every critique is beyond the scope of this discourse. It was the conventional wisdom regarding divided government, particularly legislative gridlock, combined with the aforementioned institutional problems associated with long service which helped guide this investigation into the plausibility of legislative term limits as a cure to Congressional ills.

Many arguments exist that establish the need for legislative term limits. The National Conference of State Legislatures indicates that “15 states…currently have term limits for legislators.” (2006, 1) Of those fifteen, the lowest rate of passage of restrictive measures was 52.2% in California, and the highest passage rate was and overwhelming 76% in Louisiana. These are very compelling numbers in adequately gauging whether or not legislative term limits would gain popular support (30% of states passing limits with an average passing rate of roughly 65%). Only 6 of the original 21 who comprised the wave of term limit passage in the 1990’s have repealed their term limits. This indicates that at one point, no less than 42% of states were at least willing to try term limits. Bandow argues that, of those 21 states that sent the issue to referendum, “Nowhere have people failed to restrict the terms of service of their legislators when able to vote on term limits. Only legislators, especially representatives, have resisted congressional term limits.” (1)

While Kelly Yang seems to think that term limits are receiving too much credit, she nonetheless concedes that “Term limits sped up an already existing upward trend.” (2002, 1) While she wants to yield to the packing of legislative districts, the numbers after term limit legislation are staggering: 71% of newly-elected women (1996-2002) took over for termed-out incumbents, and the number of minorities elected doubled from 1990-1996, going from 21 seats to 42. (1-2) When taken with the idea that many Americans do not believe that congressmen of another gender or race (particularly white male Republicans) can substantively represent them, these numbers seem to indicate an increase in minority and female voter turnout. While racial redistricting might achieve the same results, there is no evidence to suggest or explain the surge in female representation in terms of gender-based redistricting. In fact, Meinke and Hasecke argue that California and Michigan currently enjoy “…greater primary election competition as well as increased seat-vacating (before legislators reach their prescribed limit).” (900)

In looking at whether or not limits foster a change in behavior of members, Enemark and Cross, who established that senior member shirk more than junior members, argue that limits have an increasing effect in attendance for roll-call votes. The took the man sum of yeas and noes as a percentage of the total number of members in each of California’s chambers; their results demonstrated “…a 1.4 member increase in average attendance in the assembly after term limits and a 1.8 member increase in the state senate…young blood is a cure for legislative apathy.” (1) Their research also suggests that committees amend more bills after the enactment of term limits, and that the while the lower house is passing only marginally more legislation (61.3% à 63.8%), the upper house is certainly considering more of that legislation for a vote (76.9% à 84.1%). (2) The governor is vetoing more pieces of legislation, but at least the legislators are performing their prescribed duties with greater efficacy. According to Meinke and Hasecke, not only has the volume of legislative passage increased, but the quality of legislation has changed too as a direct result of term limits. They argue that “…while member characteristics have changed little…behavior has shifted away from the pursuit of pork and toward policy…the party has lost influence over legislative decisions while the governor has gained power.” (900) All of this evidence seems to suggest that not only is there popular support for legislative term limits, but that they seem to have a direct reversing effect on the negative aspects of careerism.

The debate carries its share of caveats as well. Daniel Smith argues in Overturning Term Limits: The Legislature’s Own Private Idaho? that not only do legislators repeal statutory term limits, but that those limits have negative consequences for rural districts that have a difficult time fielding candidates. (2003, 215-216) The outcome, then, is not only that term limits exclude a specific cross-section of socio-economic life from representative access, but that legislators will overturn whatever limitations and sanctions are placed upon them. Bandow reinforces this idea, arguing that once legislators have achieved political power, “…they are undoubtedly reluctant to relinquish it, let alone relinquish it quickly.” (2) In Congressional Term Limits, State Legislative Term Limits and Congressional Turnover: A Theory of Change, Patrick Fett and Daniel Ponder report that “In Powell v. McCormack the Supreme Court determined that Congress could not add requirements to holding a seat in Congress above those expressly stated in the Constitution.” (212) Powell v. McCormack casts a self-frustrating, if not altogether self-defeating, light on the institution of term limits.

Other existing institutional factors cripple the case for term limits. Fett and Ponder suggest that there are two options for enacting legislative term limits at the federal level: state imposition of limits on federal candidates or a Constitutional amendment (which itself diverges on two subsequent avenues). In the case of state-imposed limits on MCs, they argue that “Either the courts or Congress will negate them.” (212) They go on to posit that while Article I Section 4 Clause 1 of the United States Constitution provides that “The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof…” and the 10^th Amendment reserves states’ rights to them, the latter part of Article I Section 4 Clause 1 states that “…Congress may at any time by law make or alter such regulations.” Thus, it is unlikely that states can pass any statutory limits on federal representatives with sufficient authority. They also hold that the passage of a Constitutional amendment is highly unlikely. The first of the two divergent modes of passage is the supermajority vote in both houses. However, as we have seen, Bandow establishes the unlikelihood of such an event. The second mode is passage via a special constitutional convention initiated by a slate of 34 states. But Fett and Ponder argue that “Congress has much discretion at several points in the convention process that enables it to impede or smooth the road to ratification as the members collectively see fit. The threatening nature of tenure limits makes it highly probable that the road would be quite bumpy for such an amendment.” (213)

Conventional wisdom also suggests that term limits are undemocratic; people ought to have the right to elect a representative of their choosing, and if they wish to return an incumbent to Congress for twelve terms that is their prerogative and political freedom. Any attempt to encroach upon this certainly would be an insult to our ability to make an educated and informed decision. Legislators fear that states will lose their sovereignty, as 9-term incumbent Idaho House Representative Doug Jones says, “We have to look at the total system, what’s right for the state of Idaho. If people don’t like the way I vote, they should get rid of me.” (Smith, 215) Meinke and Hasecke substantiate Jones’ fear in arguing that “…deinstitutionalization will lead not only to measureable partisan consequences but also shifts in power ‘to the governor, to executive bureaucracies, to interest groups and lobbyists…institutional memory and institutional commitment will decline…” (907) Certainly we have herein examined a substantial number of objections to the viability and substantive outcomes of legislative term limits.

Fett and Ponder posit a solution that makes a good deal of albeit theoretical sense. They argue that if the codification of legislative term limits at the federal level is both self-frustrating and self-defeating, then perhaps we ought to focus on drawing upon the plebiscitary strength of passing legislative limits at the state level. Certainly if state legislators did not acquiesce, we could, as Jones pointed out, punish our representatives at the polls. If we cannot curb the tendency toward professionalization of offices or careerism of candidates, then we can us it as strength for the cause of term limits. Placing a ceiling on service at the state level would force career politicians to seek office at the federal level, thus encouraging politicians to challenge incumbents. (214) Incumbents might still hold their advantage, but many of them win uncontested seats at the federal level; few of them experience the pains of challenge and those that do, like Joe Schwarz of Michigan, do not always win despite their inherent advantage over challengers. (Sidlow, 2007, 152)

There are a few drawbacks to Fett and Ponder’s state ceiling model. First, there is no guarantee that the measure would produce the desired effect. Even the authors admit that their claim is largely theoretical and that patient and persistent study of the effects of term limits as they unfold will yield the necessary data to make a substantial normative judgment. (215) Further, opponents might charge that limiting the number of terms a legislator may serve will pave the way for either a) a bureaucratic ruling class, or b) the rise of perennial political bottom-feeders and basement-dwellers to positions of actual importance. Are these objections coherent or substantial? Are they indicative in any way of the advent of a larger institutional problem? Donald Kettl’s punctuated backsliding model in System Under Stress: Homeland Security and American Politics argues that “Congress exerts a stronger pull on most federal agencies than does the president.” (2007, 137) Certainly this must be true at the state level as well; legislative bodies must then become more aggressive in their oversight of government programs.

We ought to include in the state ceiling model a built-in mechanism to turn a small portion of the legislature at any one time, perhaps 20-25% of the total body at any one time. A minority turnover would ensure the availability of enough experience to help educate and help freshman legislators while at the same time enabling the use of the roll-call votes of a 75-80% majority to amend and eradicate earmarks. We ought not to worry about the rise of inexperienced politicians anyway; the United States set a precedent when farmers and plantation owners informed the authoring and ratification of the U.S. Constitution. This is to say that nobody is inherently a good legislator; the pains of experience help shape talent and ability. In fact, Bandow argues that talent and ability are “stimulated by the prospect of future employment and smothered by the monopoly of experience.” (3) While others still might argue that term limits already exist and that constituents already have the ability to throw legislators out of office, and that while low voter turnout may not be a sign of apathy inasmuch as a sign of consent to the status quo, the fact remains that they aren’t getting up off the couch to cast their vote. The only way to measure someone’s voter rationale without invading their home or detaining and torturing them would be to conduct a survey. What is the likelihood that they would participate in a survey about voting if they aren’t voting in the first place? Finally, one of the biggest worries facing opponents is the unintended funneling or siphoning of political power into the executive. This ought not to worry us, for the cultural/ historical legacy established by the events following 9/11 and Hurricane Katrina demonstrates Congress’ inherent inability or unwillingness to appropriately respond to national emergencies; in times of national crisis, their deliberative characteristic is a cancerous tumor. The most basic argument we can make about legislative term limits is that until they have been around for awhile and we have developed reliable quantitative methods for measuring their effects, there is no way to tell whether or not they will solve our woes. Enough evidence, both practical and theoretical, exists to establish that there is a serious problem with legislative behavior. There also seems to be enough research already to suggest that term limits will reverse the negative effects of careerism; when taken with our theoretical knowledge this research provides us with both a motivation and framework to give term limits a practical chance. Bandow summed it up best when he wrote “…the goal of encouraging citizen legislators rather than career politicians warrants accepting any minor drawbacks that might result from term limits.” (4) Idaho showed us that if future studies demonstrating term limits to be a mistake, no matter what the driving ideology is in characterizing them as such, we can change them. Why not give them a try?

Works Cited:

Bandow, Doug. (1995) Real Term Limits: Now More Than Ever. Cato Policy Analysis, No. 221, pp. 1-4. Retrieved from the World Wide Web here.

Bowser, Jennie. (2007) The Term Limited States. National Conference of State Legislatures: The Forum for America’s Ideas. Retrieved from the World Wide Web here.

Davidson, R., Oleszek, W., and Lee, F. (2008) Congress and Its Members. Washington, DC: CQ Press.

Enemark, D., and Cross, J. (2002) Term Limits Have Changed California’s Legislative Behavior. University of California- Berkeley Institute of Governmental Studies Public Affairs Report, Vol. 43, No. 2, pp. 1-3. Retrieved from the World Wide Web here.

Fett, P., and Ponder, D. (1993) Congressional Term Limits, State Legislative Term Limits and Congressional Turnover: A Theory of Change. PS: Political Science and Politics, Vol. 26, No. 2, pp. 212-215. Retrieved from JSTOR Database here. (JSTOR subscription required)

Kettl, Donald. (2007) System Under Stress: Homeland Security and American Politics. Washington, DC: CQ Press.

Mayhew, David. (2005) Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-2002, 2^nd Ed. New Haven: Yale University Press.

Meinke, S., and Hasecke, E. (2003) Term Limits, Professionalization, and Partisan Control in U.S. State Legislatures. The Journal of Politics, Vol. 65, No. 3, pp. 899-907. Retrieved from JSTOR Database here. (JSTOR subscription required)

Smith, Daniel. (2003) Overturning Term Limits: The Legislature’s Own Private Idaho? PS: Political Science and Politics, Vol. 36, No. 2, pp. 215-6. Retrieved from JSTOR Database here. (JSTOR subscription required)

Yang, Kelly. (2002) Term Limits Get Too Much Credit for Boosting Minority and Female Representation. University of California- Berkeley Institute of Governmental Studies Public Affairs Report, Vol. 43, No. 2, pp. 1-2. Retrieved from the World Wide Web here.