An Amendment for Congressional Term Limits

I’ve been watching videos on iTunes U from the Harvard Law School; in 2011 they held a series of talks from various scholars, politicians, and other observers on the possibility of petitioning the states to call on Congress for a constitutional convention.  One day of the convention was dedicated to the topics which might arise in such a convention—both the pet topics of those present and predictions as to what we could expect (addressing the possibility of a “runaway convention”, a worry that to me seems remote both because of the gravity of the circumstances and the need for ¾ of the several states to approve any proposed amendments).

            None seemed like a better idea to me than an amendment for Congressional term limits.

            One animating principle behind calling on the states to petition Congress for a convention (instead of the usual route of starting the amendment process with Congress) is distrust for the political process.  One presenter pointed out that James Madison estimated that right before the Revolution, 1/3 of the American colonists supported a revolution, 1/3 were loyal to the Crown, and 1/3 were generally indifferent.  If this is anywhere near true, then Congress has long rated lower in Americans’ minds than King George.

            The first Congress proposed a list of amendments which became the Bill of Rights.  All of these greatly limited the Congress’ own power either explicitly or by strong implication, with language like “Congress shall make no law…”, the limiting language of the 10^th Amendment, or the various substantive and procedural guarantees favoring the individual against the enforcement of Congress’ laws.  All of these measures either directly limited what power Congress might wield, or at best limited the means by which Congress and the executive branch might make such laws practically effective.  Never again in our history has such a powerful branch of government so sweepingly and brazenly limited its own power.  Can anyone imagine a modern Congress so recklessly apt to bind its own hands?  Can anyone conceive of a future Congress, or any other branch of government, so willing to surrender broad swaths of its own power?

Admittedly in theory, Congress’ power already extended only to enumerated items; as such many Federalists thought a Bill of Rights superfluous or even dangerous.  Still, many delegates to Congress assumed their posts believing in the need for a Bill, and/or under explicit instructions from their constituents.  Such amendments’ enactment would then also constitute self-preservation.  Given all of this, such willing surrender of power—even indeterminate, contestable power—still appears remarkable.  Congress could have proposed a more limited Bill, perhaps one that preserved its power to legislate in vaguely defined grave circumstances, or a shorter list with fewer enforceable guarantees. 

So why would they have done so?

Because most of them did not expect—or want—to stay in office for long.

            How can we recover the possibility of a Congress willing to limit its own power so drastically?  By forcing legislators to leave office, imposing more forcefully the reality that they will soon be unable to undo any laws that they enact—like the first Congress, they must keep in mind that limits they set may benefit them in the future, and that any laws may work to their disadvantage.

            In addition to ensuring a more representative sampling of the people (simply because more people will pass through the halls on Capitol Hill), such an amendment would set a limit to the dreaded “career politician”, and limit the political inertia influencing states and congressional districts to continue to reelect longtime Congressmen (and women) so as to maintain a highly influential delegate in the federal legislature.  This plan would also force legislators to maintain careers—or career prospects—outside of their Congressional duties.  Contrary to being a distraction, I think that with the assistance of various congressional aides in research and policy development, maintaining a career outside of politics would help to keep our legislators more grounded in life outside the Beltway.

            Weakening the grounds for the development of the career politician inculcates congressional service with more of a sense of civic duty—I leave my job to serve my state/district/country, but soon I must return.  I am not long for that world; I maintain my local attachments and loyalties.  Our Anti-Federalist co-founders feared that Congress would turn into a self-dealing ruling elite; I fear it has taken some steps in this direction.  Term limits seem a good way to fix that problem.

            To address some potential downsides: some might counter that forcing a more frequent Congressional recycling would force new delegates to learn their ins and outs of the legislature every so often.  There would be less overall experience on Capitol Hill, less professional wisdom from which newcomers could learn.  I acknowledge this could be a problem, but I answer that at least some of these “skills” which newcomers would learn constitute some of the shadier aspects of legislation that have driven Congress so deeply into the depths of the public opinion.  Outgoing legislators could serve as consultants or advisors for the incoming rookies.  Much of this advice would probably have centered on which legislators are prone to negotiate, which ones to avoid, which ones have certain pet projects, etc.  With constant recycling, such acclimation becomes obsolete as rapid turnover mitigates the wisdom the old might share with the young.

            I touched on another potential problem earlier: that some districts losing influential, tenured legislators might lose out in this process by having to find new blood.  These would include districts with a speaker or minority leader.  But surely those districts without a Ted Kennedy, John Boehner, Paul Ryan, or Nancy Pelosi, etc. outnumber those that do.  The overall benefits of cycling in and out legislators who are less likely to make unnecessarily broad use of their powers surely outweigh the parochial detriments of depriving a few states and districts of highly influential representatives.

            Alternatives--such as my off-the-cuff thought that incumbents beyond a certain point must achieve a supermajority of their constituents to remain in office—run into other principled problems.  Such an amendment is awfully meddlesome in local affairs, and is likely to frustrate local politics more than an absolute bar.  Imagine a scenario in which a popular local politician runs with a strong local majority but is denied reelection because a minority faction (a loaded term, I know) organizes well enough to frustrate his political efforts, and as such to put their own candidate into office (one possible outcome).  Such an anti-democratic measure is more likely to fuel fires in local politics than an absolute bar which forces a majority party to run an entirely new candidate, and thus to feed on their democratic advantage, than a rule which may allow a minority party to dictate policy in national matters.  The aim of such an amendment is not to empower minority parties, but to air out Congress with a greater number of individuals carrying the democratic seal of their constituents, and as such to make each one less wedded to his or her own power.