Term Limits for Congress

A very strong case can (and will) be made for the authority of states to impose term limits on members of Congress; contrary claims by The Times notwithstanding (“Federal Term Limits: Is This the Answer?” editorial, June 14).

States can limit congressional terms because the Constitution is silent on the issue. Pursuant to the 10th Amendment, all “powers not delegated to the United States, nor prohibited by it to the states” rest with the states and the people.

The Constitution (Article IV, Section 4) guarantees “a republican form of government” to every state. There’s no doubt the principle of rotation in office, the predecessor of modern term limitation, was considered an essential component of republican government.

Critics claim that states cannot amend or add to the qualification for members of Congress already specified in the Constitution and that term limits constitute such an addition. Therefore, imposed by the states, congressional term limits are unconstitutional. There are three problems with this claim. First, this claim misreads Powell vs. McCormick (1969), the lead Supreme Court case in this area, applying it to the states. Powell is limited to the authority of Congress, not the authority of states.

Second, the founders intended the Constitution to set forth minimal qualifications necessary to hold national office. States can constitutionally add to those qualifications so long as they do not violate other constitutional principles. The courts have ruled that term limits do not violate 1st or 14th Amendment protections of free speech and equal protection. Third, even if the critics are correct regarding Powell, term limits do not constitute a new qualification on officeholders. Rather they rediscover the right of citizens to expect the periodic return of officeholders to private station.

Finally, pursuant to their authority in the Constitution (Article I, Section 4) states have the authority to regulate the time, place and manner for holding elections. Under this provision, states have been given considerable latitude, by the Supreme Court, to regulate access to the ballot. Term limit initiatives, which deny an officeholder access to the ballot, squarely fall within authority granted to the states under this clause of the Constitution. California voters will render a judgment on congressional term limits in November, as will voters in at least a dozen other states. Instead of worrying about the constitutionality of congressional term limits, voters should be encouraged to judge the need for and wisdom of congressional term limits as a response to the growing professionalization of America’s “permanent government.”

MARK P. PETRACCA

Assistant Professor

School of Social Sciences

UC Irvine

Petracca is author of “Rotation in Office: History of an Idea” (Congressional Quarterly Press, 1992). He has also presented testimony on term limits before the Massachusetts Legislature (March, 1992) and at the U.S. Senate (May, 1992).