Supreme Court to Decide Fate of Term Limits

In the last two elections, 24,513,439 Americans went to the polls and voted to limit by law the terms of their representatives in Congress.

Now, the term-limit movement needs only five more votes.

On Tuesday, the nine life-tenured justices of the U.S. Supreme Court will hear arguments on whether the Constitution permits states to fix the maximum terms of lawmakers in Washington.

The idea of fixed terms for legislators is by no means novel. In fact, it was the norm in the early 1780s.

Yet the notion will face a major hurdle when it is taken up by the Supreme Court this week: Historical accounts of the Constitutional Convention of 1787 suggest that the delegates considered term limits for members of Congress--and rejected the idea.

James Madison, the “father of the Constitution,” even spoke up for the virtue of veteran lawmakers.

“A few of the members (of Congress), as happens in all such assemblies, will possess superior talents (and) will, by frequent reelections, become members of longstanding and be thoroughly masters of the public business,” Madison said.

No one can predict with certainty how much weight the high court will attach to the historical record. If the court relies on history and strikes down the new state laws that fix terms, the movement will be dealt a severe, though not necessarily fatal, blow.

Its leaders say they would then press for a constitutional amendment, a process that requires two-thirds votes of approval in the House and Senate and ratification by three-fourths of the state legislatures.

But if at least five of the nine Supreme Court justices vote to uphold term limits, the clock will begin ticking for U.S. senators and representatives in 22 states, including California. In 1992, 63% of the state’s voters approved an initiative limiting House members to three terms, or six years. Senators could serve no more than two terms, or 12 years.

Clearly, political momentum appears to favor the term-limit movement. It has already established itself as one of the more powerful political waves to sweep the nation in the early 1990s.

Unless derailed by the high court, its proponents say, term limits will dramatically change the prevailing culture on Capitol Hill by replacing “career politicians” with “citizen legislators.”

“To have real democracy, you have to have a citizen legislature. It can’t work if the system is run by professional politicians,” said Edward H. Crane, president of the Cato Institute, a libertarian group that advocates term limits.

“The power of incumbency is destroying democracy,” said Paul Jacob, executive director of U.S. Term Limits, another advocacy group. Even in this year of the anti-incumbent, 91% of House members who ran were reelected, he noted.

As these proponents of term limits see it, a steady turnover in Congress would keep representatives in closer touch with the people, break the power of seniority and reduce the influence of special interests.

This is, of course, not a new theory of democracy, but a very old one.

The delegates who came to the Constitutional Convention in Philadelphia were familiar with what were then known as “rotation” rules. Ten of the 13 states limited the terms of representatives, and the Articles of Confederation--the predecessor to the Constitution--included a specific rotation rule for the Congress that governed the nation in the early 1780s. “No person shall be capable of being a delegate for more than three years in any term of six years.”

But the new generation of political reformers of that time attacked the rotation requirements as “leading to instability and confusion” in government and “depriving the people of the right of choosing persons who they would prefer,” wrote historian Gordon S. Wood.

Alexander Hamilton, James Madison and the other architects of the Constitution frowned on the notion of a revolving door in Congress. “The greater the proportion of new members (in the federal legislature), the more apt they will be to fall into the snares that may be laid for them,” Madison argued.

Soon after the convention got under way on May 25, 1787, Edmund Randolph proposed what was called the Virginia Plan for structuring the new federal government. It included a provision that would make members of Congress “incapable of reelection” after a certain period of service.

But on June 12, the delegates voted to reject that provision, and term limits were never again considered by the convention.

As the framers apparently saw it, it was better to set a few basic qualifications for Congress--such as minimum age and residency in the state--while leaving to the people the power to decide, through frequent elections, who would represent them.

That would leave the doors of Congress open “to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth,” Madison wrote in “The Federalist Papers.”

To make sure no new qualifications for Congress would be imposed, Hamilton added that the minimal requirements “are defined and fixed in the Constitution and are unalterable by the legislature.”

The Supreme Court itself recited this history in the 1969 case of Adam Clayton Powell vs. John McCormack. Three years earlier, the House had refused to seat Powell who, though reelected by his Harlem constituents, was accused of diverting House funds for his personal use.

Nonetheless, the high court ordered Powell to be seated. Because the Constitution sets open-ended requirements for federal representatives, Congress itself was “without power” to set new or higher standards for elected representatives, the court said.

In their briefs to the high court, lawyers for the Clinton Administration and for Rep. Ray Thornton (D-Ark.) cite the constitutional history and the Powell ruling as reasons for striking down state term-limit laws.

The Supreme Court will consider Tuesday an Arkansas term-limit law that was struck down in March by the state’s Supreme Court.

Lawyers for U.S. Term Limits press two arguments.

First, they assert that the Constitution and the Powell ruling say Congress cannot add extra qualifications for representatives, but neither prevents the states from doing so.

The Constitution “contains no restrictions on state laws” on congressional representation, the brief says. It notes, for example, that laws in many states say felons cannot be elected to Congress.

Second, they argue that term-limit laws do not, in reality, limit a lawmaker’s term. Rather, they deny the right to appear on the ballot after having served a certain number of terms. A popular incumbent could be elected as a write-in, they say. This argument is buttressed by the fact that the Constitution gives states the power to set “the times, places and manners of holding elections for senators and representatives.”

The justices likely will issue a written ruling on U.S. Term Limits vs. Thornton (93-1456) by June.

Most constitutional scholars believe the court will strike down the term limits because history suggests they were rejected in 1787.

But leaders of the term-limit movement argue that the Constitution does not say the listed qualifications for Congress are the only ones allowed. Noting that the current court is inclined to defer to the voters, they hope that, as humorist Finley Peter Dunne once put it, the “Supreme Court follows the election returns.”