The Encyclopedia of Libertarianism

Term Limits

Rotation in office was a central feature of early American government. Under the Articles of Confederation, newly independent Americans limited delegates to Congress to no more than “three years in any term of six years.”

In 1777, for instance, 7 of the 10 new state constitutions limited the terms of the executive. The Declaration of Rights in the Massachusetts Constitution of 1780, for instance, required “public officers to return to private life” so as “to prevent those, who are vested with authority, from becoming oppressors.” Pennsylvania required rotation of legislators and executives to obviate “the danger of establishing an inconvenient aristocracy.” Rotation in office was a venerable principle of republican governments long before the American Revolution. Political scientist Mark Petracca has outlined the importance of rotation in the ancient Republics of Athens, Rome, Venice, and Florence. The Renaissance city-state of Venice required rotation because “human nature is such that men cannot be trusted with long continuance in office of great power.” This background influenced the English authors of Cato’s Letters, which was “the most popular, quotable, esteemed source of political ideas in the colonial period,” according to historian Clinton Rossiter. Cato’s Letter No. 61 makes the case that men may well be just and represent their constituents when first in power,

But the possession of power soon alters and vitiates their hearts, which are at the same time sure to have leavened and puffed up to an unnatural size, by the deceitful incense of false friends and the prostrate submission of parasites. First they grow indifferent to all their good designs, then drop them. Next, they lose their moderation: Afterwards, they renounce all measures with their old acquaintances and old principles, and seeing themselves in magnifying glasses, grow in conceit, a different species from their fellow subjects. And so, by sudden degrees become insolent, rapacious and tyrannical, ready to catch all means, often the vilest and most oppressive, to raise their fortunes as high as their imaginary greatness… . A rotation, therefore, in power and magistracy, is essentially necessary to a free government.

However, the constraining effect of real term limits on politicians created opposition. By the mid-1780s, six popular governors had been rotated out of office. In 1784, the Republican Society in Pennsylvania argued against rotation on democratic grounds: “the privilege of the people in elections, is so far infringed as they are thereby deprived of the right of choosing those persons whom they would prefer.”

Despite these doubts, the Virginia plan presented by Edmund Randolph to the Constitutional Convention in the summer of 1787 included a limit of one 2-year term for members of the House; in addition, no incumbent could be reelected. But the measure was dropped because most delegates believed that short terms and voluntary rotation would ensure adequate representation.

Rotation was a frequent topic of debate at the state-ratifying conventions. At the New York convention, Alexander Hamilton maintained that term limits in the Articles of Confederation were an understandable overreaction to British usurpations: “The zeal for liberty,” he argued, “became predominant and excessive.” Rather, the absence of term limits would provide “a principle of strength and stability in the organization of our government, and vigor in its operation.” Gilbert Livingston countered that incumbents would become entrenched and have “nearly an appointment for life.” Although the rotation amendment prevailed in New York, it was not sent to the states by the first Congress, and, as a result, the Republic was launched with no term limits on national officeholders.

For over a century, the optimists were right about voluntary rotation. Stints of one or two terms prevailed in the House of Representatives, and George Washington’s example of a two-term limit for the presidency was followed until 144 years later, when Franklin Roosevelt, breaking precedent, won a third term in 1940. Two years after Roosevelt died during his fourth term in 1945, Congress reported out the 22nd Amendment, which was ratified in 1951, limiting the time a president could serve. But Congress was in no hurry to address careerism in Congress. The arguments put forward on both sides in the modern term limits movement echo those of the founding period.

In addition, U.S. Term Limits board member Ed Crane argued that the careerist Congress and its seniority system create “adverse preselection.” Those people who are successful in the private sector “might be willing to spend some time in Congress as a public service, but not if their time has no impact.” That attitude makes them “precisely the kinds of men and women who should be in Congress,” wrote Crane. Instead, the field is left to the aspiring careerist, someone unrepresentative from the first day in office. Moreover, political scientist James Payne, among others, has demonstrated that a “culture of spending” exists in Congress, in which members begin to view state intervention more favorably as they spend time in office—even those members who were initially elected on promarket agendas.

Behind the arguments on term limits lie questions regarding whether Congress is in fact representative. Most term limit supporters believe that Congress does not represent the American people; most opponents of term limits disagree. Incumbent entrenchment and adverse preselection create a dilemma: Even when Congress is unpopular, incumbents are almost always easily reelected. Mandatory term limits would, it was felt, break this cycle. In 1990, the term limits movement became increasingly popular. Government had grown ever-more expensive and imposing, while the approval of government and politicians declined to historic lows. The last third of the 20th century saw a sharp erosion in the belief that government is representative of the people. Over two-thirds of the electorate believed that Congress primarily benefited the government and big special interests. This public disapproval of the federal government was not reflected in elections, however; a record 98.3% of House incumbents were reelected in 1988.

These trends set the stage for the first serious push for congressional term limits in 200 years. Incumbents were not about to surrender power by limiting their own terms. But 22 states had a viable initiative process, and in 1990, activists in California, Oklahoma, and Colorado organized petition drives to propose term limits directly to the voters. Oklahoma’s state limits passed easily, without organized opposition. The California effort was launched by antitax leader Lee Phelps, joined by libertarian activist Mike Ford, and Lew Uhler of the National Tax Limitation Committee, with former legislator Pete Schabarum providing vital support. They were successful in getting two propositions on the California ballot in 1990. Proposition 140 combined lifetime limits of 6 years in the House and 8 years in the Senate with a cut in legislative budgets and an end to legislative pensions. Proposition 131 coupled 12-year term limits with campaign regulation and government funding of campaigns. Pro-term limits forces gathered $700,000 for radio ads and squeaked by with 52%; Proposition 131 failed with 37%.

Colorado overwhelmingly approved term limits: The limits also applied to the Colorado congressional delegation. Authored by state legislator Terry Considine, the measure sailed through with 71% of the vote. The legislature “rewarded” Considine by putting him on the Agriculture Committee—his farm-free district was in suburban Denver—and taking away his good parking place.

California’s victory against strong opposition and Considine’s creative approach in Colorado convinced a number of people around the country that there was an effective way to limit the emergence of a professional political class. Most states, however, could not vote on an equivalent initiative until 1992. The exception was Washington State, which alone decided the question in 1991. The issue of term limits was amplified by the details of the initiative: It imposed retroactive term limits of 6 years for the House.

Polls throughout the state indicated that opponents of term limits were unlikely to succeed in overcoming 70% support for the measure. As a consequence, they were able to recast the nature of the debate by claiming that, without the protection of senior members of Congress, California would divert water from the northwest, and Congress would allow oil drilling close to Washington’s coast. They also charged that some backers supported the initiative as a way to help abolish the Environmental Protection Agency. Meanwhile, House Speaker Tom Foley of Washington argued that term limits would seriously compromise the power of the state delegation in Congress if they were to lose their seniority in Congress.

The result was that term limits lost with 46% of the vote, which stunned the term limits movement. Rather than retrenching, however, the movement to limit terms of office at the federal level adopted an aggressive strategy and managed to introduce initiatives in no less than 14 states in 1992—a national record for any issue. The result was an astounding victory in support of term limits, with all 14 states voting to approve these measures, with an average victory margin of two to one. Voters enacted the biggest legislative reform since women’s suffrage. The initiatives followed the Colorado example of combining congressional term limits with state legislative term limits. Even voters in Washington reversed ground, imposing term limits on Foley and his fellow Congressmen. In 1994, this success was duplicated; initiatives were introduced in nine states and passed in eight of them. The sole defeat was in Utah, where the legislature had imposed softer term limits to preempt the popular vote. Unfortunately, these victories at the congressional level were overturned by a decision of the Supreme Court in 1995. In a case hinging on the constitutionality of setting term limits of Arkansas members of Congress, the Court ruled in U.S. Term Limits v. Thornton that states had no authority to impose such limitations. Subsequently, term limits for state legislators have been ruled unconstitutional in four states: Massachusetts, Oregon, Washington, and Wyoming.

Still, term limits are in effect in 15 state legislatures, with 268 legislators termed out in the 2006 elections. The effects of term limits in these states have been widely studied by political scientists. There is disagreement about whether term limits have affected the influence of lobbyists. Some have claimed that citizen legislators are less prone to listen to lobbyists, whereas others have argued that lobbyists have become an increasingly important source of information for newcomers. Most people agree that power has shifted from the lower to the upper bodies of state legislatures, as term-limited house members obtain office in their states’ senates, bringing with them political experience and ambition for federal office. Also, the executive branch seems to have gained influence relative to the legislative branch in term-limited states.

There is much evidence that term limits have increased diversity in state legislatures along racial, ethnic, gender, and party lines. Minorities and women have experienced unprecedented electoral success since term limits were enacted. Moreover, term limits have ended virtual one-party rule in some states. For instance, in Arkansas, the Democratic Party continued its post-Reconstruction domination of state politics well into the 1990s, despite a significant increase in registered Republican voters. Democratic legislators, who had held office for decades, were finally forced out due to term limits, giving Republican candidates realistic chances to win those seats and introducing party competition to the state.

Although the courts and Congress have blocked federal term limits, they have not restored confidence in government. Term limits remain popular with the American public and with most libertarians, who have been at the forefront of efforts to restore citizen legislatures. The momentum to limit legislative terms, however, has slowed dramatically since its peak in the mid-1990s, leaving the future of the movement, especially at the federal level, much in doubt.

 

Further Readings

Carey, John M., Richard G. Niemi, and Lynda W. Powell. Term Limits in State Legislatures. Ann Arbor: University of Michigan Press, 2000.

Crane, Edward H., “Reclaiming the Political Process.” Market Liberalism: A Paradigm for the 21st Century. David Boaz and Edward H. Crane, eds. Washington, DC: Cato Institute, 1993.

Erickson, Stephen C. “The Entrenching of Incumbency: Reelections in the U.S. House of Representatives, 1790–1994.” The Cato Journal 14 no. 3. Available from http://www.cato.org.

Hummel, Marta. “The Empire Strikes Back: A History of Political and Judicial Attacks on Term Limits.” U.S. Term Limits Foundation Outlook Series 6 no. 2 (January 1998).

Kull, Steven, Principal Investigator. “Expecting More Say: The American Public on Its Role in Government Decisionmaking.” Center on Policy Attitudes, Washington, DC, May 10, 1999.

Malbin, Michael J. “Federalists v. Antifederalists: The Term-Limitation Debate at the Founding.” Limiting Legislative Terms. Benjamin and Malbin, eds. Washington, DC: CQ Press, 1992.

O’Keefe, Eric. Who Rules America. Spring Green, WI: Citizen Government Foundation, 1999.

Petracca, Mark P. “Rotation in Office: The History of an Idea.” Limiting Legislative Terms. Gerald Benjamin and Michael J. Malbin, eds. Washington, DC: CQ Press, 1992.

Originally published .