Thursday, April 23, 2009

Term Limits Needed to Help Restore Republic

I think we can agree that D.C. is broken, and that a restoration of limited, civic-minded and responsive governance is long overdue. The question is how do we bring that about. From my preliminary research, I have concluded that term limits is at the core of any meaningful remedy.

Though polls suggest that nearly 80% of the people support term limits, in US Term Limits v Thornton, 514 US 779 (1995) the Supreme Court narrowly ruled 5-4 that state-imposed term limits on members of Congress was unconstitutional and that only if the Constitution is amended may term limits be imposed. Citing that since authority to limit congressional term limits was not specifically reserved to the States, Justice Stevens reflected the majority opinion by stating that “in the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a [State] power does not exist.”

Further, Storer vs Brown granted States the right to regulate election procedures but not to impose qualifications for Senators and Representatives. (It is important to note, however, that Justice Thomas dissented by opining that “where the Constitution does not speak either expressly or by necessary implication, the Federal Government lacks that power and the States enjoy it.”) Makes sense to me.

From my preliminary research of this subject, by the very fact that the Framers carefully omitted senatorial and representative qualifications for office—except age, citizenship and residency—it seems reasonable to opine that the founding fathers may have left the issue of term limits to the People alone and not to the States or to the federal government. This conclusion would be consistent with Robert Livingston’s view that “the people are the best judge of who ought to represent them.” However, it has become apparent to me that the Framers' views on this subject were sometimes ambiguous and their positions on the matter often conflicted.

However, it's important to note that Thomas Jefferson believed that the Framers’ failure to include term limits in the Constitution was one of two “principal flaws”--the other being the absence of a bill of rights (Ltr from Jefferson to Madison, 12/20/1787). Thus, his respect for the notion of term limits is obvious.

Interestingly, James Madison noted that term limits may be one of the “effectual precautions” which will better ensure that the people keep their representatives “virtuous whilst they continue to hold their public trust”. (Federalist Paper #57). In Federalist Paper #39, he conceded that "tenure for a limited period” was a defining characteristic of representatives in a republican form of government.
George Mason, another Framer, considered “periodical rotation essential to the preservation of republican government.”

So, though there appears to be plenty of Framer support for the concept of term limits, the Framers clearly saw no need to set term limits in the Constitution itself since they assumed frequent elections would result in regular turnover in both houses. To wit, James Madison anticipated that “new members would always form a large proportion” of the House.

Some Framers actually predicted a 2/3 turnover in congressional membership. Obviously, they did not foresee that their assumptions regarding a high turnover of membership would be so at odds with actual developments in modern day America. They never guessed that about 90% of today’s incumbents would be virtually assured of re-election and that temporary, civic-minded "citizen representatives" committed to public service alone would, for the most part, morph into an elite class of self-serving career politicians.

There are numerous arguments for and against term limits, but the following constitutes the nub of the issue for me. Many argue that representatives need more time to learn the ropes, thus enhancing their effectiveness as lawmakers; however, this assertion refutes itself. Simply put, we limit the President to two 4-year terms. Is the President’s job so much less demanding and complex that we can limit his tenure to 8 years, but a Senator or Representative needs more time?

Also, the biggest and most cogent argument against State-imposed term limits is this: Justice Stevens opined that “permitting individual states to formulate diverse qualifications for their congressional representatives would result in a patchwork that would be inconsistent with the Framers’ vision of a uniform national legislature representing the people of the US.” Hard to logically counter that argument. It could, indeed, be a mess. Thus, it would seem that only a constitutional amendment can ensure a uniformity in term limits.

Also, what appears disturbingly obvious to me is that for a long time now unresponsive and seemingly disconnected--even clueless--political careerists have often controlled the reins of legislative power. Obviously, that is not what the Framers had in mind for our republic. Thus, for me, term limits is the only remedy to cronyism and self-serving careerism.

Among other benefits, term limits will: 1) encourage new folks with fresh ideas; 2) encourage representatives to fashion policy on the basis of principles vs. the demands of re-election campaigns; 3) limit the level of corruption and the inordinate and counterproductive influence of lobbyists; 4) prevent the growth and entrenchment of a permanent ruling class more interested in feathering their own nests than in properly representing the legitimate interests of their constituencies and their country; and 5) term limits might well have the effect of moderating the damaging effects of gerrymandering.

Watching aged reps barely able to walk or speak coherently suggests to me that to better ensure accountability and to restore congressional relevance and competence, perhaps the most sensible term limit solution lies somewhere in the commonsense middle.

I opt for no more than three consecutive 2-year terms for Representatives (total 6 yrs) and no more than one consecutive 6-year term for Senators (total 6 yrs). And to ensure that the people, the ultimate guardians of our republican form of government, are able to determine who should represent them in D.C., at the conclusion of their term limit a Senator or Representative would be permitted to run for a seat in the other chamber, thus ensuring that the electorate is not denied the future sterling services of an especially popular favorite son whose tenure in one chamber has ended.

To retain the people's authority over who will represent them in D.C., a tenured-out Senator or Representative may opt to seek re-election in the same chamber, but only after the requisite break in his or her service in that chamber. This formula would also ensure that a lame duck rep who is still interested in public office at a later date would strive to be productive, responsive, energetic and engaged until the conclusion of his tenure. Representatives’ talents wouldn’t be wasted, “institutional memory” wouldn’t be lost, a more vigorous competition of ideas would ensue, a “citizen congress” vs a mob of lobby-dominated career politicians would blossom once again, and otherwise entrenched congressional staffers with, perhaps, questionable lobbyist ties and commitments would be replaced more frequently with fresh blood. Upshot:  “we the people” would , at long last, be better served. At least that's my take.

Though the amendment process normally takes years, I'm convinced that we need to move the process forward. So, let’s light the fire under both our DC and State representatives to begin the amendment process, whether that process originates with Congress or the States.

As we all know too well, of course, a ruling bureaucracy is never self-correcting, and an entrenched elite even less so; thus, it will clearly require an intensely hot flame to move things forward.