Term Limit Myths and Facts

MYTHS AGAINST TERM LIMITS*

Argument #1: Term limits are undemocratic.

FALSE: Perhaps the most popular argument against term limits is that they restrict the choices available to voters. Voters, say opponents, should be able to vote for as wide a field of candidates as possible. Additionally, the ballot box makes statutory term limits unnecessary. "In effect, there are term limits in place every two years -- candidates have to go before constituents and get reelected," says Jeff Biggs, press secretary for House Speaker Tom Foley. (Debbie Howlett, "Speaker Foley Challenges Home State Term Limit," USA Today, June 8, 1993, p. 8A.) But arguments that term limits are undemocratic because they restrict voters' choices run into two problems: (1) the tremendous electoral advantages enjoyed by incumbents make it difficult to argue that the elections they win are truly democratic, and (2) term limits would be more likely to expand the field of candidates than to restrict it.

Because the perquisites of office present huge barriers to entry by challengers, incumbents always have the privilege of fighting a defensive war. Taxpayer-funded benefits like franking, staff, and travel allowances tilt the field in incumbents' favor, and political donors -- who typically view their contribution as wasted if it does not go to the winning candidate -- magnify these incumbent advantages by disproportionately favoring candidates already in office. In 1992, House challengers raised 28 cents for every campaign dollar received by incumbents, while Senate challengers raised 47 cents. (Ornstein, Mann, and Malbin, Vital Statistics on Congress 1993-1994, p. 81, table 3-5.) Challengers' donations relative to those of incumbents have been dwindling more or less steadily since 1980. It is no wonder that challengers facing such long odds routinely lose to incumbents over 90 percent of the time.

Term limits will likely end incumbents' traditional ability to insulate congressional elections from true competition. In fact, experience at the state level suggests that voter choice actually is increased by term limits. In California, for instance, the imposition of state-level term limits in 1990 led to a 1992 increase of over 25 percent in candidate filings for the state senate and over 50 percent for the state assembly; senate candidate filings for 1994 reflect yet another increase, and while assembly candidate filings have dropped from 1992, they remain 15 percent higher than they were in 1990. Although the limits do not take effect until 1996, they have encouraged some incumbents to find other work before they were forced to do so. (Armor, op. cit.)

Term limits also would ensure regular opportunities for candidates' political advancement. For instance, when George Mitchell announced his retirement from the U.S. Senate, candidates in Maine attempted advances at all levels of government. There were "city council members running for state representative, state representatives running for the state senate, state senators running for Congress, and United States representatives running for the Senate." ("Mitchell's Decision Not to Run Sets Off a Statewide Scramble in Maine," The New York Times, June 16, 1994, p. A24.)

By creating more choices for voters, increased filings like those in Maine and California aid democracy. Nationwide, congressional term limits likewise will create more choices for voters, more competitive elections, and more democracy.

Argument #2: There already is high congressional turnover.

FALSE: Some opponents note the scores of new Members in the 103rd Congress, or predict that Members seated after 1990 will be the majority in the House after the November elections, in order to resist term limits. In fact, however, the large number of new faces in Congress results primarily from Members resigning or seeking other office. In the 1992 House races, over 88 percent of incumbents running for reelection were victorious, but incumbents typically fare much better even than that: the 1992 reelection rate was the lowest in two decades.

Even with a healthy influx of new Members, the seniority system allows entrenched Congressmen to control newcomers and encourages newcomers to behave like the long-term incumbents they replace. Until term limits force a change in the seniority system and in the incentives of new Congressmen, those who control the passage of legislation will remain in control for decades, not years, at a time. As noted above, while some turnover takes place every election, members of the congressional leadership have been in office for decades, and it is they who set the agenda; for example, Representative Jack Brooks, a 21-term representative who has been in office since the Truman Administration, as chairman of the House Judiciary Committee can routinely block term limit measures from coming to the floor for a vote.

Argument #3: Term limits will harm small states.

FALSE: Some opponents argue that states with smaller populations (and thus fewer representatives in Congress) will be systematically disadvantaged by term limits; Democratic Senator Ernest Hollings of South Carolina, for instance, makes this argument on behalf of the Southern states. (See his "Term Limits: Beware the Yankee Conspiracy," The State (Columbia, S.C.), May 22, 1994, p. D-3.) Historically, some smaller states have attempted to compensate for this by continually reelecting incumbents regardless of their views on issues in order to accumulate power through seniority. Without such seniority, goes the argument, smaller states will be at the mercy of states like California, which, by virtue of their size, can send scores of representatives to Congress and are assured seats on numerous important committees.

Such an argument ignores the tremendous institutional changes that congressional term limits would trigger. Instead of confining important committee chairmanships and other positions of power to incumbents who have spent decades in office, term limits would shut down the seniority system. Important legislative positions would be assigned by merit and willingness to shoulder responsibilities. The infusion of new perspectives would cause legislative positions to rotate so frequently that it would be difficult for any one legislator to hold onto power long enough to abuse it. Furthermore, the central qualification by which candidates for Congress are judged would shift in a healthy direction, toward being a voice for sound federal policy and away from being a siphon from the federal treasury.

Argument #4: Term limits will lock out experienced legislators.

FALSE: Experience in one's profession is a good thing, but even House Members who only serve one term -- two years -- clearly have time to develop significant experience. Despite the protestations of some foes of term limits that Members need a great deal of seasoning before they can make real decisions, no other profession requires two years of on-the-job training. Moreover, the skills developed by years of legislative service surely will find numerous other outlets under term limits; those Members who reach the end of permitted service can still work to improve people's lives in the law, in business, in academies and think-tanks, or even in other branches of government.

Many freshman legislators have worked as congressional staff or state legislators. Under term limits, legislators are more likely to have the freshness of outlook that enables them to envision solutions for problems after their more experienced colleagues have conceded defeat. The claim that the legislative process takes years and years to understand is less an indictment of inexperienced legislators than of the current legislative process. Any system not readily understandable to the average well-informed person raises troubling questions about what has happened to representative democracy in America.

Ultimately, anyone who argues that term limits would deprive Congress of some of its best legislators must face the point made by Hendrik Hertzberg in The New Republic that while depriving Congress of valuable legislative talent "would be a real cost... it would be a cost worth paying to be rid of the much larger number of timeservers who have learned nothing from longevity in office except cynicism, complacency, and a sense of diminished possibilities." (Hendrik Hertzberg, "Twelve Is Enough," New Republic, May 14, 1990, p. 23.)

Argument #5: Campaign finance reform is needed, not term limits.

FALSE: Reforms in federal campaign finance law -- particularly in order to eliminate tremendous incumbent advantages in congressional elections -- are urgently needed. However, they have little or no relevance to term limits. Proposals for campaign finance reform currently on the table are written by incumbents and for incumbents and are likely to create even more advantages for them. As former Congressman Bill Frenzel has noted, "No legislature has ever passed a campaign law that made it harder for incumbents to get reelected." (Bill Frenzel, "Term Limits and the Immortal Congress," Brookings Review, Spring 1992, p. 22.)

The centerpiece of the campaign reform bills currently under consideration (S. 3 and H.R. 3) is their limit on the amount congressional candidates can spend, but these spending caps are the same for challengers and incumbents, despite the tremendous incumbent advantages described above. Twenty years ago, the Supreme Court declared that spending limits are an unconstitutional limit on First Amendment freedoms. (Buckley v. Valeo, 424 U.S. 1 (1976).) The pending bills circumvent this problem by calling their spending limits "voluntary," even though candidates who exceed them are penalized harshly through punitive taxation, subsidies to opponents, and the suspension of opponents' spending limits. Incumbent advantages make incumbent spending effectively far higher than challenger spending. The cleverness of the spending limit penalty is that it is the challenger, not the incumbent, who will have to break it.

Challengers who wish to avoid the problem by running cheaper campaigns will face another difficulty: it takes a substantial amount of spending just to reach parity with incumbents' natural advantages in media access and name recognition. The proposed spending limit of $600,000 for House candidates is less than the average amount a House challenger needed to defeat an incumbent in 1988. The 1992 House general election statistics are even more instructive. They indicate clearly that success rates for challengers rise with their spending totals.

No challenger who spent less than $200,000 defeated an incumbent.

Fewer than 15 percent of those who spent between $200,000 and $400,000 toppled sitting officeholders, but 25 percent of those who spent between $400,000 and $600,000 did.

Over half -- 54 percent -- of all challengers who spent over $600,000 won election.

Under the proposed campaign finance reforms, this last set of victories no longer will be an option; the genius of the spending limit is that it is set just at the point where challengers become dangerous.

Campaign spending is increasing because the value of the prize -- a congressional seat -- continues to grow. It will likely continue to grow, given the increase in the federal government's size and power and the greater and greater involvement of citizens in the political process. As George F. Will has noted, the $678 million spent by congressional candidates on elections in 1992 is "40 percent of what Americans spent on yogurt." (George F. Will, "So, We Talk Too Much?", Newsweek, June 28, 1993, p. 68.)

Instead of eliminating the tremendous advantages incumbents hold in congressional elections today, the proposed campaign reform bills attempt to increase them. This is probably to be expected, however; one can hardly expect a legislature to pass a law that targets its own privileges for destruction. Real reform measures almost certainly will have to emerge from outside the Beltway -- as term limits have done so far in fifteen states nationwide.

Argument #6: Under term limits, unelected people will run Congress.

FALSE: Many opponents of term limits argue that to oppose them will increase the deficiencies of today's congressional culture, which grants tremendous discretionary power to people other than elected legislators. This argument typically relies on a "vacuum theory," according to which the departure of senior incumbents will create a vacuum in which more and more decisions will be made by the unelected. Such an argument is a simplistic portrayal of how Congress works, however, and ignores the tremendous systemic changes that term limits would create. In fact, term limits would decimate the power of unelected Washington operatives.

Lobbyists. Some argue that a vacuum formed by the departure of veteran incumbents would be filled by special-interest lobbyists, but the strength of special interests actually would be vastly diminished by term limits. Special-interest lobbyists thrive precisely because of the relationships they have with and the investments they have made in long-term incumbents. Many former staffers, and even some ex- Congressmen, become lobbyists to trade on their relationships they have with former colleagues; according to Congress Daily/A.M., for example, 40 percent of the Members of the House of Representatives who left in January 1993 cashed in on their incumbency by taking jobs as lobbyists. The rapid turnover created by term limits would make these connections less useful and confine lobbyists' influence to the strength of the arguments they make on the merits of issues.

Staff. A related argument by opponents of term limits is that congressional staff somehow would have more influence on freshman Congressmen than they do on long-term incumbents. Anyone who has ever seen a congressional office in action, however, knows that Congressmen give assignments rather than taking them. More important, however, term limits would empower Members to make far more efficient use of their staff. Instead of responding to constituent inquiries, writing press releases, sending mass mailings to everyone in the district, and in general pursuing activities that increase the likelihood of reelection, aides would be able to do more substantive research on legislation and give their Members more sophisticated counsel. In any case, the specter of career staff employees manipulating freshman Members has little support in reality; while the average Member today has spent more than ten years in office, (Ornstein, Mann, and Malbin, Vital Statistics on Congress 1993-1994, pp. 19, 21.) staff employees on average work for Congress for between five and six years. (Staff data from Congressional Management Foundation, 1992 U.S. House of Representatives Employment Practices and 1993 U.S. Senate Employment Practices.) Under term limits, these figures would likely shrink as new Members replace aides inherited from former Congressmen with their own loyalists.

Bureaucrats. Other opponents suggest that the absence of long- term incumbents would strengthen employees of federal administrative agencies. Again, however, such a prediction misses the mark. Congress routinely rewards or punishes bureaucracies each year by means of the federal funds it grants them; this would not change under term limits. More important, however, term limits would likely break the vicious cycle in which Congress delegates responsibility to administrative agencies, which make life more difficult for some citizens, who complain to their Congressmen, who order the agencies to solve the problems of those who have complained, who then are grateful to their Congressmen. Many observers have noted that this process permits each Congressman to pose as a white knight who rescues constituents from federal dragons, despite the fact that it was Congress which created the problem in the first place. (See, e.g., David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (New Haven: Yale University Press, 1993), especially chapter 5.)

As former Representative Vin Weber (R-MN) has noted, "We create the government that screws you, and then you're supposed to thank us for protecting you from it." Under term limits, Members of Congress would be motivated to solve problems, not create them. If Congressmen know they will not be around to micromanage the bureaucracy, they will be more careful about the powers they delegate. Term-limited Congressmen would have every reason to work for major reforms that transfer responsibility away from bureaucrats and back to Congress. Instead of transferring power among branches, term limits are likely to result in overall restraints on government activity.

Ultimately, critics who suggest that new Members will fall under the thrall of unelected Beltway insiders miss the point: term limits would create major changes in the way Congress works. Under term limits, Congress would attract talented candidates with demonstrated expertise and diverse life experience. Such candidates have little reason to seek election to Congress today, when it takes decades of incumbency to reach a position of legislative influence. Under term limits, citizen-legislators could exercise real policy influence for a few years and then return to private life.

Argument #7: TERM LIMITS ARE UNCONSTITUTIONAL?

FALSE: Term Limits are NOT unconstitutional. The 22^nd Amendment to the Constitution requires the Presidency of the United States to have Term Limits. Therefore Congress should also be required to have the same Term Limits.

Even though the Supreme Court's narrow five-to-four decision in U.S. Term Limits v. Thornton (1995) that said the states do not have the authority to limit the terms of their respective congressional delegations. The Supreme Court ruled that in absence of a constitutional amendment, that states nor Congress may limit the number of terms members of Congress can serve. This did not make Term Limits unconstitutional. As Justice Clarence Thomas pointed out in a brilliant dissent, the majority in U.S. Term Limits simply ignored the clear meaning of the Tenth Amendment. There being no explicit denial of such power to the states in the Constitution, the right to do so "is reserved to the states respectively, or to the people.''

Many states have Term Limits for their state, county and city officials. Twenty-two states representing nearly half of Congress had passed term limits on their representatives by 1994. The reasons why more states do not have Term Limits is that their state judges have ruled against them. This we feel is still part of the “old cronyism” of the two major political parties. The two major political parties do not want to lose their grip of government at all levels (city, county, state or federal).