Whose Government Is It, Anyway?
by Paul Jacob

Term limitation is a simple, straightforward concept, and one supported overwhelmingly by virtually every demographic grouping in the country save politicians, lobbyists, senior government bureaucrats and congressional staffers. Perhaps put more simply, the people want term limits and the politicians do not.

Polls show the sweeping public support, as do election results. Twenty-three states enacted congressional term limits laws, all but two (New Hampshire and Utah) with a statewide vote of the people. Every state where the voters have been given an opportunity to enact congressional term limits has done so. Term limits are today the law for 40 state governors, 21 state legislatures, and over 17,000 local elected officials.

The people desire term limits for a host of reasons. Term limits are a catalyst for more candidates seeking office and improve the competitiveness of elections, thus bringing new people and new ideas into the political process. Many voters believe term limits will reduce corruption--both in its overt and more subtle forms. Those members of Congress caught in the House Bank scandal and in criminal activity are disproportionally long-term incumbents.

But there is a more subtle corruption that occurs as members of Congress are removed from the community they represent and become part of the Washington community. Our greatest political leaders recognized this problem. Thomas Jefferson remarked, "Whenever a man has cast a longing eye on them [offices], a rottenness begins in his conduct." Abraham Lincoln was even more dramatic in his analysis:

If our American society or the United States Government are overthrown,
it will come from the voracious desire for office, this wriggle to live without
toil, work, or labor--from which I am not free myself.

Many political observers argue that term limits will have a positive effect on reducing deficit spending. Studies by the National Taxpayers Union show that members of Congress tend to support greater deficit spending after 6 to 8 years in office, which is true for both conservative Republicans and liberal Democrats. A related concern is that representatives in Congress fail to understand the impact of their laws and regulations. As George Will wrote in Restoration:

Many Americans wish that a lot of legislators had a better sense of American
life, and particularly of what it is like to be on the receiving end of the
high-minded laws and regulations that gush like a cataract from Washington.

... term limits would increase the likelihood that people who come to Congress
would anticipate returning to the careers in the private sector and therefore
would, as they legislate, think about what it is like to live under the laws they make.

Strict term limitation will also probably end the seniority system and, many supporters maintain, will open the system to other campaign reforms as term-limited legislators lose their incentive to block reforms that might otherwise shorten their career. Madeleine Kunin, the former Democratic governor of Vermont, points out, "Breaking the gridlock of incumbency could throw the doors wide open to new people and new ideas that would make politics rewarding, meaningful, even fun."

That the American people want term limits for members of Congress is clear, but can the people overcome the resistance of the political class to enact the term limits they want? That question looms large at present. Another powerful question arises from it: If Congress and the political establishment can thwart the will of the vast majority of citizens for term limits, then the looming question is: Whose government is it, anyway?

On May 22, 1995, the U.S. Supreme Court handed down a ruling in the case U.S. Term Limits v. Thornton that amounted to "liberation day" for politicians in Congress. In the name of preserving "the relationship between the people of the Nation and their National Government," the court struck down the work of 25 million voters who had enacted congressional term limit laws in 23 states. The court’s close 5 to 4 decision says that to limit the terms of members of Congress requires amending the U.S. Constitution.

The movement for term limits now must focus on a constitutional amendment. Many suggest that the action therefore returns to Congress. But there are two methods established in Article V of the Constitution to propose amendments to our country’s basic law, which must then be ratified by three-fourths of the states (thirty-eight states) to become part of the Constitution. One method is for two-thirds of both Houses of Congress to vote out a proposed amendment. The other method is for two-thirds of the states to force Congress to convene a convention to propose an amendment to the states for ratification.

Will Congress Limit Itself?

Members of Congress have a clear conflict of interest when it comes to proposing an amendment to limit their own terms. This conflict results in many members of Congress favoring limits twice as generous as most voters, that is, if they favor any limits at all. The present Congress has displayed its skill at political maneuvering on the issue.

Last March, the House of Representatives considered term limits, and far from representing their constituents, limits were defeated by outright opponents and "loved to death" by some questionable friends. Statutory approaches that could have passed were not permitted to come to a vote. When asked by Jill Zuckman of the Boston Globe why the House of Representatives leadership opted for a statute on the line-item veto, but refused to consider a statute on term limits, Rep. John Boehner (R-Ohio) responded that with the line-item veto, unlike term limits, the GOP "was actually trying to get something passed." A compromise was rejected that would have allowed the states to decide on term limits because Speaker of the House Newt Gingrich feared the states would opt for limits shorter than he desired.

The three-term House limit enacted by most of the states and supported by gigantic percentages of voters was opposed by a majority of Republicans, as well as Democrats, with most long-time Republican incumbents wanting Congress to actually strike down shorter limits passed in the states. Only the freshman Republicans were generally in sync with the wishes of the American people -- in itself demonstrating the benefit of regular rotation in office.

That term limits was the only plank in the Contract With America with two competing bills and that the number number of measures was increased to four when term limits reached the House floor, was a sign that the leadership wanted lots of political cover, but nothing to pass. As Thomas Jipping of the Free Congress Foundation wrote in Playing the Political Cover Game: The Real Meaning of the House Vote on Term Limits, "Regular observers of legislative politics know that introduction of several competing proposals on the same controversial issue often signals a round of the ‘political cover’ game... [Members] want to claim to have voted a certain way on the issue, but do not want the status quo to change by actually passing legislation."

The commitment of the House Republican Leadership, especially Speaker Newt Gingrich, has been the subject of much doubt. Producer Brian Boyer, who spent a great deal of time with Gingrich recently while filming a documentary, said, "It was very surprising, and this was, remember, from very long conversations with Gingrich, to learn that he personally is not in favor of term limits." Gingrich spokesman, Tony Blankley, told the American Spectator in July of 1994 that term limits was "something conceptually [Newt] doesn’t like." Columnist Robert D. Novak wrote in the Washington Post, "Republican leaders profess to want 12 years, but it is clear they prefer no limits at all."

A number of Republicans in the leadership voted against every term limit bill as did 5 committee chairs. Only one member of the leadership, Majority Leader Dick Armey, and only one committee chair voted for the three-term House limit passed by most states. Yet while Mr. Armey said he would have stripped members of a committee chairmanship had they--like Senator Mark Hatfield--voted against the Balanced Budget Amendment, there was no such pressure brought to bear for term limits.

Freshman Michael Forbes (R-NY) told the New York Times after the failed March House vote, "Candidly, this leadership didn’t want [term limits] anymore than the old leadership did." But it appears that the American people were not fooled -- a Washington Post/ABC News poll found that close to two-thirds believe neither Republicans nor Democrats in Congress really tried to pass term limits.

In Congress, the danger for term limits is that, like the Balanced Budget Amendment, it becomes a powerful campaign issue while it remains forever one or more votes short of passage. Even an infusion of freshman as large and as committed to term limits as those coming to Congress after the 1994 elections would not garner enough votes to pass a constitutional amendment through the House of Representatives.

Not surprisingly, most Americans believe Congress is unlikely to ever propose an amendment to limit its own terms. The track record of this Congress, largely elected on a campaign of support for term limits, casts great doubt on the ability of voters to defeat enough incumbents to gain the two-thirds majority needed for Congress to propose a term limits amendment. Moreover, while House members face election every two years, and thus more directly risk defeat if they ignore their constituents’ desire for term limits, the U.S. Senate is a considerably more difficult prospect because two-thirds of that body is not up for reelection at any given time. In October 1995, a sense of the Senate resolution for term limits was defeated 49 to 45.

The focus of the term limits movement must be on keeping the faith with the grassroots and not become over dependent on Congress. Congress doesn’t hold all the cards; the voters do. President Dwight Eisenhower, a strong supporter of congressional term limits, warned decades ago, "... an amendment of this kind could never achieve the blessing of Congress; it could be initiated only by the states."

The People’s Path

The Framers of our Constitution had wisdom and foresight. They realized that over time Congress might usurp power and frustrate the will of the people. When the Constitution was debated, George Byron of Pennsylvania said, "We shall never find two-thirds of a Congress voting for anything which shall derogate from their own authority and importance ...." That is why they provided another route to amend the Constitution, completely independent of Congress. A constitutional convention can be called by thirty-four states to propose an amendment for ratification.

As Abraham Lincoln believed, "The convention mode seems preferable, in that it allows amendments to originate with the people themselves..." Neither this Congress nor future ones can thwart the will of the people forever -- if they do not act, the people will.

Already this path is being pursued by term limits activists across the nation. Initiatives have been filed in Alaska, Colorado, Maine, North Dakota, Oklahoma and Oregon that supporters hope will lead to applications from these state legislatures to Congress to convene an Article V convention for term limits. More initiatives are expected in other states, along with aggressive lobbying efforts in states without the initiative process. At present, two state legislatures--South Dakota and Utah--have issued calls to Congress for such a convention.

While it is impossible to predict whether term limits advocates will be successful in convening an Article V convention for the purpose of proposing a term limits amendment, the issue has strong public support and sharply demonstrates a need to bypass Congress. Still, there are those who strongly oppose a convention including Phyllis Schlafly, the John Birch Society, and other usually conspiracy-theory groups. They fear the convention will rewrite the Constitution in ways which few, if any, Americans support.

However these groups fail to understand Article V. A convention cannot enact anything, it can only propose an amendment or amendments. Nothing can become part of the Constitution without being first ratified by both Houses of thirty-eight state legislatures. A "runaway" convention that proposed numerous amendments not supported by a clear consensus of the people has no chance to withstand this difficult ratification process. Mrs. Schlafly was instrumental in blocking ratification of the Equal Rights Amendment--which though it was conceptually supported by most Americans, worries over the implementation of the amendment eroded support.

Opponents of an Article V convention claim to adore the Constitution and see the Framers as inspired men. Yet, those same Framers put Article V in this same Constitution. Regarding term limits, it would be a shame if we failed to use the tool given to us by the Framers of the Constitution to preserve what they established: True citizen government.

Some opponents may argue that while term limits are sound public policy, we should not tinker with the Constitution regardless of the method. But where would women and African-Americans be if previous generations had held such an attitude? Our original Constitution gave neither group the right to vote and it allowed slavery. Even our founders believed it necessary to amend the Constitution. Washington said in his farewell address, "The basis of our political systems is the right of the people to make and alter their constitutions of government."

While none of the 27 amendments to the Constitution has been enacted by way of a convention, many of them, including the Bill of Rights, women’s suffrage and the direct election of Senators, came about because states began the process of calling a convention and forced Congress’s hand. The direct election of Senators is a compelling example. The public overwhelmingly supported a direct vote to elect Senators, just as today they support term limits. Opposition came almost entirely from the Senate--just as today for term limits it comes from the two Houses of Congress. States were beginning to develop systems to get around the constitutional prohibition on direct election and a constitutional amendment had five times passed the House, never to be even considered by the U.S. Senate. But when the forces in favor of direct election came within one state of forcing an Article V convention to propose the amendment, the Senate realized it could no longer block this movement and voted the amendment out to the states for ratification.

Whether an amendment is proposed by our country’s first convention under Article V, or by members of Congress finally surrendering to political pressure and realizing they cannot prevent the people from limiting their terms in office, is not important. What is important is that the U.S. Constitution, our governing compact, reflect the will of the American people for term limits to replace career politicians with citizen legislators. Whose government is it anyway? With term limits, it’s ours.