Posted By: James Lawrence, Gary Gold, Orlando Luna, Camron Liston, Amanda Lewis, Sarah Lemelman, and Sarah Lemley
During the 2016 presidential campaign, and before elected President, Donald J. Trump made a lot of promises to the American people. He frequently stated his goals would be “easy” to achieve and the outcomes would be “great.” Upon inspection of his term limit campaign promise, frequently tagged as #draintheswamp on Twitter, the outcome won’t be as great and easily achieved as Trump believes it to be.
Career politicians, referred to as swamp monsters, are on Trump’s chopping block. He vows to impose term limits on them by way of constitutional amendment. Although congressional term limits undoubtedly echo with countless voters, Trump seemingly failed to contemplate the practical realities behind his promise. First, the likelihood that the President’s proposed amendment will pass is slim to none since a constitutional amendment requires a supermajority of both houses of Congress or a supermajority of state legislatures. Second, term limits will gravely affect the balance of power between branches of government in a way that is contrary to what the Founders intended for our nation. Finally, even in states where term limits have been adopted they have failed to fulfill their goals.
Amendment Passage is Slim
Before the creation of our current Constitution, the United States operated as a single branch of government under the Articles of Confederation. By leaving most of the power with the state governments, the Articles created a loose confederation of sovereign states and a feeble central government. As a result, our country’s founders called for a convention which ultimately led to the overturning of this limited central government for a strong national government under the United States Constitution.
The new Constitution struck a balance between three branches of government. Article 2 vests the Executive Power in one President of the United States, Article 3 vests the Judicial Power, and Article 1 grants Congress the sole power to legislate for the United States. Article I also sets out the requirements and term restrictions for the legislative branch. As a result of U.S. Term Limits v. Thornton, the United States Supreme Court held states may not limit the terms of the representatives in Congress, reasoning that the founders intended these term limits in the Constitution to be fixed and unalterable.
Thus, as President Trump suggested, his only option of implementing term limits is via constitutional amendment. Although Trump claims to be quite the deal maker, his presidential authority is limited. That authority does not include the power to amend the constitution unilaterally. Article 5 of the Constitution permits only Congress to propose amendments. Thus, Trump can merely make his recommendation that Congress vote themselves out of office.
An amendment to the Constitution begins with two-thirds of both houses of Congress agreeing to an amendment or two-thirds of the states’ legislatures calling for a constitutional convention for proposing an amendment. Once an amendment is proposed, it must be ratified by three-fourths of the states, meaning 38 out of 50 states must agree on the new amendment. This measure is tremendously difficult to accomplish. In fact, only 27 amendments have been passed in our nation’s 240-year history, and the first ten were ratified less than ten years after the Constitution’s ratification.
Moreover, experience tells us that a constitutional amendment implementing term limits will be a particularly hard amendment to pass. Imposing term limits on Congress is not a new idea. Constitutional amendments to impose term limits on Congress have been proposed a few times. For example, in 1995, a Republican Congressman proposed a constitutional amendment on term limits that would limit Senators to two, 6-year terms, and House of Representatives to six, 2-year terms. The bill failed because it did not get the two-thirds majority vote it needed to pass. Like in 1995, a constitutional amendment imposing term limits on Congress today will likely fail for lack of majority vote. The likelihood that Congress would pass an amendment that limits its own power is slim. Congress has never agreed to it, and it probably never will.
And “even if Congress approved an amendment, 75 percent of the states would need to ratify it. Trump won 30 of the 50 states in the 2016 election or 60 percent.” Based on these statistics, coupled with the fact that “President Donald Trump’s job approval rating has dropped to 37%, while 58% of Americans disapprove of his performance so far as president,” it is unlikely that three-fourths of the states will ratify the amendment. Especially given the fact, as discussed below, that term limits imposed at the state level have been unsuccessful.
Contrast the supermajority difficulty of amending the federal Constitution with the amendment process in the states that have imposed term limits on their state legislators. California and Arizona, states that have imposed term limits, have a much less restrictive amendment process. These states can propose term limits through amendments by a popular majority vote, meaning it takes just a simple majority of the population to vote for a proposition to amend the state constitution.
In sum, given the difficulty of a federal constitutional amendment,, paired with the little likelihood that Congress will vote to limit its own power, and the reluctance states may have toward the President’s proposal, the chances of the President imposing term limits on Congress is slim.
Adverse Effect on Balance and Separation of Power
Separation of powers serves two purposes: efficiency and prevention of tyranny. Dividing the work between the branches makes the government more efficient, and separating power prevents one branch from having total control. However, no branch is meant to be entirely separate. Rather, they each overlap creating a system of checks and balances. This checks and balance system would be undermined by term limits, which would result in Congress being less able to check executive power.
First, term limits significantly diminish Congressional experience, as seen in the several states that have implemented them (discussed further below). Beginning in the 1990’s, states passed term limit bills. Some states opted to restrict congressional terms by limiting the amount of consecutive terms one could run for office. This is known as consecutive limitations. Others states took a more restrictive approach, in which they put a cap on the total number of years one could hold office. These limitations are known as lifetime limitations. For a list of states that have implemented consecutive limits and lifetime limits click here.
After these limitations were passed, many politicians were barred from running for office. For example, in Arkansas half of Arkansas’s House members were ineligible to run for office. Similarly, in Michigan 64 of the 110 House members were ineligible for reelection in 1998 (See NCLS). As a result, term limits weakened the legislative branches and resulted in candidates with less experience, knowledge, and acumen. Term limits have and will continue to purge many qualified individuals from running for office. One study suggests that term limits would eliminate half of the Congress.
Dr. Berman, a professor at Arizona State University, has found that the amount of legislative experience of the members of the Arizona legislature drastically decreased with the passage of term restrictions. (See Dr. Berman’s findings, here). He explains that terms limits have caused “… a loss of institutional memory regarding programs, policies, and legislative norms…” He further emphasizes the issue with an inexperienced Congress by pointing out that “… inexperience had already figured in policy mistakes, including the alternative fuels fiasco because newcomers failed to pick up on danger signals that more experienced lawmakers regularly catch.” Similarly, Molly Reynolds, a congressional expert at the Brookings Institution, believes that imposing term limits may prevent legislators from developing the experience they need to properly do their job, which in turn may lead them to depend on lobbyist. (See statement here).
Not only would term limits result in an inexperienced Congress, but it also creates imprudence. When legislators know that they only have a short amount of time in Congress, they become hasty and “in a hurry to make their mark and move on.” Dr. Berman states that “[b]eing in a hurry means trying to gain notice by the introduction of bills that are not all that vital and trying to move up quickly into important committee or leadership positions.” (See findings, here). The need to make a name for themselves distracts the legislators from focusing on resolving problems. Also, some officials have imposed term limits on themselves, but even this has had a negative impact on Congress. For example, Rep. Matt Salmon (R-Ariz.) made this vow on his campaign trail, but he eventually returned to office after the promise had damaged his ability to gain committee assignments. He states, “when it came to getting committee assignments it harmed me,” and “When I say harmed me, I mean it harmed my district.”
The possibility of re-election encourages candidates to work diligently towards the goals of his constituents. It encourages congress men and women to advocate for their community and learn more about the issues that affect their home states. Term limits will lead to hastened results and quick-fix laws since legislators have only limited time. We need officials who can sort out the issues and deal with the root of the problem, not officials who can slap a band-aid on a problem.
Second, inexperienced legislators are a very bad thing when Congress is charged with creating the laws that are beneficial to the republic. Creating federal law is a complex task and requires an understanding of many issues. Without the necessary experience, the men and women in Congress will struggle to grapple with the issues and rely on outside sources to supplement their knowledge.
The average length of federal legislation in 1948 was two and a half pages. In contrast, today many laws are thousands of pages long. Today’s legislation requires Congressmen and women to balance limitless opposing interests. It requires them to deal with the inherent difficulties that come from law making for a nation of over 319 million people and a nearly 18 trillion dollar economy. Recently we have seen how complex federal legislation can be with the failed implementation of Trump’s American Health Care Act. Trump himself stated “I have to tell you, it’s an unbelievably complex subject. Nobody knew that health care could be so complicated.” Trump Care was over 900 pages. A Republican Congress quickly put together a bill that was forecasted to leave twenty-four million people without health insurance. As a result, the bill failed. If term limits were imposed, the deliberative process of legislation would be substantially worse. The standard for bills could then turn into what occurred during the drafting of the American Health Care Act – a slapped together mess. As a result, Congress would be less able to pass legislation and speak on important issues.
Third, the overlapping check and balance system becomes less effective because less congressional experience makes it tougher for Congress to navigate complex federal legislation and pass laws. This results in greater executive power. In Youngstown Sheet & Tube Co v. Sawyer decided in 1952, Justice Jackson famously laid out a framework for analyzing executive authority by utilizing the check and balance system. He divided presidential authority into three categories.
First, when the President acts with the express or implied authority from Congress, presidential power is at its highest because it includes all executive power plus all power Congress can delegate. The second category is where Congress has been silent on the issue. There the President can rely only on his own independent powers. The third and most important category for our purposes is where the President defies the implied or expressed will of Congress. In the third category, the President’s power is at its lowest because Congress will always prevail unless they are trying to negate an exclusive presidential power.
Category 1 – President acts with the implied or expressed authority of Congress.
Category 2 – President acts but Congress has been silent on the issue.
Category 3 – President acts in defiance of the expressed or implied will of Congress.
Term limits would create fewer situations of Category 3. As discussed earlier, inexperienced legislators will be less able to pass the detailed and complex bills necessary to address many needed issues. Accordingly, there will be fewer scenarios where Congress has spoken. Category 3 is a check on presidential power. Without being able to pass bills and check executive power, Congress’s abilities will be limited, and the balance of powers will be upset.
Finally, term limits are unnecessary. Legislators are intended to be politically accountable to the preferences of their constituents. If the citizenry is unhappy with their representative, there is always the option to vote for a new representative. History has shown that while the approval ratings for Congress have remained low, the rate of re-election is high. Voters may not like the institution of Congress itself, but high incumbent re-election rates indicate that voters still believe their personal representatives are adequately representing local interests.
Perhaps former President Wilson put it best: “Legislation is but the oil of government…It is better to have skillful work – stout walls, reliable arches, unbending rafters, and windows sure to ‘expel the winter’s flaw’ – than a drawing on paper…” An essential aspect of our government is the checks and balance system. That system is built on a foundation for a strong, experienced legislature. Their goal is to exchange ideas, where eventually, a consensus can be well crafted and implemented. A legislative branch of amateur representatives would be unable to pass federal legislation and unable to check executive power. Congress needs time to gain experience, and limiting terms would severely hamper the process.
Framers Intent on Allocation of Powers
The Founders decisively placed no limits on how long members of Congress could hold office. Most of the Founders, career politicians themselves, not only intended limitless congressional service, they encouraged lifetime service. Relying on this, they struck a delicate balance between the three branches of government. At the heart of this balance was a strong legislature.
The Founders were well acquainted with term limits when they convened in the summer of 1787. Indeed, the precursor to the Constitution, the Articles of Confederation, limited congressional service to three consecutive terms in any six-year period. Moreover, many of the state’s governing documents of the time required rotation in office. During the ratification debates, a few delegates proposed incorporating term limits into the new constitution. However, the proposal was explicitly rejected. Still, the Founders recognized a need for some restrictions on power, Madison calling the accumulation of too much power in a single branch as “the very definition of tyranny.”
To mitigate this fear, the Founders implemented a system of checks and balances. In Federalist 47, James Madison described this system and refuted the idea that there must be a total separation of powers between the executive, legislative, and judicial branch. For example, the President is given the power to veto a bill passed by Congress, a seemingly legislative power. Conversely, the Senate has the power to reject a presidential appointment, a seemingly executive power. Madison explains this overlap is intentional. Indeed, each branch is not “purely” separate, nor do any have complete independence; rather, some powers of each branch should be controlled by another. Without overlap, there would be no checks and balances, and the Republic will function properly only with such a system in place.
A strong legislative branch was an essential piece of the Founders’ concept of checks and balances. In Federalist 51, Madison stated, “in republican government, the legislative authority necessarily predominates,” and in Federalist 48 Madison described legislative as “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” Accordingly, the Founders created an executive that was strong enough to counterbalance a strong legislature. However, that strong legislative branch was predicated on the founders’ belief that there would be experienced individuals in Congress. In Federalist 53, Madison explained, members of Congress “will possess superior talents; will by frequent re-elections, become members of long standing; will be thoroughly masters of the public business.” The Founders also expressed concern over having a lack of experience in Congress, stating members would be “more apt . . . to fall into the snares that may be laid before them.”
As discussed in the previous section, because term limits create an entire Congress of little experience and poor decision making consequently amplifying executive power, it would throw off this intricately designed system of checks and balances. Moreover, as part of our checks and balance system, it is the intent of the founders that “We the People” exercise our power at the ballot box to vote in representatives we like and replacing those we do not. The people are the ultimate check on the political process, not term limits. Thus, term limits are undoubtedly inconsistent with what the Founders intended for the Republic as a whole.
States as Laboratories: Have Term Limits Met Intended Goals?
Recent research into the effect of term limits indicates that the states that have adopted such legislative term limits have not accomplished the goals intended for them. Case studies in Arizona, California, and Michigan indicate that the promises set forth by proponents of term limits have not been met.
Term limits in California have largely failed to meet the goals set forth by these legislative measures. The current provision on the books limits the time an official may serve in either of California’s legislative houses (or a combination of the houses) to twelve years.
Term limits were sold to California voters on the grounds that they would be beneficial in creating a new breed of “citizen legislator,” improving legislative productivity, and limiting or reducing the amount of special interest money flowing to state legislators. These goals have largely gone unmet according to research by the Public Policy Institute of California.
Rather than transitioning to “citizen legislators” as voters would have hoped, the trend of careerism in the California legislature has largely gone unchanged. New members elected after term limits look a great deal like their precursors. Many have local government experience and run for other political offices when their terms expire. Despite campaign promises, the makeup of legislators remains largely the same and careerism still runs rampant.
Improvements to legislative performance, another one of the campaign promises, have not come to fruition as proponents of term limits would have hoped in California. In both the California State Assembly and the California State Senate, committees now screen out fewer bills and are more likely to see their work rewritten at later stages, according to the data. Additionally, “hijacking” Assembly bills –the practice of gutting their contents and amending them thoroughly in the Senate –has increased since the term limits began.
Research also suggests that special interest money still flows to California Senate and Assembly leaders and in ever-rising amounts. This is largely a result of the fact that term limits have not eased the burden of fundraising. With regard to establishing a new breed of legislator, improving performance, and cutting back on special interest money, term limits in California have largely failed to accomplish the goals sold to voters.
Similar to term limit impacts in California, the effect of term limits in Michigan have largely been underwhelming. Pursuant to Michigan’s term limits passed in 1992, officials may not serve more than two four-year terms in the Senate or three two-year terms in the House of Representatives. As with the selling points in other states, term limits appealed to voters in Michigan as a means to bring new ideas and people to government as well as to control the influence of interest groups.
Term limits have largely failed to fulfill promises made to Michigan voters, according to research at Wayne State University. Data obtained through interviews suggest that the influence of special interest groups on legislators has remained unchanged or become stronger since the term limits were introduced. As an example, lobbyist influence was one of the top determining factors to indicate whether a bill would reach the chamber after term limits were in effect.
Moreover, term limits in Michigan were aimed at increasing the time legislators spend monitoring state-run agencies as a result of decreasing influence of bureaucratic influence and freeing up time more time for legislators. However, Wayne State research suggests that the opposite is true. Since the imposition of term limits, legislators spend less time monitoring state agencies. This effect could be a result of the limited time legislators have to understand their jobs, coupled with a lack of veteran knowledge available in the legislature to train incomers on state agencies.
The results of term limits have been similar in Arizona. In 1992, the citizens of Arizona voted to amend the state constitution to include term limits for state house and senate representatives. In light of the government corruption scandal, AZScam, the proposition passed with an overwhelming majority of 74%. The proposition created term limits for state representatives and United States representatives, the latter being declared unconstitutional in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
The proposition aimed at reducing government corruption through diversifying representation and promoting citizen leadership over career politicians. Supporters of the proposition also claimed that term limits would remove the need for politicians to be focused on their re-election instead of legislation. Observers largely agree that term limits have not accomplished its stated mission, and may actually have increased the influence of special interest lobbying and the distractions associated with campaigning.
A study facilitated by the National Conference of State Legislatures revealed that the proposition has decreased legislative experience, increased lobby influence, and increased campaign distractions. Before the proposition, the average Senator had 11 years of experience, but in 2003, the average Senator had dropped to about six years of legislative experience. This lack of experience has led to inexperienced legislators chairing important committees while dealing with influence from experienced lobbyists. One survey respondent stated, “[m]embers have no choice but to move up fast, and the legislature has to turn to inexperienced leaders, including less experienced committee chairs.” These chairs are now dependent on lobbyists for information regarding critical issues because the lobbyists actually have more legislative experience than the representatives.
Another goal of the Arizona proposition was to decrease campaigning distractions and cut down on career politicians. Since the passage of term limits in Arizona, state representatives have noted that the shorter time frame actually increases distractions because representatives are now looking outside the state Congress to further their political careers. One survey respondent summarized the political ambitions of representatives stating, “I’m amazed about how many people here are using the office as jumping off point — we have several aspiring congressmen and governors.” The attempt to cut down on career politicians has turned the state Congress into a training ground for other offices.
Will #DrainTheSwamp be Trump’s First Broken Promise?
Draining the swamp through term limits would clearly have unintended and damaging impacts on America’s political and governmental ecology. The current President grossly underestimates the difficulty and consequences of forced term limits. While draining the swamp is an appealing campaign promise, actually imposing term limits is contrary to the founder’s intent and would upset the careful balance of power essential to the federal government. Moreover, in states that have served as laboratories for swamp draining, the experiments have undoubtedly failed. Considering the entirety of America’s ecology, draining the swamp through term limits would be a mistake.