Speed Bumps for Term Limits

Constitutional-Corner

by Scott Sternberg

 

On the campaign trail and after his election, President Donald Trump declared his intention to push for term limits on members of the United States House of Representatives and the United States Senate—somewhere around six years (three terms) for House members and twelve years (two terms) for the upper chamber. Bills to that effect are reportedly already being prepared, and the term limits debate continues.

If Mr. Trump’s suggested term limits were already in place today, thirty-two of the current 100 senators and 226 of the 435 members of the House of Representatives would be immediately out of a job. That’s half of Congress.

“Draining the swamp” of its longest-tenured elected officials won’t be easy, however. The Constitution sets forth just three qualifications to serve as a member of the House or Senate: age (twenty-five for the House, thirty for the Senate); United States citizenship (at least seven years for the House, nine years for the Senate); and actual inhabitancy in the state at the time elected (though not in the district). That’s it. Changing these qualifications requires a Constitutional amendment, and amending the Constitution is a process the Founders made pretty hard.

There are only two ways to amend the Constitution: approval by a two-thirds majority of the US House and US Senate, and then ratification by three-quarters of the legislatures of the states—thirty-eight of the fifty states. Consequently, only thirty-three amendments have ever passed both houses, and only twenty-seven have been ratified by the states. Sure, hundreds upon thousands of amendments have been proposed, but 1992 was the last time we actually ratified and enacted an amendment, the 27th Amendment, which restricted Congressional pay raises. The 27th Amendment was originally proposed with the Bill of Rights in 1789. The first seven states ratified the Amendment in the 1790s, another state ratified it in 1873, and the remaining thirty states required to enact an amendment ratified it between 1978 and 1992. That’s an extraordinary amount of time, proof of the substantial hurdles to ratifying an amendment.

 

If President Trump’s term limits were put into place today, 32 of the current 100 senators and 226 of the 435 members of the House of Representatives would lose their seats.

If President Trump’s term limits were put into place today, 32 of the current 100 senators and 226 of the 435 members of the House of Representatives would lose their seats.

 

Americans have seen fit to limit at least one person’s time in office—the highest in the land. Presidential term limits were passed by Congress in 1947 and ratified by the states by 1951, setting a maximum of two full four-year terms, with an exception for terms of two years or fewer served in another President’s stead. Harry Truman, President in 1951, could have run for a third term because the new 22nd Amendment exempted him as a sitting president in its “grandfather” clause. However, after a poor showing in the New Hampshire Democratic Primary, he declined to run again. President Lyndon Johnson also declined to seek a third term, although he was eligible due to his serving two years of President John F. Kennedy’s remaining first term.

In 1992, Arkansas voters adopted an amendment to the Arkansas State Constitution that limited both state and federal offices to a certain number of terms. The amendment prohibited candidates from signing up to run for the US House or the US Senate in Arkansas if they had already served three terms in the House or two in the Senate, similar to President Trump’s proposal. The problem with Arkansas’ amendment is that it amended the state constitution, and, as noted above, the US Constitution sets the qualifications for who can be a Representative or Senator.

In 1995’s US Term Limits v. Thornton, a narrow 5–4 majority of the US Supreme Court found that the states could not themselves place more onerous requirements than the federal government on who may be elected as a federal representative. Justice John Paul Stevens authored the opinion, stating that “[a]llowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.”

Notably, Louisiana’s legislative branch has term limits largely because in 1995 Louisiana’s voters approved an amendment to our state Constitution championed by a freshman lawmaker named David Vitter. Once elected to Congress, Vitter again crusaded for term limits, this time on the federal level. Upon his retirement, he remarked he had reached his “Personal Term limit”—two terms, or twelve years.

While many support term limits, their detractors point to the loss of institutional knowledge, the responsibility of governing, and the undeniable fact that term limits really already exist in the voters’ ability to, you know, vote for someone else. A common refrain is also that term limits only empower the professional staff members who serve elected officials: the un-elected staff could arguably hold all the keys, and control the cross-Capitol Hill relationships, to navigate the complex process of writing our laws. Still others point out that term limits could further empower special interest money by creating – theoretically at least – more competitive elections. And, finally, campaign cash and some institutional knowledge are already the coin of the realm for that powerful group regularly decried by drain-the-swampers: lobbyists.

 

Scott Sternberg practices law with Sternberg, Naccari & White, LLC in New Orleans. Scott@snw.law; www.snw.law.

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