Kesler on Congressional Term Limits

An anonymous commenter last night suggested that term limits were advisable, particularly as it concerns Congressman David Dreier, who is a CMC alum and who has served since 1980 as a congressman. The commenter makes the point that the founding fathers were for term limits in some form. S/he couldn't be more wrong. Professor Charles Kesler explains in an August 1, 1991 op-ed in The Wall Street Journal.

Congress adjourns this week for its August recess, but many Americans would like their representatives to take a more permanent vacation from office. Ballot initiatives restricting the tenure of federal (and state) legislators have been approved by Colorado voters and are in the works in Washington, Ohio and about a dozen other states. President Bush has called for a constitutional amendment to limit congressional terms. Polls show that most Americans support the idea.

Leading figures in the conservative movement have come forward to endorse it, too, including the normally level-headed editors of The Wall Street Journal. It is easy to see why. In the last few elections, more than 98% of incumbent members of the House seeking re-election have been returned to office. By now we have all heard the jokes about the British House of Lords or the Soviet Politburo having greater turnover than the House of Representatives. Is it not time for a constitutional revolution to throw these rascals out?

Actually, we already have mechanisms to throw the rascals out. They are called elections. But the proponents of term limitations claim that elections have ceased to be representative because incumbents have done everything they can to make themselves unbeatable; and, therefore, that term limits are indispensable to restoring electoral competition to American politics. Before we swallow the drastic medicine of term limitations, conservatives and liberals alike ought to take a careful look both at the nature of the problem and the character and unintended consequences of the proposed solution.

In the first place, what exactly is the problem? Are congressional re-election rates unconscionably high? The answer is that they are higher than usual, but they have always been fairly high. Since the ratification of the Constitution, three-quarters of all elections for the House have seen incumbents returned to office at rates higher than 80%. The average re-election rate in the House has been greater than 90% since World War II. Would these numbers make the Founders flinch? Not necessarily: In every election from 1790 to 1810, House members were returned at rates well above 90%. Indeed, in 1792, 100% of those running were re-elected!

Throughout our history, then, incumbent representatives who sought re-election have enjoyed substantial advantages. They left office, typically, because of resignation, retirement or death. What has changed since the Founders' days is not the re-election rate, but the percentage of the House standing for re-election.

In the 1790s, about 13 out of every 20 incumbent legislators ran again; by the turn of the century, the figure was 18 out of 20; today it is about 19 of 20. The increase has been gradual, beginning after the Civil War and reaching the present high level in the 1920s, then flattening out. It is the combination of increasing numbers of legislators standing for re-election, with the already high rate of incumbent return, that accounts for the American equivalent of the Long Parliament. (Though the lack of turnover should not be exaggerated: two-thirds of congressmen already serve fewer than 12 years, the limit that is now being advocated.)

Why do so many congressmen run again and again? A crucial part of the explanation is the decline in competition between the political parties. As recently as 1948, most House incumbents won by narrow margins -- with less than 55% of the vote. This meant that their districts were competitive, that the other party had not been defeated so badly that it had to abandon hope of taking the seat next time. In the past 20 years, however, most incumbents have won by large margins -- three out of four, in fact, by margins of 60% or more. Their districts are now essentially uncompetitive.

These large margins owe something to gerrymandered electoral districts (especially in California); something to the influence of the franking privilege, unfair campaign finance laws, large staffs and other advantages of incumbency; and something to the influence of television, direct mail and the arts of the modern, personalized campaign. But underlying and outweighing all these factors is the great change in the very function of the representative that has occurred since the New Deal and since the centralizing social programs of the 1960s.

Congressmen now pose as impartial ombudsmen who help their constituents take advantage of federal programs. Constituent service and casework are easy to brag about and hard to run against.

The problem, therefore, is not so much high re-election rates as the increasing disconnection of congressional elections from national political opinion. It is not that congressmen have lost touch with their constituents; our representatives are much too closely in touch with the narrow, focused interests of their supporters (many of whom don't live in the district, e.g., Charles Keating).

But congressmen are growing increasingly insulated from their constituents' opinions on important national questions: hence the now-common phenomenon of divided government, in which voters seem to choose one party, usually the Republicans, to set the main lines of national policy, and the other, usually the Democrats, to shade those lines and safeguard voters' more immediate interests. The legislature (particularly the House) has less and less to do with deliberation and lawmaking, and more and more to do with administering the details of government.

Term limitations would actually make American government less, not more, deliberative, by indiscriminately removing wise and experienced legislators along with undistinguished ones, by diminishing the incentives for legislators to do their best in office (the prospect of re-election being cut off), leaving inexperienced lawmakers more at the mercy of experienced legislative staff (especially committee staff) and members of the permanent bureaucracy, and increasing the temptation for legislators to "make hay while the sun shines."

Worse, the term-limits movement encourages the shortsighted tendency to solve policy disputes by trying to amend the Constitution. A cardinal principle of American constitutional morality is that the Constitution should be altered only when absolutely necessary; it ought not to be treated as a political plaything. But it is curious that nothing was heard of term limitations when Republican strategists thought they were within striking distance of controlling Congress and state legislatures. After the electoral rebuffs of the late 1980s, however, they suddenly discovered the need to amend the Constitution to protect American democracy.

All the advantages of incumbency existed in 1980, when Republicans captured 33 House seats and took control of the Senate. Those gains later evaporated because of shallow, bland, poorly formulated campaigns in 1984 and thereafter. The present effort to limit congressional terms is a continuation of the spirit of those campaignsan evasion of political responsibility that tries to restore serious political competition by avoiding it.