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Column Sun Feb 22 2009

The Logic of Term Limits

"I dislike, and strongly dislike... the abandonment in every instance of the principle of rotation in office and most particularly in the case of the President. Reason and experience tell us that the first magistrate will always be re-elected if he may be re-elected. He is then an officer for life. This once observed, it becomes of so much consequence to certain nations to have a friend or a foe at the head of our affairs that they will interfere with money and with arms."

-- Thomas Jefferson to James Madison, 1787

Watching coverage of the increasing authoritarianism of the Chavistas in Venezuela, it occurred to me that despite all of the contrived consternation by talking heads and editorialists, the fact that the vast majority of our government has no term limits never seemed to come up. But it is a fact that American governments, from the municipal to the state to the federal level, operate nearly unfettered by "rotation in office" rules that would go a long way to breaking not only dynastic holds on office, but also the pattern of social and professional networks growing around individuals with lifetime holds on those offices. How can Chicagoans, who have lived 41 years under Daley-family rule in the last 53 years -- 75 percent of the last half-century -- be expected to feel outrage at popular foreign leaders who undermine the clearly democratic principle of term limits?

Thirty-six of our 50 states have executive term limits, but only 15 state legislatures do; of the nation's 10 largest cities, nine have term limits on executives (guess who that leftover is?).

I support term limits for every elective office. Of the 546 people who sit in the constitutional seats created by the Constitution (535 reps and senators, one president, one vice-president, and nine Supreme Court justices), exactly two are limited in their service. The incumbency retention rate for the House and Senate are over 90 percent, despite perennially low approval ratings for Congress, Republican or Democratic.

Before the 2006 election, which brought in a once generational tidal wave of new legislators, the median seniority in the House of Representatives was about eight years, or four terms. Still, more than 70 representatives had been in the House for a generation (18 years) or more.

What is the reasoning behind term-limiting executives that could not also be applied to legislators? It's unclear. But there are general arguments pro and con. Let's take a look at the strongest "con" arguments:

(1) Disenfranchising voters

This argument goes that by arbitrarily limiting how long somebody can serve in office, you are essentially taking that choice away from the voters, who are free to vote somebody out of office whenever they so choose. Since our presumption should always be to place more power with "the people," imposing term limits would seem to be taking power away from the people, rather than giving it to them.

It's a cute argument, but I don't think it flies. The reason is that it rests on a ridiculous equivocation: "You" are taking power away from the people? Who is "you?" Or "they?" This is similar to the arguments used by the right that "the government" is something separate from "the people"; but if done right, of course, it isn't. The government is just the agent of "the people's" will. Similarly, term limits would be imposed not by "them" but by "us" -- the people ourselves. We justify it for executives by citing accumulation of power by single individuals. Given how Congress works, with seniority, committee assignments, and "Rules Committees" that essentially dictate the chambers' priorities, power is similarly concentrated in very few hands.

The same goes for our state government, as those of us arguing for a Constitutional Convention pointed out. Two officers -- the President of the Senate and the House Speaker -- hold basically unabridged power in those chambers. Maybe we enjoy that when "our team" is in control, but that is hardly a reason to support or oppose any principle.

If "the people" recognized through the ratification of the Twenty-Second Amendment that term limits are necessary to limit accumulation of power by individuals, then the same principle applies to legislators who are similarly able to accumulate power. Just ask the people of New York, who discovered that the President of the Senate had built a castle for his party with public money.

(2) Will shift power to insulated bureaucracies and lobbyists

Because the insulated bureaucracies and lobbyists are putty in legislators' hands now?

The idea of grizzled bureaucratic operators and slick lobbyists feasting on fresh-faced jes' folks recently elected to Congress to Shake Up Washington ™ is a good scare technique, but it ignores the obvious fact that grizzled bureaucratic operators and slick lobbyists thrive on enduring personal relationships, not cyclical bullying. The reason longtime legislators go into lobbying after leaving office is because they can pimp their friendships and relationships with those in power, not because they are extra awesome at convincing people to vote for things. It is these personal and professional social networks that lock most Americans out of government and create the power of incumbency.

On the local level, this is much clearer. The lower voter interest in elections makes the popular bar incumbents need to clear much lower. To run a successful insurgent aldermanic campaign in Chicago, a candidate would probably have to raise in the area of 50 to 150,000 dollars at least, not to mention turn campaigning into a full-time job. Meanwhile, an incumbent's entire existence is essentially campaigning -- providing services that come right up to voters' doorsteps, literally. Every year that passes is a year of more campaigning. Aldermen help create the insulated bureaucracy and elevate their preferred contacts in business to the status of slick lobbyists, just as much as vice-versa.

Still, it isn't a silly argument. In California, where there are legislative term limits, professional networks of consultants bring their coterie of big-dollar donors and campaign hands to candidates they deem worthy. This only proves that term limits are not a cure-all; we need to get rid of cash in politics, too.

(3) Term limits throw out the bad with the good

So does death. Woe is humanity.

(4) The problem is with internal rules, not the legislators themselves

And, given all the time in the world to correct those rules, legislatures have failed to do so. This argument is essentially saying, "The people who benefit from the rules as they are should just change them themselves." Speaking of which, did you guys pick up that rooster? My hen house is just about ready.

(5) Term limits would make legislators ineffective

Legislators, particularly in the lower chambers, are fond of saying that it takes at least two terms to get the hang of writing and moving legislation, and building enough consensus around their agendas to be at all effective. I don't doubt that -- it's pretty reasonable. But that is not an argument against term limits per se, only an argument about excessively strict term limits.

The argument for term limits has met its enemies and vanquished them with the ratification of the Twenty-Second Amendment. We know why term limits are a good idea, as Mr. Jefferson illuminates us: Offices become quasi-hereditary otherwise, undermine democracy and discourage civic participation. Limiting how many years a citizen may serve in public office no more violates his/her rights than requiring any condition for service -- residency, age, etc.

The problem at the federal level is that the Constitution enumerates the conditions for service. A clumsy attempt to create federal term limits at the state level in Arkansas in the early 1990s resulted in the Supreme Court case U.S. Term Limits, Inc., v. Thornton. Arkansas voters had approved a referendum prohibiting anybody who had served three or more terms in the House from appearing on the ballot for that office. The Supreme Court, probably correctly, found that states cannot add conditions to federal service. That is the federal government's prerogative. So we need a federal amendment to create term limits. Good luck with that.

But here in Illinois, and Chicago, the process would be considerably easier. And disrupting the generations of networks that control a huge swath of our local and state offices could undermine the hold on federal office that our current delegation enjoys. The feudal systems of allegiance in Chicagoland that support candidates for higher offices would degrade over time, opening up competition for higher office.

Now, the term limits don't need to be excessively strict. Our state representatives serve two-year terms; limiting them to two or three terms may be unreasonable -- but what about a "generation rule" that limited them to four, or five? Could any legislator argue that eight or 10 years in office is not enough time to get a hang of legislating and enacting their agenda?

Instituting these more generous term limits gives voters a unique peace of mind, that their elected officials will never be able to tie up a people's office to their personal networks. It would also allow us to test term limits as an institution and see if the opposition arguments hold any water. Perhaps they will -- but my bet would be that they are as leaky as they appear at first glance.

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