Voters love the idea of term limits for Congress, so why don't we have them? And would they deliver on their promises?
While we don't currently have term limits on members of Congress, they do exist in 16 states. What can we learn from the state legislatures that already have them? And how might term limits impact how Congress works?
We talk with Carlos Algara, assistant professor of political science at Claremont Graduate University, where he studies political parties, electoral accountability, and legislative behavior, and Jordan Butcher, assistant professor of political science at Arkansas State University, where she studies state legislatures. She is the author of the forthcoming book Navigating Term Limits.
Transcript
Archival: [00:00:00.85] I thought a long time about term limits. I mean, partly because I've been here for a while, partly because I grew up in a generation with a different structure of politics. But the truth is, prior to 1890, every Congress was over 50% freshman. And while people like.
Nick Capodice: [00:00:18.46] All right, I think I know who this is, Hannah.
Hannah McCarthy: [00:00:20.98] Do you?
Nick Capodice: [00:00:21.97] Yeah, like 90% sure. And I'm going to go for it. Newt Gingrich. Final answer.
Hannah McCarthy: [00:00:27.37] You got it. That's a good ear there, Nick. This is from when Gingrich was a Republican speaker of the House in 1995, when he was talking about a proposed constitutional amendment. This amendment was attempting to put term limits on the US Congress for the first time since the Constitution was ratified.
Archival: [00:00:47.59] That we could, in fact, find a reasonable way to run the US Congress closer to the American people, with a greater range of diversity and with a tremendous constant increase of people showing up who have new ideas, new approaches, and new experience.
Nick Capodice: [00:01:03.52] And term limits. To be clear, as in, a member of Congress can only serve a certain number of terms, and after that, they're ineligible to run for office again.
Hannah McCarthy: [00:01:13.48] Correct. And the debate here was about the length of those term limits. Some people wanted to limit members of the House to three two year terms, otherwise known as six years. Others, like Gingrich, said he would settle for nothing less than a 12 year term limit.
Archival: [00:01:30.37] Flatly, I think if you had a leadership for this country that had only a six year learning curve, that is just too short. I mean, I don't know that I'm all that smart, but but as hard as I worked at it, I didn't get it in the first six years.
Nick Capodice: [00:01:42.88] All right. So he's saying here that it takes at least six years to even know what you're doing in the house in the first place, before you can even start to be a meaningful member of Congress and then, you know, get stuff done. That argument makes a lot of sense on the surface. Hannah, it's not a stretch to say that more experience probably makes you better at your job.
Hannah McCarthy: [00:02:02.29] Yeah, but here's the thing. In 1995, when Gingrich made this speech, he had been in the House of Representatives since 1979. This was his first year as speaker, one of the most powerful positions in the federal government, and it took him 16 years to get there, which.
Nick Capodice: [00:02:21.40] Means if there had been a 12 year term limit already, which he was advocating for, he would have been out two election cycles ago.
Hannah McCarthy: [00:02:28.84] Yeah, but there's another reason that Gingrich might have been suggesting this. Legislative term limits are widely popular among voters. They were in the 1990s, and they are now.
Archival: [00:02:42.58] A new Civitas poll found an overwhelming majority of people believe there should be term limits.
Archival: [00:02:47.56] Polling shows that 82% of the population does support. Term limits in Congress. So right now.
Archival: [00:02:53.86] We have term limits. This as three terms in the House, two terms in the Senate, six years or eight years. Right. And it makes it hard to gain any real experience in either chamber.
Archival: [00:03:03.97] The ongoing fight over term limits in Bossier City is back in the hands of City council after a contentious meeting today. The council.
Hannah McCarthy: [00:03:16.58] A recent study by the Pew Research Center found that 87% of voters are in favor of some kind of term limits in Congress. And just in the past year, two Republican legislators, Senator Ted Cruz and Representative Ralph Norman, proposed their own constitutional amendment that would cap the House at three two year terms and the Senate at two six year terms.
Nick Capodice: [00:03:39.23] All right, so if 87% of voters want congressional term limits, and it seems like even politicians who would be impacted by them are willing to back the idea, it seems pretty straightforward, like it's a slam dunk. But I'm guessing you're about to tell me why I'm wrong.
Hannah McCarthy: [00:03:56.24] You bet I am.
Hannah McCarthy: [00:03:57.29] This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:03:59.36] I'm Nick Capodice.
Hannah McCarthy: [00:04:00.29] And today we're talking about congressional term limits, an idea that is extremely popular with voters but has almost no chance of ever coming to fruition, at least anytime soon. We're going to talk about that, and we're also going to talk about why there is a pretty strong consensus, at least among political scientists who have studied legislative term limits, that they don't really work the way we think they will.
Nick Capodice: [00:04:25.31] All right. Hannah, why do so many Americans want term limits in the first place?
Hannah McCarthy: [00:04:30.23] Right. Here we go.
Carlos Algara: [00:04:32.24] Generally, it's framed as getting new perspectives in.
Hannah McCarthy: [00:04:36.23] This is Carlos Algara. He's an assistant professor of political science at Claremont Graduate University, and he studies Congress, legislative representation and congressional elections.
Carlos Algara: [00:04:46.79] We don't need, for example, these quote unquote career politicians going to Washington and losing sight of what's going on back at home. Right. So you get this Potomac fever when you go to D.C. and the relationship, the connection you have with the electorate sort of gets severed.
Nick Capodice: [00:05:06.20] All right. That makes sense to me on some level. But if your constituents feel you don't care about them because you've got the Potomac fever, they can just vote you out. Right? But that's what elections are for.
Carlos Algara: [00:05:17.36] It's a little bit of a paradox, because voters believe that getting new blood in Congress, new folks, you get fresh perspectives, and therefore you can sort of break the gridlock that's plaguing Capitol Hill.
Nick Capodice: [00:05:29.66] So even though certain politicians get singled out as a reason for having term limits due to their age, for example, like Senator Mitch McConnell or Senator Dianne Feinstein before her death. Term limits are popular, at least among voters, because they reflect a frustration with the institution as a whole.
Hannah McCarthy: [00:05:47.36] Yeah, and this really started in the 1990s. 23 states, bolstered by a rise in power of the Republican Party on the national level, placed term limits on their congressional leadership and in many places, on their state legislatures as well. Now, those term limits on the federal level wouldn't stick around, which we'll talk about in a minute. But it's still pretty remarkable that so many politicians were behind the idea of limiting their own careers.
Nick Capodice: [00:06:16.40] Yeah. What was going on in the 1990s that made this such a popular idea?
Carlos Algara: [00:06:20.81] The Congress of the late 1980s, early 1990s was an institution that voters viewed as relatively scandalous.
Nick Capodice: [00:06:29.12] I feel like the word relatively is doing some heavy lifting here.
Hannah McCarthy: [00:06:32.87] Yeah, I guess if we look at recent history, I mean, we're not talking about multiple speaker elections in the same year or challenging people to fights during hearings, but there was plenty of drama.
Carlos Algara: [00:06:47.78] So you had a Democratic speaker, Jim Wright, in the late 1980s, who is forced to resign on the basis of ethics violations.
Archival: [00:06:55.58] Late yesterday evening, the Standards Committee of Official Conduct voted a preliminary inquiry in the matter of Speaker James Wright. The assertions.
Archival: [00:07:09.80] That was for receiving unauthorized gifts and profiting off speeches.
Carlos Algara: [00:07:13.55] You had the Keating Five, which was another scandal on the Senate side.
Archival: [00:07:18.23] Five senators were showered with Keating gifts in exchange for putting the squeeze on federal regulators to go easy on him. Mccain denied he did anything wrong.
Hannah McCarthy: [00:07:28.37] That was a group of senators who stopped federal regulators from investigating a businessman they'd all profited from.
Carlos Algara: [00:07:33.86] You had the House banking overdraft scandal, where members were using the banking system as a little bit of a slush fund.
Archival: [00:07:41.51] About 6300 checks had been written by members in a 12 month period that, for one reason or another, were overdrafts. It sounded fairly dramatic at the.
Hannah McCarthy: [00:07:51.38] And that was when representatives were overdrawing from their house checking accounts, sometimes for personal expenses, without any real penalties.
Nick Capodice: [00:08:01.28] Oh my.
Carlos Algara: [00:08:02.03] So the term limits movement really takes off on the basis that, you know, going to the state legislature, going to that experience is corrupting.
Hannah McCarthy: [00:08:11.27] So we have the Democratic Party, which had held the majority in Congress for almost 40 years at this point, as the old guard, the powerful and corrupt politicians whose longevity itself, at least to voters, is seen as part of the problem. And this feeling serves the purposes of Republican politicians, many of them younger and newer than the Democrats who wanted to end that Democratic stronghold in Congress.
Nick Capodice: [00:08:36.08] So folks like Newt Gingrich are running against the establishment.
Hannah McCarthy: [00:08:39.56] Basically, this is also something that we see today in Congress, people campaigning and building their reputation on the idea of being anti-establishment and even blaming the rest of Congress for something voters don't like.
Carlos Algara: [00:08:52.16] Traditionally, this gives rise to a sort of a paradox, right, that members of Congress run for Congress by running against Congress. And this is very much a bipartisan push. Right. And one thing to keep in mind is, you know, unlike being a governor of a state or being the president, individual legislators can shirk responsibility for what the legislature does and does not do. So, for example, if I am a Democratic senator and I have an angry constituent that says I'm really upset at Congress, they should have done more on Build Back Better. We should have had more environmental protections, for example. Well, I can say, yes, I was pushing that, but I'm only one of 100 senators, or I'm only one of 435 members of Congress so they can shirk responsibility for the institutional result, which is why contemporary political scientists argue Congress is much more unpopular than individual members. Members of both parties like to run against the institution. If you're trying to get ahead of the term limits thing, well, I'm one of the good ones, right? I'm fighting for you. You know, we need term limits for the other legislators, but not for me.
Nick Capodice: [00:10:05.57] So that explains to me why politicians might support term limits, even though they're hypothetically backing something that limits their own power in the future. But after all this rah rah pro term limits stuff in the 90s, there are no term limits on any members of our US Congress. Are there?
Hannah McCarthy: [00:10:25.64] No, there are none.
Nick Capodice: [00:10:26.99] So what happened?
Hannah McCarthy: [00:10:28.16] What happened was that states started imposing term limits on their delegation in US Congress and on their state legislatures, and the Supreme Court stepped in and was like, look, it's fine if you want to limit your own state government, but you can't do that to the federal government. And that Supreme Court case, by the way, was in 1995. It is called Term Limits, Inc. v Thornton.
Carlos Algara: [00:10:50.18] The basic premise behind this decision, right, is that states cannot alter the Constitution. So it ruled that the 23 states, I believe it was that implemented that pass at the state level, term limits on members of Congress cannot do so right. That the only institution that can set the parameters about membership is the Congress itself.
Nick Capodice: [00:11:13.46] All right. So all of those state imposed term limits on Congress were overturned. So how would we do it now? Like how would we even enact term limits on Congress. Because there have been proposals put forth by legislators currently serving in Congress today.
Carlos Algara: [00:11:27.56] Of course, there's no term limits in the Constitution. I suspect that if you want to pass term limits for individual members of Congress, it would have to come through constitutional means. And so what does that look like? You need a two thirds supermajorities in both chambers of Congress, and then it has to be ratified. By a supermajority of the states. And so it's very of course, it's very taxing to pass a constitutional amendment, which is why there's not a lot of them. The last one was in the early 1990s dealing with congressional pay raises. So the deck is stacked against them because we have high transaction costs. But ultimately that's what it would take, right? You would have to have these institutions made up of legislators to agree to limit the amount of terms that they would possibly serve, which in and of itself is something that sort of defies logic, because there is no incentive by which a legislature would pass a law limiting its influence, which is what you're doing with term limits.
Hannah McCarthy: [00:12:34.04] So once that Supreme Court decision came down, Republicans in Congress did push for that constitutional amendment. That's what you heard Newt Gingrich talking about at the top of the show. And the idea just kind of fell off the priority list.
Nick Capodice: [00:12:49.19] But the idea is back now.
Hannah McCarthy: [00:12:51.08] It is, but it's different. And what's different now is that it isn't individual scandal or the bad behavior of certain congresspeople that drives the term limit movement. It's a twofold perception. One, the Congress and governmental establishment as a whole is corrupt, and two, that the other side is bad, as in the other party. So when it comes to voting, constituents are going to vote along party lines regardless of scandal or personal behavior. And when it comes to term limits, any member of Congress can say, hey, you know what? I agree the whole system is corrupt. Bring on the term limits. In fact, I'll propose the bill myself.
Carlos Algara: [00:13:36.41] So, for example, I think the first bill that Senator Rick Scott from Florida when he was elected proposed was a congressional term limits initiative. And certainly, if you look at Congressman Gaetz in the whole unseating of speaker McCarthy, one of his arguments was, you know, you promised us a vote on term limits. Term limits are, you know, going back to this paradox, very popular amongst voters. And so on the one hand, it makes good politics. I'm going to introduce a bill, and I'm going to push for a vote on congressional term limits. On the other hand, it has no teeth to it because this will probably never get a vote. And if it does, it'll never pass the Senate. So it's just cheap talk.
Hannah McCarthy: [00:14:17.03] All right. We have delved deep into the history of this idea of congressional term limits, only to learn that they are very unlikely to happen, and yet they are still so popular. And they do exist not on the national level, but in 16 state legislatures. So after the break, I want to talk about what term limits look like in practice on the state level. Do they deliver on their promises? And if by some chance, term limits get popular enough in Congress and among voters to cause us to add a 28th amendment, what would it do? And we're going to get into all that after the break.
Nick Capodice: [00:14:57.77] But before that break, Hannah and I are delighted that we don't have term limits as co-hosts of Civics 101, at least that we know about. We are going to be with you as long as we can. If you want to support the work we do, consider making a gift in any amount at our website civics101podcast.org. It means a ton to us. All right.
Hannah McCarthy: [00:15:27.95] Hello. Hello, we are back. This is Civics 101 and now we are going to talk about the role of term limits in the 16 states where they exist. And term limits are a lot less straightforward than they seem, and they have some interesting results. So right now I want to bring in someone named Jordan Butcher. She's an assistant professor of political science at Arkansas State University, where she focuses on state government. And she's the author of the forthcoming book, Navigating Term Limits. So what's unique.
Jordan Butcher: [00:16:00.28] About the states that have term limits is they have what we call direct democracy. Meaning the way that we get term limits is through ballot initiatives.
Nick Capodice: [00:16:09.46] So real quick, just a note on ballot initiatives. This is instead of a state law that originates in the legislature and goes through the houses and gets signed by the executive. Ballot initiatives are laws enacted by the voters during elections, and.
Hannah McCarthy: [00:16:23.74] 15 out of the 16 states with term limits did it that way.
Nick Capodice: [00:16:27.07] What's the one exception?
Hannah McCarthy: [00:16:28.18] Louisiana, where the legislature actually chose to impose their own limits.
Nick Capodice: [00:16:32.95] Okay. And do all these states sort of do term limits kind of the same way?
Jordan Butcher: [00:16:36.82] So in my research, I'm really, really, really big on the argument that term limits are not binary. And that is something that we have done for years within the discipline of political science and state politics is we treat term limits as you either have them or you don't. And while that's not totally wrong, it's also not the best measure because we have four different kinds of term limits. And within those four kinds we have different year lengths.
Hannah McCarthy: [00:17:05.83] Now, Jordan says four. But I'm going to start by explaining two major differences. Lifetime bans and consecutive bans. First lifetime bans. Meaning once you hit a certain number of years in the legislature, you cannot be reelected.
Nick Capodice: [00:17:22.87] So term limits for the president. Those are an example of a lifetime ban. As of the 22nd amendment, which was ratified in 1947, a president does two full terms in office, and then they're done.
Hannah McCarthy: [00:17:34.15] Bingo. In California, Oklahoma and Michigan, you can only serve in the legislature for a total of 12 years. Now it could all be in one chamber, or you could serve in both chambers. But you max out at 12 years. Missouri and North Dakota have a lifetime ban of eight years, but that's in both chambers. So the total would be 16 years if you served eight in both.
Jordan Butcher: [00:17:57.55] Most people tend to just stay in the same chamber, because that's where you get your experience and your expertise, and that pays dividends the further in your career. So you don't normally switch, but you can. But then what we tend to ignore is this difference between our lifetime and our consecutive bans.
Nick Capodice: [00:18:14.14] And now consecutive bans. Are those just pretty much what they sound like? There's a limit on the number of years you can serve in a row.
Hannah McCarthy: [00:18:20.77] Yes, but.
Jordan Butcher: [00:18:22.48] That allows you to switch to the other chamber briefly and then you can go back.
Hannah McCarthy: [00:18:26.05] You can also get a job elsewhere, until time enough had passed that you could run for election again. But once you leave, the clock resets. The most common consecutive limit is eight years in the house and eight years in the Senate.
Nick Capodice: [00:18:37.87] I just want to point out here, it sounds like a lot of these term limits wouldn't actually shorten someone's legislative career, except for maybe the lifetime bans.
Hannah McCarthy: [00:18:47.74] Yeah, pretty much what it does is cause more turnover, even if some of the same people are cycling in and out.
Nick Capodice: [00:18:54.19] So, Hannah, how have term limits changed state legislatures in those states where they exist?
Hannah McCarthy: [00:18:59.92] Well, for one thing, diversity, a common argument for term limits is that they would theoretically free up space in legislatures, which would allow for more diverse legislatures.
Nick Capodice: [00:19:10.45] And has that actually happened?
Jordan Butcher: [00:19:17.92] We don't see that or we haven't seen that to this point, because what people forgot was if you're forcing out white men, you're also forcing out minority members, you're forcing out women at the same time. And women and minorities are already so much harder to recruit to those positions by forcing them out. It's made it difficult to replace them when you force women and minorities out. You have to have some strategy to replace them. And that was not in place.
Hannah McCarthy: [00:19:48.07] This is Carlos Algara again.
Carlos Algara: [00:19:50.23] There's generally a political science consensus that at the state legislative level, it empowers special interests. Right. Because you're losing a lot of this institutional knowledge. You're losing the seniority. You're empowering special interests because lobbyists provide a lot of information for legislators. And also you're empowering the governor.
Jordan Butcher: [00:20:10.15] So it's actually become more burdensome for those that work with interest groups or the bureaucracy, because every time they have a new member to deal with, they have to re-explain how everything works, because those relationships with interest groups, those relationships with bureaucrats, other state officials are so important to how the government functions. But that's a really high start up cost. If every session you've got 30% of your legislature is brand new, you have to re-explain how everything works. Within eight years it will be one. Hundred percent. Now that's a heavy burden placed on everyone else in government.
Hannah McCarthy: [00:20:50.47] Because don't forget, the legislature is not just there to pass laws.
Jordan Butcher: [00:20:55.45] Another key role that lawmakers are supposed to participate in is oversight of the bureaucracy, especially at the state level, where a lot of resources are disseminated in that way.
Hannah McCarthy: [00:21:07.48] The legislature oversees the budget and ensures the executive branch is doing what it is supposed to do with the resources. It's been given both things that you might not necessarily know how to do right when you start the job. And Jordan has seen legislatures with term limits have to adjust for that lost experience.
Jordan Butcher: [00:21:26.95] There are now far more intensive trainings for states that have term limits before they start. They have these new entities that help again with oversight. And most legislatures have research divisions. There are ways that the legislature has learned to adapt, but a lot of these ways that they've learned to adapt are in non-elected officials. And so then people just kind of need to reconcile if they want that adaptation to come through an elected official or these non elected officials who are essentially functioning and keeping the legislature running.
Hannah McCarthy: [00:22:02.38] And in a state House with term limits, where you don't have experienced legislators because you're not really permitted to. You have to find it somewhere else.
Jordan Butcher: [00:22:12.43] Missouri has one of those lifetime bans, and I saw some unique things. So in one instance, I saw a former staffer who had been a long time staffer. I believe the lawmaker that they worked for was terming out. That lawmaker had encouraged the staffer to take over that seat. So we see that recruitment happens a lot. Term limits are not. But because it was a long term staffer, the staffer knew the district. They knew the needs of the district and the constituents. So the staffer took over for that member that was turning out. I've also seen strange things. Like term limited lawmakers terming out of office and then becoming staffers for other lawmakers. That would be unheard of in other states. You would not leave your elected position to then go be a chief of staff for another elected official. Those things don't really happen in other states.
Nick Capodice: [00:23:18.25] What about those politicians who are about to term out because they don't have to campaign anymore like they're done? Do term limits make them more focused on their work?
Carlos Algara: [00:23:28.34] So there's no incentive in that last term knowing that you won't face voters again to shirk. And so that politician might be eyeing the next job, right. And might vote accordingly. So that's the biggest critique of of term limits is why would you possibly sever that relationship where a member can vote in accordance with potentially special interests at the expense of their electorate, knowing full well that they'll never have to face voters again?
Nick Capodice: [00:23:54.77] So, Hannah, I know that state government is a whole completely different animal than our federal Congress. But I do wonder, is there anything we can learn from what's happened in states with term limits that could give us a clue as to how they would affect Congress in the rare event an amendment were to pass doing so.
Hannah McCarthy: [00:24:14.18] Well, states are so often the lab for experimenting with federal policies with potential federal policies, well, states are so often the laboratory for experimenting with potential federal policies. So we kind of already know what would happen, a loss in institutional knowledge, expertise and influence. For one thing, Congress already delegates a lot to the president because it is so mired in gridlock. Carlos says that term limits would probably intensify that.
Carlos Algara: [00:24:50.02] You know, they're delegating a lot of the implementation of policy to the executive branch. And so I suspect you would see that more frequently and much more pronounced if you were to implement term limits. What I would stress is there's value in expertise. There's a whole host of very important political science research that shows that some members are more effective than others. Some members are more likely to influence public policy on behalf of their constituents. And one of the predictors of that legislative effectiveness is seniority, because it takes seniority to be in a position of leadership. A legislative career is like any other career, right? You get better with it as you learn on the job.
Hannah McCarthy: [00:25:34.48] One thing Carlos said that really struck me is that one of the few things that political scientists agree on is that term limits are bad.
Carlos Algara: [00:25:44.89] You would lose a lot of really effective legislators, and you would rob the opportunity for individual legislators after term limits are implemented to be effective. So yeah, it's a trade off.
Nick Capodice: [00:25:56.53] All right, Hannah, where does that leave the 87% of Americans who say that there should be term limits on legislators? I mean, love them or hate them? The truth is we're not likely to see them, at least on a national level, anytime soon.
Carlos Algara: [00:26:10.45] We already have term limits. You can vote them out, and some members even things are so Partizan they are being voted out. So, you know, to a certain degree, I would argue that we already have term limits and they're called elections.
Hannah McCarthy: [00:26:28.53] This episode was produced by Christina Phillips with help from me, Hannah McCarthy and Nick Capodice. Rebecca Lavoie is our executive producer. Music. In this episode by Thage, Spring Gang, peerless, The New Fools, Toby Tranter, I'm In, Katori Walker, Sarah the Instrumentalist, Ryan James, Car, Paper Twins, and Sven Lindvall. You can find our entire catalog and so much more, including how to get in touch with us at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.