Constitution Check: Has the time come to limit congressional terms?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: term limits for members of Congress.

The statement at issue:

“Florida is the first state to take this step, but it will not be the last. With term limits polling at all-time highs and the Congress at record lows, pressure is building around the nation for Congress to take action.”

–Karl Dickey, for an online newspaper, the West Palm Beach Libertarian Examiner, on March 2, “Florida legislature to Congress: Pass term limits for the U.S. Congress,” commenting on the state legislature’s action the day before urging Congress to send forth a constitutional amendment to impose term limits on its members.

We checked the Constitution, and…

It has been 17 years since the Supreme Court ruled that the states have no authority under state law to impose term limits on those who seek seats in the U.S. House of Representatives. It did so in the case of U.S. Term Limits v. Thornton, a ruling that made it clear that if such restrictions ever were to be imposed, it could only be done by amending the U.S. Constitution. The organization that pursued that case, U.S. Term Limits, is still very busily pursuing that goal, and has started a new round, seeking to persuade states to sign on to the campaign.

Florida’s legislature was the first, passing by acclamation (no specific vote count) a “House Memorial” calling on Congress to start the constitutional amending process. The resolution cited “a continuous and growing concern” that the Nation’s best interests would be served by setting limits on the terms that Representatives and Senators could serve. It claimed that this was the wish of “the founding fathers, incorporated into the Articles of Confederation, attempted through legislation adopted by state legislatures, and documented in recent media polls.” (One national poll in 2010 showed 78 percent of Americans favored the idea.)

Showing that the issue is showing some new life, Florida’s legislature became the first state legislature in the past decade to endorse a new amendment.

The Florida measure did not specify what limits ought to be imposed. But, in Washington, the proposal that is most often mentioned in discussions of the issue would limits members of the House to three two-year terms and of the Senate to two six-year terms. (For the House, if a member filled a vacancy for more than one year, that would count as the first term; for the Senate, it would count for a member who had filled a vacancy for more than three years.)

The backers of that proposal not only make “good government” arguments in favor of having “citizen legislators, not career politicians” (U.S. Term Limits’ slogan), but also are arguing that term limits are needed to end corruption. Senator Jim DeMint, South Carolina Republican, a sponsor of such an amendment, commented on the Senate floor in February: “All of the cases of corruption and bribery that I’ve seen, unfortunately, come from more senior members.”

But, whatever enthusiasm there may now be for the basic principle, there does seem to remain a wide gap in how members of Congress react. Senator DeMint, in fact, made his comment about corruption when the Senate voted down his measure, 24 to 75. Of course, under the Constitution, it needed 67 “aye” votes in the Senate, as well as two-thirds of the House, before it could be sent to the states for ratification.

An advocacy organization, the Senate Conservatives Fund, commented after the Senate vote: “It is telling that the senators who voted against term limits have been in the Senate for an average of 13.6 years compared to just 6.4 years for those who support them.”

The Florida legislature’s vote, though, may not have been such a forlorn request, if other states can be persuaded to join in the calls for an amendment. While the Constitution’s Article V gives Congress the authority on its own to choose to send a proposed amendment to the states (if the necessary votes are there for it in both chambers), the same Article makes it clear that Congress would have no choice but to call a new constitutional convention if two-thirds of the states – that is, 34 states – formally ask it do so.

That, obviously, is what U.S. Term Limits hopes got started in Florida.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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