Term Limits: Divining the Wishes of the Founders

THE BALTIMORE SUN

A federal district court judge in Seattle ruled this month that Washington state may not enact a law that would, in effect, limit the terms members of the U.S. House of Representatives and Senate could serve.

Voters in the state approved an initiative in November that would forbid the state from listing on the ballot a candidate for representative who had served for six of the previous 12 years. The same initiative forbid the listing of a Senate candidate who had served in that body 12 of the previous 18 years.

The initiative also would forbid such incumbents or ex-incumbents from filing a formal declaration of candidacy. But they would be eligible to be elected as write-in candidates.

That was cold comfort to House Speaker Thomas S. Foley, D-Wash., who, with others, sued to have the initiative declared unconstitutional. They knew that never in Washington's history had a write-in candidate won election to Congress.

Judge William L. Dwyer based his decision to throw out the so-called term limits law primarily on the Constitution, and primarily on his belief that Article I, Sections 2 and 3, are the exclusive qualifications for holding congressional office. Those sections list only these qualifications:

"No person shall be a representative who shall not have attained the age of 25 years, and has been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen."

"No person shall be a senator who shall not have attained the age of 30 years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen."

Judge Dwyer said his reading of the debates of the Constitutional Convention, of the "Federalist Papers" advocating the Constitution's adoption and of other contemporary political literature made it unquestionable that the Founding Fathers intended that states not impose any other requirements for election to Congress.

He notes that the delegates to the Constitutional Convention voted unanimously in 1787 to reject explicit term limits.

He quotes Alexander Hamilton: "The qualifications of the persons who may choose or be chosen . . . are defined and fixed in the Constitution, and are unalterable by the legislature." He quotes James Madison: "The qualifications . . . have been properly considered and regulated by the convention."

Both of those quotations were also used by the Supreme Court in 1969, when it ruled that Congress could not change members' qualifications.

Proponents of term limit laws in Washington (and the 14 other states that have voted for them) say that has nothing to do with states adding qualifications. All that Article I does, they argue, is forbid states from adopting different age, citizenship and residency requirements. States can't alter in any way those three qualifications, but it can add others, this theory goes.

Term-limit supporters can quote the scriptures of the Founding Fathers, too. They cite Madison and other members of the first Congress, which produced the Bill of Rights. That document was among other things intended to assure the states that their rights -- particularly political rights -- would not be secondary to the federal government's.

The pro-term-limits argument stresses the last two of the amendments that make up the Bill of Rights, the Ninth and Tenth. Those say that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." And that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The Washington term limits case looks very much like one of those where the Supreme Court is going to have to determine how to rule by determining what a small group of men thought more than 200 years ago. And what they wanted us, 200 years later, to do about their intentions.

Here is my guess (I'm not a judge; I can admit that's what it is). I'd guess the Founding Fathers believed so strongly in rotation in office and citizen government that they would be horrified to see how permanent and full-time service in Congress has become.

For example, before he was elected to the House in 1964, Speaker Foley was an aide to the late Sen. Henry Jackson of Washington. Mr. Jackson served 12 years in the House of Representatives and 30 years in the Senate -- 42 years a member of Congress! -- and would be serving in his 53rd year today, no doubt, if he hadn't died. (At 81 he'd still be younger than the Senate's senior member and younger than at least two members of the House.)

At the time of the elections to the first Congress, such a development was unthinkable. Several states had term-limit laws for their legislative bodies. The Articles of Confederation had had term limits for the national Congress.

More importantly, most of the men who were elected to the House and Senate in the early years of the republic did not regard Congress as a career, much less a life.

This is obvious in the subsequent histories of the members of the first Congress. Compare them to the limits that would be imposed by Washington's initiative -- six years in the House, 12 in the Senate.

There were 65 members of the House of Representatives in the first Congress, elected in 1789. Only 12 (18.5 percent) did in fact serve more than six years in the House.

In today's House there are 242 representatives who have been elected to at least four terms. Out of 435, that's 55.6 percent.

Only three representatives who went to Congress in 1789 served 12 years. None served more than 12. In today's House there are 131 representatives in at least their 13th year, including Maryland's Steny H. Hoyer.

As for the Senate, only three (11.5 percent) of the original 26 senators served more than two terms, or 12 years.

Fifty-two (52 percent) of the 100 present-day senators are in at least their 13th year in that body. That includes Robert C. Byrd of West Virginia, who has been there 35 years, and Robert Dole of Kansas, who has been there 25 -- after serving eight years in the House for a grand total of 33 years in Congress.

No member of the original Senate would serve more than three terms. This year Paul S. Sarbanes is running for a fourth term (after three in the House), and if he wins re-election it appears the Senate this time next year will have 28 members who have served longer than any of the original senators.

(In Maryland's original congressional delegation, the two senators served two and three terms; five of the six representatives served only one term, and the other served two terms.)

The constitutional issue aside, what's so wrong with having so many members of Congress serve so long today? Here is what the preamble to Washington's initiative says:

". . . Entrenched incumbents have become indifferent to the conditions and concerns of the people; entrenched incumbents have an inordinate advantage in elections because of their control of campaign finance laws and gerrymandering of electoral districts; entrenched incumbency has discouraged qualified citizens from seeking office; entrenched incumbents have become preoccupied with their own re-election and devote more effort to campaigning than to making legislative decisions for the benefit of the people; entrenched incumbents have become closely aligned with special interest groups who provide contributions and support for their re-election campaigns, give entrenched incumbents special favors, and lobby office holders for special interest legislation to the detriment of the state, and may create corruption or the appearance of corruption. . . ."

Now I agree with all of that and suspect that most close observers of Congress at work and play do, too. I know that most voters do; term limit laws always pass. And I guess that Madison, Hamilton, Washington and the others who wrote the Constitution would, too.

But I would not be surprised if the Supreme Court upholds Judge Dwyer, and it might not be a bad thing. Why? Because, as he says in his opinion, if a state can enact a law limiting office to the class of people who have not already served too long, it perhaps could enact a law limiting office to people who already have served too long.

"In a political climate different from today's," Judge Dwyer wrote, "a state's voters -- or its legislature -- might believe that age brings wisdom, government experience brings knowledge, and long-term incumbency brings power in the nation's capital. The state might therefore adopt an experience requirement: only those presently serving in Congress, or with at last two years service in Congress or the state legislature would be eligible for election to the federal House or Senate. This method of 'going through the chairs' could be presented as thoroughly democratic, since anyone could run for the state legislature."

That seems to be plainly unconstitutional on its face, he went on, but if term limits aren't, it might not be, either.

I doubt very much if in today's climate of opinion the American public at large would support a "going through the chairs" initiative or referendum, but I can imagine a state legislature enacting such a law under certain circumstances. I once heard an office holder who rose to national prominence by election to successively higher local, state and federal offices advocate just such a law. I can't tell you his name. It was off the record. So at least he was ashamed of it.

Theo Lippman Jr. is an editorial writer and columnist for The Baltimore Sun. Researcher Cristina Posa contributed to this article.

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