The time has come, we are constantly told, to limit the terms of members of Congress. Referendums being voted upon today almost certainly will add to the outcry. The Supreme Court will get into the act when it hears a case from Arkansas November 29.
A great deal of this hustle-bustle is a waste of time, money and effort. Effective term limitation cannot be achieved by passing laws, state by state, or by appeal to the courts. If the people want term limitation, there is but one certain way to achieve it: Amend the Constitution.
The Arkansas case is a poor horse to ride. It cannot settle the issue finally, for the law in Arkansas (written into the state constitution in 1992) does not limit terms in Congress. It limits access to the Arkansas ballot.
The state's Amendment 73 begins with an admirable preamble: "The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with re-election and ignore their duties as representatives of the people."
As a general proposition, that blunt statement commands applause. Amendment 73 continues: "Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive and less representative than the system established by the Founding Fathers."
It is hard to argue otherwise. Then Amendment 73 gets down to business: "Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the House of Representatives from Arkansas."
A companion section applies to "any person" who has been elected to two or more terms as a member of the Senate.
Amendment 73 is a tricker. Arkansas voters sent David Pryor to the Senate in 1978; they re-elected him in 1984, and again in 1990. If Amendment 73 survives Supreme Court scrutiny, Senator Pryor could still run for a fourth term. He would be ineligible to have his name placed on the 1996 ballot, but he could run as a write-in candidate.
The state argues persuasively that its Amendment 73 does not add a new qualification for serving; it adds only a new qualification for running. Under the U.S. Constitution, each state may prescribe "the times, places and manner" of holding
elections to Congress.
Arkansas contends that access to its ballot is a permissible regulation of "manner."
As a matter of law, this innocently deceptive limitation may pass muster, though I doubt it. And unless the court breaks with tradition, by reaching out to grab the underlying question of VTC outright term limitation, the Arkansas case could easily fizzle out.
In any event, as a matter of policy, the piecemeal approach to term limitation strikes me as dead wrong. If Arkansas wins its case, Arkansas may never hold a House chairmanship again. Six years and out! Meanwhile, states that do not limit terms will re-elect increasingly influential incumbents time after time.
It is on this issue of uniform rules, nationwide, that proposals for term limitation will rise or fall. Advocates are depending on the wrong section of the Constitution. They ought to forget Article I and look to Article V instead. Article I deals with electing members of Congress; Article V deals with amending the Constitution.
Political realities tell us that two-thirds of both houses of Congress will never approve an amendment that would throw them out of office. Such is the nature of human nature. But there is another way. Given the popularity of the limitation movement, the legislatures of two-thirds of the states could demand -- and get -- a constitutional convention.
True, this has never been done. Every constitutional amendment thus far has been ratified through a resolution submitted by Congress. The task of assembling applications from 34 states may be a formidable task, but it is not an impossible task. The state petitions would have to be reasonably uniform, but a constitutional convention could word a final amendment as it wished.
Then, of course, would come the task of getting three-fourths of the states to ratify the convention's work, preferably through their own respective state conventions. This too might be tough, but it would settle the matter finally, and it surely would beat the patchwork quilt the states are stitching together now.
James J. Kilpatrick is a syndicated columnist.