Limiting Terms: Seek the People’s Approval

Is it time for term limits?

The people should determine who represent them—not special interests, not political establishment elites and not the Supreme Court. South Dakota regularly sees legislation proposed calling for a convention of states under Article V of the United States Constitution. Such a convention would, in theory, allow delegates from the states to write and propose amendments to the U.S. Constitution. South Dakota, and other state legislatures, often tack on limits regarding what the convention can discuss—though whether these limits are enforceable is another question entirely.

In 2017, South Dakota’s call for a state convention included the topic of term limits for members of Congress. Term limits would act as a check against incumbency and would allow for new blood to enter the veins of Congress.

This is not the first attempt of a state limiting Congressional members to a select number of terms. In 1992, Arkansas passed a state constitutional amendment limiting its congressional candidates to three terms in the House of Representatives, or two terms in the Senate—though it allowed candidates to exceed these limits if they win by write-in. The United States’ Supreme Court, in U.S. Term Limits, Inc. v. Thornton, found this amendment to be a violation of the U.S. Constitution, which expressly lists the qualifications necessary to be a member of the House or Senate.

Since this ruling, term limits have been unconstitutional. This means unless the Court reverses its earlier ruling, an amendment to the U.S. Constitution is required to implement term limits on members of Congress. This steep requirement is not to say that term limits do not come with benefits. Term limits could increase the odds of new ideas being represented in Congress.
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Term limits would weaken the power of incumbency, instituting a more difficult method of getting elected once and incumbent reaches the term limit. Lobbyists would become less influential, because they would not be able to keep as many of their key members in office. They limit the power of seniority and increase the power of newly elected officials—though, this result is more of a benefit to American democracy as a whole, as many people still support their own members of Congress having seniority.

Even with this list of benefits to term limits, they come at a cost. Leadership suffers if good leaders are forced to retire. Congresspeople take time to learn the processes of how Congress works, and forcing term limits on them will mean they have less time to create policy. Further, during this learning period, new members of Congress will begin to rely more heavily on lobbyists. This reliance is due to lobbyists becoming the experts on policy crafting, not long-term senators and representatives.

Even when considering these negative side-effects of term limits, Arkansas got it right when it sought to implement term limits. By allowing strong leaders to be reelected through the write-in process, it enables good leadership to stay in office while forcing bad leaders to retire. The dissents in the Thornton more accurately described the effect of the Arkansas amendment by recognizing that it only dictates who can be printed on the ballot, not who can win the election. Further, by forcing the pathway to term limits to become one of constitutional remedy by amendment, it will likely reduce individual states’ rights to decide who is best to represent them. Many constitutional discussions about term limits revolve around amending the Constitution to have set term limits instead of making it so states can individually set term limits.

Although the consequences of term limits have mixed effects, there is nothing wrong with forcing long-term members of Congress to earn the people’s continued support instead of relying solely on incumbency and money.