Political Reform Debates and Proposals #1: Term Limits for Government Officials

Source: Alabama Political Reporter. “Wednesday is Term Limits Day.” https://www.alreporter.com/2019/02/26/wednesday-is-term-limits-day/

You’ve probably heard it before: A candidate for Congress ostensibly espousing the passage of term limits on members of Congress. They talk about how broken, corrupt, and entrenched government is and see term limits as a way to put a check on such officials from abusing their station for personal gain. It isn’t necessarily a key issue of an election (in fact, it usually isn’t), but you almost always hear it when election time is rolling around.

But are term limits a good thing? Will they happen for Congress? Or maybe the U.S. Supreme Court? Certain state governments?

First of all, it’s easy for a candidate to earn a few easy political brownie points by saying they support and will fight for term limits on members of Congress. The chances for it to happen, however, are highly unlikely (some would argue never). It’s easy to call for term limits when you aren’t actually in Congress. That doesn’t mean that none of these congressional candidates mean it when they say they support term limits, but we should have a healthy dose of skepticism when we hear it.

Secondly — and this may come as a surprise to some readers — there are many people who argue against term limits, and lots of them are not government officials. Many academics, politicos, and citizens say that term limits are more detrimental than having none at all. Oftentimes, you really only ever hear of pro-term limit arguments whenever it becomes a salient topic.

And thirdly, when you start hearing more about term limits in the media, it tends to get far too condensed and simplified. In reality, it is a complex and expansive discussion that includes (but is not limited to):

• 1) What the arguments are from proponents and opponents of term limits
• 2) When, where, and how it has already been done
• 3) What term limits would look like
• 4) Where it should be expanded
• 5) How the term limit discussion fundamentally differs between the executive, legislative, and judicial branches

The first post in this new series is going to cover these very things. Before we talk about actual reforms, however, it is most helpful to discuss what existing term limits look like now.

The Arguments For and Against Term Limits

One of the main focuses for advocates of term limits tends to be a concern about government officials becoming entrenched and potentially corrupt. Incumbency — the term for already being in the elected office a candidate is running for — tends to be a big advantage in elections due to name recognition and connections in office already being made (though this is not always the case). Incumbent re-election rates tend to be very high, especially in Congress where it is not uncommon to see rates over 80 or even 90 percent.

This wasn’t always the case, however. Turnover rates, for state legislatures at least, were far greater earlier on in the 20th century, gradually declining later on. For these legislatures, turnover rates were around 50% in the 1930s, 35% in the early 1970s, and below 25% in the late 1970s and early 1980s.¹ While some state executives (e.g. governor) and the U.S. President had term limits placed on them, it wasn’t until the 1990s that state legislatures started seeing similar restraints on tenure.

Concerns about complacency, entrenchment, susceptibility to corruption, and unresponsiveness to citizens due to electorally safe seats led activists to push for term limits, but it is far from a consensus that it has been a good thing. Opponents of term limits often focus on the experience aspect. When you cap how long a legislator can stay in government, it inevitably leads to more officeholders who lack experience (though for some voters, being a “fresh face” is appealing). Opponents of term limits also argue that these legislators also have less political clout when they run for higher office, and that the resulting government is more inefficient and short-sighted because there is a definitive end to legislators’ tenures and it may influence bills that these legislators write or pass before they are required to leave that office.

So who’s right? Are some concerns overblown? Or are some of these concerns actually positives instead of negatives? That’s for you to decide.

Where We Have Seen Term Limits Implemented Already?

With the exception of Franklin Roosevelt, who died shortly into his 4th term as U.S. President, no other president served more than two full terms. Before FDR, it was merely a precedent set by George Washington to have a maximum of two full terms. It wasn’t until the 22nd Amendment to the U.S. Constitution that an official cap on tenure was instituted. (The maximum a president can serve is actually 10 years. If a president becomes indisposed for whatever reason at the halfway point of a term or later, the vice president can serve out the rest of that term and potentially win two full terms. For example, if Donald Trump wins re-election this year and were to exit office for any reason two years into his 2nd term, Mike Pence could potentially serve from then until 2032 if he won two elections. Regardless, a president can only win two elections at most.)

Most states (36 to be exact) have term limits on at least their governors. Far fewer place term limits on their other state executive officials (state executives are statewide offices such as attorney general and secretary of state).² Despite the push for term limits in the 1990s onward, only 15 state legislatures have term limits: Arizona, Arkansas, California, Colorado, Florida, Louisiana, Maine, Michigan, Missouri, Montana, Nebraska, Nevada, Ohio, Oklahoma, and South Dakota.³ ⁴ Six other states previously had term limits but they were overturned — twice by their own state legislatures (Idaho and Utah) and four by their state supreme courts (Massachusetts, Oregon, Washington, and Wyoming).³ Since there were cases where courts stepped in, the debate over term limits may include legal issues depending on the state.

Finally, while it isn’t technically a term limit, 32 state-level courts have mandatory retirement ages for their judges that act somewhat similarly. When judges in these states hit a certain age, they must vacate their office. (Some states have exceptions letting them serve out the rest of a term, a year, a month, or to a specific length following their retirement age’s birthday.) Many of these limits go beyond their state supreme courts, extending to appeals and municipal courts.⁵

The Types and Lengths of Term Limits

There are two major types of term limits: consecutive and cumulative. In offices with consecutive term limits, the officeholder can serve for however many terms are designated and cannot run for re-election for the following term. However, the former officeholder can return in the election following that. So for example, if a governor won elections in 2010 and 2014, they would have to sit out in 2018 but could run again in 2022. Nine state legislatures have consecutive term limits.³

In offices with cumulative term limits, the officeholder can serve however many years in an office and that is it. No returning to that office at a later date. Six state legislatures use cumulative term limits.³ U.S. Presidents who have won two terms have all served them consecutively with the exception of Grover Cleveland, who was president from 1885 to 1889 and from 1893 to 1897 (though he was president far before the presidential term limits were amended into the U.S. Constitution). Thus, presidential term limits are really cumulative instead of consecutive.

There is an exception of sorts to the consecutive/cumulative dichotomy, a sort of a blend of the two. Four states have a stipulation for at least their governor that they can serve eight years out of a 12-year or 16-year period.² ⁶ Montana and Wyoming use 16-year periods, but Montana extends this limit to its other statewide executive offices while Wyoming only limits its governor this way. Indiana and Oregon use 12-year periods and limit a few — though not all — of their state executive offices in this way.⁶ Thus, it’s cumulative in the sense that an official can only serve for so long in such a time period, but they could come back some years later similarly to a system of consecutive term limits.

Within the umbrellas of the consecutive and cumulative categories, there are variations in how many terms/years state legislatures allow.

• For state legislatures with consecutive term limits, the maximum is usually eight years for both state houses and state senates, but Louisiana and Nevada cap it at 12 years. Michigan is unique in that it has different term limits between its legislative chambers: six (6) years for its state house and eight (8) years for its state senate.³ ⁴
• For state legislatures with cumulative term limits, Arkansas has a 16-year total cap on serving in the legislature, while it is 12 years for California and Nevada. Those years can all be spent in either a state house or state senate or they can be split between the chambers. Michigan, Missouri, and Nevada cap how many years you can serve in each respective chamber.³ ⁴

If we again consider state courts’ mandatory retirement ages akin to term limits, these ages differ from state to state. For some states, the age is 75 (e.g. Florida), many others use 70 (e.g. Arizona), and other states have different limits.⁵

Because there are far too many local governments to cover (county, municipal, special district, etc.), we won’t go in-depth on them. But some local governments have term limits on their officeholders as well, some similar to what you see at the state and federal levels of government.

Where Would Term Limits be Expanded?

Now that we have gotten out of the way where term limits exist and how they have been implemented, where would we go from here?

You probably hear most about Congress being the next place activists want to see term limits placed. One group at the forefront of this push is US Term Limits. Yet Congress is far from the only political institution that is targeted. The other 35 states that do not have state legislative term limits likely have many activists and even some officeholders that would like to see a cap on their tenure as well.

The U.S. Supreme Court is the next-most high profile target for activists. SCOTUS was intentionally designated for life terms by the Founding Fathers. Alexander Hamilton argued in Federalist Paper #78 that the judiciary was the “least dangerous” of the three branches of government and that justices needed life terms to insulate themselves from politics.⁷ Whether these and other arguments Hamilton made were accurate is debated by scholars and activists, and highly emotionally and politically charged confirmations of SCOTUS judges in recent decades have only further pushed these activists to push for term limits here as well. One of the most notable of these groups is Fix the Court.

What to Consider if We Expand Where Term Limits are Used

For the sake of argument, let’s disregard whether term limits are helpful or harmful and talk about how to expand their use. The conversation doesn’t simply stop at “We need to have term limits.” There are many other aspects to consider, such as:

• What is the “right” type and length of said limits? We have already discussed how state legislatures differ in whether they use consecutive or cumulative limits and the number of years that legislators can serve. What would be the “correct” number for members of Congress? Do we have consecutive or cumulative limits? What about for the state legislatures that don’t have term limits? Should the same limits also apply to the SCOTUS or some state courts?
• What is the viability of implementing them? Getting term limits on Congress is a monumental, perhaps nigh impossible task. More state legislative term limits are probably going to be easier to get, though the circumstances differ from state to state. But what if there are legal issues? We’ve already seen six states remove state legislative term limits (four through their state supreme courts). Are there going to be legal issues if we were to try to place term limits on the U.S., SCOTUS, or state supreme courts? In any case, how are you going to rally enough support for term limits from citizens and officeholders?
• Term limits are naturally going to fundamentally differ between the executive, legislative, and judicial branches. There is wide variation in term lengths, their function, and how power is spread out within their respective branches, just to name a few aspects. When you get to the state level, it is even more pronounced. The “correct” term limits for a state executive may not be the “correct” one for the legislature or the judiciary. There is also the fact that the judicial branch is, at least ostensibly, the least political of the three, while the executive and legislative is inherently more political.
• Do we differentiate between elected and appointed officials? Many statewide executives and state judiciaries are appointed by the state’s governor. In relatively few cases, these executives or judges are appointed by a state legislature or another body helps the governor in selections. Many others still are elected by voters. Would the term limits change for an official if the voters make the choice or if someone in office appoints them?
• Do we differentiate between partisan and nonpartisan officials? As highly ideological and politically charged as SCOTUS confirmations can get, judges themselves are nominally nonpartisan and non-ideological. Many state supreme courts have nonpartisan elections as well, but some have partisan elections. This question most applies to state supreme courts and certain state executives — states are much more split on whether they elect these offices through partisan or nonpartisan races. Some states elect nearly all these officials, some elect very few of them, and some elect a more balanced number of these officials. On the other hand, Congress and all but one state legislature (Nebraska) hold partisan elections.

The Future of Term Limits

Political interests that stand against term limits already make it difficult to implement any more of them, whether at the federal or the state levels (or the local level, for that matter). But it isn’t just some politicians that oppose them: Many academics, pundits, and citizens also don’t support them.

Even if opposition to term limits isn’t a concern or it loses out, it’s still very difficult to implement any more term limits. The hard push for them at the state legislative level that began in the 1990s has fizzled out: The last time term limits were imposed on a legislature was Nebraska in 2000, with only a few modifications to existing term limits in other states since then.³ If the momentum were to be kick-started again, the aforementioned factors and questions would need to be considered to get the ball rolling. You could get five different people to agree on term limits yet have each one of them propose a different system.

Regardless of whether term limits are a positive or a negative, it’s not likely we’ll see any more of them imposed, at least not any time soon. Arguably, this is especially the case for Congress and SCOTUS. Perhaps there is a surprise waiting in the relatively near future, but don’t count on it.

1. Uppal, Yogesh and Amihai Glazer. 2015. “Legislative Turnover, Fiscal Policy, and Economic Growth: Evidence from U.S. State Legislatures.” Economic Inquiry 53 (1): 91–107.
2. Ballotpedia. “State executives with term limits.” https://ballotpedia.org/State_executives_with_term_limits (accessed August 10, 2020).
3. Ballotpedia. “State legislatures with term limits.” https://ballotpedia.org/State_legislatures_with_term_limits (accessed August 10, 2020).
4. National Conference of State Legislatures (NCSL). “The Term-Limited States.” https://www.ncsl.org/research/about-state-legislatures/chart-of-term-limits-states.aspx (accessed August 10, 2020).
5. Ballotpedia. “Mandatory retirement.” https://ballotpedia.org/Mandatory_retirement (accessed August 10, 2020).
6. Ballotpedia. “States with gubernatorial term limits.” https://ballotpedia.org/States_with_gubernatorial_term_limits (accessed August 10, 2020).
7. Library of Congress. “Federalist Nos. 71–80.” https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493470 (accessed August 11, 2020).