More On “Drain the Swamp”

Here’s What the Founders Thought About Term Limits

   The true “permanent political class” . . . . exists in the federal agencies.

Jarrett Stepman / December 16, 2016

            With the sudden dominance of Republicans in Congress, state legislatures, and, of course, the White House, conservatives have an incredible opportunity to restore constitutional principles to government.

            Several lawmakers have brought back the old idea of congressional term limits to “drain the swamp” on Capitol Hill.

Sen. Ted Cruz, R-Texas, and Rep. Ron DeSantis, R-Fla., wrote an op-ed for The Washington Post suggesting they will endorse a constitutional amendment to limit the number of times a legislator can run for re-election to the same office, an idea that was also popularized by President-elect Donald Trump during his campaign.

Cruz and DeSantis argued, “Though our Founding Fathers declined to include term limits in the Constitution, they feared the creation of a permanent political class that existed parallel to, rather than enmeshed within, American society.”

It is worth examining what the Founders believed about term limits and what, fundamentally, has gone wrong with our modern government that has expanded far beyond its originally intended bounds. That most Americans believe their government to be dysfunctional and corrupt should be a tip-off that there are deep problems at the heart of our institutions.

‘Rotation in Office’

The idea of term limits, connected to the notion of “rotation in office,” was popular during the early days of the American republic.

Founding-era citizens viewed term limits as a means to prevent corruption and distant, entrenched interests staying permanently in power. They worried that a lack of change in higher office could be destructive to republican government.

Under the Articles of Confederation, term limits kept representatives to three terms in any six-year period. However, after considerable debate, the idea was abandoned during the construction of the Constitution because many Founders were skeptical of forced rotation’s usefulness—though there were certainly strong advocates in its favor.

For instance, a 1788 pseudonymous essay likely penned by noted anti-federalist Melancton Smith suggested that while limiting terms in local elections was probably unnecessary, limits would provide a useful check on the power of federal legislators, who were “elected for long periods, and far removed from the observation of the people.”

The essay’s author worried that without a mechanism to push national legislators out of office from time to time, lawmakers would become “inattentive to the public good, callous, selfish, and the fountain of corruption.”

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He continued to warn readers that “Even good men in office, in time, imperceptibly lose sight of the people, and gradually fall into measures prejudicial to them.”

Thomas Jefferson was also wary of abandoning rotation, and wrote to his friend Edward Rutledge in 1788, “I apprehend that the total abandonment of the principle of rotation in the offices of president and senator will end in abuse. But my confidence is that there will for a long time be virtue and good sense enough in our countrymen to correct abuses.”

But some of the Constitution’s strongest advocates rejected the notion that sweeping out legislators by law would reduce corruption.

James Madison wrote that term limits might actually lead to government dysfunction. He wrote that frequent elections were a better check on power than forcing legislators out of office by law.

Those who stood against term limits argued that regular elections by the people could be a better check on corruption than constitutional limits and that such restrictions would create their own problems.

Madison wrote in Federalist 53 that the higher proportion of new representatives swept into office due to term limits could lead to poor decisions and corruption from a wave of inexperienced legislators.

Madison surmised that the “greater the proportion of new members, and the less the information of the bulk of the members, the more apt will they be to fall into the snares that may be laid for them.”

Ultimately, the anti-term limits forces won out and the Constitution was ratified without them.

A Return to Term Limits

Even though the framers of the Constitution ultimately dropped term limits, the debate over rotation for federal officials continued into future generations.

Through the 19th century, a regular rotation in office was common as citizens and politicians believed by creed and custom that periodic changes in public office were healthy for the republic. There were also practical limits on time in office, like shorter life spans. In the 20th century, long-term incumbency increased substantially.

Growth in governmental scope produced less turnover and more careerism than previous eras. This led to a movement to curtail the power of near-permanent stays in office.

Anti-Establishment Mood Could Spur Revival of Term Limits

As Americans tried to curb the power of their government, proposals were adopted to circumscribe the executive, legislative, and even the judicial branch with term limits.

Term limits on the chief executive were introduced after the four concurrent elections of President Franklin Roosevelt.

While earlier presidents had served no more than the two-term precedent set by George Washington, FDR stayed in office nearly 13 years, prompting fears of a calcified presidency. So, in 1951, the United States ratified the 22nd Amendment to strictly limit the president to two terms.

Reformers set their sights on legislative incumbency too. A wave of states passed term limit restrictions on their legislators in the mid-1990s, and the reforms attracted broad and bipartisan support.

But the Supreme Court struck down these laws in U.S. Term Limits v. Thornton, in which they were struck down over conflict with Article I, Section 2 of the Constitution.

Many states passed term limits for their state legislators too, but according to some research, the results were mixed.

The term limits movement has been essentially dormant for over a decade.

A System Neither Constitutional, Nor Democratic

Unfortunately, over time, the American system of government has changed. The original checks and balances that the Founders incorporated into the Constitution have been twisted and undermined.

A surge of populism that goes hand-in-hand with the idea that the American people need to reassert their authority to “throw the bums out” of Congress will undoubtedly fuel the increase in popularity for term limits.

Yet it’s unclear what the ultimate effect of a term limit law would be. It will certainly solve the problem of Americans hating Congress, but re-electing their own congressmen. And it is also encouraging that Americans are starting to look at structural government dysfunction, rather than just focusing on elections and specific policies.

However, term limits will not address the larger problem of persistent big-government incursions of the unelected “fourth” branch of government: the vast federal bureaucracy.

The true “permanent political class” that Cruz and DeSantis warn of exists in the federal agencies.

A combination of the Civil Service Act of 1883, which, over time, has made it impossible to fire or remove career bureaucrats once they are hired, and the Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Supreme Court case, which ensures judicial deference to the bureaucracy in regard to regulation, has made the fourth branch vastly more powerful and less accountable than anything the Founders conceived.

Progressive Era reformers successfully created a system that left long-term power in the hands of the technocratic agencies that would handle most of the business of government.

As Heritage Foundation legal fellow Elizabeth Slattery noted, the result has been the creation of unchecked agencies that “pok[e] into every nook and cranny of daily life.”

Unfortunately, it’s possible that term limits may further reduce the power of the legislative branch vis-à-vis the agencies, as inexperienced legislators may lack the bill drafting skills to tightly circumscribe agency action.

Term limits may add “rotation in office” to the legislative branch, only to cede additional power to a permanent class of bureaucratic staffers who do not even stand for election.

Additionally, studies on state-level legislative term limits have demonstrated mixed results. The kinds of people holding office generally change very little and the balance of power generally tips toward the executive branch and bureaucracy. Yet the power of party leaders typically declines as well.

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As American political theorist James Burnham wrote:

            The bureaucracy … not merely wields its own share of the sovereign power but begins to challenge the older branches for supremacy. This emergence of the bureaucracy is a creeping growth, expressed most tellingly in the day to day, unpublicized activities of the governmental colossus …

            Perhaps limits on this system—which is neither constitutional, nor democratic—should be the next step for those who want to return to the Constitution and a government of the people, by the people, and for the people.