Unformatted text preview: ARTICLES Are Term Limits Undemocratic?
EinerElhauget INTRODUCTION: THE FALSE PARADOX OF TERM LIMITS
The Supreme Court's decision in US Term Limits, Inc v
Thornton' resolved the law regarding federal term limits but not
their desirability. The decision makes this much clear: the Qualifications Clauses2 prohibit both Congress and the states from
limiting the terms of federal legislators. Constitutional amendment is the only means left open.' But the question that remains
largely unilluminated is whether term limits are sound as a matter of political economy or democratic principle.
That question remains practically important to more than
just scholars. The Qualifications Clauses do not apply to state
legislators and governors, but many lawsuits claim that a fundamental conflict with democratic principles makes term limits
on state officials unconstitutional under other clauses.4 Leaving
t Professor of Law, Harvard Law School. I am grateful for helpful comments on prior drafts or outlines of this work from Lucian Bebchuk, Jim Blumstein, Richard Fallon,
Barry Friedman, Howell Jackson, Beth Garrett, Paul Gewirtz, Louis Kaplow, Ken Klee,
John Lott, Richard Manning, Dan Meltzer, Eugene Mills, Martha Minow, Paul Mishkin,
Henry Monaghan, Richard Parker, Nelson Polsby, Bob Rasmussen, Richard Revesz,
Steve Shavell, Anne-Marie Slaughter, David Strauss, Peter Strauss, Steve Sugarman,
Alex Tabarrok, Laurence Tribe, Martin Wattenberg, David Wilkins, and other participants at workshops at the Harvard Law School Colloquium, the Harvard Law & Economics Workshop, and the Vanderbilt Law School Workshop.
115 S Ct 1842 (1995).
US Const, Art I, § 2, cl 2; US Const, Art I, § 3, cl 3.
US Term Limits, 115 S Ct at 1845, 1871.
See, for example, Nevada Judges Assn v Lau, 112 Nev 51, 910 P2d 898, 900 (1996)
(Equal Protection and Due Process); Bates v Jones, 904 F Supp 1080, 1091 (N D Cal 1995) 83 The University of Chicago Law Review [64:83 aside any legal issue, we need to know whether as a policy matter states should continue to press for term limits or rescind the
ones they have and whether the answer differs for executive and
legislative term limits. And other nations remain constitutionally
unrestricted. Should they adopt term limits and does the answer
differ depending on the voting system and on whether the limit
applies to representatives to national government or to federations like the European Community? Nor is constitutional change
beyond question for the United States. Should we press for a constitutional amendment allowing congressional term limits or for
one repealing the limit on presidential terms? Should Presidents
make approval of term limits a litmus test for future Supreme
Court nominations? And there are questions of interest to scholars even if nothing practical turns on them. We want to know
whether US Term Limits was correctly decided, and whether an
ideal political process would include term limits, however impossible their adoption may be.
To say that the Court left the merits of term limits largely
unilluminated is not to say it did not adopt a strong premise
about them. It did: term limits struck the Court as patently undemocratic. As Part I discusses, the Court invoked traditional
tools of text, framers' intent, history, and precedent, but it conceded ambiguity in those materials-an ambiguity it resolved at
every turn with the assertion that term limits are undemocratic.
This assertion borrowed partly from statements by our framers
objecting that a legislative power to restrict who could run for office could produce elitist exclusions and legislative selfperpetuation. These are convincing objections to requirements
that candidates be property owners, professionals, or members of
the majority religion or party, which were the kind of restrictions
the framers mainly considered. But the last thing one can say
about term limits is that they help an elite or legislative majority
to perpetuate itself in office. No, what really seemed to motivate
the Court was a broader premise: that democratic principles give
voters an unfettered right to vote for whomever they please.
This premise was hardly unique to the Court. The conventional wisdom among most academics and leading newspapers
was that, whatever the constitutional ambiguity, term limits
were clearly a bad idea.5 Doubtless this partly reflected the elite's
(First Amendment and Equal Protection).
' See, for example, Nelson W. Polsby, Constitutional Mischief: What's Wrong With
Term Limitations, Am Prospect 40, 41 (Summer 1991); Gary S. Becker, Reforming Congress: Why Limiting Terms Won't Work, Bus Wk 18 (Aug 6, 1990); Kathleen M. Sullivan,
Dueling Sovereignties:U.S. Term Limits, Inc. v. Thornton, 109 Harv L Rev 78, 109 (1995); 1997] Are Term Limits Undemocratic? distaste for what it perceived as a populist know-nothing movement based on the ridiculous premise that experience and expertise worsened legislative judgment. But the more fundamental
and largely unchallenged objection was that term limits were
undemocratic because they prevented voters from freely exercising their judgment to retain experienced representatives if voters
wished. Term limits further seemed to have no redeeming
prodemocratic virtue; if a majority of voters wanted to replace
experienced incumbents with newcomers, they could do so without term limits. Just vote the bums out.
Indeed, no account of term limits can be satisfactory unless
it explains an apparent paradox: why do the same voters who
vote overwhelmingly for term limits also vote overwhelmingly to
return their senior incumbents to office? At the same time that
term limits were being passed in twenty-four states (with 70 percent support in some states),6 voters were generally returning 90
percent of state incumbents and up to 98 percent of federal incumbents who ran for reelection, the bulk of whom exceeded the
term limits those voters had just approved.7 To many, the simultaneous votes for senior incumbents and term limits that would
oust them are inconsistent, suggesting that votes for term limits
reflected little more than an irrational temper tantrum at odds
not only with democratic principles but with voters' own revealed
The paradox disappears, however, once we realize that there
is no inconsistency between the two votes. As Part II shows, voters who wish to oust incumbents face a collective action problem.
Incumbents by definition have more seniority than challengers,
and this seniority gives them more legislative clout. Any individual district that ousts its incumbent is thus penalized by a
smaller share of legislative power and governmental benefits
unless the other districts also oust their incumbents. This penalty grows with the seniority of the incumbent and can coerce
Bruce E. Cain, The Varying Impact of Legislative Term Limits, in Bernard Grofman, ed,
Legislative Term Limits: Public Choice Perspectives 21, 21 (Kiluwer 1996) (Most political
scientists oppose term limits.); David J. Olson, Term Limits Fail in Washington: The 1991
Battleground, in Gerald Benjamin and Michael J. Malbin, eds, Limiting Legislative Terms
65, 79, 89 (CQ 1992) (Virtually all Washington state newspapers opposed term limits.).
' The twenty-four include the twenty-three listed in ScaringMississippi Voters, Wall
St J A18 (Oct 30, 1995), and New Hampshire, see NH Rev Stat Ann § 653:3-4 (Michie
' See US Term Limits, 115 S Ct at 1912 (Thomas dissenting); Gerald Benjamin and
Michael J. Malbin, Term Limits for Lawmakers: How to Start Thinking About a Proposal
in Process, in Benjamin and Malbin, eds, Limiting Legislative Terms table B-2 at 293
(cited in note 5); Andrew R. Dick and John R. Lott, Jr., Reconciling voters' behavior with
legislative term limits, 50 J Pub Econ 1, 2 & n 3 (1993). The University of Chicago Law Review [64:83 districts to vote for incumbents whose ideological views the individual districts disfavor and who deliver pork that on balance
harms all districts as a group. Each district might thus prefer
ousting its senior legislator if others would do the same because
that would reduce ideological divergence and pork levels without
any district suffering a smaller share of governmental power and
benefits. But because each individual district's vote on whether
to reelect an incumbent does not affect whether other districts
reelect theirs, each district rationally reelects its own senior legislator to get a greater share of governmental power and benefits.
The districts will thus continue to reelect senior incumbents even
if they would be better off collectively ousting them all. By ousting all legislators over a certain seniority level and reducing the
penalty for replacing incumbents below that level, term limits
can both decrease ideological slack and lessen overall pork. The
result is not to fetter democratic preferences but to further them.
With term limits, each district gets both ideological representation closer to its views and a lower overall amount of pork it prefers.
In addition, even if happy with the ideology of its representative, each district may desire to get rid of the senior representatives from other districts. Representatives from other districts
cannot be reached through ordinary voting but can be reached
through term limits. If the ideological and other political benefit
each district derives from its senior representative is less than
the political harm it suffers from other districts' senior representatives, each district can be made better off by agreeing to give
up its senior representative if the other districts will give up
theirs. This goal also presents a collective action problem: no district has incentives to individually oust its senior representative
unless the others oust theirs, but each district can be made better off if all will oust their senior representatives collectively.
Likewise, the goal seems prodemocratic, though with a significant difference: each district's individual representative may
conform less to the district's democratic preferences, but the aggregate legislative representation comes closer to each district's
However, sometimes districts constituting a majority of the
political jurisdiction may wish to oust the senior representatives
of other districts even though those other districts are not made
better off by the bargain. This presents less a collective action
problem than a problem of the majority imposing its will on the
minority. But, I will argue that furthering such majority preferences through term limits is also prodemocratic, especially since 1997] Are Term Limits Undemocratic? the underlying motivation is generally correcting the externalities the minority's representatives impose on the majority.'
The model developed in Part II does more than justify legislative term limits. By specifying the conditions supporting these
justifications, it offers predictions and explanations about when
and where term limits are likely to be popular. For example, as
the foregoing suggests, districts differ. Even though sometimes
all districts may favor term limits, they will not always be
unanimous. The model explains which districts are likely to favor
and oppose term limits. It further explains in which political jurisdictions and historical periods term limits are most likely to be
popular. It explains why term limits are more popular in legislatures with district representation than in those with proportional
representation. It predicts the forms term limits are likely to
take when imposed by states on their federal officials. And it illuminates a seeming conundrum-why despite the seeming facial
neutrality of legislative term limits, conservatives have been
more uniformly in favor of them and liberal leaders have been
split on their desirability.
But the analysis in Part II holds only for political representatives elected to a collective body through district-by-district
voting. What explains the more established practice of imposing
term limits for positions like President, governor, or mayor,9
where the entire political jurisdiction votes on each seat? Collective action problems cannot justify such term limits. Instead, as
Part III shows, the justification is that voters may not be seeing
the alternatives they prefer on the ballot because of entry barriers. Long-term incumbents have brandname advantages that
create high barriers to political entry. By reducing these barriers,
term limits can increase competition in legislative and executive
races. The additional entry may present new candidates the districts prefer to incumbents but did not see on the ballot while entry barriers were high. More subtly, even if voters do not prefer
the new candidates to the incumbents, greater competition can
See Part IV.A.2.
The United States Constitution imposes term limits on the President, see US
Const, Amend XXII, § 1, and many other countries do the same for their chief executives.
See James D. Adams and Lawrence W. Kenny, Optimal Tenure of Elected Public Officials, 29 J L & Econ 303, 314 & n 21 (1986). Most states impose term limits on their governors. See Beth Garrett, Term Limitations and the Myth of the Citizen-Legislator, 81
Cornell L Rev 623, 630 n 15 (1996) (forty states); F. Paul Calamita, Comment, Solving the
Voters' Dilemma: The Case for Legislative Term-Limitation, 8 J L & Pol 559, 589 n 156
(1992) (collecting citations for thirty states). And 35 percent of major cities impose term
limits on their officials. Mark P. Petracca and Kareen Moore O'Brien, The Experience
with Municipal Term Limits in Orange County, California, in Grofman, ed, Legislative
Term Limits 289, 289 (cited in note 5); Calamita, Comment, 8 J L & Pol at 561. The University of Chicago Law Review [64:83 broaden and hone the issues debated and move incumbents to
positions closer to those held by their electorates. Again, this
analysis helps us understand not only the motivation for term
limits but when and for which offices they are likely to seem attractive.
Nonetheless, the alleged paradox does dispose of many
popular arguments for term limits, including claims that citizenlegislators are better than career politicians. Many argue that
long legislative stints make legislators corrupt, arrogant, cynical,
unprincipled, resistant to reform, sympathetic to special interest
groups, and out-of-touch with their electorate. ° This would be
avoided if representatives were like Cincinnatus, leaving their
plows to serve only temporarily in the legislature and then returning to their farms. Much ink has been spilt debating whether
term limits would produce such noble, fresh-minded, citizenlegislators or rather uninformed, easily manipulated amateurs."
The ultimate question, stated in many different guises, is
whether, at some point, further legislative experience on balance
begins to worsen decisionmaking. That seems impossible to answer satisfactorily in the abstract. And some have persuasively
argued that term limits might not even produce citizenlegislators but rather political careerists who move from one
term-limited position to another.' But the deeper problem is
that, even if the proponents of citizen legislators are absolutely
" These were the arguments used during the constitutional debate about rotation,
see US Term Limits, 115 S Ct at 1859 & n 23; Part I.A.3, and by most current supporters
of term limits. See, for example, Brief for the State Petitioner, US Term Limits (Nos 931456, 93-1828), 1994 WL 444683 at *4 (quoting Ark Const, Amend 73, preamble); George
F. Will, Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy
40-41 (Free Press 1992); Mark P. Petracca, Rotation in Office: The History of an Idea, in
Benjamin and Malbin, eds, LimitingLegislative Terms 19, 20-28 (cited in note 5); Garrett,
81 Cornell L Rev 623 (cited in note 9) (collecting sources). Because these arguments prove
to be unpersuasive justifications for term limits, it is not surprising that both the constitutional framers and the current Supreme Court had little difficulty rejecting term limits.
" Compare, for example, Polsby, Am Prospect at 40-42 (cited in note 5) (Term limits
will produce uninformed amateurs who will be disproportionately old and rich persons
needing no career.), with Will, Restoration at 9-10 (cited in note 10) (The careerism associated with long legislative tenures produces bad legislative decisions.).
2 See Garrett, 81 Cornell L Rev at 656-57 (cited in note 9); Gerald Benjamin and Michael J. Malbin, Term Limits for Lawmakers: How to Start Thinking about a Proposal in
Process, in Benjamin and Malbin, eds, Limiting Legislative Terms 3, 14-15 (cited in note
5). Nor is there good evidence that the backgrounds of legislators would change with high
turnover. See Alexander Tabarrok, A Survey, Critique, and New Defense of Term Limits,
14 Cato J 333, 335-36 (1994) (noting that percentage of lawyers in Congress was just as
high or higher when turnover was higher and that most legislator characteristics remain
stable despite varying tenure levels); Linda L. Fowler, A Comment on Competition and
Careers, in Benjamin and Malbin, eds, Limiting Legislative Terms 181, 182 (cited in note
5) (same). 1997] Are Term Limits Undemocratic? right that legislative experience is bad and reduced by term limits, that still does not explain why we need term limits. If the
only problem with the current system were that long legislative
stints make incumbents unattractive representatives, voters
could just vote against them. To explain and justify term limits,
we need rationales that cannot be accomplished by ordinary voting 13 The collective action and entry barrier problems provide both
that explanation and telling reasons to find term limits prodemocratic. Part IV shows that counterpoints exist, but there are
certainly rational grounds for voters to think that term limits on
balance enhance democratic representation. Given the theoretical uncertainty, democratic principles seem to mandate respect
for the judgment of a voter majority choosing to adopt term limits. Indeed, since only the entry barrier problem applies to executives and both problems apply to legislators, 4 the argument for
term limits is stronger for Congress than for the President-an
irony since the Constitution now prohibits term limits for Congress and mandates them for Presidents.
This Article will proceed on the definitional premise that
more accurately reflecting the preferences of an electorate is
prodemocratic. Some might quarrel with this definition or argue
that, even if prodemocratic, accurate preference registration is
not necessarily desirable. In particular, a Burkean might argue
that ideological divergence between representatives and their
electorates is more desirable or reflective of representative democracy. This is decidedly not the articulated premise of the Supreme Court or politically active opponents of term limits. Indeed, it is the supporters of term limits who argue that they are ,' It is not, however, surprising to see such explanations offered for term limits. The
flaws that people see in incumbent legislators are, after all, what would motivate supporters of term limits to want to replace all incumbents even under the public choice explanations I describe. Perhaps term limits supporters also intuited the public choice
problems articulated here. The stated purpose of the California term limits initiative was,
after all, to "restore ... competitive elections," to "encourage qualified candidates" to run,
and to limit the "unfair incumbent advantages" that resulted in the "extremely high
number of incumbents who are reelected." Cal Const, Art 4, § 1.5. Or perhaps they knew
only that ousting noxious legislators through ordinary voting somehow did not work and
decided to try something else. Whatever their subjective motivation, the justification for
its expression through term limits must rest on grounds that could no...
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