AreTermLimitsUndemocratic.GeneralStudy.UChicago.1997.pdf - ARTICLES Are Term Limits Undemocratic EinerElhauget INTRODUCTION THE FALSE PARADOX OF TERM

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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 preferences. 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 1996). ' 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 preferences. 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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