Why No Term Limits for Congress? The Constitution

Since the early 1990s, the long-running demand to impose term limits on the Senators and Representatives elected to the U.S. Congress has intensified. Considering that since 1951 the President of the United States has been limited to two terms, term limits for members of Congress seem reasonable. There's just one thing in the way: the U.S. Constitution.

Historical Precedence for Term Limits 

Even before the Revolutionary War, several American colonies applied term limits. For example, under Connecticut’s “Fundamental Orders of 1639,” the colony’s governor was prohibited from serving consecutive terms of only one year, and stating that “no person be chosen Governor above once in two years.” After independence, Pennsylvania’s Constitution of 1776 limited members of the state’s General Assembly from serving more than “four years in seven.

At the federal level, the Articles of Confederation, adopted in 1781, set term limits for delegates to the Continental Congress – the equivalent of the modern Congress – mandating that “no person shall be capable of being a delegate for more than three years in any term of six years.”

There Have Been Congressional Term Limits

Senators and Representatives from 23 states faced term limits from 1990 to 1995, when the U.S. Supreme Court declared the practice unconstitutional with its decision in the case of U.S. Term Limits, Inc. v. Thornton.

In a 5-4 majority opinion written by Justice John Paul Stevens, the Supreme Court ruled that the states could not impose congressional term limits because the Constitution simply did not grant them the power to do so.

In his majority opinion, Justice Stevens noted that allowing the states to impose term limits would result in "a patchwork of state qualifications" for members of the U.S. Congress, a situation he suggested would be inconsistent with "the uniformity and national character that the framers sought to ensure." In a concurring opinion, Justice Anthony Kennedy wrote that state-specific term limits would jeopardize the "relationship between the people of the Nation and their National Government."

Term Limits and the Constitution

The Founding Fathers considered—and rejected—the idea of term limits for Congress. A majority of the delegates to the Constitutional Convention of 1787 felt that the longer they served, the more experienced, knowledgeable, and thus, effective members of Congress would become. As Father of the Constitution James Madison explained in Federalist Papers No. 53:

"[A] few of the members of Congress will possess superior talents; will by frequent re-elections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members of Congress, and the less the information of the bulk of the members, the more apt they be to fall into the snares that may be laid before them," wrote Madison.

Delegates who sided with Madison in opposing term limits argued that regular elections by the people could be a better check on corruption than constitutional term limits and that such restrictions would create their problems. Ultimately, the anti-term limits forces won out and the Constitution was ratified without them.

So now the only remaining way to impose term limits on Congress is to undertake the long and uncertain task of amending the Constitution.

This can be done in one of two ways. First, Congress can propose a term limits amendment with a two-thirds “supermajority” vote. In January 2021, Senators Ted Cruz of Texas, along with Marco Rubio of Florida and other Republican colleagues, introduced a bill (S.J.Res.3) calling for a constitutional amendment that would limit senators to two six-year terms and House members to three two-year terms. 

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The Debate Over Term Limits for Congress

By Tom Murse

In introducing the bill, Senator Cruz 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.

Should Congress pass the bill, which as history has proven, is highly doubtful, the amendment would be sent to the states for ratification. 

If Congress refuses to pass a term limits amendment, the states could do it. Under Article V of the Constitution, if two-thirds (currently 34) of the state legislatures vote to demand it, Congress is required to convene a full constitutional convention to consider one or more amendments. 

The Aging Senators Argument

Another common argument in favor of congressional term limits is the advancing age of lawmakers who, for various reasons, continually win reelection. 

According to the Congressional Research Service, 23 members of the Senate are in their 70s at the beginning of 2022, while the average age of senators was 64.3 years—the oldest in history. Thus the debate goes on: Experience vs. new ideas? Career politicians vs. short-timers? Old vs. young? Baby Boomers vs. Gen X, Y (millennials), or Z?

Senators—more so than representatives—often remain in office for decades because their constituents are reluctant to give up the advantages of incumbency: Seniority, committee chairmanships, and all the money poured into their states. For example, West Virginia’s Senator Robert Byrd, who was in his ninth term when he died at age 92, funneled an estimated $10 billion to his state during his 51 years in the Senate, according to the Robert C. Byrd Center for Congressional History.

In 2003, South Carolina’s Senator Strom Thurmond retired at age 100 after serving 48 years in the Senate. The not-very-well-hidden secret was that during his last term, which ended six months before his death, his staff did virtually everything for him but push the vote button.  

While the Founding Fathers created minimum age requirements for serving in the House, Senate, or as president, they did not address a maximum age. So the question remains: How long should members of Congress be allowed to work? In 1986, Congress passed a law ending mandatory retirement by age 65 for most professions except the military, law enforcement, commercial pilots, air traffic controllers, and, in a few states, judges.

Notably, however, six of the most brilliant political figures in the first 50 years of the United States; James Madison, Daniel Webster, Henry Clay, John Quincy Adams, John C. Calhoun, and Stephen A. Douglas served a combined 140 years in Congress. Many of America's greatest legislative achievements—such as Social Security, Medicare, and Civil Rights—came from members of Congress who were in their later years of seniority. 

Why Presidential Term Limits?

At the Constitutional Convention, some delegates had fears of creating a president was too much like a king. However, they came close to doing by adopting provisions like the presidential pardon, a power similar to the British King’s “royal prerogative of mercy.” Some delegates even favored making the presidency a lifetime appointment. Though he was quickly shouted down, John Adams proposed that the president should be addressed as “His Elective Majesty.”

Instead, the delegated agreed on the complicated and often controversial electoral college system, which would still ensure, as the framers desired, that presidential elections were not left solely in the hands of ordinarily uninformed voters. Within this system, they shortened a president’s appointment from life to four years. But because most of the delegates opposed setting a limit on how many four-year terms a president could serve, they did not address it in the Constitution.

Knowing he could have probably been reelected for life, President George Washington originally started the tradition of informal Presidential term limits by refusing to run for a third term. Created after the secession of southern states from the Union in 1861, the short-lived Confederate States of America adopted a six-year term for their president and vice president and barred the president from seeking re-election. After the Civil War, many American politicians embraced the idea of presidential term limits. 

Official term limits on the chief executive were introduced after the four consecutive elections of President Franklin Roosevelt.

While earlier presidents had served no more than the two-term precedent set by George Washington, Roosevelt remained in office for nearly 13 years, prompting fears of a monarchial presidency. So, in 1951, the United States ratified the 22nd Amendment, which strictly limits the president to serving no more than two terms.

The amendment had been one of 273 recommendations to Congress by the Hoover Commission, created by Pres. Harry S. Truman, to reorganize and reform the federal government. It was formally proposed by the U.S. Congress on March 24, 1947, and was ratified on Feb. 27, 1951.  

An Organized Movement for Term Limits

The ultimate goal of the USTL is to get the 34 states required by Article V of the Constitution to demand a convention to consider amending the Constitution to require term limits for Congress. Recently, USTL reported that 17 of the needed 34 states had passed resolutions calling for an Article V constitutional convention. If adopted by a constitutional convention, the term limits amendment would have to be ratified by 38 states.

The Pros and Cons of Congressional Term Limits

Even political scientists remain divided on the question of term limits for Congress. Some argue that the legislative process would benefit from “fresh blood” and ideas, while others view the wisdom gained from long experience as essential to the continuity of government.

The Pros of Term Limits

• Limits Corruption: The power and influence gained by being a member of Congress for a long period of time tempt lawmakers to base their votes and policies on their own self-interest, instead of those of the people. Term limits would help prevent corruption and reduce the influence of special interests.
• Congress – It’s Not a Job: Being a member of Congress should not become the office-holders career. People who choose to serve in Congress should do so for noble reasons and a true desire to serve the people, not just to have a perpetual well-paying job.
• Bring in Some Fresh Ideas: Any organization – even Congress – thrives when fresh new ideas are offered and encouraged. The same people holding the same seat for years leads to stagnation. Basically, if you always do what you’ve always done, you’ll always get what you’ve always got. New people are more likely to think outside the box.
• Reduce Fundraising Pressure: Both lawmakers and voters dislike the role money plays in the democratic system. Constantly facing reelection, members of Congress feel pressured to devote more time to raising campaign funds than to serving the people. While imposing term limits might not have much of an effect on the overall amount of money in politics, it would at least limit the amount of time elected officials will have to donate to fundraising.

The Cons of Term Limits

• It’s Undemocratic: Term limits would actually limit the right of the people to choose their elected representatives. As evidenced by the number of incumbent lawmakers reelected in every midterm election, many Americans truly like their representative and want them to serve for as long as possible. The mere fact that a person has already served should not deny the voters a chance to return them to office.
• Experience is Valuable: The longer you do a job, the better you get at it. Lawmakers who have earned the trust of the people and proven themselves to be honest and effective leaders should not have their service cut short by term limits. New members of Congress face a steep learning curve. Term limits would reduce the chances of new members growing into the job and becoming better at it.
• Throwing Out the Baby With the Bathwater: Yes, term limits would help eliminate some of the corrupt, power-hungry and incompetent lawmakers, but it would also get rid of all the honest and effective ones.
• Getting to Know Each Other: One of the keys to being a successful legislator is working well with fellow members. Trusts and friendships among members across party lines are essential to progress on controversial legislation. Such politically bipartisan friendships take time to develop. Term limits would reduce the chances for legislators to get to know each other and use those relationships to the advantage of both parties and, of course, the people.
• Won’t Really Limit Corruption: From studying the experiences of state legislatures, political scientists suggest that instead of “draining the swamp,” congressional term limits could actually make corruption in the U.S. Congress worse. Term limit advocates contend that lawmakers who do not have to worry about being reelected will not be tempted to “cave in” to pressure from special interest groups and their lobbyists, and will instead base their votes solely on the merits of the bills before them. However, history has shown that inexperienced, term-limited state legislators are more likely to turn to special interests and lobbyists for information and “direction” or legislation and policy issues. In addition, with term limits, the number of influential former members of Congress would increase dramatically. Many of those former members would—as they do now—go to work for private sector lobbying firms where their deep knowledge of the political process helping to advance special interest causes.

An Organized Movement for Term Limits

Established in the early 1990s, the Washington, D.C. based U.S. Term Limits (USTL) organization has advocated for term limits at all levels of government. In 2016, USTL launched its Term Limits Convention, a project to amend the Constitution to require congressional term limits. Under the Term Limits Convention program, the state legislatures are encouraged to enact term limits for the members of Congress elected to represent their states.

The ultimate goal of the USTL is to get the 34 states required by Article V of the Constitution to demand a convention to consider amending the Constitution to require term limits for Congress. Recently, USTL reported that 17 of the needed 34 states had passed resolutions calling for an Article V constitutional convention. If adopted by a constitutional convention, the term limits amendment would have to be ratified by 38 states.