How Term Limits Turn Legislatures Over to Lobbyists

This week, for the second time in public, Senate Minority Leader Mitch McConnell (R-KY) “froze” for about a half-minute while taking questions from the press. It’s not known how many other times this has happened in more private settings, but twice in a few weeks in public has provoked a conversation about the wisdom of an 81-year-old serving in public office.

Unfortunately, much of the discussion prompted by McConnell’s health issues have focused on term limits, the practice of putting a limit to the number of years or terms a politician may serve in public office.

In just the past 48 hours I’ve heard three different commentators on MSNBC speak of them as if term limits are the “solution” to elderly legislators outstaying the ability of their bodies or minds to do the work.

This is the wrong discussion to have: term limits do more damage than good.

First, term limits shift the balance of power in a legislature from the legislators themselves to lobbyists, which is why corporate-friendly Republicans so often speak fondly of them.

Historically, when a new lawmaker comes into office, he or she will hook up with an old-timer who can show them the ropes, how to get around the building, where the metaphorical bodies are buried, and teach them how to make legislation.

With term limits, this institutional knowledge is largely stripped out of a legislative body, forcing new legislators to look elsewhere for help.

Because no Republican has ever, anywhere, suggested that lobbyists’ ability to work be term-limited, in those states with term limits the lobbyists end up filling the role of permanent infrastructure to mentor and guide new lawmakers.

Of course, lobbyists — and the billionaires and corporations that pay them — love this. It dramatically increases lobbyists’ power and influence, giving them an early and easy entrée into the personal and political lives of the individual legislators who lean on them for guidance.

This simple reality is not lost on the Republican Party, which has been pushing these restrictions on service at the federal and state legislature level for years: term limits been put into law in 16 states, almost all as the result of heavy Republican PR efforts and lobbying during the George HW Bush presidency.

Pappy Bush rolled the idea out in 1990 as a central part of his run for re-election in 1992. An unpopular president who was being blamed by voters for the destruction of unions and factories rapidly moving offshore, his advisors thought it would be a great way to blame Congress for the problems neoliberal Reaganomics had inflicted on the nation.

As The New York Times noted on December 12, 1990:

“President Bush has decided to push for a constitutional amendment to limit the number of terms for members of Congress, his chief of staff, John H. Sununu, said today. Doing so as he prepares for his re-election campaign will put Mr. Bush squarely and publicly on the side of an idea that is as widely popular among voters as it is wildly unpopular among members of Congress…

“But even though passage of such an amendment is unlikely, there is little risk for Mr. Bush in associating himself with this movement. Politically, the move fits nicely with the growing effort by the White House to depict Congress as the source of most of the nation’s problems.”

While the US Congress never seriously took up the idea, Bush’s advocacy of it echoed through the states and was heavily promoted by Rush Limbaugh, whose national hate-radio show had rolled out just two years earlier in 1988.

Newt Gingrich made term limits a cornerstone of his 1994 Contract On America, but the issue died at the federal level in 1995 when the Supreme Court, in U.S. Term Limits, Inc. v. Thornton, ruled term limits imposed on federal officials elected at the state level (the US House and Senate) are unconstitutional.

This doesn’t mean Congress can’t impose term limits on itself; it would just require them to be done as a constitutional amendment or via some other mechanism that gets around the Supreme Court like court-stripping (which, itself, is dicey). Term limits were imposed on the presidency by Congress in 1951, a GOP backlash against FDR’s having won election to four consecutive terms in office, but that took ratification of the 22nd Amendment.

Following Bush’s promotion of them, Oklahoma picked up term limits for its legislature in 1990, with Maine, California, Colorado, Arkansas, Michigan, Florida, Ohio, South Dakota, Montana, Arizona, and Missouri debating them during the 1991 and 1992 legislative sessions and all putting them into law in 1992.  Louisiana and Nevada put them into law in 1995 and 1996, respectively, Nebraska in 2000, and North Dakota finally got around to them in 2022.

In every case, term limits have worked to the benefit of special interests and against the interests of the citizens. It’s why rightwing think-tanks push them, like you’ll find in the article “Term Limits: The Only Way to Clean Up Congress” on the Heritage Foundation’s website.

In addition to strengthening the hand of lobbyists, term limits also prevent good people who aren’t independently wealthy from entering politics. What rational person, particularly if they have kids, would take the risk of a job they know will end in six years when instead they could build a career in a field that guarantees them security and a decent retirement?

Also because of this dynamic, term limits encourage legislators to focus on their post-politics career while serving. Many busily legislate favors for particular industries in the hope of being rewarded with a job when they leave office.

Because term limits encourage independently wealthy people to enter politics and push out would-be career politicians like Bernie Sanders or Alexandria Ocasio-Cortez, they shift the Overton window of legislatures — regardless of the party in power — to the right.

Probably the strongest argument against term limits, though, is that they’re fundamentally anti-democratic. In fact, we already have term limits: they’re called elections.

The decision about who represents the interests of a particular state or legislative district shouldn’t be held by some abstract law: it should be in the hands of the voters, and term limits deny voters this.

And, because term limits weaken the power of the legislative branch by producing a constant churn, they strengthen the power of the executive branch, a violation of the vital concept of checks-and-balances.

Even where governors or presidents are term-limited by law or constitution, the concentration of power in a single executive is inherently problematic, requiring a robust legislative branch to balance it. Term limits thus neuter a legislature’s ability to mount a muscular challenge to a governor or president.

States that have instituted term limits generally suffer from “buyer’s remorse.” As the Citizens Research Council of Michigan noted in a 2018 report titled Twenty-five Years Later, Term Limits Have Failed to Deliver On Their Promise:

“Legislative term limits in Michigan have failed to achieve their proponents’ stated goals: Ridding government of career politicians, increasing diversity among elected officials, and making elections more competitive.

“Term limits have made state legislators, especially House members, view their time as a stepping stone to another office. Term limits have failed to strengthen ties between legislators and their districts or sever cozy relationships with lobbyists. They have weakened the legislature in its relationship with the executive branch.”

A scholarly study of term limits in Florida similarly concluded:

“The absence of long-serving legislators under term limits equates to a significant loss of experience and institutional memory. … Those who had built a career in the Legislature were not applauded for the expertise they had developed but were castigated…

“After the first full decade with term limitations in place, the Florida Legislature is a dramatically different institution. Term limits increased legislator turnover and drastically affected legislative tenure, all but destroying institutional memory.”

So, the next time you hear some TV pundit proclaiming the “solution” to the “problem” of Mitch McConnell or Dianne Feinstein being in office too long, consider their real agenda.

Unless they’re simply naïve, it’ll almost always be that they are or once were (before Trump) a Republican and just can’t help themselves.