Term Limits for Members of Congress: Policy and Legal Overview

Term Limits for Members of Congress: Policy and Legal Overview

March 10, 2023
Term Limits for Members of Congress: Policy and Legal
Overview
Introduction
Policy Momentum and Decline in the
Legislative proposals for congressional term limits date to
1990s
1789. Supporters generally argue that requiring frequent
Term limits occupied substantial political and policy energy
turnover among Members of Congress would make the
throughout the country in the 1990s. Proposed
House and Senate more responsive to, and representative
congressional term limits were a component of the 1994
of, constituents. Opponents counter that elections serve as
“Contract with America” policy agenda on which House
de facto term limits at voter discretion, and that experienced
Republicans campaigned that year. Although a simple
Members of Congress are required to ensure that elected
majority of the House (227-204) supported proposed
officials, rather than congressional or agency staff or
constitutional amendment H.J.Res. 73 in March 1995, that
lobbyists, make policy decisions. In Congress, at the U.S.
margin fell short of the two-thirds majority required for
Supreme Court, and in the states, the 1990s featured
passage. In 1995-1996, the Senate considered an alternative
substantial term-limits activity. Members of Congress
proposal, S.J.Res. 21, but did not vote on final passage. The
continue to propose congressional term limits—a change
House also fell short (217-211) of the two-thirds majority
that the Supreme Court in U.S. Term Limits, Inc. v.
required to pass term-limits amendment H.J.Res. 2 in
Thornton (1995) held would require an amendment to the
February 1997.
U.S. Constitution. This CRS In Focus provides a brief
overview of policy and legal issues concerning term limits
Consequentially for Congress during this period, the
for Members of Congress. It does not discuss term limits
Supreme Court held in the 1995 decision U.S. Term Limits
for congressional committee chairs or leadership positions.
v. Thornton, discussed below, that a constitutional
amendment would be necessary to limit congressional
Selected Congressional Activity
terms. After the Court issued its decision, those favoring
Several constitutional amendments have been introduced in
term limits generally concentrated on state-level advocacy
the 118th Congress that, if passed and ratified, would limit
and proposals to amend the U.S. Constitution.
congressional terms. These measures include H.J.Res. 3;
H.J.Res. 5; H.J.Res. 11; H.J.Res. 20; H.J.Res. 32; S.J.Res.
Congressional Term Limits Held
1; and S.J.Res. 2. As with all proposed constitutional
Unconstitutional
amendments, each was referred to the House or Senate
Judiciary Committees.
Key Constitutional Provisions
The U.S. Constitution establishes the qualifications for
The proposed term-limits amendments introduced in the
Senators and Representatives. Article I, Section 3, clause 3
118th Congress generally are similar. The joint resolutions
requires Senators to be at least 30 years old, nine years a
would limit eligibility to serve in the House of
U.S. citizen, and an inhabitant of the state from which the
Representatives to three or six terms, counting as one term
Senator is elected. In a parallel provision, Article I, Section
an election to fill a vacancy if the Representative served for
2, clause 2 requires Representatives to be at least 25 years
more than one year. Similarly, the proposals would restrict
old, seven years a U.S. citizen, and an inhabitant of the state
eligibility to serve in the Senate to two terms, counting as
from which the Representative is elected. Moreover, Article
one term an election or appointment to fill a vacancy if the
I, Section 5, clause 1 provides that each house of Congress
Senator served for more than three years. Most proposals
has the express authority to be the final judge of the
would not include terms that began before the date of the
“Elections, Returns and Qualifications” of its Members.
amendment’s ratification.
Supreme Court Precedents
Most recently before the 118th Congress, the Senate
In the landmark case of Powell v. McCormack (395 U.S.
Judiciary Committee, Subcommittee on the Constitution,
486 (1969)), the Court addressed the scope of Congress’s
held a term-limits hearing on June 18, 2019. Committees in
authority in judging the qualifications of its Members under
both chambers held hearings, at least partially dedicated to
Article I, Section 5. Powell was reelected to the House of
term limits, between the 1940s and 1990s. (As noted below,
Representatives in the 90th Congress, but the House voted to
Congress was particularly active on term limits during the
deny him a seat based on findings that he had engaged in
1990s.) The Senate defeated a proposed congressional term-
misconduct during the prior Congress. The Court held that
limits amendment to a presidential term-limits bill, H.J.Res.
in assessing the qualifications of its Members, Congress
27, in 1947; the amendment sponsor cast the lone “aye”
may only look to the requirements set forth in Article 1,
vote.
Section 2. The Court further concluded that “the Framers’
underst[ood] that the qualifications for members of
Congress had been fixed in the Constitution.” Accordingly,
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Term Limits for Members of Congress: Policy and Legal Overview
the Court ruled that, because Representative Powell was
Public Opinion and Term Limits
duly elected and “was not ineligible to serve under any
Public opinion appears to be a major factor affecting the
provision of the Constitution,” the House of
continuing policy debate over term limits. Most states that
Representatives lacked the authority to exclude him from a
adopted legislative term limits between 1990 and 1995 did
seat in Congress.
so through initiatives or referenda, reflecting public support
for the provisions. Public opinion surveys generally reveal
In U.S. Term Limits, Inc. v. Thornton (514 U.S. 779
consistent, bipartisan support for term limits. However,
(1995)), the Supreme Court determined that its decision in
surveys reveal somewhat more support for term limits
Powell established two principles: first, that the framers
among Republican respondents. For example, a 2013
intended the qualifications for Congress provided for in the
Gallup random sample survey of 1,013 adults found that
Constitution to be “exclusive,” and second, that the first
75% of respondents reported that they would vote for
principle is buttressed by the proposition that, in U.S.
congressional term limits if given the opportunity.
representative democracy, “the people should choose whom
Respondents who identified as Republicans (82%) and as
they please to govern them.” Building on those principles,
Independents (79%) were more likely than those identifying
the Court in Thornton invalidated an Arkansas
as Democrats (65%) to answer the question affirmatively. A
constitutional provision that, among other things,
2021 poll conducted for U.S. Term Limits, which advocates
established congressional term limits. Specifically, the state
for congressional term limits, found that of 1,000 “general
constitutional provision prohibited the name of a person
election voters nationwide,” 80% said they would
from appearing on the ballot for election to the U.S. House
“strongly” or “somewhat” approve of a constitutional
of Representatives if the person had been elected to three or
amendment limiting congressional terms.
more terms or for election to the U.S. Senate if the person
had been elected to two or more terms.
Scholarship on why the public generally supports term
limits has produced mixed findings, is dated, or both. Much
Examining the U.S. Constitution’s history and text, along
of the published research on the topic focuses on the
with congressional and state practices, the Court in
sustained interest in term limits during the 1990s. To take
Thornton concluded that the Constitution does not provide
one example, a 2002 Legislative Studies Quarterly (LSQ)
the states with the authority to prescribe qualifications for
article by political scientists Robert M. Stein, Martin
Congress. According to the Court, allowing the states to
Johnson, and Stephanie Shirley Post, reviewing 1990s
establish congressional term limits “would effect a
research, found that “[a]lthough public support for term
fundamental change in the constitutional framework.” Such
limits is consistently high ... a consistent explanation for
change, the Court emphasized, “must come not by
this support remains elusive.” The LSQ paper also
legislation adopted either by Congress or by an individual
confirmed higher support for term limits among
State, but rather ... through amendment procedures set forth
Republicans, and found that term limits were more popular
in Article V.” In view of the Court’s precedents, it appears
among those who followed politics closely and whose party
that a constitutional amendment to the U.S. Constitution
preferences differed from those of their elected officials.
would be necessary to establish congressional term limits.
Other scholarly research has found that survey respondents
Limited Policy Options for Congress
who are dissatisfied with government generally are also
Based on the case law discussed, a federal statute
more likely to support term limits. Scholarship published
establishing term limits for Members of the House or
during the 1990s found mixed evidence when testing
Senate would likely be held unconstitutional. As noted,
hypotheses about whether those historically
proposed constitutional amendments have been introduced
underrepresented in government, such as racial minority
in recent Congresses. Article V of the U.S. Constitution sets
groups and women, were more likely than others to support
forth two methods for amending the document—first, either
term limits.
two-thirds of both chambers of Congress or conventions in
two-thirds of the states may propose amendments; and the
When assessing existing scholarship, it is potentially
proposed amendment is subject to ratification by three-
noteworthy that much of the research on the topic occurred
fourths of state legislatures or by conventions in three-
in the early 1990s, before the House majority changed for
fourths of the states, respectively.
the first time in 40 years after the 1994 elections. Public
opinion data collected in the early 1990s might therefore
State Legislatures and Term Limits
have reflected some respondents’ desire for a different
State term-limits experiences provide context for some
majority (what some scholars call the “out-party
congressional proposals. According to the National
explanation” for term-limits support) rather than necessarily
Conference of State Legislatures, 15 states currently limit
demonstrating support for term limits per se. As noted
state-legislative terms. These limits vary significantly.
previously, however, public support for term limits
Current state-legislative term limits range between 6 and 12
generally remains high.
years. Some states cap lifetime legislative service. Others
reset the term-limit clock after a break in service or election
R. Sam Garrett, Specialist in American National
to another chamber. Some states also exempt incumbents
Government
who held office when term limits were adopted.
L. Paige Whitaker, Legislative Attorney
IF12343
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Term Limits for Members of Congress: Policy and Legal Overview

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