December 1, 1990
The Case For Limiting Congressional Terms
By Mark B. Liedl The 1990 congressional elections could not have demonstrated a more compelling case for term limits. With public outrage and disgust with Congress at all-time highs, voters reelected incum bents at a rate exceeding 96 percent. Ile result demonstrates that congres- sional elections no longer serve as a mechanism for voters to express their opinions about Congress. The choice offered in the election gave voters -who disapproved of Congress no real option but to stay home - and 65 percent of them did just that. Ile high incumbent reelection rate in 1990 certainly is consistent with recent election trends, but it seems surprising given the clear public displeasure with Congress. During the two y e ars between the 1988 and 1990 elections Congress was subject to more scrutiny and public displeasure than at any time in recent history: the Jim Wright and Tony Coelho scan- dals, the savings and loan scandal, the pay raise that touched a raw nerve in vot e rs, wide-scale reporting of franking abuses, the largest tax increase in history, and a complete collapse of the congressional budget process. Why were none of these debacles translated into a "throw the bums out" result? The answer is suggested by the gr e at disjuncture in American politics today: voters hate Congress but love their own congressman. A national survey two days before the election showed that while 69 percent of the public disapproved of Congress, 51 percent approved of their own congressman .
THE 1990 CONGRESSIONAL ELECTIONS: SEND AN OMBUDSMAN TO WASHINGTON The key to understanding the 1990 congressional elections is to understand the nature of government today and how members of Congress - largely since the Great Society - have successfully t r ansformed their role from national legislators to narrowly focused constituent ombudsmen. Now you might say that congressmen quite properly should represent the nar- row interests of their constituents. True enough, but before the advent of big government in Washington a congressman's representative role was to reflect the values of his con- stituents. Under our current centralized welfare-state system of government, serving constituents means securing federal aid or relief from inept or onerous government action. And while in the past conflicting constituent interests tended to create a balance in Con- gress, today all constituents are united by the single interest of securing the largest possible piece of the federal pie. In his 1978 book Congress. Keysto n e of the Washington Establishment, Morris P. Fiorina, a liberal political scientist from Harvard University, identified the transformation of con- gressmen from national policy makers to ombudsmen. Fiorina examined the extraordinary increase since the 196 0s in noncompetitive congressional districts. He found that if con- gressmen focused their activities on national policy their chances of reelection would be less likely. But if instead they concentrated on casework and other nonpartisan, nonideologi-Mark B. Liedl is Director of The Heritage Foundation's U.S. Congress Assessment Project. He spoke at the Conservative Leadership Conference in Washington, D.C., on November 10, 1990. ISSN 0272-1155. 01990 by The Heritage Foundation.
cal service-oriented ac tivities their reelection was almost guaranteed. Not surprisingly, therefore, Fiorina found that more and more congressmen forsake policy-making for om- budsmanship, and are being rewarded with corresponding increases in incumbency reelection rates. Power f ul Message. Representative Newt Gingrich's election close call this year demonstrates this phenomenon. Here is a congressman who focusses on national policy- making, who takes stands on issues, and clearly represents a distinct set of values. His constitu e nts said, "Mat's great, but what have you done for us lately?" And now Gingrich has told his constituents that he's gotten the message, which presumably means less nation- al policy-making and more local casework. Close calls like Gingrich's are not lost o n the other members of Congress. IMey send a powerful message: Why take the risk? Concentrate on casework and be safe. Fiorina showed how the growth of big government in Washington has enabled con- gressmen to substitute casework for ideology. He describe d the "iron triangle" of congressmen, interest groups, and the federal bureaucracy, a symbiotic relationship that promotes congressmen's role as ombudsmen for constituents. Congress, for example, protects and preserves the bureaucracy, which in turn respon d s to congressional demands for constituent service. Fiorina explains that, because of this relationship, Congress has a perverse incentive to create a large, complex, and inefficient bureaucracy so that con- stituents will turn to congressmen as their sav i ors from the inept federal monstrosity. Congressmen take credit for creating a federal program to solve a perceived problem and then take credit for intervening on behalf of constituents when the program fails to produce as promised. As Fiorina put it, co n gressmen take credit coming and going, they are the alpha and the omega. It is important to note that this system of governing creates a powerful dynamic for preserving the status quo. Innovative policy changes are impossible because Members of Congress e s chew policy controversies in favor of casework. Wide-scale reform of failed government programs makes no sense when congressmen stand a much better chance of reelection simply by keeping the programs in place and responding to the complaints of beneficiar i es who are not being served by the bureaucrats. Magic Formula. This current approach to governing is a panacea for incumbents because it is a system in which, if both congressmen and voters act rationally, incumbents will be reelected. Congressmen pursuin g their rational interest of getting reelected naturally will focus on casework and preserving the welfare state system that allows them to do so. Voters who pay taxes and, therefore, expect service and benefits from government rationally will reelect incu m bents who, after all, are better able to work the Washington system to constituent's benefit. The magic of this formula is not lost on liberals, who generally are more inclined and skilled than conservatives in playing the ombudsman role. This is why Mich a el Dukakis, in his 1988 acceptance speech at the Democratic Convention announced that the election would be about "competence, not ideology." He attempted to inject into the presidential race the incumbent's winning formula in congressional races. But sin ce Presidents don't do casework, presidential elections remain referendums on ideology.2
HOW TERM UMITS CAN REFORM CONGRESS Congressional elections never will be competitive if Members focus on casework instead of policy-making. As long as broad policy questions fail to play a major role in congressional elections, incumbents will continue to be reelected. But we saw during the 1980s how difficult it is to break the current dynamic. Ronald Reagan, despite his immense electoral mandates, was unable to do it. In eight years, he barely made a dent in the iron triangle. That's why Reagan dedicated -his last speech as President to the subject of Washington's iron triangle and its power to thwart policy change. Since the Great Society, the Washington establish m ent has remained virtually unchallenged by congressional elections. And it is no coincidence that the growth of big government in Washington has resulted in Democrat dominance of Congress. Liberals thrive as om- budsmen, although obviously not as policy m a kers. Term limitations can break the current dynamic in two ways. First, term limits, unlike other congressional reforms, will make it rational for congressmen to focus on national policy rather than casework. The overriding force that drives the congress i onal focus on casework is reelection. If terms are limited, Members no longer will have the incentive to build the casework operations that guarantee a lifetime career in Congress. Congressmen serving only a limited time will have more of a motive to conc e ntrate on policy-mAking in order to make their mark on Washington. Some Members may still concentrate on casework, but term limits will introduce a new dynamic affecting their behavioral decisions that does not exist now. Critics of tenn limits warn that M embers facing a set term in office will be induced to "inake hay while the sun shines," which invariably means doing all of the bad things they do now, but with more intensity. I disagree. There certainly will be an incentive for Members to make hay, but i t is more likely than now to be in the form of policy-making, since the value of casework will be significantly diminished. True, a legislature of liberals bent on making policy changes may not be a delight for conservatives. But making laws is what the C o nstitu- tion says Congress is supposed to do. And congressional elections are supposed to be referendums on those policies. So if the voters decide they support liberal policies, conser- vatives may not be elected to Congress. But at least conservatives w i ll have the opportunity to make their case in congressional elections that focus on policy rather than casework. Breaking the Iron Triangle. The second way in which term limits can dramatically reform Congress is by creating a rational interest among cong r essmen to limit the size and com- plexity of the federal bureaucracy. Term limit critics claim that limits would increase the power of the bureaucracy. Without seasoned veterans in Congress, they argue, bureaucrats will run roughshod over Capitol Hill. Tr u e enough, but newly elected members of Congress, facing a complex and unresponsive bureaucracy, also will have an incentive that doesn't now exist to limit the power of bureaucracy. They will have a rational interest and the con- stitutional power to pass laws that reign in and simplify the bureaucracy. Congressmen now have an incentive to keep the bureaucracy large and complex. With term limits, the interests of the bureaucracy and congressmen no longer will be compatible. The iron triangle could finally be broken. So term limits is the only reform that addresses the core of the problem - the rational self-interest of voters and congressmen.3
OBJECTIONS TO TERM UMITS
1) Constitutional. A common objection to term limits is that the Founding Fathers con- sidered, but rejected writing it into the Constitution. But certainly, if Washington, Jefferson, and Madison saw Congress today they would favor term limits. The framers thought that elections would reflect the political values of citizens and check the p ower of government. But government has been totally transformed from the days of the founding. Our central- ized Washington.government has polluted the original system of limited federalist government established by the Constitution. In the founders' fram e work there was a 10th Amendment that said all powers not expressly granted in the Constitution to the federal government are reserved to the states and to the people. There was also a commerce clause that was just that - a clause giving Congress power ove r commerce between the states, and not the blank check it has become for the government to regulate nearly every aspect of economic life. To suggest that term limits today are inconsistent with the Constitution is to ignore what the Constitution says - not what the Supreme Court since FDR has said it says, but what it actually says. 2) Choice. Another objection to term limits is that it limits voters' ability to support can- didates of their choice. The first response to this claim is that voters currently h ave no choice. That is what the 1990 congressional elections demonstrated. It is why only 36 per- cent of the voters participated. Only 7 percent of the congressional races this year were financially competitive. And a record 74 House members and 4 Senato r s ran unopposed. The only choice voters have now is more of the same, or don't vote. The second response to the choice argument is, what is choice? Is it the ability to vote for a particular person or the ability to vote for a set of ideas and values? The heart of voting is really the latter - to vote for someone who shares your beliefs. Limiting terms does not restrict that fundamental choice. It limits voters' ability to pick a particular person, but not their ability to elect congressmen who share their policy views. 3) Separation of Powers. Some critics of term limits argue that such a reform would tilt powers to the President at the expense of Congress. This argument fails to account for the fact that the balance already has been tilted toward Congress by the 22nd Amendment. By limiting the terms of the President, the amendment enhanced congressional power, and par- ticularly its control over the bureaucracy. Bureaucrats are far more responsive to congressmen, who likely will remain in office long after the President and his team have left town. Congress and the President are coequal powers under the Constitution. If the terms of one are limited, the terms of the other should be also. 4) Experience. Another objection to term limitation is that it will de p lete from govern- ment the valuable experience of long-time members of Congress. It is difficult to take this argument seriously. What kind of experience will be lacking? Ile ability to raise taxes? The ability to increase federal spending while convincin g the public that spending is being cut? The ability to get reelected in the face of wide-scale public hostility? The most important thing we need is congressmen inexperienced in the ways of government - people who don't understand how the federal governme n t works so they can radically reform it so it makes sense to ordinary people. The whole notion of the "experience" argument is an elitist one resting on the premise that the definition of good government is one which is totally incom- prehensible to norma l people. It is just the opposite.4
Another element of the experience argument is that term limits would force good Mem- bers of Congress out of office. Yet a lifetime of government service in elective office still would be possible if congressional t erms were limited. Members who reach their term limit in one house of Congress could then run for a seat in the other house, for President, or return home to run for state or local office. History is full of examples of prominent legis- lators who served l ong careers but no more than two terms in one house of Congress. 5) Staft Critics of term limits also claim that unelected congressional staff will become too powerful if terms are limited. A study this year by the Congressional Management Foun- dation sh o wed that *staff turnover on Capitol Hill is -quite high. There is nothing to suggest that this will change if terms are limited. Even so, such an effect could be prevented by limiting the number of congressional staff and their pay. A provision to that ef f ect was in- clude in the term limit law approved in California last Tuesday. 6) Symptoms, not disease. Another criticism of term limits is that it is a cure only for symptoms and not the disease that has beset Congress. According to this line of reasoning , the disease is congressional perks, the frank, campaign finance laws, the budget process, Congress exempting itself from laws, and so forth. But it is just the opposite. These congres- sional weaknesses and abuse of power are symptoms of an underlying di s ease. Ile disease is that Congress is unaccountable to the voters. And the reason Congress is unaccountable is that elections no longer serve as an effective check of congressional power. And the reason elections no longer check Congress is that congressm e n have transformed their role from legislators to ombudsmen. That is the disease, and it can only be combatted by term limits. It may help to think of congressmen as addicts - they are addicted to power, to preserv- ing the system that keeps them in offic e . Now, rarely does an alcoholic voluntarily check himself into a rehabilitation center. Alcoholics don't admit that they have a problem. It takes someone who loves them to grab them by the arm throw them in a gunny sack and take them into treatment. In de p endency treatment language this is called "intervention" - when the loved ones of an addict force him into receiving treatment. Term limitation is the equivalent to intervention. It is those of us who love Congress - who love the institution created by th e Constitution, the world's most representative legisla- ture uniquely constructed within a system of separated powers - stepping in to save that institution. Term limitation is the intervention that will put Congress on the road to recovery.5