Supreme Court to weigh in for the first time on congressional term limits

November 28, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Digging deeply into history for guidance on a major constitutional dispute of today, the Supreme Court reaches the congressional term-limits issue this week.

In recent days, the justices and their clerks have been poring over a stack of blue, red, green and yellow briefs, preparing for a 90-minute hearing tomorrow and for a later ruling that just might shake the foundations of Congress.

The constitutional question is one of the most basic the court has faced in years, and one the court has never considered in the Constitution's 207-year history. As recently as two weeks ago, lawyers were still jockeying for the prized opportunity to argue one side or the other.

The issue is a simple one: Can states bar incumbents in Congress from running for re-election indefinitely -- or can that be done only by amending the Constitution itself?

The question remains exactly the same as it was five months ago, when the court promised to review it. But the political atmosphere surrounding it has changed markedly.

In Congress, as Republicans take control of both houses, the sentiment in favor of term limits has spread and deepened, with a promised vote this year at least in the House on a constitutional amendment. No matter what happens in the court, advocates of term limits mean to keep pressing for a change in the Constitution itself, to extend term limits to members of Congress from every state.

Popular idea

The voters in six more states showed again this month how popular the idea is, approving ballot measures to curb congressional service. They did so by margins of approval ranging from a high of 70 percent to a low of 51 percent. That brings the total to 22 states. None of those term-limits laws has been enforced, but that did not stop the court from taking on the first term-limits case to reach it.

If the Supreme Court justices pay attention to today's politics, they might detect the strong suggestion of a popular revolution in favor of changing Congress in a basic way. That, of course, is a part of the rhetoric of term-limits advocates and their lawyers, with their arguments filled with strong suggestions that the court defer to the people's choice.

"The entire political theory of the Constitution from its origins to its adoption is based upon the will of the people," argues the National Committee to Limit Terms.

Supporters of term limits point out that, after the votes cast this month, about 10 percent of the U.S. population -- some 24.5 million people, out of 248 million -- has now voted "yes" on congressional term limits.

Term-limits advocates took part in the successful effort to deny re-election to House Speaker Thomas S. Foley after the senior Democratic leader joined in a lawsuit seeking to nullify Washington state's congressional term-limits measure.

But not everything political this year necessarily favors the idea of term limits. While incumbents survived in more than 90 percent of the congressional contests, the Election Day results might also be read as an object lesson on the power of the voters to get rid of officeholders they no longer support.

Two senators and 35 members of the House were denied re-election; earlier in the year, voters had turned out four other House members in primary elections. The defeat of 35 House incumbents in the general election was the highest rejection rate in 20 years.

And that is a point that opponents of term limits already were stressing to the court, suggesting that the justices let the people decide for themselves how long to keep an incumbent.

For example, Rep. Henry J. Hyde, a conservative Republican from Illinois and an opponent of term limits who was just re-elected to his 11th term, submitted a lengthy essay to the court on the theme that term limits interfere fundamentally with the right of the people to choose their representatives.

Mr. Hyde, who is expected to become the chairman of the House Judiciary Committee, has promised to let a constitutional amendment go to the House for a vote.

Focus on history

No one outside the Supreme Court can say for sure whether politics will be on the justices' minds as they ponder the constitutionality of term limits. The wide array of legal points laid before the court focuses heavily on history: the debates at the Constitutional Convention in 1787, the day-to-day editing of the document's language by its draftsmen, the controversies in the state ratifying conventions, and the early history of legislatures in the original states.

Because no justice has ever cast a vote on congressional term limits, it is not clear whether the court will focus most heavily on the Constitution's language, or on its background, or on contemporary views of how the government of today should be composed.

Essentially, term limits are being considered against the background of four clauses in the Constitution:

L Two provisions that opponents of term limits are relying on:

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