Term Limits in Court and Congress

November 30, 1994

The Supreme Court heard arguments yesterday in favor of overturning an Arkansas law aimed at limiting members of Congress to three terms in the House (six years) and two terms in the Senate (12 years). This is a popular sentiment. This month, voters in seven states approved term-limit proposals. In 1992, 14 states did. There are now 22 states with some limit on congressional tenure.

But popular sentiment and state law may not be enough. No federal court has ever upheld term limits, and the betting in Washington is that the Supreme Court won't, either. The lower courts have consistently ruled that the Constitution's own list of qualifications for members of Congress is an exclusive one. Article I, Sections 2 and 3 say only that a representative must be 25 years old, a citizen for seven years and an inhabitant of the zTC state from which chosen, and that a senator must be 30, a citizen for nine years and an inhabitant of the state from which chosen.

Aware of this obstacle, House Republicans are pushing an amendment to the Constitution that would allow Arkansas-type laws. This is an effort that we find foolish and harmful. Newt Gingrich, George Will and others say limits are needed to do away with the career legislator, for whom much of the public has contempt. But that contempt is only going to worsen when the public learns that the limitation amendment would not apply to incumbents, like Mr. Gingrich, who has been in the House not six years but 16; nor would it apply to senators like Edward Kennedy -- 32 years. A second harm such an amendment would do, in our view, is rob Congress of experience that often, probably usually, makes a legislator better.

We agree with those critics of Congress who say entrenched incumbency makes a mockery of truly contested elections. Even last month, in the biggest throw-the-bums-out balloting in 48 years, 90 percent of incumbents seeking re-election won. But age, scandal, redistricting and fear of losing have, in recent years, produced significant turnover through early retirement or resignation. More than half (219) the members of the next House will be in their first, second or third term. More than half (54) the members of the next Senate will be in their first or second term.

Most members of House and Senate and of both parties know a term-limits amendment is a joke, and we expect and certainly hope that Mr. Gingrich and his allies on the other side of the Capitol will not be able to get the necessary two-thirds vote to send a term-limits amendment to the states for ratification.

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