The Federalist Society is pleased to announce its Student Blog Initiative, a project of the Practice Groups and the Student Division. An inaugural group of eight students will contribute to the Federalist Society's blog throughout this academic year. Student contributors accepted into the program are held to the same rigorous standards as the regular and guest contributors to the blog, which exists as a forum for experts to provide thoughtful, balanced commentary in an engaging, accessible manner.
Each student in this select group drafts posts on legal, constitutional, and policy issues, receives feedback and revisions from volunteer experts, and has the opportunity to share his or her work on the Federalist Society's widely viewed platforms.
The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors.
According to Gallup in 2013 and Rasmussen in 2016, about 75% of voters support congressional term limits. But would they make a difference? Let’s look at how they have affected the presidency to get an idea of how they might affect Congress.
The Twenty-second Amendment to the Constitution was officially ratified on February 27, 1951, establishing presidential term limits. Congress proposed the amendment on the heels of Franklin D. Roosevelt’s death, after he won a fourth term in the Oval Office. But term limits were not a new idea to the republic. The Articles of Confederation imposed term limits on both Congress and the president. At the Constitutional Convention and during the ratification debates, Federalists Alexander Hamilton and James Madison opposed term limits for the president and Congress, respectively, while Anti-Federalists wanted limits on both. Thomas Jefferson predicted that “the total abandonment of the principle of rotation in the offices of President and Senator [would] end in abuse.”
Before FDR, eighteen presidents had served no more than a single term. Only eight served two full terms, and only two sought a third term—Theodore Roosevelt and Woodrow Wilson—both of whom were soundly rejected by the voters. Aside from these three progressives, none of the other twenty-eight presidents would have been affected by term limits.
But what about the thirteen presidents since? By its text, the Twenty-second Amendment didn’t apply to Truman, who called it a “bad” and “stupid” idea but stepped down anyway. Eisenhower and Reagan both supported its repeal, but each was older than any previous president, andthe health of each was fading.
Kennedy was assassinated, Johnson retired after his first full term, and Nixon resigned. Ford, Carter, and Bush were defeated in their reelection bids. Clinton had just been impeached, and his vice president lost the following election—likely similar to a prospective Clinton campaign. George W. Bush could have run again, but given his tanking approval rating and Obama’s large victory in 2008, he probably would have lost anyway. Obama, however, still had youth, health, and a majority approval rating at the end of his second term. After FDR, Obama was the only president likely to have served a third term.
Perhaps surprisingly, Congress has a similar average length of service. In 2019, the new Congress had averaged 8.6 years in the House of Representative and 10.1 in the Senate, not much more than a two-term president.
But these average numbers might underestimate the longevity of congressional incumbents. Congressional incumbents win reelection in convincing fashion: among the House, 91% in 2018 and 97% in 2016; for the Senate, 84% in 2018 and 93% in 2016. And although the average length of service might be similar to a two-term president, for every freshman, there is a Don Young or Patrick Leahy, each with over 45 years in office. Supporters of term limits see their proposal as a necessary check on rubber-stamped reelections.
That said, term limits could yield unexpected adverse effects. For instance, about 38.7% of pre-term limit presidents served at least part of a second term. Since 1951, that number is currently 61.5%. Have term limits inadvertently grown us accustomed to two-term presidencies and encouraged presidents to remain in office as long as possible? If so, the same thing could happen in Congress, with senior members entering forced retirement but junior officials sticking around longer than they normally would. On the other hand, if the time in office is kept in check, perhaps removing the revolving door from public service would establish a beneficial sense of normalcy and reliability as we got to know our representatives.
And how might term limits affect congressional priorities? During a second term, presidents are known to exercise power or pursue objectives with much less fear of the political consequences. President Obama, for example, famously promised Russian President Dmitry Medvedev “more flexibility” after the 2012 election. Alexander Hamilton warned that the same dangerous, unaccountable attitude could apply to any elected official, who in their final term “might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory.” Could term limits make Congress even more unaccountable? Party leadership that is on its way out would likely have less incentive to restrain unpopular impulses.
Of course, there are important differences as well: the president’s public service is generally complete after leaving office. That might not be true of members of Congress, which could affect them in multiple ways: they might be more likely to try to maintain popular positions, or they might be more likely to serve special interests whom they expect to join in the private sector.
Overall, it appears that, if they had similar effects to presidential term limits, congressional term limits would not change much. The average time in office might remain similar, and the promise of post-political influence could incentivize integrity in office. But term limits could also tend to promote longer tenure than necessary, as well as perverse incentives for self-dealing in a lame-duck term. Proponents of term limits probably need to identify better arguments to overcome 230 years of constitutional practice, at least if presidential term limits are any guide.