By Ballot, or by Fiat?
By David S. Broder
The outcome is not clear in either forum, but conservatives hold the swing votes. The court is dominated by appointees of Presidents Nixon, Ford, Reagan and Bush. The term limits case was not well-argued there, especially by the attorney general of Arkansas, J. Winston Bryant, who led off and closed for the advocates of state-imposed restrictions. But in their justified impatience with opposing counsel, the justices were more obvious than usual in telegraphing their positions. Justice Antonin Scalia clearly was searching for ways to uphold the term-limits laws of Arkansas and 21 other states, and Chief Justice William H. Rehnquist seemed inclined to join him. Clinton appointees Ruth Bader Ginsburg and Stephen Breyer just as clearly are inclined to shoot down the laws.
The swing votes on the nine-member court may well be cast by Justices Anthony M. Kennedy and Sandra Day O'Connor, Republican appointees who are usually strong advocates of states' rights. Both sounded pretty skeptical in questioning Bryant's argument that state law may permanently bar from the ballot an individual who meets all the constitutional qualifications for service in Congress but is handicapped by prior experience in that body. Those two votes will probably control the decision.
By the time it's announced, the House and Senate likely will have decided whether to send to the states a term limits amendment to the Constitution. The House Republican "Contract With America" promised a vote on the amendment in the first 100 days, and the Senate Republicans have it on their agenda, too. It is part of the Republican platform and scores of Republicans elected in the last four years pledged in their campaigns to support such an amendment.
But winning the needed two-thirds majority in the House and Senate will not be easy. And that is why the principled opposition expressed by the incoming Republican chairmen of the Senate and House Judiciary committees -- Sen. Orrin Hatch of Utah and Rep. Henry Hyde of Illinois -- is so important. Democrats may provide most of the votes against the proposed amendment, but the leadership will have to come from people like Hatch and Hyde, who have unchallengeable conservative credentials.
Hatch, in an interview with PBS's "MacNeil/Lehrer NewsHour" last week, said that the mechanism for "real term limits is at the ballot box, and that is where it should be." Turnover in Congress is rapid already, he said, and term limits would simply erase the small corps of experienced legislators who provide the House and Senate with its institutional memory. That would increase the power of executive branch bureaucrats, professional staffers on Capitol Hill and lobbyists. "And none of those three groups are elected to represent anybody," Hatch noted.
Hyde is, if anything, more forceful in his criticisms. Term limits, he told me, are inherently a restriction on the voters' freedom to choose the person they want to represent them -- "and that is the heart of democracy." Term limits denigrate the value of experience, he said. They imply that government is less important, less worthy of studying and mastering, than dentistry or architecture or music. "When a crisis comes, you want people who have been tested -- and you don't get them out of a phone book," Hyde said.
I would add just one other point. The worst effect of term limits is to send a message to Americans that they can enjoy all the blessings of representative government without meeting even the most fundamental responsibility of citizenship -- participation in the choice of leaders. For more than 200 years we have changed people in office through elections. Why, in this generation, has that become such a burden that we must find some automatic, no-brains, no-bother way to do the job?
The principles at stake in this controversy are of importance to all Americans -- but they are especially pertinent to conservatives. Freedom, personal responsibility, tradition, respect for experience -- these are conservative values.
That is why the term limits question is a genuine test of how principled late 20th century conservatism is. Rush Limbaugh and George Will have gone one way; Orrin Hatch and Henry Hyde, the other. In Congress and on the high court, conservatives must choose.
© Copyright 1994 The Washington Post Company