"Stop me before I vote again" hardly has the ring of a populist rallying cry, but it nonetheless accurately reflects the principle underlying the legislative term limitation movement that is sweeping the country. Critics of term limitations suggest that voters willing to restrict their own range of choice in future elections are misguided or just confused. These critics underestimate the public.
The argument against term limitations goes something like this: if a particular incumbent has become too dependent on special interest contributions or otherwise unresponsive to his constituents' needs, the public should simply refuse to reelect that legislator. Indeed, the public may decline to reelect all incumbents after a specified term of service. At best, then, a term limitation is redundant. At worst, it is destructive and anti-democratic; surely some incumbents will resist the corrupting influences associated with lengthy tenure, but a term limitation deprives the electorate of the power to return these officials to office. The crucial premise of this argument is that a term limitation can accomplish nothing the electorate cannot already achieve by voting out individual incumbents.
This argument ignores, however, the good reasons why individual voters may be willing to limit their future electoral autonomy if they are certain that all voters will be similarly restricted. Many voters clearly believe that creating a class of career legislators corrupts both the individual lawmakers and the legislative institution as a whole. Yet those same voters appreciate that their own district's ability to obtain its fair share, or more, of government largess will be determined in part by the relative influence, and thus seniority, of its elected representatives.
Seen this way, the voter is a prisoner in the electoral dilemma. Believing that the system as a whole is improved if elected officials' tenure is limited, he may be willing to see his own representative unseated if he is assured that other incumbents will suffer the same fate. Such a voter is reluctant, however, to have his district represented by a neophyte in a body of veterans. A voter who reasons this way -- advocating term limitations but supporting his own incumbent representative until generally applicable limitations have been enacted -- is no more inconsistent or hypocritical than is the citizen who supports an increase in taxes yet declines to make a unilateral contribution to the federal Treasury.
The systemic changes associated with term limitations can therefore be effected only through systemic reforms; they cannot be expected to emerge from the aggregate choices of individual voters. The fact that term limitations restrict the voter's freedom to select the candidate he prefers does not, as some claim, make these limitations undemocratic. The wave of popular support for term limitations suggests that voters are willing to accept restrictions on the tenure of their own representatives as the price of structural change. If that trade-off in fact enjoys majority support and is ultimately enacted into law, the result may or may not be beneficial, but it is hardly undemocratic.
It is notable that term limitations in the executive branch of government are the rule rather than the exception. Not only is the president subject to a constitutional term limitation, but more than half the nation's governors are as well -- with some limited to a single term. Ironically, these limits are uncontroversial even though what is identified here as the strongest argument for supporting legislative term limitations -- that they can mitigate a structural incentive to vote for an incumbent only to ensure his senority relative to other representatives -- is simply inapplicable to executive branch term limitations.
This is not to deny that the costs associated with term limitations are real and significant. Exceptional legislators who could have made major contributions would be prohibited from doing so, and the formal and informal legislative bureaucracy -- self-interested lobbyists and unelected staffers -- would become the sole repository of institutional memory and expertise and thus more powerful relative to the elected representatives themselves. The point, however, is not that term limitations are necessarily desirable, only that the debate should focus on their costs and benefits to the system as a whole.
The debate cannot be avoided by the facile suggestion that supporters of term limitations should begin with their own representatives. Nor can it be resolved by the unsupportable assertion that any restriction on the range of choices offered the individual voters -- even a restriction that the public determines to be a reasonable cost for desired reform -- is a betrayal of democratic values.
Jonathan A. Knee is a Washington attorney. Malcolm L. Stewart recently completed a clerkship at the U.S. Supreme Court and is enrolled in a PhD program in history at Yale University.