A chance to bring term limits back to life – The Boston Globe

Of course, there is a surefire way to guarantee more turnover in Congress: term limits. Imposing a hard cap on how long senators and representatives can retain their seats wouldn’t prevent scoundrels, zealots, and incompetents from getting elected. It would keep them from becoming entrenched in power. It would make congressional elections more competitive, more responsive, and more meaningful. It would encourage more good and talented people to run for office. And it would decrease the influence of lobbyists, whose clout depends on ties to long-time incumbents.

There is little about politics today on which Democratic and Republican voters agree, but the desirability of congressional term limits has long been an exception.

The Pew Research Center last fall measured public support for a number of proposed reforms, including automatic voter registration, expanding the Supreme Court, and requiring a photo ID to vote. By far the most popular proposal was a limit on the number of terms members of Congress can serve. An overwhelming 87 percent of respondents favored the idea. Similarly, researchers at the University of Maryland’s School of Public Policy, who have studied public attitudes on this issue since 2017, report that very large majorities of Republicans, Democrats, and independents consistently back term limits.

If congressional term limits command such widespread bipartisan regard, why don’t they exist?

Actually, they used to. A wave of citizen activism in the early 1990s led 23 states, comprising more than 40 percent of all the seats in Congress, to enact laws limiting the terms of senators and representatives. But in 1995, a sharply divided Supreme Court ruled in US Term Limits v. Thornton that neither the states nor Congress may add to the conditions for serving in Congress. In a 5-4 decision, the court ruled that inasmuch as the Constitution did not set a maximum number of terms for senators and representatives, states cannot do so either.

The dissent, written by Justice Clarence Thomas, was strong.

“Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress,” he observed. “The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.”

At the time, the court’s ruling had the effect of nullifying congressional term limits in all the states that had adopted them. But nearly 30 years later, might the issue get a second look?

Maybe.

On June 11, North Dakota voters handily approved an amendment to the state constitution imposing an age limit on candidates for Congress. The new measure disqualifies anyone from running for the House or Senate if they would turn 81 before the term ends. Under the 1995 decision, the North Dakota law is unconstitutional, since it imposes an eligibility requirement to serve in Congress that isn’t in the Constitution. So it is widely assumed that the law will be challenged in federal court. Federal judges are bound by Supreme Court precedent, so the law will presumably be struck down by the district court, and that decision will be affirmed by the court of appeals.

But that would set up an appeal to the Supreme Court, providing an opportunity to revisit the issue — and perhaps overturn US Term Limits v. Thornton. Of the justices who were on the court in 1995, the only one still serving, as it happens, is Thomas. Another of the current justices, Neil Gorsuch, co-authored a 1991 law review article defending the constitutionality of term limits.

It might seem odd that a challenge to North Dakota’s congressional age limits law could conceivably open the door to undoing a Supreme Court precedent dealing with term limits. But the underlying issue is the same in both cases: whether the people in each state have the right to set the rules for gaining access to their ballot and representing them in Congress.

There is good reason for the public’s unflagging support for limiting congressional terms. Because the advantages of incumbency are so powerful, it has become incredibly difficult to dislodge a sitting member of Congress. US presidents, most governors, and mayors of many of the country’s largest cities are term-limited. Most Americans, across the political spectrum, have steadfastly believed senators and representatives should be too. Nearly 30 years ago the Supreme Court took the power to make that decision away from the people. Soon it may have a chance to restore it.

Jeff Jacoby can be reached at jeff.jacoby@globe.com. Follow him on X @jeff_jacoby. To subscribe to Arguable, his weekly newsletter, visit globe.com/arguable.