How the Supreme
Court Keeps our Ruling Class in Power by George Leef, 5/20/15
Twenty years
ago this month, the Supreme Court placed a huge roadblock in the way of a
grass-roots, bipartisan movement that had been gaining strength, namely the
term limits movement. In many states, voters had approved limits on the number
of terms that state officials may serve. Back in the early 90s, there was
similar pressure to limit the number of terms members of the U.S. House and
Senate could serve.
And then, the
Supreme Court said such limits were unconstitutional in U.S.
Term Limits v. Thornton. By a 5-4 vote, the justices held that putting term limits on
members of Congress (as Arkansas had voted to do) amounted to an additional
“qualification” for holding office, which no state could impose because the
Constitution’s stated qualifications are exhaustive.
In my view,
Justice Clarence Thomas grasped the crucial point, writing “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. The Constitution is simply silent on this question. And where the
Constitution is silent, it raises no bar to action by the State or the people.”
That, however,
was in dissent. Justice Stevens’ convoluted, pro-status quo opinion
carried the day, much like his convoluted, pro-status quo opinion in the
eminent domain case Kelo
v. New London would ten years later.
Nevertheless,
the Court has spoken and the only certain means of dismantling its roadblock
against federal term limits is to amend the Constitution.
According to
polling, a remarkably large majority of the American public would like to see
term limits. A 2013 Gallup
poll found that 75 percent of voters were
in favor of having term limits for members of Congress, with only 21 percent
opposed and 5 percent registering no opinion. Support was somewhat higher among
Republicans and independents, but 65 percent of Democrats surveyed were in
favor.
You might think
that in a democracy, when such a high percentage of the people want a change in
the law, it would be fairly easy to bring it about. But that is not the case.
As we learn from the branch of economics known as Public
Choice theory, elected officials have their own
set of preferences that frequently are out of alignment with those of the
people they supposedly represent.
When it comes
to staying in office, that misalignment is especially severe. While the voters
might think it best if the members of Congress had to rotate back into ordinary
life after two or three terms, most members don’t want to leave once they’ve
gotten the taste of Washington’s power and perks.
Congressman Ron
DeSantis explains in this
piece that “Term limits don’t have
traction in Congress because the wishes of the public are at odds with the
self-interest of individual members of Congress. The primary reason politicians
seek to curry favor with the public is so that they can perpetuate themselves
in office; heeding the desires of the public becomes much less attractive if it
means forcing them out of office.”
So here’s the
situation. Most Americans think they ought to be able to have a law that limits
the length of time their representatives serve in Congress, but those same
representatives would have to approve an amendment to the Constitution (thanks
to the Supreme Court) before that can happen, and they don’t want to.
One of the few
members of Congress who thinks that there should be a limit on how long he can
stay is Arizona representative Matt Salmon, who has introduced legislation (House
Joint Resolution 14) which would amend the Constitution
to specify that members of the House can serve no more than three terms and
members of the Senate no more than two. Predictably, that measure has gotten
the support of only a tiny number of members.
Representative
DeSantis suggests a means of breaking the logjam, namely to include a
“grandfather provision” so that terms limits would only apply to future members
of Congress. That might do the trick, but I suspect that no amendment will make
it through Congress for the states to either approve or reject without a hard
push from the White House. As long as it remains in Democratic hands, that
isn’t going to happen. Long-serving House and Senate Democrats, even in the
minority, are the friends of the federal mega-state, reliable enemies of
efforts at scaling it back and repealing any of the vast number of laws we
should repeal.
The longer
politicians remain in Washington, the more likely that they’ll settle in
comfortably with the lobbying community and decide that they really don’t want
to rock the boat.
They also
become increasingly estranged from real life; despite glitzy “listening tours”
and such, they give less and less thought to how government affects the people
back home. (The late senator George McGovern, years after leaving office, tried
to run a bed and breakfast; that opened
his eyes to how hard the government has made things for anyone who wants to
earn an honest living in business.) That’s because they don’t foresee having to
go “back home” at any point.
Gerrymandered
districts and the huge advantages of incumbency mean that once elected,
politicians can anticipate long careers in Washington. The effects of that are
overwhelmingly bad.
America should
have a national debate over term limits, a debate that would perhaps spill over
into other important topics like the proper scope of government power.
Unfortunately, that debate won’t take place unless we get some true political
leadership.
http://affluentinvestor.com/2015/05/how-the-supreme-court-keeps-our-ruling-class-in-power/
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