Term Limits Temptation: Creating the Pretext for a Con-Con

Congressional Reform

The New American / June 10, 1996 (reprinting for its relevance)

Written by George Detweiler

Throw the bums out! The idea is appealing to Americans who see their elected officials
becoming less and less in touch with conservative government. The idea is also not new.
Concerning term limits, which were considered by the Founding Fathers during the
Constitutional Convention of 1787, Alexander Hamilton wrote in The Federalist, No. 72:
"Nothing appears more plausible at first sight, nor more ill-founded upon close
inspection."

The quick-fix nature of term limitation is superficially appealing not only because of the
perceived speed with which it appears to remove an offending official, but also because it
does not require much thought, research, or analysis on the part of the voters. By
throwing everyone out of office after a fixed number of terms, we rid ourselves of the
task of deciding who is doing a good job and who is not. The finest and the worst are
discarded by the calendar.

What those who are attracted by the concept of term limits generally fail to understand is
that the promoters seek, not specific term limits, but general term limits, which would
restrict the voter franchise and emasculate the power of the ballot. The goal -- ridding our
government of the bad while keeping the top performers -- would be sacrificed on the
altar of expediency.

First Proposal
While the term limits concept was considered during the Constitutional Convention of
1787, it was rejected by the delegates, who instead provided for short terms of office --
two years for the House of Representatives, four years for the Presidency, and six years
for the Senate. James Madison, who opposed term limits at the Constitutional
Convention, recorded in his notes the words of a fellow delegate, Roger Sherman:
"Frequent elections are necessary to preserve the good behavior of rulers. They also tend
to give permanency to the Government, by preserving that good behavior, because it
ensures their re-election." It is difficult to challenge Sherman's logic: If a politician were
not eligible to run for re-election because of term limits, what incentive would he have to
please the voters? The answer, of course, is that he would have little such incentive, and
he would be even more prone than before to fall prey to the special interests in
Washington.

For proof of this one need look no further than the special lame-duck session of Congress
that was held after the November 1994 elections for the explicit purpose of passing the
unpopular General Agreement on Tariffs and Trade (GATT) treaty. It mattered little that
most Americans were strongly opposed to this treaty; the elections had already been held
and the congressmen who were rejected by the voters did not have to worry about facing
another re-election anyway. What did matter was the intensity of the GATT lobbying
effort. Is it any wonder that the position of the new world order architects triumphed over
that of grassroots Americans?

Fortunately, the Founding Fathers recognized that frequent elections are the best way to
keep politicians responsive, and they made the elections most frequent for that part of the
federal government which is closest to the people -- the House of Representatives. They
fully understood that the greatest restraint on any public official is the realization that he
must face the voters for re-election, and be judged on his performance in office.

Because of the wisdom of the Founders, America has benefited from the services of
many great lawmakers whose long and fruitful careers would have been cut short had
term limits been in effect. Those lawmakers include John Quincy Adams, John C.
Calhoun, Henry Clay, Sam Houston, James Madison, and Daniel Webster.

Few lawmakers have as much political clout as the Speaker of the United States House of
Representatives, yet Speaker Tom Foley (D-WA) was defeated in 1994 by a political
novice. Similarly, great power rests with the chairman of the House Ways and Means
Committee, yet Chairman Dan Rostenkowski (D-IL) was defeated in 1994 by a political
novice. No term limits law was necessary in these cases. Foley's and Rostenkowski's
constituents limited their terms by way of the ballot box.

A changing of the guard began with the election of 124 freshmen members of Congress
in 1992 -- without mandated term limits. It continued in 1994 with a great power shift in
Congress and statehouses throughout the land -- without mandated term limits. In January
1995, 87 freshmen representatives and 11 freshmen senators took their oaths of office,
demonstrating the constitutional authority of voters to limit the terms of their specific
congressmen. At this writing 47 incumbent representatives and 14 incumbent senators
have already announced that they will retire rather than seek election in November -- all
changes wrought without mandated term limits.

The flaw of mandated term limits is demonstrated by comparing the Congresses elected
in these two years. The turnover in 1992 took place simultaneously with the election of a
new President. That new Congress turned out to continue business as usual in spending,
social programs, and concentration of power at the federal level. The subsequent voter
response in 1994 was a public reaction to that continuation of the same old game. Term
limits, whether specific and voter imposed or general and imposed by law, never
guarantee an improvement in government service. Only a well-informed and thoughtful
electorate can do that.

Education Is the Key
For this reason, Americans sincerely concerned about poor representation in Washington
should work to increase public understanding, not to limit the voter franchise. Until the
understanding is created, the new faces will not provide any better representation than the
old ones.

But the ability to create understanding is limited when voting records no longer matter. If
an incumbent with a record of performance were denied the option of running for reelection,
voters would be forced to choose a candidate without a congressional voting
record. The entire success of a voter-education program such as Tax Reform
IMmediately (TRIM) depends upon a congressman's ability to seek re-election. By
making a congressman's voting record widely available through the mass circulation of
its voter-education bulletins, TRIM helps voters know who the big spenders are. More
than a few congressmen have become more fiscally conservative as a result of TRIM
exposure of their big- spending voting records. But these congressmen would have had
little incentive to change had they known that they would not be facing the voters in a reelection
bid.

Another result of mandated term limits would be increased dependence by congressmen
on unelected staffers and the entrenched beltway bureaucracy. Were experienced elected
officials tossed out by term limits, their inexperienced replacements would have to spend
time learning the ropes. Until the newcomers were up to speed in job performance, the
career civil servants, who never have to face the voters, would take up the slack and
exercise greater control. By the time the novices gained sufficient experience, they would
be out of office because of the term limits law.

Power and Money
Government paychecks and power are terribly addictive. Term limits would create a pool
of ex-congressmen and ex-senators desperate to stay on the federal payroll rather than
find a real job in the private sector. The executive branch -- that vast network of
departments, bureaus, agencies, advisers, and regulatory commissions -- would become
the employer of choice for those exiting Congress.

The President, fully realizing the attraction Administration jobs would offer to
congressmen forced to retire due to term limits, would undoubtedly use this as leverage
to convince these congressmen to vote for Administration policies. And why wouldn't
many of these congressmen accept the bait, when the wishes of their constituents no
longer mattered? Consequently, term limits would increase the influence of the executive
branch at the expense of the legislative branch, further disrupting the delicate system of
checks and balances that the Founding Fathers so carefully crafted into the Constitution.
As for the "career politicians" whom term limits would supposedly eject from the ranks
of government, many of them would remain in Washington, only now they would be in
the executive branch, where they would be safely insulated from the direct wrath of the
voters.

Meanwhile, term limits on the state and local levels would also create a pool of out-ofwork
office holders casting lustful eyes at a new job in Congress. Rather than rid the
nation of "career politicians," mandated term limits would merely create circulating pools
of public employees making the rounds from the statehouses, to Congress, to the
executive branch in search of higher paychecks and greater power.

Slumbering Citizens
The mere passage of a term limits law would have a soporific effect on the public.
Content in the misconception that once limits are imposed only competent, honorable
people could hold office, the American citizenry would assume that their vigilance is no
longer needed; they would thus be prone to ignore the actions of their elected officials
and go into a deep slumber. Voters would elect a string of mandated short termers who
would go about their business largely unwatched.

After the unprecedented three-term Franklin Roosevelt Administration, Congress
proposed the 22nd Amendment to the Constitution, limiting a President to two full terms.
The Amendment was ratified by the states and became a part of the Constitution on
February 27, 1951. Evaluation of the Presidents who have followed ratification of that
amendment reveals that they have been no more competent, no more honorable, and --
most important -- no more faithful to the Constitution than Presidents who preceded the
22nd Amendment. Mandated term limits have been a resounding failure at the
presidential level, and there is no reason to expect greater success at the congressional
level. There is simply no substitute for well-informed voters who see through hollow
promises and who demand that elected representatives adhere strictly to the Constitution.

Are the leading promoters of term limits sincerely seeking better government, or do they
have another agenda? A complete answer to this question requires a brief detour. Article
V of the U.S. Constitution establishes two distinct methods of amending that venerable
document. By one method, Congress proposes amendments and sends them to the states
to be ratified, either by the legislatures of each state or by a special convention called in
each state to consider the amendment. Every existing amendment to the Constitution has
been made using this method.

By the other method, the legislatures of two-thirds of the states (34) must apply to
Congress to call a convention of delegates to propose amendments, after which Congress
is required to call a convention. This method of amendment has never been used and how
it would work in practice remains a mystery.

First Attempt
In 1975 the North Dakota legislature became the first state to apply to Congress for a
constitutional convention (con-con) under Article V for the expressed and limited
purpose of proposing a constitutional amendment requiring a balanced federal budget.
Other states followed North Dakota's lead, not knowing that a state which applies for a
con- con has no authority to limit the convention.

Leading the charge for a balanced budget convention was James Dale Davidson of the
National Taxpayers Union. His fund-raising appeals pleaded for money to support his
movement for a con-con for the limited purpose of proposing a balanced budget
amendment. At one point 32 of the necessary 34 states had applied for a balanced budget
convention. Alerted to the danger, the John Birch Society, Eagle Forum, and other
patriotic organizations and individuals began to testify against the con-con calls at
legislative hearings, proclaiming the view of the vast majority of the American public,
liberal or conservative: "Hands off the Constitution!" Regardless of the politics of the
citizenry, good Americans don't want anyone tampering with that document.

In 1983 Missouri became the last state to apply for a balanced budget con-con; the effort
had lost its momentum and was dead in the water, despite later periodic efforts by
backers to get other state legislatures to apply for a balanced budget convention. Armed
with the fact that a con-con cannot be limited to one subject, three states which had
initially applied for a convention withdrew their applications. The balanced budget concon
advocates refused to recognize the withdrawals, continuing steadfastly to maintain
that a convention could be limited to considering amendments on one subject. Judges,
including former Chief Justice Warren Burger, and many legal scholars disagreed.

Now enters the term limits movement. Like the pony express rider who leaves the tired
mount behind for a fresh one, the con-con advocates have changed from championing a
balanced federal budget to championing congressional term limits. Nonetheless, their
ultimate goal remains the same: a constitutional convention that will execute major
changes in the structure of the federal government and, perhaps, in the structure of the
state governments. In the middle of this latest effort has been the U.S. Term Limits
Foundation.

Careful ground work has been done to mold and manipulate public opinion into the belief
that the only way to dislodge entrenched politicians is with mandated term limits. U.S.
Term Limits distributes a slick video replete with examples of high congressional
salaries, retirement benefits, and perquisites as reasons to hold a term limits con-con. The
target of the video is the under-informed citizen who is concerned about government
waste, corruption, and special interests. The video proclaims that a strong majority of the
American people wants term limits, but it is careful to avoid specifying the kinds of
alterations to the Constitution which a con-con could produce.

Aggressive Effort
Initiative petition drives conducted from 1990-94 put term limits measures on the ballots
in 23 states. Candidates for office were publicly asked for their positions on term limits,
making it a campaign issue in several elections. The ballot measures were written so as to
include state, local, and -- in some states -- congressional offices, in direct conflict with
Article I, Sections 2 and 3 of the U.S. Constitution. Those sections provide an exclusive
list of qualifications for office in the House and Senate.

An uninformed public bought the term limits line; the measures passed in each state amid
a general public inclination for cleaning house. Term limits thereby became law in each
of these states. The next step was a court challenge to the new state laws. It came in
Arkansas, which had amended its constitution to impose term limits on the senators and
representatives the state sends to Washington. A class-action suit was filed on behalf of
the Arkansas League of Women Voters and others contending that state-imposed term
limits violate the Constitution. In U.S. Term Limits, Inc. v. Thornton (1995), the Supreme
Court agreed, holding that states have no power to change or add to the qualifications for
office set forth in the Constitution.

Term limits advocates claimed that the courts had struck down the will of the people by
blocking the implementation of state laws imposing congressional term limits. In berating
the Supreme Court for its decision, U.S. Term Limits Executive Director Paul Jacob
complained: "It's not fair that the country's most powerful judges (congressionally
approved for life) are paying back their friends in Congress for giving them the only job
that offers lifelong job security!" In point of fact, the Supreme Court simply applied the
language of the Constitution and found state-imposed congressional term limits to be
unconstitutional.

The stage was thus set for the campaign for a constitutional convention. Since Congress
would never propose an amendment to the Constitution to limit itself out of office, a concon
was the only way to get such an amendment.

Doubts about the goals of the term limits movers and shakers are erased when one
examines the language which appears in a new set of initiative measures which U.S.
Term Limits hopes to see passed this November in 17 of the 23 states that had adopted
term limit measures by 1994. Unlike the balanced budget con-con applications, the new
term limits measures are not restricted to a single subject. Instead, they seek to require the
state legislatures to apply to Congress for a convention to propose amendments (plural) to
the Constitution. In essence, the 1996 ballot measures are asking for a general
convention, one authorized to propose changes in the basic fabric and framework of the
entire American system of federal government.

Typical of the language in the initiative measures are sections requiring a notation on the
ballot beside the names of candidates who have declined to support term limits
legislation. The Idaho version reads: "Disregarded Voters' Instruction on Term Limits."
Idaho Attorney General Alan G. Lance has issued an advisory opinion that the initiative
measure being prepared for circulation in that state is unconstitutional. In his opinion
letter on the proposed ballot language, Lance reasoned:

[B]y placing unfavorable comments next to a candidate's name on the ballot, the
state is effectively signaling to the electorate that this candidate is unworthy of
their vote in contrast to other candidates. Thus, the state is decreasing the chance
that such individuals would be elected based upon their stand on a political issue
and, thus, decreasing the value of the votes of his or her supporters.... Requiring the
State of Idaho to print any of the above language on a ballot raises problems under
several constitutional provisions, including the freedom of speech, the Equal
Protection Clause of the U.S. and Idaho Constitutions, and the right of suffrage
provision contained in the Idaho Constitution.

Deceptive Language
In regard to how these initiatives will be presented on the ballots themselves, deception
will be the rule. The Idaho version includes a short title making no mention of a
constitutional convention, although a con-con is mentioned in the long title. The long title
does not, however, clarify that the initiative measure seeks to have the legislature apply
for a general, unlimited convention.

In the text of the initiative petition, the con-con language does not appear until the middle
of a document of four legal pages in length. Thus, the bottom-line purpose of the
initiative takes considerable time and reading to discover. That purpose is camouflaged
by the dominance of the term limits language; the actual language seeking an unlimited
con-con is minimal. Consequently, the voter who is approached in a parking lot and
asked to sign the petition will have little time or opportunity to discover, and no reason to
suspect, that the measure is designed to seek a general constitutional convention that
could draft not only a term limits amendment, but a new constitution.

Only state legislatures can apply to Congress for a con-con. The latest initiative
measures, therefore, cannot produce a con-con application. To circumvent this hurdle, the
term limit promoters have placed language in their initiatives directing the legislatures to
apply to Congress for a convention. Regarding this approach, the Idaho Attorney General
Lance stated that "the government is speaking in support of a constitutional term limits
amendment, a political issue, best left to the political campaign rhetoric between
candidates and their supporters. Not only is the government speaking in support of one
side of a controversial issue, it is lending its voice at the most crucial point in time in the
relationship between voters and candidates." Lance opined that "while government is free
to add its voice to the marketplace of ideas, it is highly doubtful the state can use its
power to seek to manipulate election results by slanting what appears on the ballot. This
initiative has the effect of praising one candidate and penalizing another based solely
upon the political beliefs expressed by such individuals. Based upon the law cited above,
such conduct on the part of the state is improper."

A pamphlet published by U.S. Term Limits assures, "A convention cannot enact
anything, it can only propose an amendment or amendments. Nothing can become part of
the Constitution without being ratified by both Houses of thirty-eight state legislatures."
This statement is patently false. Article V of the Constitution states that proposed
amendments shall become effective "when ratified by the Legislatures of three-fourths of
the several States, or by Conventions in three-fourths thereof, as the one or the other
Mode of Ratification may be proposed by the Congress...."

For example, the 21st Amendment repealing prohibition was, in fact, ratified by special
state conventions, not by the state legislatures. Congress chose that mode of ratification
because it knew that there was not sufficient support among the state legislatures to
assure ratification. But Congress did not stop there. It also established guidelines for the
delegate- selection process that helped ensure that mostly pro-Amendment delegates
would be selected and that the 21st Amendment would become part of the Constitution.
In this fashion, pro-prohibition Utah became the final state to ratify the 21st Amendment,
even though the state legislature was staunchly opposed to it.

Contrary to the claim of U.S. Term Limits, once a state legislature has applied to
Congress for a con-con, there is no guarantee that that legislature will ever have the
opportunity to pass judgment on the product of any convention which is called.

The U.S. Term Limits video proposes that the move to seek a con-con can be used to
pressure Congress to propose a term limits amendment. There is extreme danger in doing
so. If the 34th state applied for a con-con, Congress would be duty bound under Article V
to call one even if Congress has already proposed a term limits amendment. The danger is
exacerbated by the fact that U.S. Term Limits is seeking a general convention, not one
purportedly limited to proposing a term limits amendment.

The true goal is a con-con for any purpose, which instantly becomes a con-con for every
purpose. Once a con-con begins, it can propose amendments upon any subject it chooses,
and whatever limitations the state legislatures thought they had imposed on it may be
ignored. Delegates to a convention would never face the voters to account for their
actions; they would be accountable to no one. A con-con could make drastic changes in
the Constitution involving radical redesign of the federal government. It could propose a
truly national government with a parliament along the lines of Great Britain and
European countries. It could propose whatever it likes. It could even alter the methods of
ratification for the changes which it produces.

Changing the Rules
The convention which met in Philadelphia in 1787 had convened for the limited purpose
of amending the Articles of Confederation, the constitution under which our nation then
operated. But from the start, the delegates ignored the limitations on their authority and
began to write the Constitution under which we now live. They knew that the new
Constitution would not receive unanimous support from the states as required by Article
XIII of the Articles of Confederation. To solve this dilemma the convention simply
changed the rules, creating its own method of ratification, found in Article VII of our
present-day Constitution. Article VII, which specified that the Constitution would
become effective upon ratification of only nine of the 13 states, made possible the birth of
the Constitution.

Since the method of ratification can be changed, what would prevent it from being
eliminated? It happened once; what assurance do we have that it could not happen again?
A modern-day convention could conceivably produce a new constitution that would take
effect upon adjournment of the convention! Recall our earlier observation that a
convention-born amendment has never been proposed and that the process is shrouded in
mystery. The final outcome of a con-con and its effects on the federal system and limited
federal authority cannot be predicted. What can be predicted, however, is that power
seekers will always find the Constitution an obstacle to their ambitions, and will always
attempt to circumvent it and -- if possible -- destroy it. In an age when relatively few
Americans understand the basic principles upon which their government was founded, a
modern-day con-con would provide power-seekers with an opportunity to tailor the
Constitution to their own liking.

In Idaho the con-con movement which carries the term limits banner bears the name
Citizens for Federal Term Limits. It is headed by Donna Weaver, who told THE NEW
AMERICAN that the state organization is affiliated with U.S. Term Limits. Circulation
of petitions to get the term limits initiative on the state ballot has already begun. All
petition circulators will be Idaho residents and will be paid for the signatures they collect.

Weaver stated that the language of the initiative measure was drafted using text supplied
by U.S. Term Limits; it is the same language used in the other states where term limits
initiative petitions are being circulated. Weaver also noted that the wording with
reference to a constitutional convention was lifted from Article V with no changes in
order to minimize the chance for error in case the validity of the initiative is challenged,
hence the application for amendments in the plural rather than a single amendment. She
volunteered that a convention could propose amendments on topics other than term
limits, although she regarded the Idaho application language as seeking a limited rather
than a general convention.

Top-Down Agenda
We have no reason to doubt Weaver's sincerity. Yet while Weaver cautions, "I'm not
saying that I think that we ought to have a convention on this issue or any issue," the top
national leadership of U.S. Terms Limits is fully aware that the real purpose of the term
limits movement is a general, unlimited con-con. It is unlikely that state coordinators
such as Weaver are in on the game plan.

Weaver views the term limits movement as a means by which the American people can
retake control of their government. This is in sharp contrast to the reality of the control
which emanates from the national organization to those in the states. Note, for instance,
that the language for the state initiative measures is supplied by the national headquarters
in Washington, DC. Given the distaste which the American people have for tampering
with the Constitution, it is doubtful that people in middle leadership and below would
support the movement if they knew the real agenda.

The top players in the term limits movement are the same people who have pressed for a
balanced budget con-con. James Dale Davidson's National Taxpayers Union has used the
same propaganda to solicit funds for a term limits con-con as it used earlier to solicit
funds for a balanced budget con-con. The graphics are the same. The format is the same.
The wording is even the same, except that the words "term limits" have replaced the
words "balanced budget." Former Pennsylvania Governor Richard Thornburgh and
former Colorado Governor Richard Lamm have not only formed Citizens for a Balanced
Budget Amendment, but have joined with the National Taxpayers Union, thus aligning
themselves with the term limits camp.

Interestingly, Thornburgh is also a member of the Committee on the Constitutional
System (CCS). Other CCS members include Lloyd Cutler, chairman and former legal
counsel to Jimmy Carter; former Treasury Secretary C. Douglas Dillon; former Defense
Secretary Robert S. McNamara; and Senator Nancy Kassebaum (R-KS). Thornburgh's
alliance with the CCS and his involvement with both the balanced budget and term limits
con-con movements establish an important link between the radical changes to the
Constitution sought by the CCS and both con-con efforts. Funding for the CCS comes
from the Dillon Fund, American Express, and the Ford, Hewlett, and Rockefeller
Foundations.

Proposed "Reforms"
The announced purpose of the CCS is to consider constitutional changes such as:

• Requiring voters to vote for President, Vice President, senators, and congressmen as a
  unit, under the banner of one or the other political party, thereby eliminating splitting the
  ballot and choosing people for these offices from different parties.

• Permitting the President to dissolve Congress and call for new elections.

• Permitting Congress to vote "no confidence" in the President and force new elections.

• Allowing the President to propose certain types of legislation that could be adopted by
  popular referendum instead of by Congress.

• Allowing the Senate to ratify treaties by a smaller majority vote instead of the twothirds
  majority vote that is now required.

• Placing congressional leaders in the President's cabinet, thereby further eroding the
  separation of powers between the legislative and the executive branches.

Taken as a whole, the CCS "reforms" would have the result of gutting the Constitution.
They would destroy the separation of powers built into our system, give the political
party in power control over both the executive and legislative branches, and, in general,
allow more power to be transferred to the Washington leviathan.

Don't be surprised if the CCS and other would-be Constitution "reformers" attempt to use
a modern-day con-con to implement their radical agenda. Back in 1985, CCS co-chair
Lloyd Cutler wrote that "if the pending call for a constitutional convention to propose a
'balance the budget' amendment is joined by the two additional states needed to provide
the triggering two-thirds ... our committee may be ready with some better ideas." The
more recent call for a con-con to limit congressional terms could be used just as easily.

The safest way to preserve the integrity of the Constitution is to defeat all efforts to have
state legislatures apply for any convention, regardless of how appealing the sales pitch or
the expressed "purpose" may appear. This would be true even if the pretext for a con-con
were a worthwhile proposal. As we have seen, limiting congressional terms by making
incumbents ineligible to run for re-election would not result in better government, and
would in fact open the door to great harm to our Republic.

Mr. Detweiler, a former Assistant Attorney General for the state of Idaho, is a practicing
attorney in Twin Falls, Idaho.