President Barack Obama delivers a health care address to a joint session of Congress at the United States Capitol in Washington, D.C., Sept. 9, 2009. (Official White House Photo by Lawrence Jackson) This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

Term Limits: a Policy Proposal When the Barrel is Empty, Part 2

This is Part 2 of a series on term limits. See Part 1 here.

2. The people will naturally tend to vote for smarter choices for their representatives if given open elections free of incumbents.

This is, again, just not true. The same people who send back an incumbent you don’t like will probably send in a freshman you don’t like. The reason for this: they like people you don’t like. Sorry, it’s a fact of politics. If you don’t like that, perhaps I suggest you try getting involved in campaigns to try to influence the choices you have rather than waiting for it to happen to you. Just a thought.

The average open congressional seat sees about seven candidates jump in for the nomination contest of the predominant party in the district. In the jungle that is a seven-way primary or caucus election, you’ll realize that the same factors that favor the incumbents you didn’t like (money, media bias, the favor of the party establishment and political insiders) tends to work just about the same way it does when an incumbent is running.

If anything, in my experience, it’s easier to run a primary challenger against an unpopular incumbent than it is to run against six local politicians who have no voting record to discuss.

All told, term limits don’t help make politicians more responsive to voters.

  1. Once term-limited out, retiring legislators will tend to fade into private life and the “real world,” never to interfere in the political process again.

This is probably the place where the whole term limits argument falls flattest. “Sending them home” isn’t what it means when overwhelming majorities of former legislators, especially at the federal level, remain in politics in some capacity.

Media talking heads, lobbyists, campaign consultants, you name it. Former legislators and their former staff have no trouble sliding right back into politics after passing the title to someone else. In all honesty, many of them are happy to make the transition. As a former legislator, there are few rules of ethics, no Sunshine Act, no Freedom of Information Act, no salary cap, and most importantly, no risk of losing reelection.

For many, it’s a desirable change. A way to cash in on the time spent in public service, so to speak. And for states that have implemented term limits, a quick tour of duty in the legislature is a convenient way to set up a career in politics, or even a modest law practice.

The question then becomes, how do we prohibit former legislators who have been term limited out of politics from staying in politics? Can we ban them from becoming lobbyists? Can we force them to retire?

No, and that for two reasons.

First, the Constitution guarantees a right to free speech, which the Supreme Court has made abundantly clear includes the right to participate in campaigns and advocate for and against legislation, meaning everyone has a First Amendment right to become a lobbyist.

Second, even if we overturned two centuries of Supreme Court jurisprudence of somehow amended the Constitution to gut the First Amendment, the practical issue remains. How exactly do we enforce these prohibitions? How do we preclude those who have served in the center of policymaking for years on end from expressing their opinions? They know the people. They know the issues. They have the personalities, and are inevitably interested. Keeping them out of politics is just not an option, which brings us to the last point.

4. Any unintended consequences of the change would not make the problems in government worse.

Legislatures are inevitably places where influence gravitates toward those who have “the knack.” That nuanced skillset that enables experienced political veterans to navigate the complexities of a chaotic legislative session. Freshman legislators look to experts and authority figures not because they aren’t principled, but because the process of collaborative governance by nature compels it.

The only question that remains is who those authority figures will be. Who will set the agenda. This role has fallen traditionally upon leaders within the legislative chamber, House Speakers, committee chairs, and ring leaders of caucuses and coalitions, both good and bad. Living under this system is… tolerable.

You don’t always like the Speaker, but at least he has to act in someone’s best interest in order to maintain his position, his party’s majority, and his own district. Better yet, he has the various ring leaders of caucuses to deal with to maintain order.

Take that away and what you get is a cabal of former legislators-turned-lobbyists who are accountable to no one, presiding over a chamber in which half the members are too inexperienced to stand up to them and the other half are lame ducks because they can’t legally run again.

What could go wrong?

This all brings to mind the classic quote by Winston Churchill that democracy is the worst form of government there is, except for all the others.

So maybe career politicians who serve for decades on end are the worst imaginable sort of leaders… except for the alternative.

Luke is an attorney, campaign consultant, lobbyist, and historian with a passion for liberty and a nerdy sense of humor.

He holds a Jurisdoctorate Degree in law and a Bachelors degree in communications.

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