- The Washington Times - Tuesday, March 13, 2001

United States political reformers are faddists. Their elixirs come and go, but fundamental political gripes remain the same or deepen.

The recent fad for term limits is illustrative. Its fade was accelerated by last month's Supreme Court decision in Cook vs. Gralike (Feb. 28, 2001) striking down a state ballot law calculated to excite voter wrath against term-limit Doubting Thomases. And where term limits persist, proponents have assembled no evidence of an increase in public welfare or a lessening of disgruntlement.

The Cook litigation assailed condescending assumption of term-limit apostles: namely, that voters are generally too stupid or ill-informed to cast enlightened ballots; they thus must be prohibited from voting for long-term incumbents who almost invariably corrupt the legislative process but deceive the voters in the process.

In U.S. Term Limits Inc. vs. Thornton (1995), the high court held unconstitutional state-imposed term limits on members of Congress (but not state or local legislators). The state of Missouri countered with an amendment to the state constitution instructing Missouri's congressional delegation to proselytize for a term-limit amendment to the United States Constitution. Heretics would be branded with eye-catching ballot print in future elections as follows: "Disregarded voters' instruction on term limits."

Non-incumbent candidates who declined to enlist in the term-limit crusade would confront equally condemnatory ballot disparagement: "Declined to pledge to support term limits." The Supreme Court held the ballot pejoratives beyond the power of states to regulate the time, place or manner of congressional elections. Writing for a majority, Justice John Paul Stevens explained that the ballot exhortations aimed not at voting procedures, but at dictating electoral outcomes to the disadvantage of term-limit critics. In an opinion concurring in the judgment, Chief Justice William Rehnquist denounced Missouri's attempt to manipulate voter choice as discrimination against candidates based on political viewpoint in violation of the First Amendment.

Even before the Cook ruling, term-limit enthusiasm was waning. The New York City Council, for instance, seems perched to repeal term limits for councilmen. Term limits have fallen into a quaint footnote in the Republican Party's erstwhile "Contract With America." Substantial numbers of congressional incumbents who made term-limit pledges have flipped with electoral impunity. And the approximately two dozen states sporting legislative term limits have witnessed no climb in public confidence or satisfaction with state laws or legislative oversight relative to non-term-limit jurisdictions.

Term limits, like other elixirs, may be harmless, not counterindicated for the political ills they purport to address. But that seems doubtful because of the handicaps of typical amateur legislators. Hard-earned expertise is customarily indispensable for intelligent legislative action.

Suppose, for example, you entered Congress as a tax ingenue but devoted to ending unfair corporate tax provisions. A colleague or lobbyist urges your support for an amendment to Title 26, section 357 of the Internal Revenue Code (Assumption of Liability). You naturally turn to the section before deciding or even asking questions. It reads to the untutored with all the clarity of cuneiform: "General rule. Except as provided in subsections (b) and (c), if (1) the taxpayer receives property which would be permitted to be received under section 351, 361, 371, or 374 without the recognition of gain if it were the sole consideration, and (2) as part of the consideration, another party to the exchange assumes a liability of the taxpayer, or acquires from the taxpayer property subject to a liability, then such assumption or acquisition shall not be treated as money or other property, and shall not prevent the exchange from being within the provisions of section 351, 361, 371, or 374, as the case may be." Subsections (b) and (c) are not reproduced to spare the reader from aggravating that linguistic headache.

Section 357 of the IRC is no aberration. Federal statutes are laced with language mystifying to the non-expert, including civil rights, defense contracting, environmental, and labor laws. To entrust exclusively to legislative novices the daunting tasks of oversight, amendment or repeal would be reckless. Could a freshman member of Congress intelligently question the defense secretary about suspected "fat" in the department's more than $300 billion budget? As Goethe cautioned, "Nothing is more terrible than ignorance in action."

It might be said, however, that congressional staff is equipped to educate newcomers with supersonic speed and success. But staff turnover itself is rapid, not like the permanent British civil service. Further, elections aim to ensure government by representatives directly responsive to popular will, not by faceless bureaucrats wedded to their own policy biases.

If incumbency promoted aloofness or disdain for voters because its advantages virtually guaranteed re-election, then term limits might be worth considering despite its own demerits. But the proposition is unsustainable. Constituent service and polling are urgent in all legislative offices, even for the longest-serving incumbents. That explains their high rate of retention. And when they persistently stray from the will of voters for instance, Democratic members of Congress in 1994, and nationally prominent Sens. J. William Fulbright, Arkansas Democrat, and Frank Church, Idaho Democrat, in earlier years they are turned out to pasture.

In sum, isn't it both obnoxious and counterfactual for ordinary citizens to be sermonized by term-limit priests that they are too easily duped by incumbents to be trusted to vote for superior amateurs?


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