A Better Solution than Term Limits

One thing that everyone can agree on is that Congress is no longer responsible to the people. Our founding fathers never envisioned that a position in Congress would be a lifetime career. It’s been observed that you should change Congress like you would change a diaper – and often for the same reason. It’s clear to everyone that being an incumbent in Congress gives a politician an almost overwhelming advantage against any challenger. Big ticket donors won’t contribute as much to an unknown candidate. The incumbent’s party connections ensure endorsements, access to finances, and networking connections that are simply unavailable to any challenger.

The standard solution that everyone seems to be putting forward for this malaise is term limits. By term limiting our Congressman to two terms in the Senate and three to four terms in the house the assumption is that it will have a higher turnover of politicians, fresh ideas, and break the power monopoly of the senior members of Congress.

This is been tried at lower levels. Currently 36 state governors and 15 state legislatures have term limits. In nearly every instance, we hear stories of problems that term limits have caused, and in some cases they’ve been proclaimed to have been a disaster. By term limiting a member of Congress you're guaranteed that at any given time a certain percentage of your Congressmen will be lame ducks, with no responsibility and no answerability to the electorate that placed them in office. With the sure knowledge that their political career is at an end at the end of their term, they'll be less concerned with addressing the needs of their constituencies or legislating responsibly, and more concerned with padding their resume, networking contacts and cashing in their political capital for lucrative positions as lobbyists or board members of companies that benefit from government engagement. The opportunity and temptation for corruption will be nearly irresistible, and no mechanism could conceivably prevent it.

There’s a much better way than term limits to get control of our Congress.

If you have an employee who doesn't perform the job he or she was hired for, what happens? The answer is simple, that employee is removed. If you have an employee who's given financial responsibility within the company, and that employee wastes money, drives the company into debt and doesn’t seem to grasp the concept of balancing the company’s budget, what happens? The answer is simple, that employee is removed.

To make a rule that all employees will lose their job after a fixed period of time, because some employees are incompetent, corrupt or gain too much power in the Corporation is a stupid way to run a business. It's an equally stupid way to run a government. There are politicians and legislators who do an outstanding job for the people. They work within the budget and stay within the constitutional limits of their job. These are people that we want to keep in government and encourage them to do so.

This is all we have to do with our politicians: establish a minimum level of performance, and if they haven't met that performance when their contract comes up for renewal, they're ineligible to renew. The minimum level of performance is simple and obvious: the politician must adhere to the Constitution and may not increase the public debt. If a politician votes for or signs into law a piece of legislation which he or she has no constitutional authority to pass, that politician shall not appear on the ballots of the next election. If the body politic increases the public debt, all those politicians that supported that debt increase will be ineligible to run in the next election.

This, of course, will generate a number of consequences, but they won't be unintended. Who should decide whether a politician has met his constitutional and fiduciary requirements to appear on the ballot? The obvious answer would be the state auditors who are responsible for controlling the elections of each state, with the backing of the state’s attorney generals. Making the auditors the gatekeepers to the ballot exposes them to the potential of a tremendous amount of corruption. This is where citizen watchdog groups and the courts play a role. Should an auditor decline to place an incumbent on the ballot on the basis of their performance, the incumbent would obviously sue. This would put the auditor in the position of justifying his decision before the appropriate judiciary body. Should an auditor place in incumbent on the ballot who has obviously failed to meet the constitutional and fiduciary requirements, citizen watchdog groups can sue to have that incumbent removed, and once again the case will be heard before the appropriate judiciary body.

This will have several beneficial side effects. Challenging a ballot appearance will be an expense for the incumbent, as well as an embarrassment in a campaign that their opponent could use against them. The easiest way to avoid such a problem would be to ensure that they are constitutionally covered whenever they vote for a piece of legislation. I can’t imagine any scenario where a politician who is constantly looking over his shoulder is a bad thing. Challenging a politician on increasing the debt would be much easier, because accounting and the numbers don’t lie and aren't prone to subjective interpretations as constitutional law may sometimes be. This allows for politicians to increase the public debt in times of national emergency, with the full realization that it will cost them their careers.

Today, Congress is immune from the consequences of passing unconstitutional laws. Unconstitutional laws are rarely brought before the judicial branch because of the expense of litigation and the necessity to show harm to a plaintiff because of these laws. It also opens the door for Judicial activism when such a suit is brought, allowing judges to strike down portions of a law and leave others in place to suit the narrow confines of the lawsuit before them. Making incumbent candidates responsible for their legislation in the upcoming election, with the potential that challenged legislative acts may appear before the judiciary gives a path of judicial review over Congress that's currently missing. This would be a mechanism to improve the checks and balances between our three branches of government.

All of the arguments in favor of this mechanism apply equally to executives as to legislators. The 22^nd amendment should be repealed, and the incumbent president be subjected to the same requirements for ballot eligibility as the legislators.

One of the advantages of this idea is that it wouldn’t necessarily require a constitutional amendment to implement. Article I of the Constitution gives the states the authority for qualifying candidates. If a state’s laws allow for the auditor, with the concurrence of the state attorney general, to disqualify an incumbent candidate on the basis of their performance, there’s nothing in the U.S. Constitution which specifically prohibits them from doing so. This theory has been challenged recently with state attempts to require candidates to release their tax returns and has been struck down by the Supreme Court. That’s not to say that the Supreme Court would not uphold a performance qualification requirement, as performance in a public office as a matter of public record, and challenges to income tax revelation have been based on the fourth amendment and privacy.  It can easily be tested at a state level and, if successful, other states would follow suit.

In the event that state laws requiring a minimum level of performance to qualify for a ballot don't pass Supreme Court muster, the solution, as with term limits, will required article V convention. Should it go to an article V convention, we should assiduously avoid term limits for the inherent unintended consequences that they will bring and build in a performance mechanism such as that proposed here that will force Congress to face consequences for their legislation.