Matt Lewis Is Right: Rand Paul Is Wrong on Term Limits, Here’s Why

(Editor’s note: this post first appeared on George Scoville’s personal blog.)

The Daily Caller’s Matt Lewis has a really important piece up this morning critiquing Rand Paul’s rhetoric on congressional term limits from Paul’s announcement of his 2016 presidential campaign yesterday. During his speech, Paul said, “We limit the president to two terms … It is about time we limit the terms of Congress.”

Here are the counterpoints Lewis offers (emphasis added):

shouldn’t we the people get to decide whom we want to represent us…or not? Having someone else decide what’s best for us strikes me as the electoral equivalent of helmet laws.

In both cases, there are unintended consequences. In the case of the term limits, what happens when politicians no longer stick around long enough to acquire the knowledge and expertise that come with tenure? The predictable answer is that they become ever more reliant on staffers and lobbyists. These unelected and unaccountable elites inevitably become the permanent ruling class.

Basically, there are two problems according to Lewis: (a) how we think about representation—the essential principle-agent relationship in our politics—suggests that, when giving up some sovereignty over ourselves to a government body, we ought to be able to select for ourselves to whom we delegate that legitimate authority over us, and how long that person has been our agent previously should have no bearing on our decision, and (b) notwithstanding that most Members of Congress aren’t policy wonks anyway, limiting their ability to serve long enough to get an education about what is and isn’t important lends itself to the creation of either really bad policy, or to the outsourcing of policy creation to well organized special interests (but I repeat myself).

Lewis is right about these considerations, but I’d like to go a bit further.

To these points, I’ll expound by saying that, absent a constitutional amendment, term limits are really problematic for the First Amendment. Our vote, while maybe irrational, is a form of speech. When I cast a vote for Candidate A, I am saying “I support Candidate A and want him/her to represent my interests in Congress.” I might also be saying, as the case might be, “I really don’t want Representative B to be my agent anymore, and I now say I am delegating my authority to Candidate A.”

Historically speaking, when the U.S. Supreme Court has allowed statutes to override speech protections guaranteed by the First Amendment, and it has, it has done so only when there has been a compelling state interest in so doing, and when the statutes have been narrowly tailored to target a single type of speech (ex. laws prohibiting yelling “fire” in a crowded movie theater, since so doing might create a panic and lead to people being trampled to death as masses rush for the exits). Limiting terms of office in Congress effectively tells us what we can and cannot say when we cast a ballot (writing in a term-limited incumbent somewhat mitigates this, but not if the vote doesn’t count).

Some have argued that term limits will lead to less corruption, but as Lewis shows, quite the opposite is a very distinct possibility: a perpetually uninformed legislative delegation or body will likely inevitably be overpowered by well organized special interests, if they don’t outsource the work directly to them in the first place. This is a far safer assumption to make than term limits leading to less corruption, as special interests sometimes overpower even well-educated, well-informed Members of Congress. As such, it’s difficult to make a case that there’s a compelling state interest in limiting a voter’s options on Election Day, even if we narrowly tailor election laws to this very specific type of speech (voting for an x-term incumbent). The likeliest ends simply don’t justify the means.

Of course, if we enact congressional term limits by amending the U.S. Constitution, like we did for presidential terms with the Twenty-Second Amendment (ratified in 1951), the point about the First Amendment becomes less troublesome. But even this would still be bad for human liberty; the Constitution is supposed to be a shield that protects individual rights, including voting and speaking rights, from government excess; it is not a sword with which government may hack away at our rights, even if its reason for so doing is de rigueur at a particular given point in time. In fact, as Lewis notes, Ronald Reagan, revered as nothing less than a saint by American conservatives today, wanted to end presidential term limits, for these very reasons.

And as Lewis notes, term limits-qua-institutional reform were de rigueur in the mid-1990s, when Newt Gingrich of Georgia led a Republican revolution in the House of Representatives in the first midterm election of Bill Clinton’s presidency. Congressional term limits were a quintessential component of the Contract with America, the conservative platform on which Gingrich and his army ran. Democrats had ruled the roost for forty years prior, Gingrich, et al. argued, some of them for too long in their judgment, albeit arbitrary, allowing the left to beat up on the right a little too much for comfort. The Contract with America was a populist conservative revolution, and the idea of congressional term limits isn’t, as Lewis notes, “new.”

So if Rand Paul is to be a new kind of Republican, especially a pro-liberty Republican, he should back away from term limits talk—it’s not like, as president, he’ll be able to do much about it in practice, thanks to separation of powers—as this is an old idea that limits political speech, and sets up a candidate for an inevitable failure: why would any Member of Congress willingly sign a death warrant on his or her own political career, even if asked nicely by an affable guy like Paul?

But to put an exclamation point on what a bad idea term limits are, I’d like to add a third point that Lewis didn’t mention, and that’s that standard critiques of careerism in Congress belie the real problem: legislative powers, and how the body uses them. Congress (and, to be fair, so have other branches of government) has unilaterally expanded—or at least has attempted to unilaterally expand—its own powers every day since the American founding. This is somewhat by design, and the reason we have separate branches of our national government, as well has having a division between the national and state governments: James Madison knew ambitious factions would try to win seats in government and self-deal, so he pitted ambition against ambition, assuming the branches would check each other. For the most part, the experiment has been a success, but I digress.

“Term limits” is kind of a vacuous term like “balanced budget amendment” that, while it appeals to a lot of people, fails to think through and therefore account for the real problems associated with a branch of government constantly looking for ways to expand its own powers. What I mean by that is that a balanced budget doesn’t do the country any good if the government is undertaking projects outside the scope of what’s defined in Article I, Section 8 of the Constitution, or it’s undertaking projects that violate civil liberties (think “We’re rounding people up by the thousands and murdering them in broad daylight, but at least we can all be thankful it’s a revenue neutral program, and our federal budget is balanced!”). Similarly, curtailing the length of a term of office contains no guarantee that a Member of Congress will curtail his or her excesses in his or her use of its powers. If anything, abbreviating terms of elected officials might manufacture a sense of urgency in them, incentivizing and emboldening them to really go for broke in creating policy since they’ll be term-limited anyway, without ever think through the long-term ramifications of a policy decision. A term-limited politician literally never again has to be accountable to voters for their actions.

This is fire we really shouldn’t be playing with, folks. The market for political representation already has an invisible hand; it doesn’t need Rand Paul’s heavy hand, too. Our project as defenders of liberty should be limiting and reining in Congress’s use of its powers. We might need people like Justin Amash, Thomas Massie, and Rand Paul to serve several terms to accomplish that.

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