End term limits and their arbitrary paternalism

BY CHRIS SZABLA

New York Mayor Michael Bloomberg’s move this week to try and extend his office’s term limits may have seemed opportunistic. The mayor, many claimed, was exploiting his electorate’s fears of the unfolding financial crisis and its eventual impact on New York – an impact, he implied, that he was uniquely qualified to handle. Whether or not Bloomberg’s motivations are noble, however, the revision of term limits – across the United States – is well past due.

Support for limitations on terms in office relies on the presumption that democracy has the tendency to revert to tyranny. In the European tradition, this fear can be traced back to classical political philosophy. Greek scholars, including Aristotle and Polybius, believed this regression was inevitable, and conceived of a revolutionary cyclicality of history, as democracy alternated with tyranny and oligarchy.

For centuries, the architects of government struggled with how to “end” this historical motor and bring about political stability. Machiavelli proposed the “safety valve” of a representative assembly within an aristocratic government; later, British thinkers would boast of their country’s “mixed government” composed of a balance between the aristocratic Lords and the “popular” Commons.

Much earlier, however, Republican Rome engineered a much more draconian solution. Even within their relatively small and clubby body politic, Romans feared, individuals elected to executive office might aggregate excessive power. Consequently, the Roman Senate was headed by consuls limited to terms of two years.

As indebted as the founding fathers of the United States were to classical thought, they imposed no such restrictions. When George Washington stepped down after only two terms as president, he stunned European observers who believed that he and his cult of personality would spawn a precedent of leadership for life. Instead, Washington inspired his successors to follow in his footsteps. Presidents were seen thereafter not in light of the circumscribed Roman consuls, but as contemporary versions of Cincinnatus, the farmer who served as Rome’s dictator only as long as he thought necessary.

Term limits were only introduced much later – after the long (and not entirely undeserved – or unnecessary) reign of Franklin Delano Roosevelt, but, more to the point, after the experience of totalitarian fascism demonstrated to American lawmakers the same dangers in unfettered populism that had inspired fears in the Greeks.

My colleague Andrew Kalloch writes in error, therefore, when he describes ending term limits as “undemocratic”. This idea came into law in the first place in order to save democracy from itself. If anything, the revocation of this restraint would restore American democracy to a purer form.

In arguing that incumbents are inherently advantaged without them, Andrew and other proponents of term limits do not explain why such constraints are not stricter – why, in other words, are elected officials allowed to trounce due to the supposed advantages of their incumbency in one election, but not the next? Why is the body politic adjudged less shrewd if an official goes up for re-election one more time? This position is refuted by simple historical fact: voters have frequently rejected even the most powerful incumbents. Tom Daschle, for example, went from being the leader of all Democrats in the Senate to being entirely unemployed. Incumbency is not ever necessarily an advantage. And if the state appears to be straying toward tyranny, there are other means of survival at its disposal.

In the context of the recent presidential campaign, term limits have meant that the Republican Party will be able to escape much blame for the last eight years that it has effectively dominated government. With a chance to run again, George W. Bush would have been forced to face a referendum on his last half-decade of lackluster governance. Instead, the McCain/Palin ticket has managed to get away with branding itself “a pair of mavericks,” crudely co-opting Barack Obama’s promise of change.

Psychological manipulation of the public goes hand-in-hand with elections, whether they are constrained by term limits or otherwise. Imposing them for that reason, therefore, seems excessive – or, at least, pointless.

Beyond elections, the lame duck nature of a last term makes politicians inherently less disposed to public reaction throughout that whole period. Term limits effectively leave government officials with long periods during which they are not accountable.

Even if opening the floodgates leads to democratic tyranny, lawmakers can never do so in a way that strikes a competent balance between popular referendum and necessary restraint. For there is no sound way to measure what the limit on any term should be – or how many one should be limited to. As necessary as such paternalist restraints on the popular will may be, therefore, their scope and duration remain unexplained; they are arbitrary – as lacking in accountability as the super-mayor, senator, or president before whom the opponents of term limits tremble. There need to be better reasons – and less imprecise means – to limit the democratic will.

Chris Szabla is a 2L?and Managing Editor of the Harvard Law Record

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