Why term limits for Congress face a challenging constitutional path

The Constitution of the United States is rarely changed, but that has not stopped speculation about the next amendment to our nation’s founding document.

In recent years, several ideas have gained some popular support, including an amendment to force the government to balance its budget, and to revive the Equal Rights Amendment.

Another idea concerns an amendment limiting how long members of Congress can serve in office. In a September 2023 Pew Research Center survey, 87 percent of respondents supported term limits for members of Congress. Likewise, in a March 2023 study from the University of Maryland, 83 percent of respondents favored a constitutional amendment to establish congressional term limits, with difference among Democrats (80 percent), Republicans (86 percent), and Independents (84 percent) in the responses.

And while these ideas have popularity, converting them into a new constitutional amendment is a tall task. Since 1787, just 27 amendments have been added to the Constitution. The most recent amendment, the 27th Amendment, became part of the Constitution in 1992; it bars Congress from changing its pay rate during its two-year term. This amendment was actually proposed in September 1789 and revived after a grassroots campaign started in the 1980s.

The Term Limits Legacy

The debate over terms limits involves competing concepts. Supporters believe the mandatory changing of elected representatives in Congress would better represent the electorate, while opponents think that experienced representatives would make better policy decisions and reduce the influence of lobbyists over inexperienced officials.

The idea of legislative term limits predates the Constitution. In a 2009 research paper, political scientist John David Rausch Jr. documented the long debate over legislative term limits back to the time of the Articles of Confederation, which held that “no person shall be capable of being a delegate for more than three years in any term of six years.” James Madison’s Virginia Plan, introduced at the Constitutional Convention in Philadelphia in 1787 called for legislators “to be incapable of reelection . . . after the expiration of their term of service, and to be subject to recall.”

Rausch pointed to several theories about why the founders ignored Madison and excluded term limits from the Constitution. One theory was the practice of voluntary rotation of office already observed in state legislatures; another was that the delegates could not agree on the length of service; and still another was that the states were empowered to determine the limits of service for their members of Congress.

The Federalist Papers also offered several pros and cons about term limits and tenure. Federalist No. 62 claimed that experience was essential to public service: “A good government implies two things; first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.”

However, Federalist No. 53 warned that tenured representatives could thoroughly become the “masters of the public business, and perhaps not unwilling to avail themselves of those advantages.” But an inexperienced legislative body would be “more apt will they be to fall into the snares that may be laid for them.” (Note: The National Archives attributes authorship of Federalist Nos. 53 and 62 to James Madison.)

The Courts and Term Limits

The idea of term limits for the presidency gained traction during the 1940s, in light of President Franklin D. Roosevelt’s four terms in office, leading to the ratification of the 22nd Amendment in 1951 that limited a president’s time in office to two terms. But the debate over term limits for Congress did not reach its peak until  the mid-1990s.

During the 1990s a key Supreme Court decision shut down one proposed path to term limits on Congress: action taken by the states to place their own qualifications on their members of the Senate and House. The state of Arkansas changed its constitution to block candidates from the ballot for House of Representatives if a person was elected to three or more terms, or to the U.S. Senate if the person was elected to two or more terms. Another 21 states had taken similar measures.

In U.S. Term Limits v. Thornton, a divided Supreme Court ruled that states could not add qualifications for office for members of Congress in addition to those explicitly stated in the Constitution. Writing for a 5-4 majority, Justice John Paul Stevens said that “the Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation.” There was only one way to change the qualifications. “In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers,” he concluded.

Justice Clarence Thomas wrote for the dissent: “Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.” But since the Court’s decision in 1995, it is understood that only a constitutional amendment could place term limits on members of Congress.

Two Paths to a Constitutional Amendment

The Constitution’s Article V provides two paths to amend the Constitution. The conventional path calls for two-thirds of the House and Senate to propose language to the states, with three-quarters of the states ratifying an amendment.

As part of the Republican Party’s Contract with America in 1994, congressional term limits were a critical set of the reforms the Republicans introduced in Congress. In 1997, the House voted on a congressional term limits amendment, but the tally fell well short of the two-thirds majority needed, while the proposed Senate amendment never made it to a final Senate floor vote. The House’s proposal limited service to 12 years in the House and 12 years in the Senate. The Senate’s proposal was for six years in the House and 12 years in the Senate.

Recently, Rep. Ralph Norman and Sen. Ted Cruz proposed a congressional term limits amendment in Congress. The proposal limited the terms to six years served in the House and 12 years in the Senate. In September 2023, the House Judiciary committee voted down the resolution in a 19-17 vote.

The unconventional path for constitutional amendment under Article V involves the calling of a constitutional convention of the states to amend the Constitution, which has never happened before. At least 34 states would need to call the convention and 38 states would need to ratify any proposed amendment. In the past, such efforts to convene a convention have not succeeded, and because it has never happened, questions surround the practice and procedures that might occur during such a convention. Challenges include the task of getting 34 state legislatures to pass proposals with identical language; numerous questions surrounding the role of Congress in the process; and the threat of a “runaway” Article V convention proposing many other amendments.

One group advocating for an Article V convention is U.S. Term Limits, which was the petitioner in the 1995 Supreme Court case. The group wants a convention to be called and limited to the question of congressional term limits. While an Article V convention has never been called, the threat of a convention could provide an incentive for Congress to act if enough states adopt resolutions. For example, in 1912, more than 25 states had passed applications to call for an Article V convention to consider the direct election of Senators. Congress avoided an Article V convention when it acted to pass its own joint resolution, which was ratified as the Constitution’s 17th Amendment.

Scott Bomboy is the editor in chief of the National Constitution Center.