Constitution Daily

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Should a president face term limits when Congress doesn’t?

February 27, 2013 by Scott Bomboy


With the anniversary of the 22nd Amendment on Wednesday, Constitution Daily looks at two hot-button topics: Should a president be allowed to serve a third term? And should members of Congress have term limits like the president?

Obama_Boehner_State_of_the_Union_2011The 22nd Amendment brought the idea of term limits into the Constitution. When it was ratified in 1951, the amendment limited a president from effectively serving a third term, by saying that a president who won two elections can’t run a third time.

The 22nd Amendment also bars a president from serving more than 10 years in office, in a case of a president who assumed office as vice president (or in an unlikely case, as the Senate president pro tempore or secretary of state).

For example, Vice President Gerald Ford took over for President Richard Nixon in 1974 and served more than two years as president. If Ford had defeated Jimmy Carter in the 1976 presidential election, Ford could not have run for re-election.

Long before the 22nd Amendment, George Washington had set an unofficial precedent in 1796 when he decided several months before the election not to seek a third term.

The only person to break from Washington's precedent was President Franklin D. Roosevelt, with a record-setting four election wins.

Before Roosevelt ran for re-election in 1940, most presidents didn’t try for a third term in office, let alone a third consecutive term.

Roosevelt’s distant cousin, Theodore, came the closest to breaking the precedent in 1912, when he ran for president a second time. Theodore Roosevelt succeeded President William McKinley in 1901 and had served about 7 ½ years in the White House. Theodore Roosevelt passed on running for a third consecutive term as president in 1908, fully aware of the Washington precedent. But after a fallout with President William Howard Taft, Roosevelt sough a third nonconsecutive term in the 1912 presidential election. He lost the election but came in second ahead of Taft. (Woodrow Wilson and Harry Truman briefly considered seeking a third term but passed.)

After Franklin Roosevelt died in 1945, momentum built for a presidential term-limits amendment. Congress passed it in 1947, and it was ratified by the states in 1951.

Since then, several members of Congress have introduced bills to repeal the 22nd Amendment. The latest was offered by Representative Jose Serrano on January 4.

In fact, Serrano has offered the same bill since 1997--during the presidencies of Bill Clinton, George W. Bush and Barack Obama. The bills were tabled each time.

Representative Steny Hoyer offered similar bills in the past and current Senate Minority Leader Mitch McConnell sponsored a similar bill in 1995—during the Clinton administration. Barney Frank and Jerry Nadler also presented anti-22nd Amendment bills in the past.

There was no interest among legislators in pursuing a 22nd Amendment repeal, probably because most people are happy with term limits for the president. The odds of getting 38 states to ratify an amendment would be very, very steep.

However, the issue of term limits for Congress is a different matter. In a Gallup poll this January, about 75 percent of Americans polled favored limiting terms for Congress members.

Gallup said when the same question was asked in 1994 and 1996, between two-thirds and three-quarters of Americans favored a constitutional amendment to limiting congressional terms.

In the 2013 poll, there was more support for congressional term limits (75 percent) than ending the Electoral College (60 percent).

That 75 percent is important, since three-fourths of the states are needed to ratify a proposed constitutional amendment.

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It’s highly unlikely that a proposed amendment would come from Congress, since two-thirds of its members would need to agree to limit their own terms. Seniority in Congress has its rewards, such as influential committee and leadership positions.

There is a second path to a constitutional amendment, outlined in Article V of the Constitution, that mostly doesn't involve Congress: Two-thirds of the states can call a constitutional convention. That has never happened since the original Constitutional Convention in 1787.

In the early 1990s there was a movement at a state level to pass laws that would limit terms for federal Congress members. The Supreme Court decided in U.S. Term Limits, Inc. v. Thornton that such acts were unconstitutional.

Justice John Paul Stevens wrote the majority opinion in the 5-4 decision.

“We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather--as have other important changes in the electoral process --through the Amendment procedures set forth in Article V,” Stevens said.

“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,” said Justice Clarence Thomas in his dissent.

In all likelihood, the threat of a constitutional convention would be the one issue that could force Congress to vote for term limits on itself.

When the 17th Amendment was being considered in 1911, which involved the direct election of U.S. senators, there were nearly enough states asking for a constitutional convention to make it a reality. Congress acted quickly to get the 17th Amendment passed and sent on to the states for ratification, because once the quorum for a constitutional convention is called, its members may be able to propose as many amendments as they like.

Two other attempts to call conventions came close in 1969 and 1983 but failed to reach the successful number of two-thirds of the states petitioning Congress.

Scott Bomboy is the Editor-In-Chief of the National Constitution Center.

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