This is a reprint from the U.S. Term Limits web site of a 1997 blog article.
5-4 Supreme Court Ruling
Overturns Federal Limits
Limits on Legislatures Unaffected
A deeply divided U.S. Supreme Court ruled May 22, 1995 that states do not have the authority to limit the terms of their congressional delegations. The 5-4 decision renders unenforceable the congressional term-limit laws passed in 19 of the 23 states — those with lifetime bans. Term-limit laws currently in force in 20 states and on more than 15,000 local politicians were not immediately affected by the ruling.
Writing for the majority, Justice John Paul Stevens, appointed to the bench by President Ford in 1975, held that state laws limiting either the terms of the ballot access of long-term incumbents added an additional qualification on service in Congress. Article I of the Constitution sets the age, residency, and citizenship requirements for House and Senate members. Stevens held that term limits added to this list, something he argued could be done only through a constitutional amendment. Stevens was joined in this opinion by Justices Souter, Kennedy, Ginsburg, and Breyer.
Writing for the minority, Justice Clarence Thomas, appointed by President Bush in 1991, found that where the Constitution is silent on an issue like term limits, the power to pass such laws must rest in the hands of the people and the states. Thomas was joined by the Chief Justice, William Rhenquist, and Justices Scalia and O’Connor.
The Stevens ruling was so sweeping in its scope as to forbid Congress to pass a statute by a majority vote that would limit its terms or allow the states to do so. During the House debate on term limits in March, many term-limit advocates backed a proposed statute sponsored by Reps. Mark Sanford (R-S.C.) and Nathan Deal (R-Ga.) that would have empowered the states to set their own congressional term limits. Sanford and Deal have redrafted their statute into a constitutional amendment and compainion legislation has been introduced by Sen. John Ashcroft (R-Mo.) in the Senate.
The Court’s ruling drew immediate reaction from both term-limit supporters and opponents. U.S. Term Limits Executive Director Paul Jacob called the decision a “slap in the face” to the 25 million Americans who have voted for congressional term-limit laws. “This decision shows just how dead set the political establishment in this town is against the people on the issue,” Jacob said.
Former House Speaker Tom Foley, defeated in his 1994 reelection bid to the House owing to his lawsuit against Washington State’s term-limit law, held a news conference at his Washington, D.C. lobbyist office to pronounce that the term-limit issue was now “dead.” In 1994, Foley became the first sitting House Speaker since the Civil War to lose reelection.
Few congressional incumbents spoke out after the Court ruling. One, Florida Rep. Bill McCollum, said he was pleased with the Court’s opinion because it now focused term limit supporters on passing a term-limit amendment through Congress. McCollum, who has served four years longer than the 6-term “limit” he supports, is the self-styled “Numero Uno” on term limits in the House. Immediately after the news conference, freshman Rep. Van Hilleary (R-Tenn.) took the podium to say that the McCollum approach to term limits wouldn’t succeed even with a favorable Court ruling because the limit McCollum supports is not supported by the American people. In March, Hilleary introduced an amendment that would have left a handful of the state term limit laws intact while allowing states to set limits on eligibility for candidacy of 12 years or less for House and Senate members. (State leaders from 3-term House limit states unanimously criticized Hilleary’s proposal as leading to repeal of their state laws.)
GOP strategist Bill Kristol, who supported the Hilleary amendment in March, wrote in the Project for a Republican Future’s final “Memorandum to Republican Leaders” that the best way for the GOP to correct the Court’s decision was to embrace the retooled Sanford-Deal amendment and restore to the state the authority to set congressional term limits.
So far, the silence from congressional leaders has been deafening. Senate Majority Leader Bob Dole has promised to “bring term limits to a vote” but has neither set a date nor endorsed the strict limits enacted by the voters. Of the Republicans running for the presidential nomination, Dole, Phil Gramm, Lamar Alexander, Pat Buchanan, and Bob Dornan have endorsed term limits in general or specific. Richard Lugar and Arlen Specter oppose term limits.
The obvious question for term-limit supporters is where to go from here. The Supreme Court ruling says that only a constitutional amendment can limit congressional terms. Under Article V of the U.S. Constitution, amendments can be initiated either by two-thirds of Congress or by application of two-thirds of the states (34). Three-fourths of the states are necessary for ratification of a proposed amendment. All 27 amendments to the Constitution have first been approved by Congress and then ratified by the states. Not since the Constitution itself was ratified in 1787 has there been a constitutional convention, but popular amendments such as the 17th (Direct Election of U.S. Senators), 21st (Repeal of Prohibition), and 22nd (Presidential Term Limits) were prevented from congressional tampering by parallel Article V applications from the states.
Congress remains unwilling to pass anything close to the strict term limit enacted in the states. In March, McCollum’s phony 12-year “limits for someone else” fell just 60 votes short of the 290 necessary for passage. In the Senate, an informal poll of members by Roll Call, a newspaper covering Congress, found fewer than 50 members willing to vote for a generic resolution in support of term limits. Sixty-seven votes are needed for Senate passage of a constitutional amendment.
Given these numbers and the public antipathy following the House rejection of the popular 3-term limit, the current Congress is unlikely to find any enthusiasm to pass even a phony version of term limits. But that risk remains high. “With voter education, we can arm the people with the truth about where every incumbent and challenger stands on the issue. In 1994, people like Tom Foley and Jack Brooks refused to bend to their constituents’ desire for term limits. The voters replaced them. We intend to present the case for term limits in as many congressional districts as possible in the 1996 primaries and general election and then let the people decide for themselves whether they want a Congress that will pass real term limits or one that will continue to play games with the issue.”
The alternate route is an Article V convention to propose a constitutional amendment. Many term limit advocates see this as a good alternative because it circumvents Congress in the amendment process. “Asking Congress to pass term limits just isn’t going to work. Cutting them out of the process and returning this fight to the people in the states where it belongs is part of the appeal of working to pass Article V applications in at least 34 states,” said Jacob.
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