by Stacey Selleck
This week, U.S. Term Limits’ Chairman, Howard Rich, took to the stage at the Constitution Center in Philadelphia. The event, entitled “What’s Next for American Democracy?,” featured Harvard Law School Professor Lawrence Lessig discussing why an amendment convention is the best way to bypass Congress to get things done. Jeffrey Rosen, president and CEO of the National Constitution Center, moderated.
According to Lessig, “We have built a representative democracy that does not represent us.”
“Congress is the problem. We have a failed branch in our government,” he argued. “So we have to find a way to fix Congress. They only way they have given us is an Article V convention and I think we should try to use it for that purpose,… It’s a principle of political equality,” Lessig states.
U.S. Term Limits is a non-partisan, single issue non-profit advocating for term limits on elected officials. Since implementing term limits on Congress must be an amendment to the Constitution, the first step is to propose the amendment. As Lessig points out, when the problem is Congress, the solution must be the states through an Article V convention.
Howard Rich claims that Congress is not “representative” because most elections are not competitive due to incumbents having an unfair advantage. “So what you get is a political class and a seniority system.” He identifies the problem of “adverse pre-selection” where the best people, on average, don’t run. Successful business people who consider running for Congress would opt against it knowing that they wouldn’t reach the levers of power, or be effective, for at least a decade or two.
With term limits, the seniority system is compressed to fewer years and becomes a meritocracy. This attracts more people, creates more competitive elections, and reduces the cost to win an election. Real term limits equalizes the system. Having more meaningful elections, more choices on the ballot, would engage voters and help resolve the issue of voter apathy.
The transcript from Mr. Rich’s discussion follows:
Jeff: Howie Rich is the chairman of the organization, US Term Limits, which works to establish and defend term limits at all levels of government, and he has some very powerful ideas about term limits in a convention.
Jeff: Howie Rich, you are the leader of the leading organization, arguing for term limits reform. You argued an important case before the Supreme Court and you are in favor of an article five convention to achieve term limits. Tell us why.
Howie Rich: Okay. Initially what we did is we had a strategy in which voters could vote for a term limits amendment to their own state constitution. We got 23 States to do it through tough campaigns and all the rest of it, and the US Supreme Court case, our case, US Term Limits v. Thornton, we lost that case five to four in the US Supreme court in 1995.
Howie Rich: Our new strategy is utilizing Article V, the second method, for a convention. Term limits, in my view, would be very helpful in terms of the democratic process. We have term limits on 15 state legislatures and what we’ve seen is more women, competitive elections, money is more equalized. This is stuff that you, Larry, you’re interested in accomplishing. Congress is just, it’s unbelievable.
Howie Rich: Ballotpedia did a study on how many competitive elections were there in 2016? There were 435 house seats, 23 were competitive. That means 6% of seats were competitive. The incumbent wins all the rest of them. Come 2018 where we had a wave election, 82 seats were considered competitive by Ballotpedia or just 20%.
Howie Rich: What about the others? In 40 districts nobody challenges the incumbent. So what you get is a political class and a seniority system. So we’re utilizing this Article V route, the second method that George Mason suggested. The main reason that I favor term limits and the term that I favor is a real term limit (three house terms, six years, and two senate terms) is what we call adverse pre-selection.
Howie Rich: There are a lot of people in this room who I think would qualify for Congress, and if you think about it, you’d say, “Oh, somebody asked me to run for Congress. Great. Let me take a look at it.” The reelection rate in the US House of Representatives is 95% so if you are foolish enough to run for Congress against an incumbent, not much of a chance.
Howie Rich: But in this particular district we have a chance. Because the incumbent was indicted or it’s an open seat. He left, he retired. Okay. For whatever reason. Great, I think I’ll run. But you think about it some more. Let’s I suppose I’m a doctor, I’m an accountant, I’m an engineer, I’m a business person. I’m an educator. If I win, I run, win they go for all this scrutiny and now I win, now I have a chance to be in. I’m going to get the Congress. How does it work?
Howie Rich: Well, there’s a seniority system. It’s a top down system. I’m a successful, I don’t know, engineer or whatever I am in life. I’m going to be subservient to seniority. The average committee chair has been in Congress for 23 years. So if I’m going to run, I’m not saying me, but a successful person in life wants to run, why would I run? I’m going to be subservient. It’s going to take me a decade or two decades to get anything accomplished.
Howie Rich: Why would I do that? We call this adverse pre-selection because the best people on average don’t run. But then and this is idea of term limits on Congress. And if you had three house terms, the seniority system is out the window. It’s now based on merit. You’re going to attract more people. You’re going to have competitive elections. Money will be equalized. You know money works like this, Larry, you understand this.
Howie Rich: It’s something like the incumbent raises and spends a million and a half, the challenge of 250,000. So it was a six to one advantage to the incumbent. And of course incumbent has all the name ID to start with. Special interests packs $9 to $1. So it’s a rigged system, but in open seats where you don’t have this disparity between a challenge or an incumbent, the average is $600,000.
Howie Rich: So what term limits does, real term limits it equalizes the system and the article five approach to me I agree with Larry, it’s the only way to do it. You’re going to get two thirds of both houses of Congress to turn on it themselves without an honest pressure. Give me a break.
Jeff: Thank you very much for that. What I’m hearing in this very rich discussion, friends is a powerful concern that our current institutions, Congress, Congress, the courts and the presidency as well as the media are not representing the considered and thoughtful and deliberate will of we the people. And that was really what the framers hoped would be reflected in the constitutional amendment process and filtered through representative democracy. Howie, what would James Madison think about term limits?
Howie Rich: I think you’d be in favor. Jefferson called term limits mandatory rotation in office. And here’s the tidbit I learned today and I’ve been involved in term all these years. There’s no term limit on me. I learned today is Ben Franklin right here in Pennsylvania in the first Pennsylvania constitution, inserted a four-year term limit on the Pennsylvania legislature. Now, there’ve been five constitutions altogether. They managed to get it out, but Ben Franklin, favored term limits.
Jeff: Fascinating. Amazing. I think in fact, Larry, since this is your book in the beginning of what I know is going to be a very galvanizing tour, you should have the last word. So why don’t you send our audience out into the fall evening with whatever words you want and give them about why it’s urgently important to reform America so that we have a more representative [inaudible 00:00:07:44].
Larry: Well, the striking thing I was excited about to be on this panel is that there’s obviously, I mean, we’re all white men, but there’s another kind of diversity which is on this panel of political diversity. And I think what you can hear out of this conversation is that though we have differences on substance, I think we’ve all come to a place where we see we need to have a really serious conversation about democratic form. And so I’d love to see an article five convention that talks about term limits.
Larry: I’d like to see that as part of a conversation about representational integrity. I think part of what you’re saying is that we don’t have a system for representing, which is actually has an integrity with our populace because the insiders protect themselves from that. And I certainly agree that we need to think about the structure of the Supreme Court. There’s so many other constitutional courts around the world that have begun to do it better than us and for very simple reasons we could imagine fixing our court in that way.
Larry: But I think the most important lesson that comes from this is to resist a kind of elitism about the constitution. And by that I mean though, so not going to name names, but you might be able to figure this out. I was having a conversation with a very senior liberal leader who was opposed to article five convention. And I was pitching him about why some of his arguments were completely bogus and anyway, this was a good thing that we should have.
Larry: And he said, “Okay, okay, you’ve kind of convinced me.” But this conversation happened in October 2016. He said, “Why should we risk it? We’re going to have an election. Hillary Clinton’s going to be elected. She’s going to pick three Supreme Court justices and we’ll get what we want through a reinterpretation by the Supreme Court.” It was like a punch in the gut, because I thought this is what constitutionalism has become.
Larry: It’s above the people. It’s like we should not involve the people. Keep the people far from the constitution because we can’t trust you guys. Like we have to have the lawyers, the elite who are figuring out what the constitution should mean and if there’s any problems then they’ll just get another set of justices on the Supreme Court who will fix it for us. That is the death of democracy.
Larry: When we no longer feel entitled and empowered and capable of even understanding our constitution and doing something with it, then we don’t deserve a constitution. So you obviously this congregation lives in the celebration of the idea that people can understand and celebrate and teach the constitution and I’m a great admirer of my friend Jeff and what you are doing. Thank you for that. But you are not America and-
Jeff: You are the best of America. You’re the best of America is what you’re saying.
Larry: Maybe I’m happy to say that, but what I’m saying is most of America does not feel entitled or empowered or even asked to understand our constitution and until we can change that, which really is about changing the attitude of a bunch of elite people who think that they should be close to controlling the constitution and keep it far from you, we are not going to have any hope of fixing the core problems that are at the flaw of at the core of democracy.
Jeff: For inspiring all of us to live up to the best of America. Please join me in thanking our panelists.
About the Constitution Center: The National Constitution Center brings together people of all ages and perspectives, across America and around the world, to learn about, debate, and celebrate the greatest vision of human freedom in history, the U.S. Constitution. To view the entire episode, click here.