Here’s an interesting bit of new legislation coming from Congressional Democrats. Georgia Democrat Rep. Hank Johnson has introduced the “Supreme Court TERM Act.” This legislation would:
- Establish terms of 18 years in regular active service for Supreme Court justices, after which justices who retain the office will assume senior status;
- Establish regular appointments of Supreme Court justices in the first and third years following a presidential election as the sole means of Supreme Court appointments;
- Require current justices to assume senior status in order of length of service on the Court as regularly appointed justices receive their commissions;
- Preserve life tenure by ensuring that senior justices retired from regular active service continue to hold the office of Supreme Court justice, including official duties and compensation; and
- Require the Supreme Court justice who most recently assumed senior status to fill in on the Court if the number of justices in regular active service falls below nine.
It’s a both a court-packing bill and a term limits bill. It’s unclear that the bill would pass constitutional muster under federal judges’ current interpretations of Article III of the US Constitution. But, that probably doesn’t matter since such legislation is unlikely to get through the Senate, given that Sen. Manchin of West Virginia has already said he would not support any court-packing legislation.
The idea of Congress erecting term limits for the Supreme Court while doing nothing to create term limits for Congress is an impressive display of chutzpah for current members of Congress. After all, term limits for Congress have long been very popular, with the idea often commanding around 75 percent support from those polled. That’s even more than the support for limiting the tenures of SCOTUS justices, which is apparently around two-thirds in support.
Legislation limiting Congressional terms is also of unclear constitutionality, at least as far as current interpretations offered by federal judges go. But there’s no reason why Congress couldn’t put the wheels in motion for enacting Congressional term limits. The reason this hasn’t happened, of course, is obvious. Those in Congressional leadership positions—the ones who determine what gets voted on—would be the most impacted were such measures adopted.
But how much would term limits affect the average member of Congress? 62 members of the Congress over the years have served more than 40 years in Congress overall. 10 members of the Senate have served more than 40 years in the Senate alone. 32 members of the House of Representatives have served 40 years in the House alone.
It’s a fairly safe bet that most members of the public would support term limits set at well below 40 years. But how much lower? Not all members are in there for these long multi-decade periods. What is the average tenure for a member of Congress?
Well, according to a July 2022 report by the Congressional Research Service,
The average length of service for Representatives at the beginning of the 117th Congress was 8.9 years (4.5 House terms); for Senators, 11.0 years (1.8 Senate terms).
So, setting the term limit for members of the House at, say, 12 years of the House of Representatives and 18 years for the Senate, would not impact the “average member.” But it would definitely eliminate those members of congress who serve decades in Congress. People like Mitch McConnell or Chuck Schumer or Nancy Pelosi would be long gone. Even if these 3 people had served 12 full years in the House and then moved to serve 18 years in the Senate, they still would have used up their full terms years ago.
Do Members Stay in Congress Longer in the 21st Century?
Of course, we haven’t approached the question of whether or not term limits are a good thing. It’s not at all obvious that term limits would make Congress more laissez-faire, less corrupt, or less warmongerish. It could be that term limits would just bring in a larger number of people who are pretty much like the current sorts of people who inhabit Congress. Moreover, maybe in the good ol’ days people actually served longer in Congress than they do now. Maybe longer Congressional tenures would actually improve things?
Well, it turns out that the average length of tenure of members of Congress has gone up considerably over the past 150 years. As noted above, the average tenure for the current crop is 8.9 years in the House and 11 years in the Senate, but those averages were much lower in the nineteenth century. As we can see, the average for Senators never exceeded 6 years until the late nineteenth century. It never exceeded 4 years in the House until around 1900. The overall trend has been steadily upward since then:
Source: Congressional Research Service.
In other words, for the first 100 years of the Republic, the average length of so-called “service” in the Senate was one term, while it was less than two terms in the House.
[Read More: “Repealing the 17th Amendment Won’t Fix the Senate“ by Ryan McMaken.]
Those could be due to many different factors. It could be due to the structure of political parties which was much different in the nineteenth century. Senators, of course, were generally chosen by state legislatures, and many senators came and went based on deals struck with state politicians. In any case, we do know that greatly reducing the average tenure of members of Congress would simply return average tenure lengths to what was common in the past.
That’s unlikely to “fix” Washington, DC. But holding Senators to a single term or a House member to 2 terms would not necessarily be a radical departure from the Congresses of the past either.
