Policy Analysis No. 328

What Term Limits Do that Ordinary Voting Cannot

By Einer Elhauge
December 16, 1998

Executive Summary

“We already have term limits; they’re called elections. So why don’t we just throw the bums out?” Instead, voters simultaneously cast their ballots for senior incumbents and for term limits. They do so for two primary reasons: seniority clout and barriers to entry. No district wants to unilaterally cede the power it has, and there may be no viable alternative on the ballot. All districts have to collectively agree to turn out their senior incumbents to solve the collective problem of unrepresentative legislators.

Term limits further important values of democratic equality and freedom. Term limits reduce inequalities in legislative power across districts and over time. More important, term limits make democratic choice far freer. Term limits solve a collective action problem and lessen the seniority penalty that makes it difficult for districts to oust ideologically unsatisfactory incumbents. And term limits reduce barriers to entry that discourage challengers and thus limit ballot options. Any furthering of those values furthers core democratic objectives.

Term limits are particularly vital at a time when 99 percent of congressional incumbents who have spent more than six years in office are reelected.

The arguments against term limits, while not illogical, turn out to be so weak in fact or mixed in theory that none can rebut the strong argument that term limits will enhance the ability of electorates to have their views represented by their elected officials.

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Einer Elhauge is a professor of law at Harvard Law School.