Term Limits for Members of Congress: State Activity

CRS Report for Congress
Term Limits for Members of Congress:
State Activity
Sula P. Richardson
Analyst in American National Government
Government and Finance Division
In 1990, term-limit advocates began their campaign to limit congressional terms by
changing state laws, amending state constitutions, and passing state ballot initiatives,
rather than by amending the U.S. Constitution. Their strategy was to circumvent the
more difficult and time consuming amendment process at the federal level and go directly
to the voters and legislatures of each state. By mid-1995, voters or legislatures in 23
states had approved congressional term limits. In 1995, however, the U.S. Supreme
Court ruled that state-imposed limits on congressional tenure violate the Constitution and
that term limits can only be set through passage and ratification of an amendment to the
U.S. Constitution. Since then, term-limit supporters have been pressing Congress to
propose a constitutional amendment, encouraging state legislatures to pass resolutions
calling on Congress to propose a constitutional amendment, and campaigning to elect
more candidates who support congressional term limits. In particular, some term-limit
advocates are also working to elect more candidates who pledge to limit themselves to
three House terms and two Senate terms.
Proponents contend that term limits would beneficially increase membership turnover
and ensure a constant influx of new Members; that they would partially offset incumbents’
built-in advantages and promote competitiveness in congressional elections; and that they
would enhance the role of merit rather than seniority in the distribution of power.
Opponents argue that term limits would infringe on citizens’ rights to determine who
serves and for how long, remove many of the most competent and experienced Members
from office prematurely, and result in a shift of power from the legislative branch to the
executive branch, lobbyists, and congressional staff.
Proponents and opponents of term limits have sought support for their respective
positions since the mid-1970s when the recurring debate on congressional terms of office
began to shift from length of term to length of service. Initially, term-limit advocates

Congressional Research Service ˜ The Library of Congress

sought to attain their goal by amending the U.S. Constitution. In 1990, however, they
began concentrating on electoral and legislative processes at the state level (i.e., state
initiatives and laws). Their objective was to bypass the cumbersome amendment process
at the federal level and take the term-limits issue directly to the voters by means of ballot
Ballot Initiatives
1990-1995: Maximum Service and Ballot Access Laws
From 1990 through mid-1995, voters in Arkansas and 20 other states passed ballot
initiatives that would have amended their state constitutions or changed state laws to limit
the tenure of their Members of Congress.1 Although the measures differed in their details,
most fell into one of two broad categories: (1) specifying a maximum number of terms (or
years) that Members would be allowed to serve, either consecutively or within a specified
period; or (2) prohibiting a candidate’s name from appearing on the ballot if he or she had
served beyond a specified period or had been elected more than a specified number of
times. Measures of the latter type, called “ballot access proposals,” were part of a strategy
term-limit advocates adopted in an effort to deflect constitutional challenges.
The strategy of state-imposed limits on congressional tenure raised a number of legal
and constitutional questions, one of which was whether a state had the constitutional
authority to limit the tenure of its Members of Congress. On May 22, 1995, the U.S.
Supreme Court, in a 5 to 4 decision, struck down Arkansas’ state-imposed congressional
term limits as unconstitutional.2 This effectively overturned the proposals in the other 22
states (20 states where voters had passed initiatives and two states where the legislature
had passed congressional term limits).

1996-1998: Informed Voter Laws, Voter Compliance Laws,

and Voter Accountability Laws
Some political observers believed that the Thornton decision would end the effort of
term-limit proponents to use the initiative process as part of their strategy to attain
congressional term limits. They were wrong. Proponents circulated petitions to place
another round of term limit initiatives on the 1996 ballot. These initiatives, known as
“informed voter laws,” “voter compliance laws,” or “voter accountability laws” contained
such provisions as the following:

1 The other states are AK, AZ, CA, CO, FL, ID, ME, MA, MI, MO, MT, NE, NV, ND, OH, OK,
OR, SD, WA, and WY. The legislature in New Hampshire and Utah passed laws limiting the
tenure of their Members of Congress. As a result, a total of 23 states had passed congressional
term limits in some form.
2 (U.S. Term Limits, Inc. v. Thornton [Sup. Ct. Doc. No. 93-1456]). See also CRS Report 95-646,
The Unconstitutionality of State Congressional Term Limits: An Overview of U.S. Term Limits
v. Thornton (Sup. Ct. Doc. No. 93-1456), by Thomas M. Durbin.

!The state’s congressional delegation would be instructed to support a particular
constitutional amendment limiting House Members to three terms (six years) and
Senators to two terms (12 years)—and no other version of term limits.
!If Congress failed to pass the measure, those who voted against it would have
printed beside their names on ballots in subsequent elections some variation of the
words, “disregarded, failed to comply with, or violated voter instructions on term
!Non-incumbent candidates for Congress would be offered the opportunity to sign
a “term-limits pledge” or the phrase, “declined to take pledge to support term
limits” would be printed beside their names on ballots.
!The state’s Secretary of State would be directed to determine which candidates and
legislators were to have these statements printed beside their names.
!Candidates and legislators could appeal the state’s secretary of state’s decision to
the State Supreme Court.
Some opponents and political observers dubbed these measures “scarlet letter laws”
because of the ballot notations. Initiatives of this type were on the November 5, 1996,
ballot in 14 states: AK, AR, CO, ID, ME, MO, MT, NE, NV, ND, OR, SD, WA, and
WY.3 Voters approved the measures in nine states: AK, AR, CO, ID, ME, MO, NE, NV,
and SD. In seven of these states (AR, CO, ID, ME, MO, NE, SD), the initiative was
challenged in the courts and invalidated. In Alaska, the state Attorney General asserted
that the Alaska measure was unconstitutional.
On February 12, 1997, the House debated and voted on 11 versions of a proposed
constitutional amendment to limit congressional terms (i.e., H.J.Res. 2 and 10 amendments
in the nature of substitutes). Seven of the 11 proposals had been passed by voters as ballot
initiatives in AR, CO, ID, MO, NE, NV, and SD. Six of these seven were essentially the
same, with only minor technical variations, such as punctuation. However, in order to
avoid the possibility of having the ballot statement (e.g., “disregarded voter instruction on
term limits”) beside their names on future ballots, most Members from the nine states
voted solely for the version with the precise language of their state’s law. Hence, the
multiple number of virtually identical measures, and the resulting splintering of votes.
None of the 11 versions received the two-thirds majority needed for passage.
In 1998, voters passed "informed voter" initiatives in California (on June 2), and in
Nevada (on November 3). However, informed voter laws had already been invalidated
in eight of the states where they had been passed, making proponents’ continued efforts
to secure passage of informed voter laws unlikely.
On April 17, 2000, the U.S. Supreme Court agreed to hear a case (Cook v. Gralike)
challenging Missouri’s 1996 informed voter law. The Court will hear the case during its
term that begins in fall 2000.

3 Only in Missouri and South Dakota, the initiative applies solely to federal legislators and
candidates for Congress rather than state and federal lawmakers and candidates.

1998: Term Limits Pledge Laws and Term Limits Declarations
The court decisions invalidating informed voter laws in most of the states where they
were passed, led some term limit proponents to work to place on the 1998 ballot another
round of initiatives called “term limits pledge laws” or “the Term Limits Declaration.”
Under these measures:
!candidates for U.S. Congress would be permitted but not required to file a
statement with the (state) Secretary of State pledging to serve no more than three
terms in the House and two terms in the Senate;
!the state’s Secretary of State would be authorized to notify voters of the
candidate’s pledge using the ballot notation “voluntarily pledges to serve no more
than 3 terms” (for House Members) or “voluntarily pledges to serve no more than

2 terms” (for Senate Members);

!the state’s Secretary of State would be further authorized to notify voters of
candidates who took but failed to honor the pledge, by inserting “broke term limits
pledge” beside the candidate's name on every primary, special, and general election
Voters passed such initiatives on the 1998 ballot in Alaska, Colorado, and Idaho. These
measures may also be challenged in the courts.

1999-2000 Term Limits Declarations (Optional Ballot Notations)

Some term-limit advocates are continuing their ballot initiative strategy with a version
of the term Limits Declarations that may be described as optional ballot notations. The
first of these initiatives appeared on the March 7, 2000, California primary ballot. Voters
rejected the measure by a vote of 40.5% in favor to 59.5% opposed.4 If passed, it would
!allowed congressional candidates voluntarily to sign non-binding declarations of
intention to serve no more than three House terms and two Senate terms, or to
declare their choice not to so limit their terms;
!required that information be put on ballots and State-sponsored voter education
materials when authorized by candidates; and
! permitted the names of candidates who had not submitted either declaration to5

appear on the ballot.
4 California Secretary of State, Vote2000–California Primary Election, “State Ballot Measures,”
[http://Vote2000.ss.ca.gov/returns/prop/00.htm], visited March 8, 2000.
5 California Secretary of State, Elections Division, 2000 Initiative Update, Proposition 27-

767(SA97RF0034), “Elections. Term Limits Declarations for Congressional Candidates.

Initiative Statute,” [http://www.ss.ca.gov/elections/elections_j_102899.htm], visited January 7,

Constitutional Convention
Some term-limit supporters worked to place initiatives on the 1996 ballot instructing
state legislators to vote for a federal constitutional convention to consider a term limit
amendment. This approach led to the reemergence of a number of such crucial questions
as whether the convention can be limited to a single subject. If not, a “runaway
convention” might propose any number of amendments or a totally new constitution.
Initiatives that instructed state legislators to vote for a national constitutional6
convention to consider a term-limit amendment were on the 1996 ballot in 11 states. If
a state legislature failed to pass the measure, dissenting legislators would have a statement
printed beside their names on ballots in subsequent elections, indicating their failure to
comply with voter instruction on term limits. Such initiatives were on the 1996 ballot in
AK, AR, CO, ID, ME, MT, NE, NV, OR, WA, and WY. In addition, an initiative in
North Dakota would have provided that the people of that state act as the state legislature
for the sole purpose of applying to Congress to call a constitutional convention to consider
a term limits amendment. Voters in AK, AR, CO, ID, ME, NE, and NV approved
initiatives calling for a constitutional convention. The Arkansas initiative was challenged
in the courts. On February 24, 1997, the U.S. Supreme Court denied a petition for
certiorari concerning the constitutionality of this initiative, thus letting stand a ruling by
the Arkansas Supreme Court, which had struck down the Arkansas initiative. Since the
1996 general election, some proponents of a national constitutional convention to consider
term limits have redirected their activities toward pressing Congress to propose a term-
limits amendment.
Earlier this century, increasing support for a national constitutional convention helped
proponents of direct election of Senators convince Congress to propose the 17th7
Amendment. In the early 1900s, an increasing number of state legislatures were calling
for a constitutional convention to propose an amendment providing for the election of
Senators by popular vote. In 1910, a Senator who had proposed such an amendment
claimed that 33 state legislatures supported his proposal “in substance if not in exact8
phraseology.” By 1911, another Member said that 19 states had formally petitioned
Congress to call a constitutional convention.9 Faced with increasing support for a
constitutional convention, most Members (including some who opposed direct election)
chose to propose a definitive amendment rather than risk the uncertainties a national

5 (...continued)


6 In most of the states, these same ballot initiatives also instructed federal and state legislators to
support congressional term limits, as described earlier (see “informed voter laws”). Some political
observers believe that in some states where the initiative failed, it was because a number of voters,
who supported term limits did not support a constitutional convention as the vehicle for change.
7 Prior to the ratification of the 17th Amendment in 1913, state legislatures elected U.S. Senators.
8 Joseph L. Bristow. “Election of Senators by direct vote,” remarks in the Senate, Congressional
Record, vol. 45, June 18, 1910. p. 8454.
9 “Election of Senators by Direct Vote,” debate in the Senate. In: remarks of Mr. Heyburn,
Congressional Record, vol. 47, May 24, 1911. p. 1539. (Mr. Heyburn opposed the election of
U.S. Senators by popular vote.)

convention might pose. The Senate debated and passed an amendment providing for the
direct election of Senators on June 12, 1911 (64 to 24). The House concurred in the
Senate version on May 13, 1912 (238 to 39). On May 31, 1913, the Secretary of State
proclaimed the 17th Amendment ratified by 36 of the 48 states.
Proposed State Legislation
The legislatures of three states—Idaho, South Dakota, and Utah—have passed
proposals for either a constitutional convention or Congress to propose a constitutional
amendment to limit congressional tenure. During recent state legislative sessions, various
proposals have ranged from expressing support for congressional term limits, or proposing
an amendment to the U.S. Constitution, to repealing term-limit ballot initiatives. For
example, the state legislature in South Dakota passed legislation repealing the ballot
initiative (“informed voter law”) that voters passed on November 5, 1996. Proponents
circulated a referendum petition and collected signatures in an effort to stay the
legislature’s repeal and reinstate the law. In March 1998, however, a Federal District
Court ruled the initiative unconstitutional. In 1999, a proposal introduced in Arkansas
called for Congress or a constitutional convention to propose a constitutional amendment
limiting congressional tenure. The measure was referred to committee and subsequently
withdrawn from further consideration.
Recent and Upcoming Developments10
As part of their strategy to limit congressional tenure, term-limit proponents are
working for the election of congressional candidates who voluntarily pledge to limit their
own tenure. According to one advocacy group–U.S. Term Limits–59 Members of the

106th Congress (45 House Members and 14 Senators) have made that pledge. Ten of theth

59 will reach their tenure limit at the end of the 106 Congress. Of those, seven have
indicated they will keep their pledge and not run for reelection; three have retracted their
pledge. Meanwhile, U.S. Term Limits has announced plans to spend $20 million in the
year 2000 election cycle on a campaign aimed at educating voters on the benefits of term
limits. The campaign includes television and radio ads, telephone banks, direct mail and
grass roots organization.
As noted above (pp. 2-3), the U.S. Supreme Court will consider Missouri’s 1996
informed voter law during the Court’s fall 2000 term.

10 See also: CRS Report RS20543, Term Limits for Members of Congress: Issues in the 106th
Congress, by Sula P. Richardson.