House panel considers constitutional amendments for term limits, fiscal restraint

A U.S. House Judiciary subcommittee hearing on proposed constitutional amendments heard a loud call for term limits and fiscal restraint this past month, as well as a warning against holding a constitutional convention to achieve those objectives.

In the hearing by the Subcommittee on the Constitution and Limited Government, Nick Tomboulides, the executive director of Term Limits, made a pitch for a bill now in Congress for a constitutional amendment that would term limit representatives after six years and senators after 12.

The American people hold Congress in very low esteem, Tomboulides said.

“Each year Gallup does a poll where they ask Americans how much confidence they have in 16 different social institutions,” Tomboulides said. “At the very top of the list is small businesses. Seventy percent of Americans have confidence in those. The lowest-rated group is the US Congress. Only 8 percent of people trust Congress.”

As such, Tomboulides said, it’s no shock that 83 percent of Americans support term limits. 

“That includes huge majorities of Democrats, Republicans and independent voters,” he said. “So, if 83 percent of us want term limits, why is it not yet the law of the land?”

The answer is, Tomboulides said, the permanent political class thinks the American people are wrong.

“I couldn’t disagree more,” he said. “I think the American people can see exactly what is happening here. In the real world, we are surrounded by change, by progress, by evolution. Technology doubles every year. The only thing that never changes, never adapts...is our Congress.”

A third of the Senate is 70 years old or older, including several members who were born before or during World War II, Tomboulides said, and people might think the people around them would act in their best interests.

“In the real world, when a powerful person is showing obvious mental decline, the people around them do what’s best for them,” he said. “But Washington is not the real world. It’s a world where you advance not by speaking the truth, but through supporting leadership unequivocally. If you fall in line and vote with leadership, you get to own your seat for life.”

Tomboulides said the American people are always told that Congress is hard at work protecting  democracy. 

“But in reality, there is nothing less democratic than a congressional election,” he said. “Over the last 20 years, House incumbents have a 94 percent re-election rate. The Senate numbers aren’t much better. Last year, 100 percent of Senate incumbents were re-elected.”

The re-election rate isn’t because people are enamored of their representatives, Tomboulides said.

“It happens because the system is rigged in favor of incumbents,” he said. “Congress members can spend public money on campaign-style mailings at taxpayer expense. The deck is stacked. Where does all the big money go? It flows to incumbents. Through the power of PACs, lobbyists and special interests ... incumbents raise roughly 10 times more money than challengers.”

Add free media, name recognition, and a staff of 20 people who are basically a government-funded campaign team, and the advantage is substantial, Tomboulides said.

“Look what’s happening to Google right now,” he said. “When a private business uses its power to eliminate the competition, it gets called a monopoly. It gets fined and maybe even shut down. But when a member of Congress does the same thing, they get re-elected. It’s a huge double standard.”

So the game has been rigged, Tomboulides said. 

“And as a result, only 15 percent of congressional elections every two years are actually competitive,” he said. “Our most senior members run with phony opposition, similar to how Vladimir Putin and Xi Jinping stay in power. Is it any surprise voter apathy is reaching record highs? And people are increasingly saying, ‘I don’t feel like my vote matters ...’ ‘I don’t have faith in our elections.’ We need to fix this.”

A constitutional amendment for term limits is the only way forward, Tomboulides said. 

“It will create open seats and lower the barriers to office, providing us with a citizen legislature as our founders intended,” he said.

Tomboulides proposed a six-year limit in the House and a 12-year limit in the Senate.

“Fortunately, 112 members of the House have signed a pledge to support this specific term limits amendment and nothing longer,” he said. “If the bill gets amended to a longer limit, voting for it would be breaking that pledge.”

Fiscal restraint

A second witness, Dr. David Primo, a professor of political science at the University of Rochester, supported a constitutional amendment restraining the federal budget, which he said, if designed well, would provide the foundation for credible and sustainable fiscal policy.

For one thing, Primo said, the debt storm is here.

“When I first testified on this subject in 2011, the nation’s fiscal problems were receiving significant attention from Congress, the White House, credit rating agencies, and the American people,” Primo said. “Regrettably, this window of opportunity shut before meaningful budget reform occurred. The result: Federal debt held by the public on the day I testified [in 2011] was $9.7 trillion — about 60 percent of the gross domestic product (GDP) at the time. As of September 14, 2023, the debt held by the public stood at $26.2 trillion and nearly equaled the size of the U.S. economy.”

Primo said something must be done quickly but that political and procedural challenges stand in the way of meaningful reform, such as congressional reelection motivations that make it tempting for lawmakers to leave difficult decisions about programs like Medicare and Social Security for tomorrow. 

“There never seems to be a good time to address the nation’s fiscal problems in a strong economy,” he said. “The federal government can borrow at low interest rates and economic growth masks debt growth, reducing the political will to act. In a challenging economy like we are in today — featuring high inflation, high interest rates, low economic growth, and fears of recession — tough budget choices become a nonstarter politically.”

Instead, Primo proposed what he called a well-designed amendment to the U.S. Constitution as a solution to the quandary.

“Such an amendment would place permanent, truly enforceable limits on Congress’s ability to tax and spend,” he testified. “It would counteract the temptation to circumvent rules, and it would provide a foundation on which a new budget process could be built. An amendment would also create an environment under which the question for legislators would no longer be whether to fix the nation’s fiscal problems, but rather how to do so.”

Primo said all proposals for such an amendment should contain certain features.

“First, an amendment should be precise enough to prevent end runs around its provisions,” he said. “It should clearly define spending and revenue, for example, and specify how each will be calculated. These definitions should not be left to implementing legislation.”

Second, Primo continued, an amendment should be flexible enough to account for major disruptions, like a war or a pandemic. 

“To avoid allowing ‘emergencies’ to become an end run around the rules, Congress should be permitted to waive an amendment’s limits only with the agreement of a large supermajority,” he testified. “In addition, any funds borrowed under an emergency waiver should be paid back within a set amount of me — say, 10 to 15 years.”

Primo pointed to the Covid pandemic to underscore why the structure of the waiver process was so important.

“A waiver provision with a large supermajority requirement would have resulted in the initial $2.2 trillion CARES Act easily passing in March 2020 — a time of true national emergency,” he said. “On the other hand, the $1.9 trillion American Rescue Plan Act, criticized by many well-respected economists when it was enacted in March 2021, would have failed if a supermajority vote were required.”

In other words, Primo said, true emergency spending would still bring legislators together, but Congress would be forced to carefully consider whether bills like the American Rescue Plan were advisable.

“In addition, because a constitutional budget rule would put the country on a stable financial footing, the federal budget would more easily bounce back from emergency spending,” he testified.

Finally, Primo said, a yearly budget balance is not necessary to achieve long-run fiscal discipline.

“Instead, an amendment should set limits based on a multi-year period, thereby accounting for fluctuations in economic performance,” he said. “A key advantage of this smoothing approach, which has been adopted by countries like Germany and Switzerland, is that it necessitates fewer sudden changes to government programs. An amendment that has economic shock absorbers and is hard to evade, but is possible to waive temporarily in the case of a true emergency like the early days of the pandemic, would help make fiscal stability, not political uncertainty, the new norm in American politics.”

Primo said his approach has its critics but that they missed key facts.

“First, skeptics point to specific design flaws, such as a requirement that budgets be exactly balanced each year,” he said. “These critiques reinforce the need for careful rule design, but they do not justify the outright rejection of a constitutional amendment. Instead of requiring zero deficits yearly, for instance, an amendment could mandate a multiyear smoothing approach, as discussed earlier.”

Primo said others worry about U.S. Supreme Court overreach if the court is given the authority to adjudicate disputes about the amendment.

“These concerns about judicial involvement can be addressed by limiting remedies and clarifying which parties have standing,” he testified. “Moreover, the clearer a rule is, the less leeway justices will have in interpreting it.”

Primo closed his testimony by saying that the United States is in precarious fiscal health, necessitating the serious step of amending the Constitution. 

“The amendment process is fraught with political and procedural challenges, but a well-designed constitutional amendment will help the country achieve credible, sustainable budget reform,” he said. “While successes in budgeting do occur on occasion — for instance, when President Bill Clinton and House speaker Newt Gingrich worked together to balance the budget in the 1990s — these successes have typically been short-lived (just like that balanced budget). A constitutional amendment can help make budget agreements durable and reduce political uncertainty. In the absence of a constitutional amendment, I fear it will take a fiscal crisis before Congress acts. Nobody wants that.”

Constitutional convention

Stephen Spaulding, vice president of policy and external affairs for Common Cause, took a different tack on the proposed amendments — the possibility that, if Congress does not pass and send them to the states for ratification, enough states might sign on to convene a constitutional convention.

Constitutional amendments can be sent to the states for ratification in two ways — by Congress, on a two-thirds by both houses, or by a constitutional convention called by two-thirds of the states. Whether by convention or by Congress, ratification takes three-fourths of the states.

Spaulding said a constitutional convention was a bad idea.

“First, even if it is purportedly called to address a single issue, there are no rules to limit the scope of a constitutional convention to protect us from big, permanent changes to our constitutional rights that could set our country back,” Spaulding testified. “Second, there is an extraordinary risk that secretive wealthy special interests — the same ones that pump millions of dark money into our elections — will use a constitutional convention to rig the rules in their favor and take power from the people.”

And third, Spaulding said, it puts at grave risk the rights and liberties that are enshrined in the Constitution.

“There are no rules, and it is unclear how any rules would be enforced,” he testified. “There are no rules to protect Americans from huge changes to their constitutional rights that a convention could undertake. Everything from our freedom to vote to our right to free speech would be up for debate and a total rewrite. Such a risky, untested system would enable wealthy special interests to easily rig and write the rules against the American people.”

People on the left, the right, and the middle agree, Spaulding said.

“Harvard Law Professor Laurence Tribe said such a convention would mean ‘putting the whole Constitution up for grabs,’” he said. “The late Justice Antonin Scalia said he ‘certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?’”

And, Spaulding said, the late chief justice Warren Burger wrote that there “is no way to effectively limit ... the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or one issue, but there is no way to assure that the convention would obey.”

Spaulding also quoted the late Supreme Court justice Arthur Goldberg as saying that “there is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights.”

Primo observed that Archibald Cox, Common Cause’s late chairman and former Solicitor General of the United States, said that “questions about such a convention have been debated for years by legal scholars and political commentators, without resolution. Who would serve as delegates? What authority would they be given? Who would establish the procedures under which the convention would be governed? What limits would prevent a ‘runaway’ convention from proposing radical changes affecting basic liberties?...With these thorny issues unsettled, it should come as no surprise that warning flags are being raised about a constitutional convention.”

Spaulding testified that the constitution provides no rules or guidance about how a convention would work, what rules would govern, how legal disputes would be settled, how the American people would be represented, and how to limit the influence of special interests at a convention that would rewrite the founding charter.

“Simply put, there are no guardrails in place to ensure an orderly course for a constitutional convention,” he said. “No judicial, legislative, or executive body would have clear authority to settle disputes about a convention, opening the process to chaos and protracted legal battles that would threaten the functioning of our democracy and our economy.”

Any convention, regardless of its stated purpose, runs the risk of becoming a runaway convention, Spaulding testified. 

“Nothing constrains the convention to only consider the issues originally proposed in a state’s call for a convention,” he said. “There is no saying what could happen to any of our rights or what could be traded in an exchange between special interests, who will most definitely have their hands in the process. In sum, there is no predicting what could happen and far too many open-ended questions for this to be a good idea.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.