Term Limits for Elected Offices

This essay was written in 2012, and is even more relevant today.  The Presidential Election referred to is the 2008 election of Obama/Biden vs. McCain/Palin.

There has recently been increased interest in Term Limits for elected offices. It has become blatantly obvious to even the rank and file citizenry that career politicians are a large (if not the largest) part of the problem in all levels of government. However, there are several problems with getting from here to ANY semblance of term limits, and in addition there is of course considerable disagreement as to what such limits should be.

At the Federal level, the first problem - how to get there - is a very high hurdle. To begin with, it is virtually inconceivable that any Legislative body is going to cut its own head off by passing term limit legislation. No one is likely to vote himself or herself out of a job, especially one as lucrative and cushy as political office. Since such a vote would have the same effect as firing them, threatening to throw them out has no real clout. Furthermore, at the Federal level, there is no such thing as a referendum that would allow the citizenry to pass term limit legislation, and even if there were, the next bunch of crooks in office would just repeal it. Worse yet, at the Federal level, passing a Constitutional Amendment (which is what is ultimately needed) requires either two thirds of Congress (not gonna happen) or two thirds of the Legislatures of the States (also very unlikely) to propose such an Amendment. And then three fourths of the States must ratify it. Prospects are dim.

Even though hope of such a Constitutional Amendment is vanishingly small, let's take a minute to look at what such Term Limits might be. Most suggestions are for two or three terms, somewhat akin to the two-term limit that was passed for the Presidency. (Note that this Amendment probably was successful only because most of Congress and the State Legislatures had little hope of winning the Presidency.) Some suggestions at the Federal level have been for a fixed time limit, with 12 years (6 terms of the House or 2 terms of the Senate) being the favorite.

Unfortunately, the problem with the career politician is that he (or she) is always running for the next election. The minute that the current election is won, the campaign for the next election is the primary focus for not only most of his time, but for what his vote is going to be for or against any bills that come up. To me, this is the root of the problem. With this in mind, it seems obvious that the proper term limit is ONE.

Even passing a Term Limit Amendment limiting all terms of elected office to one term still leaves a gaping hole. This was blatantly illustrated in the last Presidential election. ALL of the contenders were currently holding office at the time, and most spent the better part of two years campaigning rather than addressing the task they had been elected for. Ironically, since the winner had only just been elected to the Senate in the previous election cycle, he basically reneged on his obligations to his constituents to campaign for a better job. As a blurb that circulated on email suggested, try that on YOUR job.

My proposal for a Constitutional Amendment, albeit probably unattainable, is the following. Since the problem is not only that the career politician sucks off the public teat all his life, but also the fact that he is also constantly campaigning for the next election, there is only one way to end the farce. To wit:

No person shall be eligible to be a candidate for any elected public office while currently holding any elected public office. This restriction shall be in addition to any other qualifications for the particular office.

That oughta 'git 'er done'!

PACKING THE COURT

    To continue with the theme of my most recent post, the 2020 election has highlighted several of the 'glaring faults' of the Constitution. In particular, the current threat of a Biden/Harris / Harris/Biden administration together with the Democrat Party retaking the Senate of adding extra Justices to the Supreme Court is sufficiently likely that they won't even discuss the possibility. Such an action would render the Court an even less useful body than currently exists.

    The Constitution leaves the numerical makeup of the Supreme Court up to Congress. This in itself is not necessarily bad, but safeguards should have been in place to prevent modifications (packing the Court) from being a political tool. It would seem that at the very least, restricting any changes from taking place should be deferred until every seated member of Congress has been subjected to an election and possible replacement. That, together with allowing for such proposed changes to be rescinded in the interim 4 to 6 years would go a long way to frustrating the kind of mischief currently contemplated by the Democrats.

    The phrase in Article III granting Justices tenure during 'good behavior' seems a little lax in that a lifetime appointment too often in modern times means possibly extending into infirmity. Since most Justices are confirmed during middle age, a cap on maximum duration of a couple of decades would seem to be better than waiting for the grim reaper to trigger replacement. Some nonagenarians maintain their wits in spite of their longevity, but all too often some degree of senility sets in. Subjecting the integrity of the Supreme Court to the risk of such possibilities seems unwise.

    The fact is that any system design, subjected to the rigors of implementation and use, inevitably shows signs of faults and omissions that a second attempt might try to correct. However, referring again to Fred Brooks' 1975 book The Mythical Man Month, the risk of such attempts becoming bloated and worse than the original (The Second System Effect) is somewhat evident in the fact that the Constitutional Amendments too often sully the elegance and simplicity of the original document. The author's opinion is that we're running about 50-50 which is probably not bad for almost 250 years.

THE 2020 ELECTION AND THE CONSTITUTION

With all the hoopla surrounding the coming elections (2020), it is interesting to look at what the Constitution had to say about the subject - both the original document (including Amendments 1 to 10), and the remaining Amendments.

It is fairly obvious that the Founders were against creating a Democracy, and in the original document gave the people only a direct vote on their Representatives in the Congressional House. Even then, they kicked the can down the road on the subject of qualification to vote, essentially leaving it up to the States to decide individually. This is just one of several glaring faults in the Constitution. The requirements for qualifying to vote should have been spelled out explicitly and should have been uniform across the country for the Federal election.

The 17th Amendment (one of two in 1913 that set the stage for the downfall of the U.S.) added the Senators to those directly elected by the populace, effectively creating two Houses of Representatives, but with different rules. Again, instead of rectifying the omission in the original with respect to qualifications, they kicked the can down the road once more.

However, with respect to the choosing of the President, the people were not only deprived of direct election by the Electoral College mechanism, but were even denied direct election of the Electoral College Electors. The original document specifies that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress". Nothing in the remainder of the original document nor in any of the Amendments changes the right of the State Legislatures to appoint the Electors for the Electoral College, although if a State chooses to use a popular election to decide who to appoint, several Amendments have a lot to say as to who may or may not vote in such an election.

Since the Constitution states that "Each State SHALL appoint..." their electors, convene them for their votes, and forward the results to the Senate, one might reasonably assume that such action should be taken in a timely manner. Nothing in the original document or the Amendments suggests that such required actions might be justifiably delayed by an optional popular election at the State level. Thus it is hard to justify the concern that the actual determination of the winner of the Electoral College might not occur at the normal time.

At the same time, there seems to be no real deterrence to any State Legislature appointing their Electors based on any whim they might take, regardless of the results or lack thereof of any popular election, or for that matter, any overreaching dictum from any court. Thus schemes to eliminate the Electoral College and choose the President by the national popular vote are unnecessary - the same result can be achieved within the current Constitution by getting sufficient State Legislatures to agree to appoint their Electors based on that criteria.

This, of course, is just another of the several glaring faults in the Constitution as mentioned above. The Founders apparently hoped that such faults might be corrected by the Amendment procedure provided for, but most Amendments have tended to create more faults rather than correct the original ones (author's opinion). The result seems to lack the 'conceptual integrity' described by Fred Brooks in his classic 'The Mythical Man Month'.

Sales Taxes vs Tariffs

With the President pushing tariffs to level the international playing field for American producers, he and his administration should seriously consider a National Sales Tax (NST) as an alternative or at least in concert with targeted tariffs. By getting rid of the Income Tax (IT) and replacing it with a NST, the burden of maintaining the U.S. market is shared by all who participate in it.

Let's first look at the current situation with the cost of the U.S. Government being primarily carried by U.S. citizens under the IT. Even with the new 'tax reform', a dollar earned by a typical citizen is first reduced by 25 cents with federal IT and a nickel for payroll tax. Then in most states, at least another nickel is appropriated by state IT, and a further nickel in state sales tax on the products bought with the 65 cents remaining. Thus the American consumer loses a third of his buying power regardless of where the products originate.

The labor cost for the U.S. producer is the full dollar cited above plus the employer's share of the payroll tax, plus of course any additional overhead for health benefits, etc. If the employee then buys his company's product, he is in effect paying, say, $1.10 (just for the labor costs) for which he netted about 60 cents. His own labor is costing him twice what he received for it.

The additional cost of a tariff on the imports used in making a given product could vary widely, but even for an equivalent product (a TV or an auto) subject to a tariff, the consumer ultimately pays the extra amount with the reduced buying power of his taxed income.

If the income taxes (and payroll taxes) are replaced by a NST of 30% (the rate proposed by the Fair Tax), the consumer will pay $1.30 for the labor share of a domestic product for which he received $1.00, or about 30% more. He will still bear the extra amount of a tariff, but with a net income of the full dollar rather than 60 cents. The tariff will still penalize the foreign producer relative to the domestic producer, but the impact to the U.S. consumer is a third less.

Even without a tariff, a NST taxes the foreign product at the same rate as the domestic product. This not only levels the tax burden between the foreign and domestic producers, but considerably enhances the competitive position of the domestic producer in the foreign markets since there is no taxation on labor for exported products. And, since the product rather than the labor involved in producing it is taxed in the U.S. market, automation and foreign labor (or even undocumented labor) hold no advantage for the domestic producer.

As we see, in many respects the NST achieves the same result as an import tariff, with considerable benefit to domestic production and consumption as well. Since all imports are equally affected, a retaliation in the form of a 'trade war' is unlikely. If, alternately, a penalty is intended for a given country's products, selective tariffs can still be imposed for political reasons.

The use of a National Sales Tax instead of the fatally flawed Income Tax is a no-brainer, but implementation in the short run begs caution based on system engineering considerations. Step functions - a sudden major change in inputs or characteristics in a dynamic system - can produce wild deviations before ultimately settling out to the long term behavior. Thus, although the NST in the long run is to be preferred, ramping it up as the IT is ramped down (say over 5 years) may be necessary. However, in no way must the IT be allowed to exist past the phase-out period. Ultimately the 16th Amendment must be repealed, and ITs forever banished in the U.S.

The Electoral College and the election of 2016

Once again the Election of the President of the United States by the Electoral College is the subject of much whining and criticism by the losers. As with the 2000 Election, the Republicans won the Electoral College but with the official popular vote won by the Democrats. I say official, since the possibility of voting fraud in many large urban areas leaves much doubt as to the validity of the popular total. In any case, in spite of massive Democrat wins in the urban areas, the fact that the overwhelming majority of suburban to rural counties in the country went Republican helps explain the Republican win of the Electoral College.

Which is why the Founders created the Electoral College in the first place. At the time, there were not so many large urban areas, but the fear was that the more populous states would, in a popular voting system, deny any real representation in the Federal Government to the smaller states. By creating the Electoral College system, the smaller states would have a somewhat better chance of having a say in the choosing of a President.

Furthermore, the method of choosing Electors specified by Article II, Section 1 of the Constitution leaves it up to the State Governments. To wit: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...". Thus, as with the original Senate, the President was to answer more to the Sovereign States than to the people as a whole. Although the Senate as the voice of the States has been nullified by the Seventeenth Amendment and made a second House of Representatives, the State governments still have the authority to determine the selection of their Electors for the Electoral College. In practice this has been usurped by Party Politics in most states to a winner-take-all selection of Electors by the Party winning a plurality of the popular vote in the State.

The current implementation of the Electoral College is not in violation of the Constitution, although it is probably not in keeping with the intent of the Founders. I assume that each State has given its blessing in law or otherwise to the current situation. In spite of the fact that the Founders went to considerable ends to give the Sovereign States a meaningful voice in the Federal Government, they have ceded it over the years to the very plebiscite democracy that the Founders abhorred. The Electoral College could easily be the next victim to this tendency by being eliminated altogether.

As usual this author feels obliged, after complaining about the situation, to offer a suggestion for a modest improvement. Since the original Constitutional verbiage cited above is still in effect, the State Legislatures could direct that the Elector authorized by each Congressional District be appointed by the Party having a plurality in that District, with the two Electors granted to each state by virtue of their Senators being appointed by the Party having a plurality in the State, as is currently the case. Apparently this is the system used in two of the Fifty States: Maine and Nebraska. Even better might be to have the State Legislature appoint their two 'at large' Electors to recover a little of the representation of the Sovereign States that the Founders envisioned. Something like this would at least keep the States with large urban areas from denying any representation in the Electoral College to their rural areas. It also would be a minor step toward returning to the intent of the Founders.