Incumbent Handicapping is Better than Term Limits

If there is one thing Americans agree on these days, it’s that politicians are terrible. In the latest polls the US congressional disapproval rating continue to hover between 70% and 80%, making it slightly less popular than President Trump and only marginally more popular than North Korea and syphilis. Which can make it hard to remember that this is a democracy and our House of Representatives is meant to be the “People’s House”. Which people, I wonder?

The natural reaction to things that we hate is to get rid of them. We swat mosquitoes, stomp on cockroaches, irradiate cancer and, of course, we can do the same to politicians by voting them out of office. Except, of course, that we don’t. The only thing we do more than rail against Congress is reelect congressional incumbents (at a rate of rate of 90% or more). This is often excused by saying that people like their politicians, but hate everyone else’s, or that it’s easier to hate an institution than a person and so on.


I’m not going to delve too deeply into this apparent contradiction. Let’s just assume that people really wish government would work better, and that the legislature should be doing a better job. I do not believe this entirely — there are groups and people who undeniably benefit from government dysfunction and dysphoria — but most of us are probably genuine in our frustration with government and our desire to improve it.

And what we’ve been taught, what has been beaten into us, is that political incumbency is bad. If there’s a problem with government, we should just “Throw the bums out.” And if we’re not throwing the bums out on our own, maybe we need a little help. Maybe, in fact, we need to automatically kick the bums out after a certain number of terms.

If this seems like a pedantic way to get to the concept of term limits, that is not an accident. Term limits are not a natural and obvious problem to government dysfunction. No one that I can find sat down and looked at the pros and cons of incumbency, ideal turnover rates, congressional responsiveness, and proved that term limits would actually solve any real problem. Rather, we hate Congress and thus we want Congress to go away. Somehow, if we just force electoral churn, the government will just fix itself.

This is despite the fact that the concept of term limits is logically absurd in almost any other context. We don’t throw business leaders out if they’re doing a good job just because an arbitrary amount of time has passed. We don’t toss out good doctors with bad, great restaurants with terrible or great friends with abusive jerks.

But with government we have internalized the assumption that government is dysfunctional and corrupt, and thus excused ourselves of any responsibility for making it better. Enter term limits as an automated system that allegedly protects us from the corruption that inevitably comes with holding office for too long. Power corrupts, after all, and absolute power corrupts absolutely. Isn’t that the congressional tagline?

To understand why this is problematic, it’s important to understand a little about the history of voter rights in the USA.

Voting Rights Cannot be Taken for Granted

Well, they can be, but they shouldn’t be. There is a short page on Wikipedia for the timeline of voter rights that goes into more detail than I can, and a far longer one on the general concept of voting rights in the USA. Take a moment to skim these pages, if you like. Now, welcome back to our regular scheduled polemic.

If I were feeling more emotional, I’d say term limits are acts of cowardice and sloth. That would probably seem a bit harsh, but if there is one thing you can demonstrably prove is that a lot of people have spent a lot of energy (and blood, and lives) fighting for the right to vote. Non-land owning whites fought for it, and won. Women fought for it, and won. Minorities fought for it, and won. I guess that was too much winning, so now it’s time to capitulate. We really appreciated the rights, but you know, it’s just too much responsibility.

Let’s take a more rational approach. It is of course important to realize that voter rights are vital for democracy and cannot be taken for granted. Here, for instance, is a short list of major voting rights milestones in our country, taken from the previously mentioned article and keeping in mind that having the legal right is not the same thing as being able to exercise it in practice:

  • 1789 / The US Constitution gives states the right to set voting requirements, which are generally limited to property-owning or tax-paying white males.
  • 1792-1838 / Free black males lose the right to vote in several Northern states.
  • 1870 / The Fifteenth Amendment to the United States Constitution guarantees the vote to non-white men and freed slaves. Yes, it took an amendment to the constitution.
  • 1920 / Women are guaranteed the right to vote by the Nineteenth Amendment to the United States Constitution.
  • 1924 / Native Americans get the right to vote.
  • 1943 / Chinese immigrants get the right to vote.
  • 1961 / Residents of Washington, D.C. get to vote for President.
  • 1965 / Protection of voter registration and voting for racial minorities.
  • 1971: Adults aged 18 and 21 are granted the right to vote by the Twenty-sixth Amendment to the United States Constitution.
  • 2013 / Supreme Court ruled in a 5-4 decision that Section 4(b) of the Voting Rights Act is unconstitutional.

Whether you agree that any or all of the above represents the form of Democracy that you believe in, you have to admit two things. First, that progress on voter rights does not follow some inevitable arc toward unencumbered universal enfranchisement; there is movement forward, and then setbacks. Second, that people have fought pretty hard for your right to vote. American citizens have marched, rioted, been arrested and died for it. You do not have the right to take it for granted.

Civil Rights demonstrator attacked by a police dog in Birmingham on May 3, 1963

And yet term limits represent an undeniable abnegation of these hard-won voter rights. It cannot be more simple. You currently have the right to vote for anyone eligible to run for office. Term limits make all politicians ineligible to run for office after a certain number of terms. Term limits make it impossible for you to vote for politicians you might otherwise have voted for, and thus strip you of your rights as a voter. To repeat:

  • People fought and died for your right to vote.
  • Term limits take this right away.
  • Therefore, term limits are a slap in the face of the soldiers, veterans and other Americans who fought for that right.

Term limits ought to be unconstitutional; the fact that they have not been wholly eliminated by the Supreme Court just means that we do not appreciate how easily such rights can be lost.

To make the point more emotionally: Here is a flag. Now burn it. That’s term limits. I’m astonished by how many so-called conservatives will blow up the internet to save a symbol of liberty and freedom, and then use the resulting ash to choke-out the electoral system from which all meaningful liberty derives.

Term Limits Do Not Work

Even if term limits were not a frontal assault on voter rights, they simply do not work. Which is to say, they work perfectly if your purpose is to make government run less efficiently, give lobbyists more power, and undermine the legislative branch of our government. If you want the opposite of those things, term limits are a truly terrible idea.

I know what you’ve heard. Term limits make politicians less likely to be captured by special interests, and keeps them from staying in office long enough to make themselves rich on corruption and graft. This is utter and complete bullocks. Yes, I’m swearing in a foreign dialect. That’s how upsetting this is.

It’s vital to understand that politicians are captured by special interests the second they run. Political campaigns are insanely expensive and resource intensive. The average person simply cannot run at the city, state or national level without taking money from some special interest group. And almost none of them can win without the endorsement of a major party and its interest groups (business, churches and police for conservatives, unions and trial lawyers for liberals). So they’ve sold their souls long before they worried about reelection. Knowing that they’re going to get kicked out office and have to run for some other office (e.g., House of Representatives followed by the Senate) just means they are even less focused on doing their job and need even more money and more allies more often. This is almost the definition of corruption, and term limits don’t fix it; they make it worse.

Term limits also have the same problems as almost all over-reactions to actual problems, which are massive unintended consequences. These include having people in office who have no freaking idea how it is to run a government (think of it as a large business run by people who have no idea how to run a business). And just when they learn how, you fire them. Brilliant.

I know, you’re thinking, they’ve been corrupted. They have to be purged. It’s like sin, but with ballot boxes. I’m not even going to argue the point. I’m just going to say that, if you actually wanted government to run well, you would elect people who know how to run government. Every time Americans vote for term limits, they’re voting against America, because America is a democracy, and democracy is a form of government. If you don’t want your government run well, you don’t want democracy to work. So why are you reading this?

Imagine you run a business. Imagine it’s the largest business in the history of the world, which makes it pretty hard to manage. It needs help. You have a board of advisers and they seem like a smart group of people who made some mistakes. So you get a new board and some fresh blood. Great! Off to work. Let’s put together a plan to–

Stop!

We just fired your board. Here’s another board.

Okay, damn, let me try to get this business going. Does anybody here remember how this things works? Well, let me explain it to you. See, we build widg–

Stop!

We just fired your board. Here’s another board.

Oh, screw this. This board sucks. I’m just going to outsource to a bunch of consultants the stakeholders can’t fire. I mean, sure, they’re called lobbyists and they have no interest in running the business except to bleed it for their own venal cause, but it’s better than having to teach these child-like board members how not to drool on themselves.

Stop!

Your business is bankrupt. You’re fired. Everyone’s fired. Well done.

That is how term limits work, except we don’t seem to care. We’d rather be self-righteous, angry and slap some congressmen than actually solve real problems. Which I suppose is a nice way of saying that we are part of the problem. We think government is just the ridiculous crap that vultures do when they’re not stripping flesh off the dead. What we don’t seem to understand is that government is just a service. We can have much or as little of that service as we want, collectively, but no matter what its size it’s better if it runs well. Term limits make that impossible.

Don’t get me wrong. I understand that a large group of Americans have a vested interest in making it run poorly. When conservatives say they want to make government small enough to “drown it in the bathtub“, the last thing they want is a well-run government program — because that makes it harder to hate and then kill. It is no coincidence that these are some of the same people that advocate for term limits; they want government to be dysfunctional and, to the extent it still functions, that function should be to serve them and they’re special interests. This article is not for these people.

If, on the other hand, you truly want government to run well no matter what its size (and whether you’re liberal or conservative), then you might want to take a look at states where term limits are in place to see if they actually make things better. California has had legislative term limits thanks to Proposition 140 since 1990. It’s not better. So I have to ask the conservatives reading this; you hate California so much you want to leave or cut it in half, but you want to make the rest of America more like California? Really?

Sarcasm aside, there is absolutely no evidence that term limits make government run better or make politicians more responsive to voters. So endeth the rant. The rest of this is for Americans who actually care about America, and I hope that’s most of us.

Fact One: We are a democracy, or a democratic republic. The important point is that we manage our government with our vote. That is our only offensive power as citizens. Everything else, including the Second Amendment, is defense.

Fact Two: Democracy has challenges, including the excessive and always growing power of incumbents. It’s not just the franking privilege (Yes, I am that old), it’s all the power you gather around you, the name recognition, the deals and, yes, the corruption. All of it means that we probably do not have nearly enough turnover in in Congress as a result of voting, because we love incumbents when they are our incumbents. Love them.

Fact Three: Term Limits seem to work pretty well at the executive level. Why? Because executives acquire the power of incumbency the fastest, and are a lot like CEOs. They don’t have to know the details of how to run a government; they hire people that do, nudge the ship in one direction or another, and then someone else comes along. Most of the real daily work is done by the bureaucracy, which doesn’t turn over that much, and Congress, which is supposed to know how to legislate and regulate in order to drive the bureaucracy.

Term limits at the executive level just mean a new boss every four years, same as the old boss. Term limits at the legislative level means firing everyone who knows how stuff works. It’s like a software company firing all of its software developers. Sure, the CEO can talk pretty for a while, but then you get a problem with an application, and someone has to fix it, and…the lobbyists are the only ones left. This is one reason why lobbying groups such as the American Legislative Exchange Council (ALEC) are successful; writing good legislation is hard. Letting lobbyists do it for you is easy and, in fact, the only choice if you have no idea how to do it yourself. This effect of term limits are one reason why ALEC advocates term limits; it gives them more power. It gives corporations more power. And you, well, less.

Fact Four: We are part of the problem with government. We still think we’re in high school and the best people to elect are the ones we partied with. Hint: They are morons. Well, not all of them, but a lot. The ones you really want in government are the kids whose names you can’t even remember because they’re too busy actually getting stuff to work. Think of that kid who as the treasurer. We need that kid in Congress. We need a Congress full of genuine, hard-working, normal and yes boring dudes and dudettes who have absolutely no interest in ever being Prom King — or Prom King or, at least, know they never will be. But you keep voting for Prom King and wondering why he gets drunk and drives the car off the bridge.

If you actually want government to work, you should think of it like your car. You want an engine that works. It just works, You won’t want a Porsche to show what a douchebag you are to other countries. You don’t want a Jaguar that breaks down all the time (yeah, yeah, I know). You don’t want a Bugatti because, well, taxes. You don’t want a Yugo because…do I really have to explain this? You want a Camry. You want an Accord. You want whatever American car is like a Subaru. You want a car that gets good gas mileage and never, ever breaks down and bores the crud out of you, so you simply don’t pay attention anymore. That’s good government; it’s not exciting, but it doesn’t get you killed or drain your bank account.

When was the last time you voted for that car? Yeah, never. You vote for the Ferrari or the Zombie Apocalypse Hummer or the Commie Citroen every time. That’s on you. You need to fix that. Otherwise, it doesn’t matter what we do. If you keep voting for the truck that’s best at crushing the other guy’s sporty coup in the congressional demolition derby, you’re just going to get broken government. Maybe that’s what you want. I hope not.

But, enough about cars. We’re here to talk about term limits. So let’s assume again that you want better government and are concerned that incumbency is a problem and you want do something reasonable that addresses the problem without blowing up the neighborhood. Do you have any better ideas?

Fact Five: I have a better idea. Amazing, right? And you thought you’d just come here for the outrage.

Incumbent Handicapping is a Better Idea

I know what you’re thinking. Upset with your incumbent politician? Just take an ax to them. If that won’t motivate them, nothing will. Genius. But, that’s not the kind of handicapping I had in mind. Plus, it’s gross and may be illegal in some states.

Here’s how it works. Instead of term limits, incumbent handicapping addresses the unfair reelection power of incumbency by making it harder to get elected, but not impossible. Incumbent Handicapping (IC) does this by adding an increasing percentage of the total vote required for reelection of the incumbent with each subsequent election cycle up to a reasonable cap.

Let’s take the two-year terms of the House of Representatives as an example. In the simplest case, IC might mean that the incumbent has to get 52% of the vote to win the second election, 54% to win the third, and so on, up to a cap of 60%. This means that you can always vote for the congressperson you want, but they have to really work to stay in office. I should note that this only really works for popular votes. For the Presidency and the Electoral College, it may have to remain term limits as it is today.

The point is, with IC, at no point are you prevented from voting for whomever you like. Your candidate can always run. And as long as he or she remains popular enough to beat the spread, they can stay there forever. It’s just hard, and they have to work for it. They have to earn your vote…and they will.

Incumbent Handicapping can be applied at every level of government and simply had to be adjusted to find the right percentage handicap per term and the right cap so that it doesn’t become the same as term limits.

How do we figure out the right cap on the spread? Great question. I imagine that some very exciting mathematical modeling by district size, election type, mid-term vs. general election, etc. can give us a number or two that represent the percentage Incumbency Advantage (IA). We’ll call it the Incumbency Advantage (IA) because, well, everyone else does. For the sake of argument, let’s say the IA% is typically less than 10%.

Vanderbilt 2015: The Incumbency Advantage (IA) has grown but remains below 10%

You might think 10% is an under-estimate. According to Open Secrets, House races in 2016 saw a fun-raising gap of $230k vs. $1,600k for challengers versus incumbents, which is truly staggering; however, it’s also misleading. This represents highly partisan fund-raising in highly largely gerrymandered districts, which just means that fund-raising between different party candidates is a poor proxy for an IA% between the same parties. In other words, the IC is meant to balance out an incumbent running against an equally qualified challenger in the same party, not to fix imbalances in partisan fundraising or those caused by partisan redistricting.

I realize this is a bit dry, but hey, it’s politics. Remember that boring car we’re trying to build? Well, it’s not all coke parties and naked skydiving on the assembly line. Deal with it.

Rather than add too much math to this discussion, let’s imagine that in all House Races the IA% is 10% and in all Senate races it’s 12%. And you want the IA% gap to be closed within ten or twelve years respectively. This would mean that Representative incumbents would have to win with 2%, 4%, 6%, 8% and then finally 10% more of the vote than the nearest challenger. Senate incumbents would have to win by an additional 6% and then 12%. If you want people to turn over faster, you just adjust the dial a bit and viola, less incumbency. And of course you can go the other way as well, making it easier to stay in office but not that easy. Remember, the point here is to balance out the real Incumbency Advantage to make elections more fair, not to shove people out just because they’be been there for a while.

If done carefully, Incumbent Handicapping takes care of the long-term incumbency problem while simultaneously making it possible to keep the great, dedicated people who keep our Ford Focus running. IH keeps Americans from being stripped of the right to vote for any candidate they like. And IH actually disempowers lobbyists, because good people can keep their jobs long enough to get good at it.

I realize there are far greater issues with governance, but at least this makes things a little better. And doesn’t break the wheel. Term limits break things. IH doesn’t.

In Summary:

  • Term limits are bad.
    They don’t work, and the violate voter rights.
  • Incumbent handicapping is good.
    Like all ideas, it should of course be tested and proven.
  • Think about it.
    Please.

So the next time someone screams about term limits, let’s talk calmly about Incumbency Handicapping instead. It’s not as exciting, sure, but it might actually work.

Peace.

Related Resources

What, you’ve got more time on your hands? I can take care of that…

Discussion Points
  • Is Incumbent Handicapping constitutional?
    Yeah, no idea. Sure. I think it would depend how it was applied, and which party sued and which part controls the Supreme Court when they do.
  • When should IH take effect?
    IH could be introduced any time after the incumbent’s first election, but given that this is meant to be an alternative to term limits, it could be delayed to start at the same time term limits would otherwise have started. That way, it doesn’t impact the first few terms, and only matters when you want to throw the bums out anyway. Credit to JM for this idea.
Measuring the Incumbent Advantage

So many PDFs, so few pretty pictures. Bur if you’re in for a good soporific read, here is some background on attempts to calculate the Incumbent Advantage (IA) and why it’s grown over time. 

Anti Term Limits

I’m always a little saddened when things that should be non-partisan resolve along party lines. But it seems pretty clear that term limits as a concept are largely advocated by conservative groups and denounced by liberal ones. If you find conservative sources here, I’ll be glad to include them.

However, I’ve come to believe that term limits are an intentional, cynical effort to weaken the power of the legislative branch relative to the executive branch, and hence the power of “people” versus aristocrats and business. This tends to align with some policies of the Republican party, but I do not believe it represents a truly conservative worldview.

Pro Term Limits

See all notes under “Anti” (above) and reverse them.

Polling on Term Limits
Disclaimer?

As far as I can tell, this whole Incumbent Handicapping (IH) idea is mine, but I know it can’t be. Someone must have thought of it before. Love to see some evidence of it. The same basic concept came up last year, but it was applied to US presidential elections, which is the one place it won’t really work, so I’m not counting that.

My guess is it has a different name, and I just haven’t found it yet. Most “Alternatives to Term Limits” appear to be term limits with gaps. So, for now, I’m taking credit. I’d actually be glad if someone proved me wrong.

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