On the evasion of executive term limits.

• Author: Ginsburg, Tom

ABSTRACT

Executive term limits are precommitments through which the polity restricts its ability to retain a popular executive down the road. But in recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This Article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a type of default rule executives may overcome if sufficient political support is apparent. It then turns to historical evidence to assess the probability of attempts, both successful and unsuccessful, to evade term limits. It finds that, notwithstanding some high-profile cases, executives observe term limits with remarkable frequency in consolidated democracies. The final Part considers alternative institutional designs that may accomplish some of the goals of term limits, but finds that none are likely to provide a perfect substitute. Term limits have the advantage of clarity, which very likely increases their enforceability, and they should be considered an effective part of the arsenal of democratic institutions.

TABLE OF CONTENTS INTRODUCTION I. THE DEBATE OVER TERM LIMITS A. The Rationale for Fixed Terms: Temporary Insulation B. Arguments for Executive Term Limits C. Arguments Against Executive Term Limits D. A Qualified Approach: Term Limits as Default Rules II. EXECUTIVE TERM LIMITS: THEIR TYPES AND INCIDENCE III. HOW OFTEN ARE TERM LIMITS HONORED? A. Understay, Punctual Exit, and Overstay B. Consequences of Overstay C. Implications and Discussion IV. INSTITUTIONAL ALTERNATIVES A. Adjusting Term Length B. Altering Powers C. Handicapping Incumbents D. Incentivizing Retirement E. Summary CONCLUSION APPENDIX INTRODUCTION

In late June 2009, the Honduran military escorted sitting President Jose Manuel Zelaya out of the country for proposing a referendum on the question whether to amend the constitution--a proposal that opponents took to be the first step in eliminating constitutional term limits and paving the way for his reelection. (1) The Honduran Constitution contains a "poison pill" clause directed against this very type of proposal, and Zelaya was promptly replaced after adjudication of the issue by the country's supreme court. (2) The constitutional crisis quickly turned into an international one, which is unresolved as of this writing: a subsequent election, won by the conservative opposition candidate, has not been recognized by many countries, and Zelaya's ultimate fate is still undetermined. (3)

Zelaya can hardly be singled out for trying to overcome constitutional limits on his term. In the last fifteen years, many of Zelaya's counterparts throughout Latin America have successfully amended or replaced their constitutions to facilitate term extensions. (4) The past two years seem to have been particularly hazardous. In January 2009, Bolivian voters approved a new constitution relaxing limits on the presidential term, thereby allowing incumbent Evo Morales to run again. (5) Three weeks later, Hugo Chavez won a referendum amending the Venezuelan Constitution to do the same thing. (6) In October 2009, the Nicaraguan Supreme Court's constitutional chamber declared executive term limits to be unconstitutional. (7) In February 2010, the Constitutional Court in Colombia rejected an attempt to re-amend the constitution to allow a third term for President Alvaro Uribe. (8)

Attempts to overturn limits on executive terms have little to do with the executives' ideology (Uribe and Chavez are hardly soulmates), nor are they restricted to Latin America. Last year Azerbaijan and Niger also adopted referenda overturning term limits. (9) Similar movements were afoot in the Philippines in the latter years of President Gloria Arroyo's term. (10) Africa has had its share: just since 1990, Algeria, Cameroon, Chad, Gabon, Guinea, Namibia, Togo, Tunisia, and Uganda have effected term limit reform, in the form of relaxing term limits. (11) The constitutional choice of presidentialism and semi-presidentialism in Eastern Europe has led to tension between temporal rules and ambitious executives there as well. Vladimir Putin opted to step down from the Russian presidency in favor of an informally empowered prime ministership, which provided him with an unlimited tenure, or at least one at the mercy of a sympathetic legislature controlled by his party. (12) Term limits have recently been relaxed in several neighboring countries, including Belarus, (13) Kazakhstan, (14) Tajikistan, (15) and Uzbekistan. (16) The same dynamics operate at the subnational level, where executives of regional and even municipal governments face many of the same incentives and institutional constraints. Indeed, Michael Bloomberg's successful amendment of New York City's charter in order to facilitate his third mayoral term had some people comparing the city to a "banana republic." (17) These varied cases suggest that the evasion of term limits is widespread.

This latest wave of term limit evasions invites a number of questions. First, how should we think of this phenomenon from a normative perspective? Alexander Hamilton and many of the Founders thought term limits would invite mischief by ex-Presidents and argued against their inclusion in the U.S. Constitution; (18) others, including Thomas Jefferson, thought that term limits were necessary to curb executive ambition. (19) As term limits have grown in popularity over time, some have called for their universal adoption in presidential systems as a core feature of democracy. (20) But term limits have been criticized on a number of grounds, most obviously that they restrict democratic choice. (21) Part I of this Article reviews the arguments for and against term limits. It considers motivations grounded in the prevention of tyranny and the protection of the institutional integrity of democracy, including countering the incumbency advantage in electoral competition. (22) It also introduces the idea that term limits may be most profitably thought of as default rules that may be overcome through constitutional amendment processes. (23) Even if term limits appear rigid, they may be overcome by executives with sufficiently strong political support. (24)

Many of the theoretical arguments about term limits turn on empirical claims about the likely behavior of the incumbent in his or her last period of office, an issue about which we have little evidence. Other empirical data, however, may inform the broader normative debate. (25) The Honduras situation suggests that term limits may themselves induce a constitutional crisis in some circumstances. (26) When a popular leader overturns term limits to remain in office, there may be significant collateral damage to the constitutional order. If such occurrences are frequent and their consequences severe, we ought to think twice about the suggestion that term limits be seen as a core feature of democratic constitutions. To evaluate this possibility, Part II asks the positive question of how frequently term limit evasions occur. It begins by describing the prevalence and type of limits on executive tenure across time and space. We then ask whether term limits "work," in the sense of actually and effectively constraining executives from remaining in office. Part III takes advantage of a unique set of data on the content of historical constitutions. (27) We conclude that term limits are surprisingly effective in constraining executives from extending their terms, at least in democracies. There is no evidence that term limits are associated with the death or disability of democracy, even if in some circumstances they may induce early constitutional replacement. (28)

Notwithstanding this generally positive assessment, Part IV examines institutional alternatives to term limits. The normative question about term limits must be considered as one of comparative institutional choice, and we evaluate whether alternatives may mitigate some of the negative effects of term limits identified in the theoretical literature. Part IV considers several ideas, including manipulating the length of the executive term, shedding presidential powers, handicapping electoral incumbents, and inducing retirement. None of the conceivable alternatives to restrict executive tenure, however, are likely to substitute for term limits. As a normative matter, then, term limits seem to be an effective form of constitutional precommitment. Despite high-profile evasions in some countries, (29) the overall story seems to be of an institution that operates as an effective constraint in most times and places.

1. THE DEBATE OVER TERM LIMITS

   Term limits have been part of the arsenal of institutional design for millennia, but have assumed particular significance in modern presidential democracies. Presidentialism is characterized by the election of a single executive for a fixed term of office, and critics of this form of government have focused on its resulting inflexibility, particularly as compared to parliamentary government. (30) Limits on the number of terms, not just their length, add yet another dimension of inflexibility. (31) When the modern presidency was designed in Philadelphia, the Framers engaged in extensive debates over the length of the term and whether the executive could stand for reelection. (32) This Part reviews the normative debate over term limits.

   1. The Rationale for Fixed Terms: Temporary Insulation

      To understand term limits, we must begin by understanding why political systems have fixed terms for the executive in the first place. Fixed...