On Wednesday, 81-year-old Senate Minority Leader Mitch McConnell (R-Ky.) struggled to speak in public for the second time this summer. This health episode brings to the fore, yet again, crucial questions related to the ability of an aging Congress to represent the will of the people.
One question many are asking is whether there should be an age cutoff to serve in Congress, given the rising average age of Congress, the advanced age of American political leaders, the lower average age of the electorate and the troubling examples of specific elected officials.
But, putting aside the wisdom (or lack thereof) in attempting to force elderly members of Congress to retire, such proposals are likely unconstitutional.
The Constitution imposes relatively few qualifications to serve in Congress. For the House of Representatives, it merely requires that an officeholder be 25 years of age, an American citizen for seven years prior and a resident of the state from which they are chosen when elected. The constitutional requirements to serve in the Senate are similarly few: one need only be 30 years of age, a citizen for nine years prior and a resident of the state from which they are chosen when elected. No mention is made of race, gender, religion, sexuality, national origin, health — or advanced age.
The rationale for minimum age requirements was discussed at the Constitutional Convention of 1787 and in the Federalist Papers. Modeled after the British system, the Framers actually raised the minimum age to serve in the legislative branch from 21 to 25 through James Madison’s Virginia Plan. Federalist 62 also made clear that the Framers sought for senators to have the “greater extent of information and stability of character” gained by age. The Framers thus valued experience, more fearful of the perils of youth than those of advanced years.
Despite these constitutional criteria, states have occasionally attempted to impose additional qualifications on members of Congress. In 1992, Arkansas adopted a constitutional amendment that would have imposed term limits on, among others, members of Congress. This measure was challenged before the Supreme Court in U.S. Term Limits, Inc. v. Thornton, which struck down the additional qualifications for congressional office. Relying on a previous case concerning the seating of a duly elected member of Congress, the court reasoned that neither states, nor even Congress, could add to the constitutional qualifications for congressional office.
Nonetheless, a recently proposed North Dakota ballot measure would prohibit individuals from serving as members of Congress if they were older than 80. This measure appears illegal based upon prior caselaw. However, the same end goal could be achieved through an amendment to the Constitution. The relevant question for such an amendment is whether such a measure would in fact be wise.
The potential benefits to a constitutional amendment imposing age restrictions on members of Congress are increased performance and trust in elected officials. This is based in part on the belief that younger elected officials better understand the nation today, are more capable and motivated, while also less entrenched and beholden to special interests. However, age is not a perfect predictor of physical health nor motivation, and older members have had years to prove themselves and build trust with the public.
In contrast, the potential detriments to a constitutional amendment imposing age restrictions are loss of seniority and institutional knowledge. Loss of seniority could help combat entrenchment. However, institutional knowledge is a huge currency in Congress and its diminishment would likely only further empower lobbyists and special interests.
When read together, these competing rationales at most support term limits and age limits for committee chairmanships and leadership positions, but not for congressional service itself. Party caucuses already serve a regulating function in ensuring that their leaders are fit to the task. Whether or not party leaders effectively distribute power to those most deserving might be the ultimate question.
Given this predicament, perhaps the best thing for those offended by elderly members of Congress to do is to simply organize and vote against all members of Congress whom such critics believe are too old to hold public office. Critics of elderly members of Congress could publicly rally others against elected officials on the basis of age, while their opponents would be free to judge the critics for such efforts. This would be a highly democratic outcome — and one that is far easier to implement than a constitutional amendment. In fact, advocating for seemingly unconstitutional state initiatives to bar the elderly from holding federal office might even be seen as one such public relations campaign in action.
Harry William Baumgarten served as legislative director and counsel to members of Congress. The views expressed here are his own and do not necessarily represent those of any other party.