No, it wasn’t term limits that ended Daines’ Senate run
Darrell Erhlick
(Daily Montanan) According to the Montana Secretary of State’s website, incumbent U.S. Sen. Steve Daines withdrew from his re-election bid three minutes before filing deadline last Wednesday, five minutes after his hand-picked successor, Kurt Alme, filed to run.
Lots of people claimed victory because of the news, including former University of Montana President and independent U.S. Senate candidate Seth Bodnar, who had filed earlier in the day, expecting to challenge Daines.
Another person who celebrated victory in a tongue-in-cheek sort of way was former Montana state Rep. Matthew Monforton, who has since left the Republican Party, but had started an earlier conversation about term limits found in the Montana Constitution.
“The Montana Constitution Doesn’t Care About Steve Daines’ Ambition — And Neither Should Christi Jacobsen” Monforton titled his post.
“There’s a provision sitting in the Montana Constitution that the political class has spent 30 years pretending doesn’t exist. It’s there in black and white. It imposes term limits on members of Congress. It has never been repealed. And now, for the first time, Montana has a Secretary of State who is also a candidate for Congress — meaning the official responsible for putting names on the ballot has both the authority and the constitutional duty to enforce it,” he continued.
This is the time of the season when conversations about Montana’s term limits loom large — as state politicians in the Legislature make a jump from one chamber to the other in order to avoid “terming out.” The state’s Constitution sets specific amounts of time a person can serve in the Legislature. For example, House members are limited to eight years every 16-year period.
If few people read the Montana Constitution, even fewer probably notice Montana voters approved not just term limits for their state senators and representatives, but also on Montana’s members of Congress. Those limits were added in 1992 by ballot initiative during a time when term limits were discussed as a way to stop a never-ending cycle where politicians were always fundraising and stumping for the next election.
For members of the United States House of Representatives, the Montana Constitution limits a person to only six years during any 12-year period. For U.S. Senators, the limit is 12 years within a 24-year period.
Using Article IV, Part 4, Section 8 of the Constitution, Daines should have never been eligible to file. And it’s not the first time that such a scenario has played out. Jon Tester, who lost his Senate race in 2024 to current U.S. Sen. Tim Sheehy, was running for his fourth term. And longtime U.S. Sen. Max Baucus was already on his third term when voters passed the limit in 1992. He went on to win three more campaigns before becoming America’s ambassador to China.
But Article IV, Part 4, Section 8 is where part of the Montana Constitution meets the United States Supreme Court.
In a very narrowly divided opinion, Justice John Paul Stevens wrote the 5-to-4 majority opinion in the landmark U.S. Terms, Inc vs. Thornton. That case, decided in 1995, said that it is up to the federal Constitution to outline the qualifications for members of Congress, and not the state’s prerogative to decide the qualifications.
The majority opinion stated that if the United States were to truly have a “national Legislature” as conceived by the framers of the Constitution, that the selection criteria must be the same across states.
“The Constitution contains no express or implicit restriction on States’ ability to impose additional qualifications on candidates for Congress,” Stevens said. “The states have no authority to ‘change, add to or diminish’ the requirements for congressional service enumerated in the Qualifications Clauses.”
Monforton said it’s not surprising that Montanans and most people still embrace the idea of term limits. What is often surprising is that it is that passage seems to be ignored.
There’s good reason for that, explains constitutional legal scholar Constance Van Kley, who teaches law at the University of Montana’s Alexander Blewett III School of Law.
When Montana voters approved the provision that placed term limits on both state and federal lawmakers, that was the legislation voters approved. It was added to the Montana Constitution. When the U.S. Supreme Court said individual states could not set term limits for Congress, it made the section moot. Van Kley explained that Montana’s Constitution — just like other states or federal constitution — cannot be changed unless it’s amended.
In other words, the language will remain, even occasionally causing confusion because it may appear officials are not keeping track.
Though rare, these type of ghost clauses can be found in other constitutional settings, even Montana.
For example, Van Kley pointed out that Montana voters approved a constitutional amendment prohibiting same-sex marriage. That provision is still on the books, but when the U.S. Supreme Court decided the Obergfell case, it rendered the same-sex marriage provision moot in Montana — even though the language will remain in the state’s Constitution until someone amends it.
May not be settled
Though the term limits for federal lawmakers remain void — that may not be the case forever, Van Kley and Monforton said.
The concept of Congressional term limits still has a groundswell of support, even though no state has been able to successfully mandate federal term limits. A Pew Research poll that was published in 2023 shows that the concept of term limits may be even more popular today than when the concept began to be enshrined in the mid-1990s. That Pew report found that 87% of Americans still favor term limits.
“And that’s one of those things that has bipartisan support,” Monforton said.
Ironically, it was Daines who was honored by the group, U.S. Term Limits, which brought the original 1994 challenge to the U.S. Supreme Court, as being a champion of term limits. Daines was honored in January 2025 for his support of term limits and legislation that would limit House members to three terms of two years; and Senate members to two six-year terms.
When the Daily Montanan contacted Daines’ office last year to ask about that, his office clarified through a spokesperson that while Daines supports term limits, he was not imposing them on himself until the rules were changed for everyone.
Occasionally, the United States Supreme Court will revisit issues that have been treated as decided case law. For example, in recent U.S. Supreme Court writings, Justice Clarence Thomas has indicated a willingness to reconsider the high court’s decision on same-sex marriage as decided in Obergfell, worrying some civil rights advocates.
In the case of Term Limits in 1995, that particular court leaned liberal, and four of the court’s more conservative members, including Chief Justice William Rehnquist and Antonin Scalia dissented in the 5-to-4 decision.
Today’s U.S. Supreme Court is much more conservative than the 1995 court, and because the issue was so narrowly decided, the court could revisit a challenge, especially since the conservatives were in the minority at the time.
However, Van Kley explained that the court can’t just pick up an old case and rewrite an advisory opinion. Instead, it would need to come to the U.S. Supreme Court through a legal challenge, and that would take someone to mount a new, contemporary challenge.
That challenge would likely have to come from someone like a Secretary of State who is charge of enforcing current election and candidate laws.
In his social media post, Monforton urged Montana Secretary of State Christi Jacobsen to take up the challenge. Yet, he also realized that probably won’t happen anytime soon.
Jacobsen is a Republican in a state where the GOP dominates politics. Jacobsen herself has announced that she’s running for a seat being vacated by current Rep. Ryan Zinke, Montana’s Congressman in the western district.
Challenging the term limit laws would require her to likely try to disqualify a Republican candidate since there are no Democrats from Montana who currently hold federal office — something she’s unlikely to do.
“Give it to them, Madam Secretary,” Monforton wrote before both Zinke and Daines had dropped out last week.