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INSTITUTIONAL CHANGE in American Politics
THE CASE OF TERM LIMITS
The University of Michigan Press
Copyright © 2007 University of Michigan
All right reserved. ISBN: 978-0-472-09994-8
Chapter One
Term Limits in State Legislatures Jennie Drage Bowser & Gary Moncrief
THE IDEA OF term limits has been around since the founding of our nation. The Articles of Confederation limited representation in the Congress to "three years in six." By 1777, seven states limited the number of terms that an executive officer could serve, and several states (Pennsylvania, Delaware, New York, and Virginia) passed some type of limit on legislators or requirement for their rotation in office. Moreover, six states-Delaware, Maryland, New Jersey, New York, Pennsylvania, and South Carolina-limited the terms of some local offices (Petracca 1992). The concept of term limits for members of Congress was proposed and debated during the Constitutional Convention but was not included in the proposed constitution. The process of ratification featured vigorous debate on the wisdom of term limits. Although left out of the Constitution, term limits and rotation in office remained popular principles throughout the nineteenth century, with most legislators voluntarily leaving office (Swain et al. 2000).
The modern push for limiting the terms of members of Congress and state legislatures took root in the late 1980s and early 1990s. The 1988 Republican Party platformcalled for limits on congressional terms. While early term limit initiatives in 1990 in California, Colorado, and Oklahoma appear to have been driven by local activists, most of the term limit initiatives in play by 1992 were organized and largely funded by a national organization, U.S. Term Limits (Rausch 2003, 230).
Almost all of the term limit proposals between 1990 and 1995 placed term limits on both congressional and state legislative office. By the close of 1994, twenty states had limited congressional terms, and twenty-one states had limited state legislative terms. For many people, the real motivation for term limits appeared to be to limit congressional tenure (Rausch 2003, 226), and many observers suspected that one of the primary goals of the term limit movement was to advantage the Republican Party in congressional elections, since the Democrats held a substantial majority of the congressional seats. This suspicion was reinforced by the GOP support of term limits in the 1994 Contract with America-the platform on which many Republicans ran for Congress.
But in 1995, congressional limits were ruled unconstitutional by the U.S. Supreme Court (U.S. Term Limits, Inc. v. Thornton 514 U.S. 779). The Court noted that states cannot place restrictions on qualifications for a federal office. State legislative limits, however, were allowed to stand. Ultimately, therefore, congressional term limits were abolished before ever being implemented. Twenty-one states were left with term limits on state legislative office. Eventually, term limits were repealed or invalidated by courts in six of those states, leaving fifteen states with legislative term limits currently in effect.
In four states-Massachusetts, Oregon, Washington, and Wyoming-the state supreme courts overturned term limits. In Massachusetts, Washington, and Wyoming, term limits were established via initiative change to the state statutes. All three states' supreme courts ruled that term limits constituted an additional qualification for office and that it was impermissible to establish constitutional qualifications for office in the statutes. None of these three states has a process for amending its constitution by initiative. In Oregon, the court case involved a different issue: whether an initiative may address more than one subject. The court ruled that since the 1992 initiative that imposed term limits in Oregon addressed more than one section of the state's constitution, it was in violation of the single-subject rule. In two other states, the legislatures repealed term limits. In both Idaho and Utah, term limits were statutory, rather than constitutional, meaning that the legislatures were free to repeal them without a popular vote. The Idaho legislature met resistance in the form of a gubernatorial veto, which was overridden, and then in the form of a popular referendum qualified by term limits proponents. The referendum sought to nullify the legislature's bill repealing term limits. But in 2002, Idaho voters rejected the referendum, leaving the repeal in place. The Utah legislature met little resistance when it repealed term limits in 2003. In all the states where term limits have been repealed, the term limits were established by statute (either through the statutory initiative or by direct legislative action) rather than by an amendment to the state constitution. None of the states in which term limits were established through initiatives to change the state constitution have seen term limits repealed.
The most recent elections involving term limits showed mixed results. In 1999, Mississippi voters defeated an initiative proposing term limits for legislators. In 2002, as previously mentioned, Idaho voters declined to reinstate term limits after the legislature repealed term limits earlier that year. Yet there were several elections in which term limit proponents were victorious. In 2000, voters in Nebraska approved term limits for the fourth time, after state courts had overturned the previous three attempts. Most recently, in 2004, the Arkansas and Montana legislatures presented voters with measures that would extend term limits to twelve years in either chamber (to replace the more restrictive six- and eight-year term limits passed in those states in 1992). Both measures were rejected.
Currently, then, fifteen states have term limits for legislators. Table 1.1 lists the states that have term limits for legislators. It gives the year they were enacted, the length of the limit by chamber, and the year that the first legislators in each chamber were (or will be) forced out of office.
States have adopted term limits with varying provisions. Some term limit laws are more restrictive than others. The most common limit is eight years in one chamber. But Arkansas, California, and Michigan impose a six-year limit in the House, and three states have a twelve-year limit. There is also the question of whether an individual can return to service after sitting out for a specified period. In some states (e.g., Arizona and Florida), state representatives can serve four consecutive terms (eight years), sit out a term, and then run again for the same chamber. In other states (e.g., Michigan and Missouri) term-limited legislators are barred from ever returning to that chamber; in other words, there is a lifetime limit. Table 1.2 shows the length of time an individual can serve in the fifteen term-limited states and whether the term limits in those states apply to consecutive terms or impose a lifetime ban. Thus, the severity of the term limit law varies by state. As discussion in later chapters will show, the restrictiveness of the term limit provision can significantly affect legislative career incentives and patterns, tenure, and power of legislative leaders, as well as interchamber relations and relative influence.
The 1996 election marked the first time that legislators were forced out of office by term limits, with a total of fifty-two members termed out in California and Maine. The impact in the 1998 election was much more dramatic. Half of the 100 House members in Arkansas and 63 of Michigan's 110 House members could not run for reelection. The Oregon House lost 22 of its 60 members to term limits that year (before term limits were later struck down by the Oregon Supreme Court). In Colorado, the Speaker of the House, the president of the Senate, the majority leaders in both chambers, the House minority leader, four of the six members of the joint budget committee and more than half of the twenty-six committee chairs were forced out by term limits.
By 2004, term limits had forced members out in twenty-six chambers in thirteen states. A total of 257 legislators in twelve states were ineligible to have their names placed on the ballot in 2004. At the end of that year, a total of 1,214 legislators nationally had been removed by term limits. Table 1.3 shows the number of legislators prevented from running for reelection in various years as a result of term limits. In addition, many other legislators have left before their terms have been completed, to run for other office in anticipation of term limits. In several states (e.g., Arkansas, California, Maine, and Michigan), term limits are now in a "second-generation cycle," in which those legislators who replaced term-limited legislators have now exhausted their term limit and themselves been replaced. Meanwhile, term limits are not yet even in the "first-generation cycle" in Louisiana or Nevada; no one will be barred from office due to term limits until 2007 in Louisiana and 2010 in Nevada.
Between 1999 and 2004, 139 bills to modify or repeal term limits were introduced in seventeen states. Most bills to modify term limits would require voter approval, because they amend the state constitution. In other words, these bills are actually referenda, which must be passed by the state legislature first and then submitted to the public. To date, very few bills to modify term limits have passed in state legislatures and subsequently been submitted to the voters. Just one has met with voter approval. In 2002, the Missouri legislature referred to the ballot a question that would exclude service resulting from elections to finish partial terms from the calculation of term limits, and voters approved the measure. As previously mentioned, in November 2004, legislatures in two states-Arkansas and Montana-proposed constitutional amendments to increase the limit on terms to twelve years in each chamber. Both measures were rejected by voters. The only other term limits bills to pass state legislatures were repeals of statutorily imposed term limits. These bills passed in Idaho in 2002 and Utah in 2003. (See the NCSL table on term limits legislation for 1999-2003 at http://www.ncsl.org/programs/legman/about/BillsAmndRplTL.htm.)
Just one state-California-has tried to modify term limits with a citizen initiative. In the March 2002 primary there, voters declined to pass an initiative proposal to lengthen term limits for their legislators. Proposition 45 would have allowed a termed-out legislator to petition for the right to run for up to four more years after reaching the constitutional limit. The measure received just 42 percent of the vote. The distinction between statutory term limits and constitutional term limits is therefore an important one. No state with constitutionally imposed term limits has repealed them or even modified them in any significant way. By comparison, most states in which term limits were imposed through statute have now repealed the limits through either judicial or legislative action.
The Term Limits Debate
The term limits debate in the late 1980s and early 1990s revolved around a basic issue that also faced the framers of the Constitution: does the value of rotating people in office outweigh the value of the knowledge and experience incumbent lawmakers bring to the job? Summaries of the basic arguments presented by the proponents and opponents of term limits follow.
Arguments in Favor of Term Limits
1. Term limits would allow more people to have the chance to serve in the legislature, thus retaining the notion of citizen legislatures.
Historically, one of the main arguments for rotation of offices is the desirability of moving officeholders back into private life and spreading the opportunity to serve to more people. Term limits would limit the time commitment, allowing people to take time out to serve in the legislature and then to return to their regular jobs. People working in the private sector and professions are not likely to run for office if they must spend ten to fifteen years in office to gain significant influence. Civic-minded individuals would be willing to serve for two, four, or six years and then go back to their careers. Term limits are a mechanism to ensure that legislatures remain citizen bodies, not organizations dominated by career politicians.
2. Those who run for office knowing that their terms are limited are more likely to represent their constituents' interests and to seek policy changes that might be opposed by entrenched interest groups.
Because term limits make it impossible to make a career out of legislative service, legislators would have less incentive to court interest groups for campaign contributions and other help in retaining their office. Because they know they will leave office in a short time, legislators elected under term limits will be more likely to take the political risk of opposing the desires of interest groups and to more vigorously represent the desires of the people.
3. Term limits reduce the extraordinary power of incumbents during elections. As a result, a more diverse group of people will be elected to state legislatures.
During the time that term limits were being debated, the reelection rate for incumbent members of Congress was over 90 percent. Although there was more turnover at the state legislative level, most of that turnover occurred through resignations, not electoral defeat of incumbent members. With the increased number of open seats due to term limits, it is likely that more women and racial minorities will be elected to state legislatures.
4. Interest groups would be weakened under a system with term limits, because such groups would not be able to develop long-term relationships with legislators.
It takes time for lobbyists to get to know legislators and develop solid working relationships with them. Career legislators come to be heavily dependent on lobbyists and interest groups for campaign contributions and develop long-term relationships with them. As a result, long-tenured members become less responsive to the general public. Under term limits, lobbyists will have to work constantly to get to know the new legislators and develop relationships with them. Because they do not plan to make a career out of legislative service, the legislators elected under term limits have less need for the campaign contributions and other favors that interest groups can provide.
5. Most states already limit the number of terms that governors can serve. Term limits on legislators are just an extension of this policy and level the playing field for all officeholders.
Legislators should be treated the same as governors in terms of having a limited amount of time in office. The limits on governors have worked effectively and help to ensure that the executive branch is infused with new ideas and fresh approaches to policy questions.
Arguments against Term Limits
1. Term limits interfere with the fundamental right of voters to elect their representatives. If voters do not want a person to represent them, they can vote him or her out of office.
We already have term limits-they are called elections. The people are the best judge of whether a person represents them effectively. Although term limits may remove ineffective or corrupt legislators, they also force hardworking, effective legislators from office.
2. By removing experienced and knowledgeable legislators, term limits weaken the legislative branch of government. A weak legislature upsets the balance of power that is the basis of the democratic form of government.
Legislatures comprised of new and inexperienced members will be at a disadvantage in terms of knowledge and the power that it brings. The governor and staff within the executive branch will gain power at the legislature's expense. Because the legislature is the branch most open and accessible to the people, the people will have less ability to influence the outcome of decisions on policy questions. By removing experienced members from the legislature, the ability of the legislature to effectively oversee the operations of the executive branch is reduced.
3. Term limits ignore the value of experience in crafting and managing public policy.
Term limits would remove legislators just as they are developing a working knowledge of how the legislature and state government operates. The loss of this institutional knowledge a
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