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August 1991

September 1991

Honolulu City Council Districts
Arguments for and against Limiting Terms of Council Members
Arguments for and against the Different Electoral Systems
Environment and Natural Resources
Conflict of Interest and Excusal from Voting
Testimony at Public Hearing
Uncharted Realm of Term Limitation (Jeffrey L. Katz)
Consensus Meeting
Golf Course Development Policies Workshop
Teamsters Vote Count

The Uncharted Realm of Term Limitation

It has caught the fancy of the voters, and it is coming in at least three states.
What in the world will life under it be like?

Carie Henrie illustration

It's swearing-in day at the Colorado House of Representatives, a cold January morning in Denver, early in the next century. The 65 legislators are greeting each other and sorting themselves into little clusters, corresponding to the four classes that make up the institution. About half are either just taking office or preparing to leave; all are allowed only four two-year terms under the law approved by voters back in 1990.

Each of the legislative classes is behaving about as those who watch the institution have come to expect. The freshmen are gaping at the ornate chambers and wandering the hallways, trying to reassure themselves that they aren't the first ones to have gotten lost. The second-termers, the sophomores, are relieved that much of the hazing is finally over, but still deferential to upperclassmen and realistic enough not to expect the best committee assignments.

Those with a couple of terms under their belts, the juniors, are swiveling in the chairs in their new, well-located offices, musing that these may be the best, most carefree days of their legislative careers before they grapple seriously with the burdens of earning a living outside the Capitol walls. And then there are the seniors, the lame ducks, who by tradition are just now settling into the most valued leadership and committee positions. Obsessed with their plans for after legislative graduation day, they will spend a disproportionate amount of time maneuvering for jobs on the outside.

Other seniors will be debating the sort of legislative gift they should bestow on the public as their class legacy. Some of them want to leave behind a new environmental program; others prefer a tax cut. All of them want to be remembered as a class that accomplished something before moving together into the cold world beyond. Many of them will find it difficult to concentrate on their legislative chores.

Is this what we can expect from term limitation? Is it possible that a movement launched last year with the idealism of a grass roots demand for good government will merely turn our legislatures into institutions plagued by all the depressing rigidities of high school? Could a law designed in part to control the evils of seniority actually end up magnifying them?

Perhaps. The preceding is one of many plausible scenarios that can be spun about the consequences of placing limits on legislative terms. But the very case of constructing those scenarios raises questions about the full impact of the reform. When it comes to term limitation, the possible side effects are endless and just as likely to come true as the movement's ultimate goal: a corps of public-spirited citizen-legislators eager to do the public's business untainted by the careerist virus.

One thing seems certain. We are going to find out how it works. California, Colorado and Oklahoma have already adopted citizen initiatives to limit state legislative terms. In Colorado, the limit on consecutive service will be four two-year terms in the House, two four-year terms in the Senate. In Oklahoma, it will be a total of 12 years in either chamber. California's new law will be the most restrictive: State senators will be able to serve a maximum of two four-year terms, but members of the Assembly, the legislature's lower house, will he allowed just three two-year terms.

The movement has been fueled, of course, by the growing public awareness of the extraordinary re-election rate in most legislatures. Nearly all the term-reformers cite the high costs of campaigning, the overwhelming incumbent fundraising advantage and the staff support that challengers cannot match. The result, they say, is a crew of life-tenured legislators out of touch with the way the public lives and thinks. The solution is to cut through the assurance of reelection, create more opportunities for candidates who are not career politicians and force the commonsense values of ordinary American people into the corridors of public office.

Ed Crane, president of the Cato Institute, a libertarian think tank, says turnover will he valuable in itself, almost regardless of who comes in. "I literally think," Crane says, "that you'd have a better legislature with a lottery." Lloyd Noble II, the Tulsa oilman who led the fight for Oklahoma's new law, envisions a broad cross section of citizens cycling in and out of legislatures, encouraged both by their chances of winning and of getting things done in a more dynamic institution. A legislative career, Noble says, "ought to be like serving on jury duty."

But is that realistic? Most juries serve for a few days or weeks. Twelve years is a long time; so, for that matter, is eight. Would people who are reluctant to break off their private careers to run for office under the current system be inclined to do so just because they could count on being back home in eight years?

"This notion that you're going to get citizen-legislators is silly," says Gary C. Jacobson, a political science professor at the University of California at San Diego. "You're going to get those people who can afford to interrupt their careers for a few years, and that precludes people who have a normal job or family life. It includes people who are wealthy or on pensions, retired people in general, and political fanatics or zealots who are willing to make that sacrifice for whatever they believe in."

Cleta Deatheridge Mitchell, who spent eight years in the Oklahoma House, is an advocate of term limits. She says those who stay in office term after term become ineffective watchdogs of the bureaucracy.

Steve Jennings photograph

In the larger states, particularly, it seems likely that the experienced political activists who make the strongest candidates now would also perform best in a term-limited world. Being motivated enough to run for and win a legislative seat will require certain skills and sacrifices no natter how often the seats come open. Candidates will still face financial disclosure, intense public and media scrutiny, door-to-door campaigning, a steady diet of speech-making and the burden of pleading for money from friends and strangers.

So even if term limitations do usher in more legislative newcomers, there is no assurance that they will be much different in background or outlook from the current crop. This is the argument made by Jeffrey A. Neubauer, chairman of the Wisconsin Democratic Party and a former legislator himself. "The person who wanders in and says, 'I'm middle-aged, raised a family, own a home and paid property taxes and you ought to vote for me because I'm a good guy or woman' -- they lose. They lose to younger, more aggressive people, well connected to the interest groups through their work as legislative aides." In Neubauer's opinion, a term limitation is not going to change that.

Cleta Deatheridge Mitchell knows all about those problems, having spent eight years in the Oklahoma House. But she believes that term limits will be worth it for the sheer turnover they will create, even if the same sorts of people are elected. She is a member of the board of Americans to limit Congressional terms, which is pressing its case upon the legislatures as well as Congress. "It takes a certain amount of ego," Mitchell agrees, "to take the risk and abuse and be foolhardy enough to believe you can run and win and make a difference. That's not going to change. But hopefully there will be more opportunities."

Or will there? A state that limits legislators to six two-year terms will be able to assume, on the average, a biennial turnover of 16 percent, plus whatever changes are brought about by the retirement or defeat of members who have not reached the 12-year limit. This means that the legislature can count on a big crop of newcomers every time -- if a reasonable number do retire or lose before their terms ill are up.

But some commentators argue that there will be very little competition within the 12-year tenure period, that once members have been in a term or two, challengers will be inclined to avoid taking them on, waiting for the seat to open up at the 12-year point. "Why take a risk trying to knock off an incumbent," Jacobson asks, when you know the seat will soon be vacant anyway? If that attitude takes hold, there might be less turnover with limits than without them.

In fact, there is currently quite a bit of turnover. According to a study published by the National Conference of State Legislatures, the lower houses of California, Colorado and Oklahoma all experienced membership turnover of 89 percent or more in the 12-year period from 1977 to 1989. Three-quarters or more of the Senate seats in Colorado and Oklahoma changed hands in that period, as did two-thirds of the Senate seats in California. In 1988 alone, there was a turnover of 24 percent of both houses in Colorado and 30 percent in Oklahoma. If competition in term-limit states dries up except when the seat is vacant, Cleta Mitchell's dream will be difficult to realize.

Some reformers see value not only in frequent membership changes, but in party changes as well. They argue that with no limits on tenure, one party can keep its majority almost indefinitely on the basis of incumbency alone. It is not only the individual challengers who have trouble being heard, it is the challenging party. No matter how good its platform or its talent may be, the minority party falls victim every two years to an avalanche of public relations gimmicks launched by the majority officeholders to keep their jobs.

Term limitation, its advocates say, would help even the score. "It strengthens whichever party has the better idea, better candidates, better resources," says Republican Terry Considine, a three-year veteran of the Colorado Senate and main author of that state's term limitation measure. Term limitation will be harmful, Considine believes, to the party that has the most to lose.

Perhaps. But the necessity of filling more open seats will put a premium on the parties' ability to recruit and assist a bigger crop of candidates. That could exaggerate the importance of the very qualities that gave a party the edge in a legislature in the first place. Paul Schauer, a Republican and l2-year veteran of the Colorado House who opposes term limits, says they would benefit "whichever party has the best trainers, has the more permanent party structure that can recruit candidates and influence candidate input and, once they're elected, keep them more in line with the party." In other words, the party that knows how to find 20 good candidates each election year might have an even greater advantage at finding 30 -- regardless of what the hot issues of the moment happened to be.

Whichever party predominates in a term-limited legislature, the members will have to conduct business in the absence of the 15- and 20-year veterans who have made many of the important decisions in the past. How would such an institution behave? Peter Schrag of the Sacramento Bee argues that the state's limitation law will turn the California legislature into "something that looks like an airport waiting room-inchoate, without organization or leadership, where most of the occupants are either just arriving or just preparing to go.

That is not what the reformers have in mind at all. As they see it, a legislature purged of its most senior members will finally be able to select leaders on a rational basis, choosing the people with the most ability, not people who have simply been there the longest, or who take orders from those who have. There will be more competition for leadership posts and key committees. Ideology will count for more, as will specific public policy stands and styles of governing. "You would see a much more substantial style of campaigning for those positions," says Jim Weber, director of Americans to Limit Congressional Terms.

That remains to be proven, however. If nobody in a legislature has more than a few terms of seniority, then seniority might be more precious, not less. Awarding key positions on an automatic basis to the least inexperienced people might he hard to avoid. If nothing else, it would guarantee everybody a slice of power in the brief time before they were mustered out.

If term limits promise a change in the way legislatures organize themselves, they promise an equal change in the way legislatures interact with the rest of the political system. And that is exactly what many of the reformers would like. They believe that familiarity breeds coziness, and ultimately cronyism -- between legislators and the lobbyists and bureaucrats they should be dealing with on an arm's-length basis.

In the term-limited legislature Jim Weber envisions, so many members would he rotating in and out that it would be much harder for lobbyists to do business on a buddy system. As Weber sees it, lobbyists would be forced to stop patting backs and start talking more about the merits of legislation. "It ought not to be a wink and a nod and a campaign contribution," Weber says.

Henry McMaster, who ran unsuccessfully for lieutenant governor of South Carolina last year on the issue of term limits, makes the same point. He concedes that a term-limited legislature might be more dependent upon lobbyists for information than an experienced legislature is now. But he thinks that, with the right sort of members, that wouldn't be anything to worry about. "If you have good people running," McMaster insists, "going to a lobbyist for information is like going to a library for information. You have to sort out the good information from the bad." He is confident that clear-headed newcomers arriving fresh from the outside world would, if anything, be better able to do that than the current bunch.

It should come as no surprise that today's senior legislators disagree with this idea. Political scientists generally disagree with it as well. Many argue that the typical legislative freshman -- short of experience and information, frequently burdened with a large campaign debt that has to be retired -- is the most susceptible to trickery by lobbyists.

"That's when a member feels especially beholden," says Thomas E. Mann, director of governmental studies at the Brookings Institution. "Over time you acquire some independence and confidence." Under term limits, Mann says, legislators would acquire those traits just as they were nearing their final terms and thinking about jobs in the outside world. In some cases, the jobs they were applying for would be lobbying jobs. It does not sound like a recipe for creating McMaster's world, in which lobbyists are used solely for purposes of information.

Cleta Mitchell worries about legislators being soft on bureaucrats. She says those who stay in office term after term become ineffective watchdogs of the bureaucracy they're supposed to be overseeing. "People get familiar with executive agencies," she says. "They get familiar with personnel and programs, and they become unwilling to challenge them because they become their friends." During her tenure in Oklahoma, Mitchell watched legislators pal around with bureaucrats, increase agency appropriations in order to get jobs for their cronies and generally take the edge off what she believes should be an adversarial relationship.

Imposing term limits may be a good way to re-establish an adversarial attitude toward the bureaucracy. What is not so clear is whether a legislature loaded with junior members would know enough about the system to be a competent adversary. "The bureaucrats are going to be here forever," says Ted Strickland, president of the Colorado Senate. "Their experience in dealing with legislators is going to be much greater than that of the legislators who will be dealing with the bureaucrats." Strickland thinks a legislature full of short-termers will get outsmarted time after time. He warns of agencies that will wait until after the year's legislative session and then embark on new programs or initiatives that don't have legislative approval.

"It takes a while to have a good understanding of the budget, and a budget is the lifeblood of any agency," says Wayne Goode, a 28-year veteran of the Missouri Senate. "When you don't have people there who understand it, the bureaucrats are going to have a better opportunity to build empires, hide items in the budget and build the size of the bureaucracy around them, because people are going to quickly forget what they got a couple of years ago."

To term-limit activists, of course, that is merely the special pleading of incumbents who don't want to be forced from office. "I happen to believe that new, enthusiastic, interested lawmakers as they go through their learning curve can test and keep an eye on the bureaucrats," says Los Angeles County Supervisor Pete Schabarum. He is a prime sponsor of the new California law that limits Assembly members to six years and state senators to eight.

If state bureaucrats have reason to be happy about term limits, governors may have more reason. Although some who favor the limits say their goal is to make legislatures more creative and dynamic, others acknowledge that a less experienced legislature without a continuing core of veteran members world wield less clout when jousting with the chief executive. As they rotate from office, legislative leaders would have less leverage to strike a deal with the governor and probably less instinct for what sort of deal to strike. The senior legislators who exercise personal power over large areas of public policy would gradually become extinct.

Ted Strickland, president of the Colorado Senate, thinks that a legislature full of short-termers will get outsmarted time after time by the bureaucrats.

Ernie Leyba photograph

This is seen by some reformers as a blessing. Ed Crane, of the Cato Institute, longs for less aggressive legislatures. He claims that veteran lawmakers get indoctrinated in the political culture of a state capitol and end up spending too much money and adopting too many regulations. Similarly, Henry McMaster figures less experienced legislators would be more willing to take sensible direction from a chief executive who has the welfare of the entire state in mind. "I think the legislature ought to be weaker in its interaction with the governor," he says.

Alan Rosenthal, the Rutgers University political scientist who has studied governors and legislatures for 20 years, believes that sapping legislative authority may make states overly dependent on governors in a system that is supposed to feature separation of powers. Under term limits, he says, "it will be up to the governor to advance a program, provide the experience and pull the legislature together even to a greater extent than they do today. The legislature will be a weak branch of government." He does not want to go back to the rubber-stamp legislatures that predominated in many American states a generation ago; it is an open question whether most term-limit reformers, if they remembered the old days of arbitrary gubernatorial power, would want to go back to them either.

In the end, it is not turnover or partisan change or competition that reformers mainly seem to want. It is courage. They believe they can generate a new breed of legislator willing to make the right decisions on the basis of facts and common sense regardless of the political repercussions. Pete Schabarum, the Los Angeles County supervisor, believes term limits will gradually attract people who will take risks that the incumbents currently fear. He doesn't mind that this might mean going against the majority's wishes. "On some occasions," he says, "that isn't all bad."

If Schabarum is right that term limits are a formula for creating the political courage that today's legislatures often lack, then there probably is no good argument against them. But one has to take that on faith. It isn't just a swarm of special interests that block the enactment of sound public policy, it's also the absence of any public consensus on major issues. Term limitations wouldn't change that. The same forces that make legislators reluctant to take unpopular or controversial stands now are likely to temper term-limited legislatures in the same way.

Or so concludes Joe Clarke, a 21-year veteran of the Kentucky House. Clarke says he has spent years trying to persuade lame-duck legislators to vote their consciences, and finding that the prospect of retirement doesn't make them any more courageous. Not long ago, Clarke reminded a lame-duck colleague that he needn't worry about political retribution, since he wasn't seeking re-election. "No," the man told him, "but I'm going to be living back there."

Jeffrey L. Katz

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