McGeorge School of Law

Proposition 45

Proposition 45:
Legislative Term Limits.
Local Voter Petitions.

By Peter Perkins

Copyright © 2001 by University of the McGeorge School of Law

JD, McGeorge School of Law, University of the Pacific
to be conferred May 2003 with Certificate in Governmental Affairs
B.A., History, University of the Pacific, 1982

Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues

IV. Constitutional Issues
V. Public Policy Considerations
VI. Conclusion

I. Executive Summary

The California Constitution has mandated term limits for the elected State Legislators since voters passed Proposition 140 in 1990. Many questions regarding term limits effectiveness have arisen during the subsequent decade. Both proponents and opponents of term limits find fault with the existing law. Under current law, State Assembly Members are limited to three 2-year terms and State Senators to two 4-year terms. Cal. Const. art IV §2(a) (Deering's 1999). Proposition 45 provides for an additional 4 years of eligibility for office to certain legislators. Text of Proposition 45 Section 2, http://caag.state.ca.us/initiatives/pdf/sa2001rf0012.pdf (accessed Dec. 11, 2001). This represents up to a 66% addition to their existing term as limited by the current California Constitution. While Proposition 45 appears sound constitutionally, there is one overriding public policy issue that must be addressed by the voters in March 2002. Do voters in the State of California want uniform term limits throughout the State as they are established under Proposition 140, or would they rather allow local districts to retain a particular legislator for a longer term? The underlying sub-issue is, do voters want to effectively abandon term limits?

Proposition 45 is described by proponents as an attempt to allow "a few specially skilled and popular lawmakers" to run for reelection for an additional four years in office. (Id.) They claim that by doing so, there will be more control of the election process at the local level. Karin Caves, Initiative Summary (accessed Aug. 17, 2001). Proponents also claim Proposition 45 will maintain the integrity of the original term limits while enhancing local control. (Id.)

Opponents of Proposition 45 view it as a method to avoid term limits imposed by the voters in 1990. Telephone Interview with Todd McCaully, Representing USTL (Sept. 24, 2001). They claim Proposition 45 does nothing more than allow legislators and special interest groups to circumvent the law as enacted by the voters in 1990. John Ellis, Initiative would ease term limits: Advocate who opposes change will stop in Fresno today, Fresno Bee B1 (July 11, 2001). John Ellis' article describes Proposition 45 as a "smarter, slicker and more deceptive" effort to repeal term limits. (Id.)

Proposition 45 contains some drafting issues. Under current law, term limits are for the life of the legislator. Legislature v. Eu, 54 Cal. 3rd 492, 286 Cal. Rptr. 283, 816 P.2d 1309 (1991). cert. denied 503 U. S. 919 (1992). While Proposition 45 clearly extends term limits, it is not specific to which termed out legislators it applies. Proponents assert Proposition 45 will only apply to currently elected officials, but the initiative's text is not clear whose name petitioners could place on the ballot. [Interview with Karin Caves, Spokesperson for Citizens' Right to Petition, (Sept. 12, 2001)]. Proposition 45 also contains ambiguous language regarding legislators whose districts are redistricted. The courts will likely have to decide these issues if voters pass Proposition 45.

Proposition 45 will result in a minimal fiscal impact associated with certification of petition signatures and other costs relative to placement of a candidate on a ballot.

II. The Law

A. Existing Law

1. The Law Before Proposition 140 (November 6, 1990)

Before Proposition 140 implementing term limits for the first time was passed in November of 1990, the California State Constitution article IV §2 merely delineated when the terms of office began and set forth rules for election and eligibility. Cal. Const. art. IV §2 (repealed 1990 by Cal. Const. art. IV) (West 1983). It called for 40 State Senators to be elected for terms of 4 years and 80 Assembly Members to be elected for terms of 2 years; it contained no provisions regarding how many times a legislator could be elected to the same elected office. (Id.)

a. Origin of Current Term Limits

Prior to November 6, 1990, California had no set limit on the number of terms its elected officials might serve in any particular office. This meant persons elected to office within the State of California were free to seek reelection for an unspecified number of terms. A result of unlimited terms created what some have called "career" elected officials. Peter F. Schabarum, Lewis K. Uhler, and J. G. Ford, Jr., Proposition 140 Full Text, http://www.holmes.uchastings.edu/cgi-bin/starfinder/23916/calprop.txt> (accessed Sept. 28, 2001) at 3.

Proponents of term limits, and election reform in general, claimed "career" elected officials did not care about their constituents wishes because it was easy for them to reelected because, "incumbents have rigged the system in their favor so much elections are meaningless." (Id. at 7.) They said "career" legislators catered to special interests in order to obtain necessary funds to finance their re-elections. (Id.) Last, proponents of term limits argued "career" elected officials used their positions to secure better retirement benefits for themselves through the Public Employees Retirement System (PERS). (Id. at 4.)

During the 1980's, a grassroots movement began in the United States that espoused election reform. Term limits were a predominate part of that election reform movement. Election reform reached a high point in California politics in 1990 when two competing initiatives dealing with election reform were placed on the California State Ballot for the November 6, 1990, general election. The voters could chose either Proposition 131 or Proposition 140; both mandated term limits for elected officials.

Proposition 131 covered expansive political reforms ranging from term limits to campaign funding and spending limits. Proposition 131 Full Text, (accessed Sept. 28, 2001). Voters rejected Proposition 131 defeating it by a margin of nearly 2 to 1 (37.75% Yes, 62.25% No) (Id. at 1.) Proposition 140 addressed term limits and retirement benefits of elected officials. Proposition 140 Full Text at 9. A narrow majority of the voters passed it (52.17% Yes, 47.83% No). (Id. at 1.) This California Supreme Court held Proposition 140 mandated a lifetime limit of two terms for California State Senators and a lifetime maximum of three terms for California State Assembly Members. Legislature v. Eu, 54 Cal 3d at 506.

b. Court Challenges to Existing Term Limits

Although Proposition 140 was passed by a majority of the California voters, opponents challenged its legality in two main cases. Legislature v. Eu, 54 Cal 3d 492; Bates v. Jones, 131 F.3d 843 (9th Cir. 1997), cert. denied 523 U. S. 1021 (1998). The issues in the main case addressed by the state courts ranged from whether voters were appropriately informed about the effect of the proposition to whether the proposition imposed a lifetime ban on reelection. Legislature v. Eu, 54 Cal. 3rd 492. The California Supreme Court held the provisions of Proposition 140 imposing term limits, restricting legislative budgets, and limiting pension benefits constitutional. (Id.) However, utilizing the severance clause contained within Proposition 140, the Court did invalidate pension provisions relative to legislators who were currently in office. (Id. at 535.)

The second set of challenges came in the federal courts where the term limits provisions of the initiative were reviewed under the United States Constitution. Bates, 131 F.3d 843 (9th Cir.1997). These challenges focused on the constitutionality of Proposition 140 under the First and Fourteenth Amendments of the United States Constitution. (Id.) Additional constitutional concerns included whether term limits generally limited a person's right to vote. (Id. at 847.)

Initially, the United States District Court, for the Northern District of California found term limits invalid because voters were not informed of their full effect. Bates v. Jones, 1996 U. S. Dist. Lexis 20998 (N.D. Ca. May 30, 1996). This decision was reviewed en banc by the United States Court of Appeals for the Ninth Circuit who overturned the District Court and upheld the term limit provisions of Proposition 140. Bates, 131 F.3d 843 (9th Cir. 1997). The Court concluded the portion of Proposition 140 amending the California Constitution by establishing term limits did not violate the First or Fourteenth Amendment rights of the voters. (Id.) The Court further found the minimal impact on plaintiff's rights was justified by the State's interest in avoiding unfair incumbent advantages. In addressing the "plaintiff's rights," the Court was addressing not only listed plaintiffs in the case but also those elected officials who were eventually affected by term limits. (Id.) But cf. U. S. Term Limits v. Thorton, 514 U. S. 779, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995) (finding state imposed term limits on Arkansas' elected federal officials unconstitutional.)

2. Scope of Current Term Limits

Proposition 140 survived the court challenges and effectively amended the California Constitution by establishing lifetime term limits for California legislators. The Constitution now states, "The Senate has a membership of 40 Senators elected for 4-year terms, 20 to begin every 2 years. No Senator may serve more than 2 terms. The Assembly has a membership of 80 members elected for 2-year terms. No member of the Assembly may serve more than 3 terms." Cal. Const. article IV §2(a) (Deering's 1999).

B. Changes Proposed by Proposition 45

1. Summary of Changes Proposed

Proposition 45 creates sections 21 and 22 in California Constitution article II, Voting, Initiative and Referendum, and Recall. These sections would allow local voters to circulate a petition within their district to allow an otherwise "termed out" legislator's name to be placed on future ballots for an additional term or terms not to exceed 4 years. If the petitioner secures the required number of signatures, a State Senator could run for one additional 4-year term and a member of the Assembly could run for two additional 2-year terms.

2. The Text of Proposition 45

a. Section One: Preamble

The Preamble of Proposition 45 identifies the proponent's position with respect to changes in the law. In it, they allude to a reinvigoration of political process and the recognition of specially skilled and popular legislators who have been, or may be, term limited and the impact on the constituency that results. The Preamble states:

 

Term limits have reinvigorated the political process by promoting full participation and bringing a breath of fresh air to California government. The people recognize that in some instances a few specially skilled and popular lawmakers have been unable to complete important legislative programs for their districts before they must leave office. In recognition of these special cases, the people of California seek an opportunity to extend some specific district representatives' terms in office by a maximum of 4 years.

 

 

b. Section Two: Text

Section two of Proposition 45 contains the text of the two proposed sections of Article II that form the constitutional amendment. Section two is divided into the text of Section 21 and the text of Section 22. Both sections will be entirely new additions to the constitution and do not replace any existing text. Section 21 is the lifeblood of the initiative and provides for the change in term limits. Section 21, added to article II of the California Constitution will read as follows:

 

Section 21. Local legislative option. Local legislative option is the power of the voters residing in an Assembly or Senate district to exercise an option to allow their term-limited state legislator to stand for re-election for an extended term(s) in office, not to exceed a total of four years, notwithstanding Article IV, Section 2(a) of this Constitution.
(a) Local legislative option may be exercised only one time per lawmaker.

 

 

Section 22 contains the nuts and bolts of enacting Section 21. Section 22 identifies the who's and how's of the petitions. It tells who can circulate petitions, who can run, who can sign the petitions and who is charged with their verification. Section 22 also tells how a petition must qualify, how a legislator chooses a district if theirs was redistricted, and how the petition should look.

C. Support for Proposition 45

1. Proponents

The official proponents of Proposition 45 are a group under the direction of Louis Meunire who identify themselves as the "Citizens' Right to Petition."[1] The Citizens' Right to Petition views term limits as too stringent and inflexible for the needs of the people of California. Interview with Karin Caves, Spokesperson for Proposition 45 (Sept. 12, 2001). It is their goal to allow "the local community" the opportunity to try and reelect a popular legislator who was termed out. (Id.)

2. Additional Supporters

There is a substantial list of organizations that have officially endorsed or made contributions to the campaign for Proposition 45. This list includes, but is not limited to, the League of Women Voters, Congress of California Seniors, California Retailers Association, California School Employees Association, California Medical Association, and various firefighter and law enforcement associations. Citizens' Right to Petition Initiative; List of Endorsements, copy of list provided by Karen Caves during aforementioned interview, on file with California Initiative Review, McGeorge School of Law.

3. Opponents to Proposition 45

The main organized opposition to Proposition 45 is the U. S. Term Limits organization. U. S. Term Limits (USTL) is an internet based organization represented by Paul Jacob, the National Director, and Stacie Rumenap, the Proposition 45 coordinator.[2] Their stated purpose is to promote term limits for both state and federal elected officials. Telephone Interview with Todd McCaully, Representing USTL (Sept. 24, 2001).

III. Drafting Issues

Proposition 45 contains two distinct parts, the Preamble and the text of the proposed constitutional amendment. If passed, Proposition 45 would add two new sections to article II of the California Constitution. The first section, 21, allows voters to have a termed out legislator placed on the ballot for an additional 4-year term or two 2-year terms. The second section, 22, delineates the method for obtaining, qualifying, and certifying the petition to add the termed out legislator's name on the ballot. There are drafting and language concerns in each proposed section. Adding to the language concerns and creating additional confusion is the drafter's failure to use the more definitive term "incumbent" rather than "legislator" or "lawmaker." See generally, Cal. Elec. Code §13108 (definition of incumbent) (Deering's 1999).

A. California Constitution, Article II

1. Addition of § 21

Section 21 states in part, "…to allow their term-limited state legislator to stand for re-election for an extended term(s) in office, not to exceed a total of four years, notwithstanding Article VI, Section 2(a) of this Constitution." Because the text is not clear that the petitioning legislator must be the incumbent in office immediately prior to seeking the additional term, there is room for various interpretations.

First, the language allows for a legislator who was previously "termed out" to have a petition circulated to allow them to run for an additional term or terms. Because the language is not specific, it could reasonably apply to legislators who have been out of office for some time. Because the language is not specific, courts generally will look to other indicia of the voters' intent. Kennedy Wholesale, Inc. v. State Bd. of Equalization, 53 Cal. 3d 245, 250 (1991). If the court finds the voters intended to allow only current legislators to run for the additional terms, the initiative will be interpreted that way. Furthermore, it is likely that courts would interpret the initiative to restrict it to current legislators in light of Section 22(d) which states in part, "Legislators permitted to run under this section may run only in the district in which they are currently serving,…" The courts will try and find the interpretation that will best further the statutory purposes. Escobedo v. Snider, 14 Cal. 4th 1214, 1223 (1997). In doing so, "The court must consider the consequences that might flow from a particular construction and should construe the statute so as to promote rather than defeat the statute's purpose and policy." Sylva v. Board of Supervisors, 208 Cal. App. 3rd 648, 654 (1989). In any case, the issue will most likely have to be decided by the courts.

A more pertinent question is whether a candidate for the Assembly filing under the proposed Section 21 can run for office twice even though he is not reelected the first time. The wording allows an Assembly Member to seek reelection for two additional 2-year terms. It does not address the issue of what would happen if they failed in their attempt to be reelected immediately after their term limited removal. Would the now lifetime term limited legislator be allowed to run again after the 2-year term is completed by the previous challenger, now current incumbent, or would failure to secure office negate a second attempt? Furthermore, assuming they were allowed to run for office after the 2-year term was served by the new legislator, would the previously termed out person still be eligible to run for and serve an additional 2-year term if elected? Neither the wording of Section 21, nor the wording of the proposed petition in Section 22(f) significantly clarifies this issue.

Because the language is highly ambiguous, it is likely to encourage substantial court challenges if approved by the voters. As previously noted, courts generally look to the voters' intent. Kennedy Wholesale, Inc. v. State Bd. of Equalization. Because the stated intent is to allow "specially skilled and popular lawmakers" the opportunity to seek reelection, the termed out incumbent would probably not be able to run again after the 2-year hiatus. Preamble to Proposition 45, supra at §II(B)(2)(a). The courts would probably view the voters refusal to reelect the termed out legislator as invalidating the claimed goal of the petition to keep "specially skilled and popular lawmakers". (Id.).

Whether seeking clarification of who can petition, or how long the petitions are applicable, court challenges from previously termed out legislators and from people seeking to maintain existing lifetime term limits will surely ensue as a result of the ambiguous language contained in Section 21.

2. Addition of § 22

Several concerns arise in the drafting of Section 22 and in particular subsection (d). It states legislators would be allowed to "run only in the district in which they are currently serving, or if that district is changed pursuant to redistricting, then in the successor district whose lines include the larger portion of the former district." It allows for redistricting to create a situation where an incumbent might not get the necessary signatures to run for reelection from his current constituency, however, he might be able to in a newly modified district. It also does not specify whether "larger portion" refers to registered voters or geographic area. Furthermore, it also does not address a legislator whose residence places them in a different district as a result of redistricting. Last, it does not provide any direction for a termed out incumbent whose district might be absorbed into two or more other districts that have a current legislator and who are out of the termed out legislator's rotational election pattern. For example, half of the State Senators are elected every two years for a 4-year term. Under the language of the proposition, a termed out Senator whose district was redistricted may fall in between elections for the new district that he would have to run for reelection in.

a. Drafting Issues With the Term "larger"

Because redistricting is a political function, it is possible to create a district so "gerrymandered" as to allow an otherwise termed out incumbent to secure the necessary signatures on the petition where they might not have been able to in their previous existing district. By eliminating a significant portion of the population "against" the incumbent seeking reelection under Proposition 45, an otherwise termed out legislator could secure placement on the ballot against the true wishes of his or her prior constituency and in direct opposition to the stated purpose of the initiative.

Second, because redistricting primarily focuses on rough population equivalents, it would be easy to split a district into two portions wherein one is geographically larger and the other is larger by population. The text of the proposition is unclear as to what is meant by "larger portion" of the former districts.

b. Drafting Issues With a Termed Out Legislator Who Does Not Reside in the Newly Redistricted Area to be Represented

California Elections Code § 201 Eligibility for elective office states:

 

Unless otherwise specifically provided, no person is eligible to be elected or appointed to an elective office unless that person is a registered voter and otherwise qualified to vote for that office at the time that the nomination papers are issued to the person or at the time of the person's appointment. Cal. Elec. Code § 201 (Deering's 1999).

 

 

Under this statute, a candidate is required to have their domicile within the district for which they seek office. While it is possible the provisions of Proposition 45 might trigger the "otherwise specifically provided for" clause of Section 201 of the Elections Code, a candidate may be in violation of state law if they file for elected office in a district where they do not have voting rights. Even if Proposition 45 provided the necessary "exception" to the California Elections Code § 201, there are significant public policy concerns relative to an elected official whose decisions may not necessarily affect their own hometown.

c. Drafting Issues With Being Termed Out and Redistricted Into a Different Election Rotation.

Finally, the initiative is unclear about the status of a termed out legislator whose district is redistricted and the "larger portion" of the district falls into a district where the election cycle is antithetical to the previous district. The California Constitution states in part, "The Senate has a membership of 40 Senators elected for 4-year terms, 20 to begin every 2 years." Cal. Const. art. IV § 2(a) (Deering's 1999). Under the Constitution, it would be possible for a termed out Senator to have their district absorbed into two or more districts wherein those legislators are in the middle of their term. If this were the case, a question arises as to whether the termed out Senator would be allowed to petition during the next voting cycle for placement of their name on the ballot.

3. Severance Clause
In response to State Supreme Court decisions allowing unconstitutional portions of initiatives to be severed from constitutional portions, many ballot initiatives include a severability clause in their text. Proponents of Proposition 45 failed to include such a clause believing there is no portion that may be severed without destroying its fundamental purpose. Interview with Karin Caves, Spokesperson for Proposition 45 (Sept. 12, 2001).

IV. Constitutional Issues

A. U. S. Constitution

Proposition 45 should not face the same challenges to its federal constitutionality faced by Proposition 140 in 1990. As previously noted, Proposition 140's term limits survived constitutional challenges under the First and Fourteenth Amendments of the United States Constitution in both State and Federal courts. Bates v. Jones; See also, Legislature v. Eu. Proposition 45's impact of extending existing term limits is unlikely to generate any significant challenge to its federal constitutionality.

B. California Constitution

The California Constitution outlines the legal requirements for an initiative to create a statute or amend the state constitution. Cal. Const. art. II §8 (Deering's 1999). It spells out requirements for an initiative's placement on the ballot as well as other conditions it must meet in order to be constitutional. Cal. Const. art. II §8(b)(c) (Deering's 1999). These conditions include single subject requirements, prohibitions on interference with the essential functions of a branch of the government, and prohibitions on alternate or cumulative provisions. Cal. Const. art. II § 8(d)(e)(f) (Deering's 1999). Additionally, initiatives may only amend the constitution, not revise it. Amador Valley Joint Union High Sch. Dist. v. State Bd. Of Equalization, 22 Cal.3d 208 at 222, 223 (1978).

The various components of Proposition 140 were thoroughly litigated both in the federal courts and in the state courts. Legislature v. Eu and Bates v. Jones as noted in section I and II. After substantial review by the courts, the current term limits on elected state officials were found constitutional. (Id.) Proposition 45 seeks to amend the State of California Constitution to allow placement of a termed out legislator on the ballot. Given that the law allows initiatives to amend the Constitution of the State of California, it is unlikely this extension of term limits will be deemed unconstitutional. Cal. Const. art. II § 8 (Deering's 1999). Furthermore, it should be able to pass the constitutional requirement that an initiative address a single issue only and merely amend the constitution rather than revise it.

1. Amendment vs. Revision of State Constitution

The constitution allows voters to "propose statutes and amendments to the Constitution and adopt or reject them." (Id.) It does not allow voters to revise the constitution. Amador Valley, 22 Cal. 3d at 223. The California Supreme Court has employed an analysis of both the quantitative and the qualitative effect of an initiative to determine if an initiative was a constitutional revision or an amendment. Raven v. Deukmejian, 52 Cal. 3rd 336 at 351, 352 (1990). They defined the quantitative test stating language that was, "so extensive in its provisions as to change directly the 'substantial entirety' of the Constitution by deletion or alteration of numerous existing provisions may well constitute a revision thereof." (Id. at 351.) They also included a qualitative effect stating, "a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also." (Id. at 351, 352.)
Where the effect of the change is substantial, the court has found an initiative to present a revision despite the lack of a substantial quantitative effect. (Id.) The proponents of Proposition 45 clearly intend it to be an amendment by their filing it as such with the Secretary of State. Additionally, the text of the proposition itself meets neither the quantitative nor the qualitative requirements imposed by the California Supreme Court to deem it a revision rather than an amendment. Amador Valley, 22 Cal. 3d 208; Raven, 52 Cal. 3d 336. Proposition 45 simply does not have the substantial impact necessary to invalidate it as a revision and would probably withstand such a challenge to its constitutionality.

2. Single Issue or Cumulative Provision Problems for Proposition 45

The California Constitution states, "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect." Cal. Const. art. II § 8(d) (Deering's 1999). The State Supreme Court has long held a standard requiring separate parts of an initiative to be "reasonably germane" to each other. Brosnahan v. Brown, 3 Cal.3d 236 at 241 (1982). Although Proposition 45 addresses the right of voters to petition for term extensions for both Assembly Members and State Senators and the process for placing them on the ballot, it clearly falls under the single subject rule as imposed by the California Supreme Court.

Subsection (f) of Section 8 prohibits an initiative from containing language that allows alternative or cumulative provisions based upon receiving a specified percentage of the vote. Cal. Const. art. II § 8(f) (Deering's 1999). Proposition 45 abides by this subsection and contains no such provision.

V. Public Policy Considerations

A. Does Proposition 45 Support the Goals of the Initiative as Stated?

Proponents of Proposition 45 say it gives local electors more control in deciding
the term of their legislators. Karin Caves, Initiative Summary, http://www.petitionrights.org/summary.htm> (accessed Aug. 17, 2001). Proponents also say extending term limits is necessary to promote stability and continuity within the state legislature. Caves interview, supra. Term limit opponents generally allude to a need for experienced politicians to chair committees and act as leaders of the houses. Mitch Frank, When Rookies Rule the Roost, Time pg. 8 (June 18, 2001). The proponents of Proposition 45 argue there is a need to retain, "a few specially skilled and popular lawmakers" that have been "unable to complete important legislative programs for their districts before they must leave office." Citizens' Right to Petition, text of Preamble, (accessed July 12, 2001).

1. Increase Local Control of Election Process

Proponents say Proposition 45 allows local electors to control their local elections by circulating a petition that places a termed out incumbent on the ballot for 4 additional years. (Id.) Proponents argue that by restricting who can sign a petition for placement of the incumbent's name on the ballot, voters retain more local control over the election process. Caves interview, (Sept. 12, 2002). They argue the number of signatures required to get an incumbent on the ballot is so demanding only a truly special incumbent could meet it. (Id.) Proposition 45 requires signatures from 20% of the number of people who voted in the previous election for that office. Text of Proposition 45 § 22(b), http://caag.state.ca.us/initiatives/pdf/sa2001rf0012.pdf (Accessed Dec. 11, 2001).

Proponents note the 20% requirement is more than is required to place a local initiative on the ballot and is the same requirement for a recall vote on a state legislator. Cal. Const. art. II, § 14(b) (Deering's 1999).

Opponents to Proposition 45 (the U. S. Term Limits organization, or USTL) argue voters are being deceived. Telephone Interview with Todd McCaully, Representing USTL (Sept. 24, 2001). Opponents further say the 20% voter requirement for petitioning the incumbent's placement on the ballot is insignificant. Stacie Rumenap, Politicians, special interests fund Proposition 45 to weaken term limits (accessed Sept. 10, 2001). Paul Jacob of USTL states, "It would be the rare occasion when incumbents, fueled with special interest money and name recognition, would not be able to get these signatures." (Id.) They claim Proposition 45 is not supported by the voters but by incumbent legislators and special interest groups. USTL cites an article in the Sacramento Bee identifying the source of substantial funding for Proposition 45. The Bee said funding for Proposition 45 came from current legislators and "the Capitol's highest profile interest groups having business before the Legislature." Dan Smith, Initiative seeks to loosen term limits, Sacramento Bee A3 (August 2, 2001).

2. Provide Stability and Continuity Within State Legislature

Proponents argue legislators need more time in office to get used to the political process. Mitch Frank, When Rookies Rule the Roost. They contend that because legislators remain in office only briefly, there is instability in the State Legislature and a lack of continuity in achieving important legislative goals. (Id.) They refer to a number of states that have rejected previously imposed term limits as unworkable. (Id.) They claim the inexperience of newly elected legislators in making public policies leaves them at the mercy of lobbyists and special interest groups. (Id.) Proponents argue legislators barely learn the political process before they are termed out of office. (Id.) Opponents argue term limits are in direct conflict with Proposition 45. Dan Smith, Initiative seeks to loosen term limits, Sacramento Bee A3 (August 2, 2001). They claim it allows politicians to remain in office for extended periods of time. (Id.) Opponents claim the major goal of term limits is to keep legislators from becoming too political. (Id.) They argue it is just another way of "chipping away" at term limits. (Id.)

3. Allow Legislators to Complete Important Legislation Prior to Being "Termed Out"

The last argument for Proposition 45 centers on the inability of some legislators to "complete important legislative programs for their districts before they must leave office." Text of Proposition 45, Preamble, supra at 1. Proponents assert that several important pieces of legislation have not been enacted because a particular legislator was termed out of office. Caves interview (Sept. 12, 2001). They contend an additional term or terms would allow the legislators to finalize important legislation for their districts. (Id.) Although proponents of Proposition 45 claim that important legislation might not be enacted because a legislator was term limited out of office, they have not provided any specific examples to support their claims.

Opponents counter the "complete important legislation" argument with two points. First, there is no guarantee any legislator will be elected for even a second term in office. McCaully interview (September 24, 2001). Furthermore, because there is no assurance of any reelection, each term must be viewed as an independent block of time in which to complete important legislation. (Id.) The opponents second argument against this position is a simple question, "If six or eight years is not enough time to get important legislation passed, what good will another four years do?" (Id.)

B. Does Proposition 45 Support Goals of Term Limits in General?

Proponents of Proposition 45 state the "integrity of the original term limits initiative is maintained and enhanced with increased local control." Caves, Initiative Summary, supra at 1. As already noted, Proposition 140 mandating term limits was based on two main theories. The first theory was that term limits would restrain career politicians. Full Text of Proposition 140, supra at 1. Proponents of term limits argued that by limiting a person's time in elected office, the influence exerted on him by special interest groups is also limited. (Id.) It was also argued career elected officials were able to secure significant retirement benefits for themselves. (Id.)

The second reason stated for term limits revolved around the idea of encouraging citizen legislators. (Id.) Proponents of term limits argued that by restricting legislative offices to a maximum of 8 years in any legislative office, there would be encouragement and opportunity for different persons to participate in the lawmaking process. (Id.) Proponents of term limits believed limiting incumbency would create a "Citizen Legislature" comprised of fresh, inspired individuals who would participate in lawmaking and then return to their prior occupations without having been corrupted by special interest groups and the political process in general. (Id.)

It is necessary to review the goals of term limits to adequately assess whether Proposition 45 supports term limits. It is also necessary to identify whether those goals are met under the current term limits and if they will or will not be met by the proposed extensions.

1. Restraint on Career Politicians

a. Ability to Effectuate Own Retirement Plan

One of the key complaints by proponents of Proposition 140 was the ability of career politicians to retire from state service with significant benefits. Proposition 140 proponents argued legislators provided their own retirement plan by their own laws. Proposition 140 specifically removed future state legislators from the PERS retirement system. Full Text Proposition 140 at §4, supra at 3. The ability of the legislature to effectuate their own retirement benefits has been poorly addressed by the passage of Proposition 140. However, under Proposition 140, legislators who were already in PERS would be able to continue in PERS after its enactment. Additionally, because many of the state legislators served in other capacities within the state prior to election, term limits were ineffectual in preventing those individuals from involvement in PERS. Because of this somewhat convoluted state retirement system, subsequent legislation allowed all members of the legislature to participate in PERS at their option. Cal. Gov. Code § 20322(b) (Deering's 1999).

Furthermore, § 21074(a) states:

 

A state member who became subject to the Second Tier shall be retired for service upon his or her written application to the board if he or she has attained age 55 and is credited with 10 years of state service. Cal. Gov. Code § 21074(a) (Deering's 1999).

 

 

This is the definition of what is commonly referred to as vesting. It essentially means a member of the Legislature may apply to the PERS board to receive retirement benefits for their time as a legislator after the have completed 10 years of any type of State service and attained an age of 55.

Under current term limits, a person could be elected to the Assembly for a total of 6 years and then the State Senate for 8 years thus allowing the legislator to vest with 14 years of state service credits. Because current state regulations allow for full vesting in the PERS retirement plan after 10 years, the current term limits do not achieve the desired goal vis-à-vis retirement. (There are various permutations of the Senator/Assembly Member which provide for the requisite 10 years service credits necessary to vest for PERS retirement.) Proposition 140 failed in its attempt to impact the Legislature's ability to manipulate their own retirement plan. Regardless of whether current term limits completely prevent PERS retirement benefits for legislators, extending term limits will allow some legislators to vest that would not otherwise do so. Assuming a legislator does not run for a different office, an otherwise termed out incumbent re-elected for the additional 4-year term or terms would have to vest under current law. Vesting must occur because an Assembly Member with five 2-year terms would have a total of 10 years service credits without changing office. Similarly, a State Senator with three 4-year terms must vest with a total of 12 years service credits. Again, the Senator would vest regardless of whether they held any other state office or employment.

Furthermore, extending term limits could impact the total number of years that a legislator may serve and thus would impact the maximum benefit received by him or her upon retirement. Cal. Gov. Code § 21076 (Deering's 1999). Under Proposition 45, a legislator could potentially increase his total service credit from 14 years to a maximum of 22 years. This 8-year increase in service credits would increase retirement benefits by 57% at age 60. (Id.) Again, the extension of the term limit by 4 years would substantially undermine the previously stated term limits goal of reducing retirement benefits for legislators.
In any case, because PERS is a self supporting retirement plan, there would be no direct financial impact to the voters whether or not Proposition 45 passes.

b. Reduce Influence of Special Interest Groups

Probably of greater importance to proponents of Proposition 140 was the argument term limits would reduce influence by special interest groups. Full Text of Proposition 140, Argument in favor of Proposition 140, supra at 3. There is little, if any, hard evidence to evaluate the influence of special interest groups before and after the passage of term limits. Proponents of extending term limits argue even greater influence is had by special interest groups because of the substantial cost incurred by new candidates in the election process. Caves interview (Sept. 12, 2001). They argue it is harder for someone who is not an incumbent to raise campaign funds, therefore, new candidates rely more heavily on special interest money than an incumbent. (Id.) Furthermore, because new legislators lack the political savvy attributable to career politicians, proponents of extending term limits say new legislators are at the mercy of lobbyists to help them learn the ropes of the political process. Truth About Term Limits, San Francisco Chronicle, A18 (July 24, 2001).

2. Encourage "Citizen Legislators"

The basic premise behind "citizen legislators" is that they will be in office only a short time and then return to their previous careers. Proponents of Proposition 45 argue the potential for a legislator to serve an additional 4 years in office hardly defeats the idea of the "citizen legislator" who is restricted to only a few years in office. Opponents to Proposition 45 point out that a legislator already has the ability to spend 14 years in the Assembly and Senate. With the extension a possible 8 more years they could spend a total of 22 years in the Legislature. Additionally, a politician might be elected to any number of other offices thereby adding to their already lengthy career as a politician.

Proposition 45 does not support the term limits goal of encouraging "citizen legislators." The purpose of Proposition 45 is to allow legislators to serve more time in office. This is in direct opposition to the idea of placing strict limitations on the length of time in office by an elected official in order to get "new blood" into the legislative process.

IV. Conclusion

Proposition 140 passed in 1990 created term limits with a number of stated goals. There are different opinions about the effectiveness of Proposition 140 relative to its stated goals. It is clear that one major objective of term limits has been met. Legislators leave office upon completion of a designated number of terms. It is also clear Proposition 45 would allow incumbent legislators to be reelected up to an additional 66% of their constitutional term limits under Article IV of the California Constitution.

As drafted, Proposition 45 may effectively remove a lifetime ban on legislators who have been previously termed out of office. Although proponents contend the initiative would only apply to legislators who are in office at the time, there is no such preclusion in the text of the initiative. The courts would surely have to address this issue should voters pass Proposition 45.

There are also several issues related to drafting that will come to fruition if Proposition 45 is passed. Most of the issues revolve around determining where a term limited legislator will be able to seek reelection if the district that legislator represented is redistricted. These issues will also have to be addressed by the courts.
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[1] Head quarters for the Citizens Right to Petition are located at 591 Redwood Highway, Suit 4000, Mill Valley, CA 94941, telephone number (415) 389-6800 and fax number (415) 388-6874. Official spokesperson for this organization is Karen Caves located at 926 J Street Suite 1107, Sacramento, CA 95814. She may be reached by telephoning (916) 443-3416 or fax (916) 443-3012 or via e-mail at kcaves@tomatoweb.com.

[2] U. S. Term Limits, 10 G Street N.E., Suite #410, Washington D. C. 20002, Telephone (202) 379-3000 or e-mail www.termlimits.org.