By Matthew C. Maclear
Copyright © 2000 by University of the McGeorge School of Law
JD, McGeorge School of Law, University of the Pacific
to be conferred 2000
U.C. Berkeley, 1995, Major - Natural Resource Management
Table of Contents
Candidates for public office in California, including Congressional candidates, currently may designate their occupation on the ballot. The law requires that the party affiliation of candidates for partisan office also be printed on the ballot. Proposition 27 would add an optional third item of information to the ballot for Congressional candidates. Candidates for the U.S. House of Representations and for the U.S. Senate would be permitted to indicate on the ballot whether or not they choose to declare that they will only serve a specified number of terms of office. Proposition 27 apparently was drafted to stay within the bounds of the recent term limits jurisprudence of the U.S. Supreme Court and the California Supreme Court. As a result, under Proposition 27, the candidate’s decision whether to make a declaration at all is voluntary, and any declaration would not bind the candidate to supporting term limits or leaving office at the end of the declared number of terms.
Proposition 27 permits candidates to declare that they will not serve in the U.S. House of Representatives more than three two-year terms or in the U.S. Senate more than two six-year terms. Proposition 27 provides alternative ways for candidates to show their intentions. A candidate may declare that s/he will stay within the specified term limits; further, the candidate may authorize that the declaration appear on the ballot and in official voter materials. Similarly, a candidate may declare that he chooses not to sign the declaration; in addition, the candidate may authorize that the choice not to sign the declaration be printed on the ballot and in official voter materials. Alternatively, a candidate may declare nothing.
If a candidate has signed a term limits declaration and is elected, the declaration remains in effect for all future elections for the same office. The declaration empowers the Secretary of State to include, on the ballot and in voter-education materials, a statement of the number of terms served after signing the declaration. Because the choice to limit the number of terms is non-binding, candidates may change their minds later. Nevertheless, the voters potentially would be better informed about the candidates’ intentions if Proposition 27 were implemented, regardless which choice the candidate makes concerning the declaration.
The drafters of Proposition 27 obviously tried to avoid the same constitutional problems faced by other term limits legislation. The U.S. Supreme Court in 1995 found an Arkansas initiative to impose congressional term limits unconstitutional because qualifications for federal elective office can’t be established by state or federal statute, but instead are set by the constitution, which may be changed only by amendment. The California Supreme Court in 1999 overturned Proposition 225, a 1998 initiative that instructed California’s state and federal legislators to adopt a Constitutional amendment requiring term limits, because voters of a state may neither thwart nor mandate the constitutional amendment process through initiative or referendum. Neither ruling is likely to apply to the designations proposed in Proposition 27 because they are voluntary and non-binding. As a result, it is likely that Proposition 27 successfully will clear constitutional hurdles placed in its path by opponents who seek to have it overturned in the courts.
Because they are voluntary and non-binding, the designations in Proposition 27 cannot be enforced. Although the initiative directs the Secretary of state to have printed on the ballot and in official voter materials a notice when a candidate is running for a term that exceeds the limit in the declaration, there is nothing in Proposition 27 that requires candidates even to submit a declaration. Chiefly, the designations in Proposition 27 (or their absence) would provide voters with relevant information about the candidates’ positions regarding term limits. Consequently, if enacted, this initiative would serve merely an informational purpose on the single issue of term limits.
Policy arguments in favor of Proposition 27 note that the purpose of the initiative is to permit voters to send to Congress citizen legislators who will be more responsive to the people of California and less responsive to the agendas of special interests than career politicians. Arguments against the measure warn that term limits restrict the ability of members of Congress to attain seniority, often needed to effectively represent the state’s interests in Washington. To determine whether this law should be enacted voters will have to decide whether they believe voluntary term limits declarations on the ballot will help to make California better or worse.
Proposition 27 is to be known as the "Congressional Term Limits Declaration Act of 1998." The Proposition’s purpose is to satisfy the California citizens’ desire to know a candidate’s position on voluntarily limiting his or her service in public office, and to inform the people of what kind of a representative the candidate will make. This Initiative would add §13107.5 to the California Elections Code.
Currently, candidates for public office in California may designate their occupation, current office or incumbency on the ballot. (Elec. Code §13107.) In addition, the law requires that the party designation of candidates for partisan office be printed on the ballot. (Elec. Code §13105.) Each designation provides pertinent information to promote an informed vote. However, the United States Supreme Court has held that a state cannot bind Congressional legislators to term limits. (U.S. Term Limits, Inc. v. Thornton, (1995) 514 U.S. 779, 783-84.) Today, candidates may inform voters of how many terms they intend to serve. Any statement made by a member of congress regarding term limits is considered unofficial, does not appear on the ballot, and the candidate or incumbent is not legally accountable for any such statement.
Proposition 27 allows candidates to make either or neither of two term limits declarations. Candidates may choose not to make any formal declarations whatsoever. Although California candidates seeking election to the United States Congress may execute either one of the term limit declarations, there is no requirement to submit a term limits declaration under this Act. In fact, not submitting a declaration does not have any effect on the Secretary of State’s decision to place a candidate’s name on the official ballot. Simply, Proposition 27 offers voters the opportunity to decide whether a candidate’s voluntary non-binding term limits declaration should appear on the ballot if the candidate chooses.
A. Current Law
Proposition 140, enacted in 1990 by voter initiative, imposed a lifetime ban on California Legislators after serving two terms in the State Senate and three terms in the State Assembly.
In 1990, Proposition 140 amended the California Constitution to impose a lifetime ban on legislators in the California Assembly and Senate after serving a limited number of terms. (Alisa R. Fong, Bates v. Jones - Imposing Lifetime Term Limits on California Legislators: For Better or Worse, A Constitutional Exercise of Direct Democracy and Political Will, 30 McGeorge L. Rev. 235 (1998).) Voters enacted Proposition 140 because of disenchantment with the political process and citizens’ perception that the California Legislature was dominated by unchallenged career politicians. Proposition 140 reasoned that increased concentration of political power in the hands of incumbents had made "our electoral system less free, less competitive, and less representative," "the powers of incumbency must be limited [in order] to restore a free and democratic system of fair elections." (Cal. Const. art. IV, § 1.5.) In determining whether Proposition 140 was constitutional, the California Supreme Court reviewed it: (1) to consider the type and extent of harm to the plaintiff against the impact on their protected rights under the First and Fourteenth Amendments; (2) to identify and assess the interests presented by the state that outweigh the burden resulting from the implementation of its regulation; (3) to weigh and balance the compelling nature of the state interests presented; and (4) to weigh the extent to which the state interests justify the burden placed on the plaintiff’s rights. (Legislature v. Eu, (1991) 54 Cal. 3d 492, 519-21.)
The California Supreme Court’s rationale was influenced by the United States Supreme Court’s traditional approach which, so long as the laws are applied in a nondiscriminatory and evenhanded manner, provided states broad discretion in adopting laws governing the election process. (Eu, 54 Cal. 3d at 516.) The Court has also established that a severe restriction to a plaintiff’s First and Fourteenth Amendment rights subjects the election law to strict scrutiny. (Burdick v. Takushi, (1992) 504 U.S. 428, 434.) Burdick provides two key indicators for when a state election restriction moves from legitimate to severe: (1) whether the restriction is content-based or content-neutral; and (2) the extent to which alternative routes to ballot access minimize the restriction on the plaintiff’s rights. (Fong, 30 McGeorge L. Rev. at 247.) The Court employs a rational basis standard of review where the state law imposes reasonable nondiscriminatory restrictions that serve an important regulatory interest. (Burdick, 504 U.S. at 434.)
In applying these factors, the California Supreme Court held that while the lifetime ban included in Proposition 140 impacts the rights of voters and candidates, the impact is sufficiently mitigated by the fact that voters may continue to vote for other qualified candidates, office seekers are able to serve a significant time in office, and candidates may also seek other public offices. (Eu, 54 Cal. 3d at 519-21.) The court held that the state’s interest in limiting incumbency was a compelling and well-recognized state interest. (Id. at 520.) California’s interests in limiting the power of incumbents to develop unfair incumbent advantages with groups and networks, the desire to prevent entrenched political machines, the desire to return widespread access to the political process, and to reinvigorate electorate participation were all considered relevant state interests. (Id. at 521.) The California Supreme Court concluded that the lifetime ban on candidacy was necessary to accomplish the spirit of Proposition 140. (Id. at 524-25) Therefore, the court held that the lifetime ban does not impose any serious impact on First and Fourteenth Amendment rights, and that Proposition 140 impacts all political parties on an equal basis, and said that the states’ interests outweighed "the narrower interests of the petitioner legislators and the constituents who wish to perpetuate their incumbency." (Id.)
Proposition 140 was unsuccessfully challenged in federal court in Bates v. Jones for imposing a qualification for holding office, creating a content-based restriction that inhibits voters from voting for candidates of their choice, and not affording adequate notice for such a severe limitation.
Five years after California voters enacted Proposition 140 and four years following the state decision in Legislature v. Eu, the constitutionality of Proposition 140 was challenged in federal court. In contrast to the Eu decision where the California Supreme Court only attempted to determine the constitutionality of the initiative, the federal district court in Bates v. Jones conducted a full trial on the merits of the parties’ claims. (Alisa R. Fong, Bates v. Jones - Imposing Lifetime Term Limits on California Legislators: For Better or Worse, A Constitutional Exercise of Direct Democracy and Political Will, 30 McGeorge L. Rev. 235 (1998).)
There were three federal court decisions regarding the Bates case. The first, referred to as Bates I, was Bates v. Jones, heard in federal District Court. (Bates v. Jones, (N.D. Cal. 1997) 958 F. Supp. 1446.) The second, Bates II, was Bates v. Jones, heard in the United States Court of Appeals for the Ninth Circuit by a three-judge panel. (Bates v. Jones, (9th Cir. 1997) 127 F.3d 839.) Bates III was heard by the same circuit court, except that the hearing was en banc. (Bates v. Jones, (9th Cir. 1997) 131 F.3d 843 (en banc review).)
In Bates I, the district court held that term limits imposed a qualification for holding legislative office, rather than merely limiting access to the ballot. The court applied the Anderson-Burdick test as it had been applied to "ballot access" cases involving challenges to laws that govern the procedures and eligibility requirements for candidates and parties appearing on the ballot. (Fong, 30 McGeorge L. Rev. at 235.) The district court concluded that the lifetime ban violated the rights of voters under the First and Fourteenth Amendments, and that: (1) term limits were not content-neutral, but rather a "content-based restriction on the ability of voters to vote for candidates of their choice; (2) the sovereignty interests of the state were insufficient to constitute a compelling state interest; (3) the lifetime term limits were not narrowly tailored to achieving the state’s interest of incumbency reform; and (4) the state did not establish that preventing career politicians in the state legislature was an important enough interest to justify the burden that a lifetime ban imposed on voters rights. (Bates, 958 F. Supp. at 1467.) Therefore, the district court enjoined enforcement of the lifetime ban and ordered the state to accept declarations of intentions from candidates. (Id.)
In Bates II, a three-judge panel for the Ninth Circuit Court of Appeals affirmed the district court’s judgment, but used an alternative rationale. The court struck down the California initiative because the language of the amendment did not afford voters adequate notice of the permanency of the lifetime ban included in Proposition 140. (Bates, 127 F.3d at 844.) The court focused on the fact that neither the proponent’s initiative arguments or the State’s official description of the measure mentioned the severe limitation—a lifetime ban. (Id.) In effect, the initiative’s severe limitation was ambiguously conveyed, thereby precluding adequate notice. (Id.) As a result, the appellate court affirmed the district court’s holding that Proposition 140 was unconstitutional.
In Bates III, an en banc review panel of eleven Ninth Circuit Court of Appeals judges heard the case. In contrast to the Bates I and II courts, the en banc Court in Bates III reversed and agreed with the California Supreme Court’s ruling in Legislature v. Eu, upholding a term limits lifetime ban. (Bates, 131 F.3d at 846.) In reversing both federal courts, the Bates III Court reexamined the analysis and reasoning that the lower courts had relied on. In response to the Court of Appeals’ emphasis on the absence of unambiguous notice regarding the lifetime ban, the Bates III Court analogized Proposition 140 to the 22nd Amendment of the United States Constitution. (U.S. Const. amend. XXII, § 1 [stating that "[n]o person shall be elected to the office of the President more than twice"].) By analogy, the court stated that while neither Proposition 140 nor the 22nd Amendment explicitly impose a lifetime ban, the language in the 22nd Amendment imposes a lifetime ban after two terms of service. (Fong, 30 McGeorge L. Rev. at 259.) In upholding the constitutionality of Proposition 140, the en banc court asserted that the plaintiff’s injury to his First and Fourteenth Amendment rights must be weighed against the interests presented by the state as justifying the burden imposed. (Bates, 131 F.3d at 846.) The court further added that it would apply strict scrutiny review if Proposition 140 severely burdened plaintiff’s rights. If Proposition 140 imposed only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests would generally be sufficient to justify the restriction. (Id. at 846.) The en banc Court concluded the proposition cannot be characterized as content-based or discriminatory on the basis of political party or under the constitutionally protected classes of race, gender, or religion. (Id. at 847.) Therefore, the term limits imposed were a neutral candidacy requirement that California voters perceived as a means to promote democracy and open up the political process to competitive elections. (Id.)
In 1992, California voters adopted Proposition 164 which established term limits for California’s Congressional Senators and Representatives.
Conversely, the United States Supreme Court ruled that qualifications for federally elected officials may only be changed by an amendment to the United States Constitution, not by state initiative. (See U.S. Term Limits, Inc. v. Thornton, (1995) 514 U.S. 779, 783-97 [applying the reasoning of Powell v. McCormack, (1969) 395 U.S. 486, and extending it to the states].) Qualifications, different from those prescribed in the Constitution, must be enacted through the constitutional amendment process. The provisions of Proposition 164 never have been enforced because Thornton was decided soon after the measure was adopted. (Bramberg v. Jones, (1999) 20 Cal. 4th 1045, 1049.)
The United States Supreme Court struck down an Arkansas state constitutional amendment which imposed term limits on congressional candidates in U.S. Term Limits v. Thornton because the Tenth Amendment cannot be said to reserve to states the power to impose additional qualifications on congressional membership.
In November 1993, the voters of Arkansas approved Amendment 73 to their state constitution. This initiative’s preamble stated that the people of Arkansas believed their incumbent elected officials had become "preoccupied with reelection," had "ignore[d] their duties as representatives," and such an "entrenched incumbency… has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers." (U.S. Term Limits, Inc., 514 U.S. at 779.) The term limits in question prevented members of the House of Representatives having served three terms, and members of the U.S. Senate having served two terms, from having their names appear on the ballot. (U.S. Term Limits, Inc., 514 U.S. at 785.)
The majority of Supreme Court Justices defined the twofold issues of U.S. Term Limits as (1) whether the Constitution prohibits the states from adding to the Qualifications Clauses, and (2) if so, whether the state amendment was instead permissible as a ballot restriction. To resolve these issues, the Court revisited its decision in Powell v. McCormack. The majority concluded that Powell not only decided Congress could not exclude an otherwise qualified member, but also Congress lacked the power to alter the Qualifications Clauses. (Id. at 786.) The majority of the court found support for this conclusion in Alexander Hamilton’s statement that qualifications "are defined and fixed in the Constitution, and are unalterable by the Legislature." (Powell, 395 U.S. at 539.) Furthermore, to allow Congress to define qualifications would undermine the "fundamental principle of our representative Democracy…‘that the people should choose whom they please to govern them.’" (U.S. Term Limits, Inc. 514 U.S. at 794-95.)
However, the Powell decision addressed only whether Congress had the power to alter the Qualifications Clauses, not whether the states were reserved such a power through the Tenth Amendment. In response, the U.S. Term Limits Court rejected the argument that states could alter qualifications on two grounds; (1) the power to alter the qualifications was not an "original power" that states could reserve under the Tenth Amendment since it was not a power that existed before the Constitution; and (2) the Framers divested the states of such a power by making the Qualifications Clauses exclusive. (Id. at 800-01.) The Supreme Court held that the Arkansas amendment violated the twin ideals of Powell because "the people should choose whom they please to govern them," and that election to Congress ought to be "open to people of all merit." (Id. at 817-18 [quoting Powell, 395 U.S. at 547].) In addition, the Court held that any changes to the Qualifications Clause must be enacted through the amendment process.
The Supreme Court disagreed with the petitioners’ argument that the Time, Place, and Manner Clause in the U.S. Constitution could be used to characterize term limits as a permissible ballot access restriction. The Time, Place, and Manner Clause allows a state or Congress to regulate the procedure of elections, not the substantive qualifications of candidates. (Id. at 834.) The majority noted that if the term limit was a "manner" within the Clause, then Congress had the ability to alter the term limit. (Id. at 832.) However, as decided in Powell and upheld in U.S. Term Limits, Congress may not alter its own qualifications. Therefore, term limits are not considered a ballot access restriction permitted under the Time, Place, and Manner Clause.
Because California Proposition 225, enacted in 1998, directly instructs and indirectly coerces California congressional and state legislators to exercise their federal constitutional function of proposing and ratifying amendments to the United States Constitution, the California Supreme Court in Bramberg v. Jones struck down Proposition 225 as violating Article V of the U.S. Constitution.
In 1998, California voters enacted Proposition 225 requiring state and congressional legislators to adopt the text of a specific congressional term limits amendment. Proposition 225 provided that "due to the desire of the People of the State of California to establish term limits on the Congress of the United States," members of the California legislature and congressional delegation were instructed to use their authority to make an application to Congress, pursuant to Article V, to enact term limits. (Bramberg v. Jones, (1999) 20 Cal. 4th 1045, 1050.) According to the enforcement provisions included in the Proposition, the "ballot shall inform voters regarding any incumbent or non-incumbent candidate’s failure to support the above proposed Congressional Term Limits Amendment." (Bramberg, 20 Cal. 4th at 1051.) Consequently, any failure by candidates to support the amendment would result in having either of the following phrases printed next to their name on the ballot: (1) DISREGARDED VOTERS’ INSTRUCTIONS ON TERM LIMITS; or (2) DECLINED TO PLEDGE TO SUPPORT TERM LIMITS. (Id.) Because the Initiative "marked" a non-conforming candidate’s name, Proposition 225 has been referred to as the "scarlet letter" Initiative. (Id. at 1052.)
The California Supreme Court limited its holding to Proposition 225’s violation of the prescribed method for amending the federal Constitution. (Bramberg, 20 Cal. 4th at 2055.) Article V creates two methods by which a federal constitutional amendment may be proposed and ratified. "An amendment may be proposed by (1) a favorable vote of two-thirds in each house of Congress, or (2) a constitutional convention when the legislatures of two-thirds of the states apply to Congress to call such a convention. Any amendment proposed …[by the aforementioned methods] must be ratified, either (1) by three-fourths of the state legislatures, or (2) by conventions in three-fourths of the states, as Congress chooses." (Bramberg, 20 Cal. 4th at 1056.) The United States Supreme Court has held that the means for amending the federal Constitution set forth in Article V are exclusive and may not be modified by state law. (Id.) Therefore, it is clear under Article V of the U.S. Constitution that the voters of a state may not, by either initiative or referendum, "thwart or mandate" the constitutional amendment process. (Bramberg, 20 Cal. 4th at 1063.) The court also noted that the mandated ballot designations for candidates who do not support the proposed amendment were "impermissibly coercive." (Bramberg, 20 Ca. 4th at 1060.)
B. Proposed Changes
Pursuant to Proposition 27, Declaration One, Part A, candidates may voluntarily declare that, if elected, they will not serve more than three terms in the House of Representatives or more than two terms in the U.S. Senate after the effective date of the initiative. (Elections. Term Limits Declarations for Congressional Candidates. Initiative Statute, to be codified at Cal. Elec. Code § 13107.5, subject to approval by California voters in March 2000.) If Part A is executed by a candidate, the candidate may execute Part B. Signing Part B authorizes and requests that the Secretary of State place next to their name on the ballot and on all state-sponsored voter education materials either "Signed declaration to limit service to [3 terms] [2 terms]," whichever is applicable, or "Running for (first, second, or third) term after declaring to limit service to no more than [3 terms] [2 terms]." . (Elections. Term Limits Declarations for Congressional Candidates. Initiative Statute, to be codified at Cal. Elec. Code § 13107.5.) However, executing Part A without executing Part B prevents any designation from being placed next to the candidates’ names on the ballot. A candidate may only sign and submit Part B if they have done the same for Part A of Declaration One.
If a candidate chooses not to execute part A of Declaration One, the candidate may execute and submit the first or both parts of Declaration Two. Pursuant to Part A of Declaration Two, candidates may indicate that they voluntarily chose not to sign Declaration One, and if they sign Declaration One they agree to limit their service to no more than three terms in the House of Representatives or to no more than two terms in the Senate. (Id.) If Part A of Declaration Two is signed and submitted, the candidate may sign and submit Part B. By signing Part B, the candidate authorizes and requests that the Secretary of State place "Chose not to sign declaration to limit service to [3 terms] [2 terms]" next to their name on all ballots and on state-sponsored voter education materials. (Id.) Any candidate executing Declaration Two can, at any time, submit Declaration One and have it apply to them.
The Secretary of State is responsible for incorporating the appropriate number of terms for the respective office the candidate seeks, and to calculate the number of terms of office the candidate seeks. The terms will be calculated regardless of whether the terms were served consecutively. (Id.) However, no service before January 1, 1999 is to be included in the calculation. (Id.) Service in office for more than one-half of a term is considered to be service for a full term. (Id.)
If the candidate is not elected and has submitted either declaration, then the declaration will not have any effect or application to future elections. (Id.) Any such candidate may execute either declaration for a future election. (Id.) However, if the candidate is elected to office, then whichever declaration the candidate signed shall remain in effect for all future elections for that same office. (Id.) At any time, however, a candidate who has submitted Declaration Two may choose to execute Declaration One. (Id.)
Apparently drafted to avoid Constitutional issues that have arisen in connection with other term limits initiatives, Proposition 27 contains no mechanism for enforcement against legislators who declare they will stay within the specified term limits and then run for additional terms in contradiction to their declaration. While the United States Supreme Court has made it clear that states cannot enact laws that mandate congressional legislators to stay within term limits, Proposition 27 leaves the voter wondering whether there is a point to this initiative if it allows legislators to say one thing and do another. (U.S. Term Limits, Inc., 514 U.S. at 1871.) It could be argued that Proposition 27 is "toothless" because there is nothing in it that provides for removal from office, or anything of that nature, when a legislator makes a declaration that s/he does not later follow. (Elections. Term Limits Declarations for Congressional Candidates Initiative, to be codified at Elec. Code § 13107.5.) Although the initiative directs the Secretary of State to have printed on the ballot and in official voter materials a notice when a candidate is running for a term that exceeds the limit in the declaration, there is nothing in Proposition 27 that requires candidates even to submit a declaration. Candidates have unfettered discretion when it comes to whether to declare and what to declare. (Id.) Consequently, Proposition 27 could be considered a weak law not worth enacting because it does so little to actually serve the voters.
However, this initiative is not intended to include specific enforcement provisions. (Elections. Term Limits Declarations for Congressional Candidates Initiative, to be codified at Elec. Code § 13107.5.) Term limits initiatives containing enforcement provisions have been declared unconstitutional "scarlet letter" laws. (Bramberg, 20 Cal. 4th at 1052.) Instead, the nature of Proposition 27 purports to be only informative to the voters. Rather than grappling with the legal dilemma of enforcing term limits, Proposition 27 merely seeks to aid voters by providing relevant information about the candidate’s position regarding term limits. Proposition 27 affords candidates possibilities ranging from: (1) making no declaration at all; (2) stating that they choose not to declare; or (3) declaring they will stay within term limits. Although this proposition does not include any means to punish those who declare they will stay within term limits and later change their minds, those who do likely will be labeled untrustworthy by voters. Arguably, Proposition 27 provides the best of both worlds insofar as it avoids the legal complications surrounding "scarlet letter" laws while letting a congressional candidate’s actions speak louder than words.
Proposition 27 follows numerous other attempts at term limits legislation and ballot initiatives. Its drafters obviously have tried to avoid the same constitutional pitfalls to which other term limits legislation has fallen victim. Because Proposition 27 does not require term limits, it will not run afoul of the U.S. Supreme Court’s ruling that the states do not have the power to alter the Qualifications Clauses of the Constitution by adding term limits to the qualifications of those running for the House and Senate. (U. S. Term Limits, Inc., 514 U.S. at 825-57.) And because Proposition 27 does not require state and federal legislators to adopt a Constitutional Amendment setting term limits, it will not be found unconstitutional under the California Supreme Court’s decision that the voters of a state may not by initiative or referendum thwart or mandate the constitutional amendment process set forth in Article V. (Bramberg, 20 Cal. 4th at 1063.)
Proposition 225, overturned in Bramberg, included a "scarlet letter" requirement specifying that candidates be identified on the ballot as "Declined to Pledge to Support Term Limits" or "Disregarded Voters’ Instruction [to Support a Constitutional Amendment] on Term Limits." However, the court limited its holding to the proposition’s violation of the prescribed method for amending the U.S. Constitution (Bramberg, 20 Cal. 4th at 1055.) The court noted that the mandated ballot designations for candidates who did not support the proposed amendment rendered the initiative "impermissibly coercive." (Bramberg, 20 Ca. 4th at 1060.) Although Proposition 27 could be viewed as branding candidates with a declaration regarding term limits or with the conspicuous absence of such a declaration, the declarations are entirely voluntary and are not tied to the candidate’s support of a constitutional amendment, as they were in Bramberg. Therefore, Proposition 27’s declarations would not violate Article V under the reasoning employed in Bramberg.
In 1997, the Idaho Supreme Court found that ballot designations similar to those contained in Proposition 225 were unconstitutional under the speech and debate clause of the U.S. Constitution (art. I, §6) because they served "as a state imposed consequence against members of congress for speaking a certain way," and also under the Idaho Constitution’s right to free speech (Idaho Const. Art. I, §9) because it compelled candidates to take a stand on the proposed term limits amendment. (Simpson v. Cenarrusa, 944 P. 2d 1372, 1375-76 (Idaho 1997). However, the application of similar logic to the designations in Proposition 27 likely would have a different result, since Proposition 27’s designations are voluntary and non-binding.
Consequently, the decisions of the courts regarding term limits legislation do not present any immediately insurmountable barriers to the constitutionality of Proposition 27.
Arguments For Proposition 27
The heart of term limits is to bring new people and new ideas to Congress. Proposition 27 does not impose mandatory term limits. (See Voter Pamphlet, at 71-72, 144-45.) Rather, it aims to inform the voters as to whether federal legislators intend to spend long careers in Congress or whether they intend to serve for a short period of public service. (Id. at 72.) By allowing candidates to declare their intentions with regards to term limits, the people can make a more informed choice. Furthermore, this Initiative may provide a means by which the people can make their legislators more responsive to their wishes, and less responsive to the perks and privileges reaped by serving special interests groups’ agendas. (Id. at 72.) The main idea behind Proposition 27 is to send citizen legislators, not career politicians, to represent us in Congress.
With the knowledge that a state cannot limit congressional legislators’ terms in office, the writers of this law fashioned a workable version of a term limit law that serves the peoples’ desire to have their legislators serve only a limited number of terms in Congress. When voting, every voter needs to keep in mind that Proposition 27 is for the people and not for the legislators. For instance, since California has imposed term limits on state legislators, our legislators have passed the largest tax cut in a generation. In addition, under term limits, California legislators passed the budget on time for the first time in over a decade. Field polls show that Californians favor term limits 3 to 1. (Id.) Whether these positive recent developments are truly attributable to term limits is uncertain, but the argument has certainly been made.
Courts have struck down attempts by states to limit the number of terms that federal legislators serve in Congress. It is unlikely that Congress will enact self-imposed term limits, either by constitutional amendment or statute. This is evidenced by history and the absence of congressionally proposed term limit bills. The Supreme Court also has said, "Congress has no power to alter the qualifications in the text of the Constitution." (U.S. Term Limits, Inc., 514 U.S. at 789.) Proposition 27 provides a viable means for Californians to express their desire for term limits and for legislators to publicly pledge their allegiance to the wishes of their constituency.
Arguments Against Proposition 27
Although the ideal of a citizen legislator is noble, it is not the way to serve California’s wishes in Congress. Term limits actually limit seniority, which is needed to secure federal funds for the state. (Id. at 73.) Proposition 27 prevents legislators from gaining valuable experience necessary to effectively serve the people’s interest. If this law is enacted, California legislators in Congress will not adequately be able to defend the state’s interests in securing federal funds for schools, police, seniors, freeways, and the environment. (Id.) As well-intentioned as Proposition 27 may be, it falls short of safeguarding California’s interests while demanding an unnecessary change.
Proposition 27 puts unnecessary labels on the candidates, which only disables consensus building. (Id.) If term limits are intended to eliminate unfair incumbent advantages and to prevent the entrenchment of stagnant political machinery, Proposition 27 achieves neither of these goals. In fact, this law is merely another form of an unconstitutional "scarlet letter" law. Placing a label next to a candidate’s name does nothing more than confuse voters when trying to decipher the ballot content. (Id.) A candidate’s political position regarding term limits may be part of the platform they are running on, but it does not belong on the ballot any more than any other position, which their platform advances.
There are other means to overcome the competitive advantages that incumbency affords to those previously elected. Most simply, if you do not like the way a legislator has performed, vote them out. Term limits may be a way to solve some problems with Congress, but limiting campaign finance, spending, traveling and mailing privileges are all more effective ways than term limits. (See id.) Where you have term limits, you have legislators who have a greater need to raise the most money for the fewer campaigns they will have. Major funding for a campaign is often derived from special interest groups who will provide financial support in exchange for favorable legislation. Lobbyists who want to get tax dollars for corporate clients may have greater leverage with legislators whose terms are limited. Overall, Proposition 27 puts legislators in the pockets of lobbyists and special interests rather than serving the general public. (See id.)
The drafters of Proposition 27 obviously tried to avoid the same constitutional problems faced by other term limits legislation. In large measure, they seem to have succeeded by making the ballot designations voluntary and non-binding. Precisely because of their voluntary and non-binding nature, however, the designations in Proposition 27 cannot be enforced. Consequently, if enacted, this initiative would serve only an informational purpose on the single issue of term limits.
The significance that a voter attaches to a candidate’s declaration, or lack thereof, is solely for the voter to decide. Whether voters believe in term limits or not, Proposition 27 would give voters additional insight about how long candidates plan to serve in Congress. To determine whether this law should be enacted, voters will have to decide whether they believe voluntary term limits declarations on the ballot will help to make our state better or worse.