The Truth About Term Limits
Term limit laws have created some clear winners and losers. Among the losers are the legislatures themselves.
Steven Rowe is a big proponent of early childhood interventions. He believes they can help reduce rates of mental illness, learning disability and, ultimately, criminal behavior. While serving as speaker of the Maine House six years ago, Rowe translated his ideals into a specific program, sponsoring legislation that expanded child care subsidies, provided tax breaks to businesses offering child care help to their workers and created a statewide home visitation network. When it came time for a vote, Rowe left his speaker's rostrum for the first time to argue for it, saying, "I have never felt more strongly about a bill."
With that kind of a push from the chamber's top leader, it's no wonder that his package passed by an overwhelming margin. It may have been Rowe's most important accomplishment as a legislator. It was also one of his last. After eight years in the House, including two as speaker, he was forced out of office by the state's term limits law. Rowe is now Maine's attorney general--a good job, but one that doesn't give him much leverage over the program he created. His cosponsors on the child care law aren't in the legislature anymore, either. They have been term-limited out as well.
In the absence of Rowe and his child care allies, funding for the package has already been slashed by a third, with more cuts likely to come. Plenty of programs have lost funding in recent years as Maine, like so many states, has suffered from fiscal shortfalls. But Maine, along with other term limit states, is experiencing an added phenomenon: the orphaned program, vulnerable to reduction or elimination because of the forced retirement of its champions. "We're probably seeing more neglect because legislators aren't there to babysit their own legislation," says Renee Bukovchik Van Vechten, a political scientist at the University of Redlands, in California. "We're seeing laws that need updating, and that's the least sexy part of the job."
Every generation of legislators and leaders wants its own initiatives to brag about and, as a result, sometimes neglects programs closely identified with a preceding group. Under term limits, however, a generation can be as short as six years. Legislators become like people who inherit large, complicated appliances for which the owner's manual has been tossed aside. "The imposition of term limits [is] the most significant--and some would say drastic--institutional change in state government in the last two decades," write the editors of a forthcoming study by the National Conference of State Legislatures and the Council of State Governments.
It shouldn't come as a surprise that short-term legislators aren't prone to engage in long-term thinking. It's happening in all 15 of the states where term limits have gone into effect. In Arkansas several years ago, members of the legislature negotiated a solid waste fee to underwrite future environmental cleanups. After they all left office, a new group, not appreciating what the money had been set aside for-- or probably not even knowing--dipped into it, disbursing the funds into a newly favored program of their own.
Even during Maine's recent downturn, the legislature continued to innovate in the fields of health and social service. In 2003, the state created the Dirigo program, which seeks to provide universal health insurance coverage through subsidies to employer-based plans. But new legislators are already arguing about the complex law they inherited. A few months ago, some of them accused Governor John Baldacci's administration of pulling a fast one by imposing assessments on insurance companies. They hadn't been around when these particular charges had been negotiated through a long, drawn-out process--in the legislature itself. "That's a major issue that was fought over just two years ago," says Sharon Treat, a former Senate leader and sponsor of the program, now term-limited out. "You would have thought there would have been some awareness."
Not all the arguments made against term limits at their inception in the 1990s have proven valid. One of the most common predictions--that with the members serving so briefly, all power would accrue to lobbyists hoarding the institutional and policy knowledge--appears to have been off the mark. Term limits have been a mixed bag for lobbyists, who must introduce themselves to a new, skeptical set of legislators every couple of years, rather than rely on cozy relations with a few key chairmen. Nor is there much evidence that legislative staff have taken advantage of member turnover to impose their own views on inexperienced legislators. In many states, the rate of staff turnover matches or exceeds that of members.
In other ways, though, the revolving-door system created by term limits has reduced the influence of the legislature itself. In particular, it has lost influence to the executive branch. One southern legislator-turned-lobbyist, who prefers not to be identified, says that he sometimes bypasses his state's legislature altogether, taking his clients' business directly to agency officials--the people who actually know how to operate the machinery of government. "There are some legislators who know as much as agency people do, but they're few and far between and they'll be gone very quickly," he says. "Agency heads are the true winners. They can outwait and outlast anyone and everyone on the playing field and they have consolidated their power."
Some governors have complained that lack of experience and expertise among legislators leaves them without strong negotiating partners. "A lot of these issues have to be dealt with in consecutive legislatures," says Angus King, a former governor of Maine who initially supported term limits but came to disdain them after burning through four different speakers, including Rowe, during his eight years in office. "They're very complex and if you always have to go back to square one, you never get anywhere."
Still, almost everyone involved in the legislative process sees governors as big winners under term limits. In addition to their constitutional authority to sign and veto bills, governors in term- limited states control many top-level state jobs that legislators facing short stints will soon want. Whether it is a question of job ambitions, a shortage of information or sheer inexperience, the reality seems to be that legislators do a far less effective job of competing with governors for power once term limits take effect.
According to the Public Policy Institute of California, that state's term-limited legislators make just half as many changes to the governor's budget as they did in the old days, representing many billions of dollars in legislative discretion that is no longer exercised. The NCSL/CSG study found similar budgetary effects in other term-limited states, including Colorado and Maine. "The crumbling of legislative power is clear across states," says Thad Kousser, a political scientist at the University of California, San Diego, and author of a book on term limits. "There's no more clear finding in the research than a shift in power where the legislature is becoming a less than equal branch of government."
Kousser compares term-limited legislatures to airport terminals. Someone is always coming, someone else is going, and then there are the people who can't seem to find their way to the ticket counter. The state that best illustrates the who's-on-first confusion caused by term limits may be Florida, where House members last July picked Dean Cannon to serve as their future speaker. At the time, Cannon had served in the legislature all of six months. His term as speaker won't begin until 2010. But each freshman class in the Florida House has taken up the practice of choosing the person who will lead them once the class reaches its final two years in office.
One might assume that picking a House Speaker five years in advance reflects a healthy long-term perspective. In Florida, however, it reflects just the opposite: an almost manic habit of making premature decisions on the part of impatient members who know that the clock started ticking for them the day they were first sworn in. As absurd as it sounds, Florida's speakers-to-be in line ahead of Cannon are already being treated to some extent like lame ducks--even before they have a chance to take office. Influence in Florida is continually shifting to the next class coming through the pipeline. "With regard to Dean Cannon, he's a good friend of mine," says a House colleague, Baxter Troutman, "but for him to be speaker-elect-elect-elect--man, he gets inundated now because of the perception that he's going to have so much power handed to him."
Obviously the thinking in picking new speakers or Senate presidents well ahead of time is to give them some practical instruction before they take over the reins. As Sharon Treat, the former Maine Senate leader, points out, there are plenty of managerial challenges involved in running a chamber even before turning to the business of mastering issues, setting an agenda and getting a caucus to sign off on it. Other states have tried different approaches to the succession question. After burning through several speakers in its first few years following the arrival of term limits, the California Assembly gave the job to Fabian Nunez as a freshman, so there'd be at least a few years of stability at the top.
In some states, legislatures that recognize their weakness against the executive have tried to consolidate power in the hands of their leaders as a counterweight. Leadership, even when fleeting, still has its advantages. Leadership PACs have become the foremost source of campaign funds in some term-limited states, and leadership staff are the main in-house sources of information on process and policy for many confused legislators.
The Arkansas House has done away with its old seniority system--an obsolete concept anyway in a body whose members can serve only six years--and allows its speakers to pick committee rosters and chairs. Republican leaders in Michigan, who control both legislative chambers, have made a concerted effort to appeal early and often to newcomers, from the time they first express a tentative interest in running until they finally show up at Lansing. The argument is that by sticking together they can more effectively offset the power of Democratic Governor Jennifer Granholm.
Similarly, legislative leaders in Ohio, widely credited with having done the best job of preserving their power under term limits in relation to the executive, have done so by involving junior members more fully in their decision-making process--for example, going over budgets practically line by line in caucus meetings.
Still, it's not like the old days, when speakers in many states held sway for more than a decade, far outlasting governors. "If leaders are there a short time, the idea of taking on the responsibility of preserving and protecting the institution is eroded," says Alan Rosenthal, of Rutgers University, who wrote a book about governors and legislatures as contending powers. "If the legislature and the governor are controlled by the same party, the legislature pretty much gives the governor whatever he wants--they view themselves as members of his team."
In many states, the committee process has suffered perhaps the greatest blows under term limits. There's necessarily less depth of knowledge, and the old idea that a bill should be fully crafted and in shape to become law the minute it passes out of committee has, in many instances, become a thing of the past. Instead, bills are kept continually moving, replete with the mistakes of inexperience, in the full expectation that they will be amended on the floor or in the other body. That way, more legislators get the chance to make their marks during the short time they have in office. No one wants to kill a bill and set a colleague back a year, when she may have only six years in office. "They're afraid to antagonize each other, so they're willing to pass legislation out of their committee when it's not fully cooked," says Paul Gladfelty, who lobbies for corporations in California.
Double and triple committee referrals, once rare in California, have become routine. It's the opposite of specialization--legislators want a piece of all the action, not wanting to miss out on anything important during their brief moment of power. The fact that committees are no longer viewed as authoritative in their jurisdictional areas further strengthens the hand of other players, notably executive branch officials.
If early predictions of lobbyists seizing power under term limits have turned out to be misplaced, the fact is that that many term- limited legislators still come into office worried about the issue. Quite a few are at least initially suspicious of lobbyists of all stripes. "We are noticing that a lot of the freshman members come in with preconceived ideas about lobbyists," says Bart McSpadden, a lobbyist in Oklahoma, "that they are all slick and wealthy and everything is carried out behind the scenes and under the table."
Whatever lobbyists have gained in legislatures through the power of institutional memory, they seem to have lost with the decline of enduring relationships. Clearly, they can take advantage of the knowledge deficit that exists in term-limited legislatures, but building the contacts that allow them to take such advantage has become a more time-consuming and expensive proposition. The stereotypical golf-buddy lobbyist who wields influence through personal friendship has clearly lost out under the term limits system.
In some ways, this has led to a diffusion of lobbying power, affording a wider range of lobbyists an equal opportunity to make a first impression on new legislators. On the other hand, the new system puts a premium on the ability to orchestrate those first impressions, and the consensus among lobbyists is that it's difficult for small practitioners to compete against bigger firms with the resources and personnel to introduce themselves and their issues on an ongoing basis to continual waves of new members.
"You not only have to get to know these people," says Marcie McNelis, of the lobbying firm MultiState Associates, "but you have to educate them on the issues from scratch." Part of the business of getting to know a legislator, of course, comes through fundraising, which has become even more critical since term limits have created so many more open seats. Here, too, the bigger, more institutionalized lobbying firms have an advantage over the smaller outfits and the old-fashioned solo gladhanders.
However term limits may be playing out, it's hard to find a lobbyist of any stripe who likes them. "I don't know one lobbyist who thinks it's a good thing," says Rick Farmer, who has written about term limits as an academic and now works for the Oklahoma House. "If term limits are such a good thing for lobbyists, why do so many lobbyists hate them?"
It's not just the lobbyists. Talk to people who work in any state capitol where term limits exist--members, staff and reporters as well as lobbyists--and you will encounter the nearly universal opinion that term limits are obstacles to careful legislation and effective oversight. Travel a bit farther from the capitol, though, and you get a different point of view: Most people on the outside still like term limits. Legislatures in Idaho and Utah have repealed their limits, but for the most part legislators have been unwilling to argue for repeal in the face of popular will as expressed by ballot initiative.
Baxter Troutman, the Florida representative, sponsored successful legislation last year to extend the state's limits to 12 years per chamber. That measure now goes before voters in November, but similar attempts haven't fared too well elsewhere. Ballot measures to extend limits were soundly defeated in Arkansas and Montana in 2004, while California voters had two years earlier rejected an attempt to let term-limited legislators run again if they could collect enough petition signatures in their districts.
No matter how strenuously legislators and lobbyists may argue that term limits have made elected representatives less powerful, and left constituents with a weaker voice in governmental affairs, people outside of government aren't ready to buy that. The main effects of term limits are procedural, and it's difficult to make a convincing case that they've made any one particular policy worse, let alone imperiled the quality of life in any state that observes them. It's impossible to prove that term limits have led to higher taxes, declining services or deeper fiscal shortfalls. And the notion that term limits make legislatures less powerful is, after all, one reason why many people supported them to begin with. "The public voted initially for term limits because they don't like politicians and political institutions," says Rosenthal, the Rutgers political scientist. "That disfavor has continued." As a result, the public has gotten what it asked for, if not what it deserves.