Same as the Old Boss?
California's term limits are under a legal cloud in the federal courts. But what, if anything, has Prop. 140 changed in Sacramento?
I have never been able to make up my mind about term limits. They are great fun to vote for, and I always have. Anything that causes such paroxysms of outrage within the political class must be worth doing. This may be sufficient reason to support them. An early cartoon on the issue neatly captures my feeling: Two drinkers at a bar. One says to the other, "Do you think politicians should have term limits?" The other says, "Nope. They should get life without parole."
In a more reflective mood, however, I usually have a more complex attitude toward government. True believers will call me a soft-headed sellout, but the theory of the spontaneous order was never meant as a complete substitute for government. The authors of the Declaration of Independence had it right when they wrote that protecting our inalienable rights requires that government be "instituted" among men, based on the "consent of the governed." Government today traduces the principle of consent through an administrative edifice that is practically beyond the reach of electoral majorities and runs roughshod over our rights through various subterfuges. Term limits are a potent populist expression of the perception that we are not being governed by our consent. But is tenure in office the root of the problem? Although term limits promise to wreak havoc on the political class, will the restoration of frequent rotation in office (which Alexander Hamilton assailed as a "feeble principle") lead to a fundamental change in the character of our government? Will the growth of government slow or reverse? Or will term limits end up as a fun but distracting sideshow?
The question is especially vital at the moment. On October 7, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit declared California's term limits initiative unconstitutional. Writing for the majority, Judge Stephen Reinhardt didn't invoke the typical concern raised by the opponents of term limits–that voters have a First Amendment right to select whatever candidates for public office they desire. Rather, Reinhardt made the unprecedented declaration that the 3.7 million Californians who cast their ballots for Proposition 140 in 1990 didn't know they were voting to place a lifetime ban on officeholders who complete their maximum terms. (The Supreme Court reversed Reinhardt's opinions a record 11 times last session, so the justices are expected to review this decision as well.)
I used to say that I awoke in the morning opposed to term limits in the abstract but immediately changed my mind upon seeing the first politician in action. For a long time, this didn't require tuning in C-SPAN; it involved simply walking down the street. From 1988 to 1994, when I worked for the Claremont Institute and the Pacific Research Institute, I lived just a few blocks from the state capitol and got a close look at the legislature as it chopped up and spat out nearly 5,000 pieces of legislation a year. It was seldom an edifying spectacle.
As the largest state, California has the legislature that most resembles Congress, so it's a good place to consider the likely impact of term limits at the federal level. The California legislature is a full-time, highly paid body with a large staff and adjunct agencies similar to the Congressional Budget Office and Congressional Research Service. In addition, California enacted the three-term (six-year) limit for the Assembly that term limit advocates demand for the U.S. House, rather than a 12-year maximum. The limit for the state Senate is two terms (eight years).
California has always offered a menagerie of walking arguments for term limits. My favorite is state Sen. Ralph Dills (D-Gardena), California's answer to Strom Thurmond. The 87-year-old Dills was first elected to the legislature in 1938. He still shares tales from time to time about dealing with Harry Hopkins and other New Dealers. Up against his Senate term limit next year (his slogan for his last election campaign was "Too Old to Retire"), he is planning to run for the state Assembly, where he still has six full years of eligibility, even though he had to be rolled onto the Senate floor in a wheelchair for some key votes this year.
Republicans offer their own examples of deadwood, such as the appropriately named Sen. William Craven. First elected in 1972, he is not as old as Dills (his legislative biography does not divulge his age), but he missed much of the recent legislative session because of illness. It is not clear his colleagues missed him; he hasn't attended Senate Republican caucus meetings for years, and his principal Senate task seems to be the apportioning of parking spaces for staff people. Craven's chief of staff, paid a six-figure salary, oversees this function.
Then, of course, there was the legendary Assembly Speaker Willie Brown. The legislature under Brown was a barely concealed swap meet. He used to essentially extort fabulous sums of money from business interests in the form of campaign contributions, under the implied threat that bills they wanted enacted (or blocked, in the case of the tobacco industry) wouldn't see the light of day if they didn't pay up. It was an efficient, smooth-running machine. Brown's genius was his ability to protect and expand liberal interests while buying off business interests with narrow favors. This not only stymied any broad-based reform such as tax reduction or deregulation, but also kept business interests from coalescing into a serious force against Democrats in elections. It drove Republicans crazy.
Under Brown, the lobbying community became known as the "third house," since lobbyists were a de facto branch of the legislature. The biggest statist interests–the trial lawyers, the teachers union, and other labor groups–enjoyed a stranglehold on the legislature. Membership on "juice" committees–banking, insurance, natural resources–was highly coveted because these committees allowed you to generate more campaign cash. One veteran lobbyist was legendary (before he went to prison) for the way he would stand in the back of committee rooms, wig-wagging hand signals like a third base coach to indicate to the committee chairman which bills should be killed or voted out, which amendments accepted, and so forth. Brown's whole apparatus worked so smoothly, in fact, that widespread rumor has it that when the FBI investigated political corruption in Sacramento in the mid-1980s, Willie was their main target. The Feds never laid a glove on him. Two Republican legislators went to federal prison instead.
When I moved to Sacramento, Brown was in his eighth year as speaker of the Assembly and nearing the record for the longest-tenured speaker in California history. Brown referred to himself as "the Ayatollah" of the legislature, and the description was not hyperbole. But Republicans were sure they were closing in and would get the drop on him in the next election, or the election after that. California Republicans were the Chicago Cubs of modern politics: Just wait till next year. Brown was still speaker when I left town in 1994. And even though Republicans did finally break through in the election of 1994, taking a slim majority of the Assembly for the first time in 25 years, Brown's legerdemain was such that he still kept the Assembly under Democratic control for another year.
Throughout the 1980s, Republicans salivated over polls showing that Willie Brown was highly unpopular around the state–sort of like House Speaker Newt Gingrich today. Just as Democrats last year tried to tie Republican House members to Newt, California Republicans always tried to tie Democratic legislators to Willie. It seldom worked. The advantages of local incumbency always won out over Willie's general unpopularity. The Republicans scarcely dented Brown's majority. Only three incumbents were defeated in the last three elections of the 1980s; the overall turnover rate for the Assembly fell by half during the decade.
But what if the entire state could vote against Willie through the proxy of term limits? Term limits offer a powerful means to cut through the modern electoral paradox wherein voters hate the political class in general but love their local representative. Term limits allowed you to vote against the other guy–all the other guys, in fact. Never mind that it was the political equivalent of Mutual Assured Destruction, wiping out your own local guy as well as the other town's bum. Term limit proponents in California offered all the usual reasons in favor of the idea, but its biggest attraction was left unstated: It would be the long-sought silver bullet for Willie Brown. Although term limits didn't start in California, it's hard to deny that California helped propel a national movement simply to get rid of one person.
Seven years after the enactment of term limits with the passage of Proposition 140, following a rough transition period that saw old-timers clinging to the last threads of power along with newcomers ready to change things, what judgments can be made about the effect of term limits in California? I returned to Sacramento several times during the spring and summer, visiting my old haunts in the Assembly gallery and committee rooms. The scene looked much the same, even if most of the faces were new. Committees still abused witnesses. The state budget was still woefully late. Gridlock still prevailed. Who were all these no-names? Where were my favorite old dinosaurs? Yet beneath these superficial features, there were some signs of significant change.
Although the conventional wisdom is that "the jury is still out" on how term limits are working, it is possible to give a midterm report card. The best way to begin an evaluation is to assess the conditions in Sacramento based on a balance sheet of the arguments in favor of and against term limits. The main arguments in favor of term limits are:
• Term limits will produce more competitive elections.
• Term limits will produce a "citizen legislature" of more ordinary people rather than professional politicians. Term-limited representatives would be more in harmony with public opinion and with their districts' constituents.
• Term limits will reduce the influence of special interests by disrupting the buddy-buddy relationships and favors that lobbyists use to capture entrenched incumbents.
• Term limits might even reduce the growth rate of government, at least on the congressional level, where studies have shown that the longer legislators are in office, the more spending and bureaucracy they tend to support.
The main arguments against term limits reduce to these two:
• Term limits will produce an inexperienced, amateur legislature. Term-limited officeholders will have little motivation for the long term and will be looking to advance themselves quickly into higher office.
• Inexperienced legislators will be easy prey for special interests; bureaucrats and permanent staff will dominate them.
Not all of these claims can be objectively assessed, of course, but the weight of the available evidence, and the common-sense perception of the matter, appears to fall on the side of term limit advocates.
First of all, it was not necessary to wait until 1997 to discern the impact of term limits. Some of the intended effects were felt immediately after passage of Prop. 140 in 1990. One of the highest-ranking Assembly Democrats, Mike Roos, scarcely concealing the personal insult he felt, resigned for a job in the private sector (albeit at a nonprofit educrat boondoggle), while two senior senators (one Republican, one Democrat) resigned to become highly paid association heads (a.k.a. lobbyists). Most notably, Willie Brown left halfway through his last term to become mayor of San Francisco and in doing so surrendered full control of the Assembly to the Republicans.
I have long thought this direct insult to politicians' egregious egos was the best aspect of term limits. As Henry Adams observed, "The effect of power and publicity on all men is the aggravation of self…one can scarcely use expressions too strong to describe the violence of egotism it stimulates." Term limits send the tacit message that none of these officeholders is indispensable to the future security and progress of our republic. The lifetime ban of California's term limits underscores this insult, which has prompted countless silly comments from aggrieved legislators. Sen. Bill Craven said, apparently without any trace of irony, "This places legislators in the same category as felons." (Whether the anti-term limit lawsuit is decided by the full 9th Circuit or the Supreme Court, the lifetime ban will likely be the main issue.)
As the first elections after Prop. 140 approached, numerous other legislators either retired early or ran for higher office, thus clearing out a larger number of seats than usual. The trend was encouraged not just by term limits but also by a fair reapportionment in 1991, which produced more swing districts. During the 1980s, the overall turnover rate in the Assembly was 16 percent (the second lowest of all 50 states–only New York was worse), and 85 percent of incumbents sought re-election in each cycle. Incumbents were a virtual lock for re-election. In the two elections leading up to 1996, the Assembly turnover rate increased to 36 percent, and the share of incumbents seeking re-election dropped to 67 percent. More women and minorities were elected. There was a similar shakeout in the state Senate. Elections have become more competitive. The number of candidates filing to run has increased significantly, and the margins of victory in both primary and general elections have narrowed.
This post-term limit ferment contributed to the Republican takeover of the Assembly in 1994, the first time in a quarter century the Democrats lost control of that house. The election of 1994 featured 22 open Assembly seats (out of a total of 80), far higher than in any election during the 1980s. Though the 1991 reapportionment and the national Republican tidal wave in 1994 likely were more important than term limits, the narrow takeover probably wouldn't have happened without the additional open seats that term limits produced.
Even though California's legislature is the highest paid in the nation (members get over $100,000 a year in salary, per diem, and other perks), thus making it a virtual incubator for career politicians, the term limit environment does seem to be producing more people who fit the description of "citizen-legislator," with many more members having business experience, especially small-business experience, than was typical in the 1980s. Nearly a quarter of the legislators (23.7 percent) now claim to have had experience as business owners, up from 8 percent in 1976 and 10 percent in 1986. The number of former city council members, school board members, and other local elected officials has quadrupled. Most notable has been the marked decrease in the number of former staff people moving up to Assembly and Senate seats. The ranks used to be peppered with former staff people, the apotheosis of cronyism. There are none among the newest crop of legislators. (There are still plenty of lawyers, alas.) The influx has certainly given the capitol a new look and feel. It is commonplace for freshman Assembly members to be committee chairs.
While Republicans in the legislature continue to be a mix of rock-ribbed conservatives and chamber-of-commerce moderates, term limits seem to have produced a higher number of moderate Democrats, less beholden to the party's liberal leadership and interest groups. Most of these new moderates come from California's Central Valley, where agricultural interests reign supreme. Valley farm interests are considered "pro-business" but of course depend on water socialism and subsidies, and they tend to support Democrats as often as Republicans. As one veteran Republican legislator told me, "the new Democrats are more tolerant of private enterprise than their '60s radical predecessors, who dominated the legislature under Brown."
It was the reservations of moderate Democrats about the party's position on welfare reform that divided Democrats in this year's budget battle. The Democratic leadership wanted to hold out for a very liberal "reform" plan (i.e., no reform at all), but several moderate Democrats balked. This division strengthened Gov. Pete Wilson's hand, which enabled him to drive a compromise welfare reform plan that many conservatives think was a sellout but which is probably more than he would have gotten had Willie Brown still been in charge.
The current legislature is certainly "inexperienced" compared to its predecessors. The Sacramento press corps, which doesn't like term limits any better than veteran lobbyists do, has produced one story after another about "rookie mistakes" by new legislators. The new members are "inept at the basics of politics," a San Francisco Chronicle reporter wrote. Ross Sargent, the longtime chief of staff to Sen. Pat Johnston (D-Stockton), complains of rookie legislators that "you talk to them and say, `That [idea] was here five or 10 years ago,' and they express surprise." Bill Lockyer (D-Hayward), president pro tem of the Senate, circulated a memo to the Assembly offering tips on how to "work" legislation, a move political junkies pounced upon as an unheard-of step made necessary by term limits. The new Assembly speaker, Cruz Bustamante (D-Fresno), is in his final term and is widely perceived to be extremely weak because of term limits.
The argument about inexperience has always struck many term limits supporters as a bad joke. As Lew Uhler, one of the sponsors of Prop. 140, puts it, "If you're having your safe cracked, would you rather have it done by a first-time amateur, or by a seasoned pro who has done it hundreds of times?" Mark Petracca, a political scientist at the University of California, Irvine, who has studied term limits closely, observes that the new legislators can hardly be considered totally inexperienced, because many of them have backgrounds on school boards, city councils, county boards of supervisors, and other local government bodies. But there are still a number of new members without much government experience at all. Is this in fact a bad thing, or perhaps a virtue of term limits?
Consider, for example, the case of Democrat Carl Washington, an African-American Baptist minister from Los Angeles. He replaced Assemblyman Willard Murray, who was a typical urban liberal and a product of the Democratic machine. Washington wears his innocence on his sleeve. A Republican staff person fell into conversation with Washington one day about the idea of school choice. Washington, intrigued, said, "Sounds like a good idea to me." When told that the California Teachers Association bitterly opposes school choice, Washington replied that it might be a problem for him as well, since the CTA had given him large campaign contributions. But he didn't rule it out.
Washington also made headlines when he voted in committee for a Republican tax cut bill against the wishes of the Democratic leadership. He allegedly said in the committee hearing that he didn't actually agree with the bill but that he voted for it because the bill's sponsor had voted for one of his (Washington's) bills. Open vote trading of this kind is a felony under California law–which is why "experienced" lawmakers have made logrolling an art form–so the attorney general opened an investigation of Washington. It turns out the official tape recording of the committee hearing is mysteriously blank at the moment of the comment in question. The attorney general recently concluded that there was insufficient evidence to warrant prosecution.
There are two ways of thinking about Washington's example. Opponents of term limits have made him their poster child for the pitfalls of inexperience, of which there are many other examples from this term. Others cite the refreshing openness to new (or old) ideas that Washington and other members like him display, along with an inclination to flout the old conventions that made the legislative process an insiders' domain. As one longtime lobbyist told me, "We're getting a refreshing honesty in the new people. They don't know what they're supposed to lie about yet."
The difference between the reliably liberal Murray and his "inexperienced" successor Washington would seem to tip the balance of the argument in favor of term limits for two reasons. In addition to the openness to new ideas, the established big government interests such as the teachers union and trial lawyers have to worry about re-establishing their influence with each new crop of legislators. The teachers union may well be able to keep Washington in line on school choice, but it is not automatic, as it was in the past. And in just a few years they will have to worry about Washington's successor.
"The influence of lobbyists was based on decades of ongoing personal relationships with legislators," says Assemblyman Tom McClintock (R-Thousand Oaks), the most libertarian-minded member of the legislature. (McClintock supported term limits in 1990 but is now having some second thoughts.) "Now the previously well-entrenched interests have to justify themselves to new people, who are strangers. And the new legislators are wary and will often say, 'Oh, you're a special interest lobbyist. I'm not sure I should talk to you.' "
So all lobbyists are finding they have to work a lot harder to establish trust and get their point of view across. A distinction seems to be emerging within Sacramento's "third house." Lobbyists for interests who depend on government favor rather than the market for economic gain, such as trial lawyers and the teachers union, generally hate term limits for the uncertainty turnover has introduced to their previously stable world. Meanwhile, lobbyists for various long-suffering conservative groups whose main mission is opposing government intervention, such as "pro-family" religious organizations and some business interests, are reveling at the new opportunity term limits have given them. "We love term limits," says Michael Bowman of the Capitol Resource Institute, a pro-family lobby. "Term limits have been very beneficial in opening up the process for citizens and for groups who had been shut out before." Many business lobbyists who had little access and even less success with the old Democrats in the legislature say that with term limits they not only have better access but are even listened to. "We have a shot with them now," one business lobbyist says.
With the apple cart upset for both legislators and lobbyists, the scene would seem to be set for staff and the bureaucracy to dominate. My own casual observations led me to think that staff was gaining power, simply because of all the familiar faces I first got to know 10 years ago who are still in senior positions in the Assembly, even though all the officeholders have turned over. Some had even come back to staff jobs after leaving for the private sector (as lobbyists) during the first staff shakeout that followed the passage of term limits in 1990. "Like moths to a flame," I would call out when I saw them back at their old desks.
But the statistics show that enormous staff turnover has accompanied the electoral turnover. As of June, according to the Assembly Rules Committee, 73 percent of current Assembly staff had been on the job for three years or less, and 45 percent had been employed for one year or less. In 1990, before term limits, only 23 percent had worked there less than a year. In 1990, there were more than 200 Assembly employees who had over 10 years' experience. Now there are only about 100 with 10 years' experience.
By all accounts, the new staff members seem as ill-equipped to deal with the legislative process as new legislators. Jim Knox, executive director of Common Cause's California chapter, complains, "I've encountered staff members who are not familiar with the basic timetables of moving legislation, what committees bills go to, what the deadlines are, and how to amend bills." Criticism of poor staff is not limited to good-government types with an allegiance to an activist state. Assemblyman McClintock, who served for 10 years in the Assembly before taking a hiatus and returning this year (he still has four years of eligibility left under his term limit), agrees with Knox: "I think the overall quality of staff work has deteriorated dramatically since I left here in 1992. The staff is turning over as fast as the legislators."
Bureaucratic staff, of course, has been unaffected in any way by term limits, and the attitude of the bureaucracy toward legislators, which resembled the attitude of a rebellious adolescent toward his parents even in the old days, has hardened. Bureaucrats know that legislators, and especially committee chairs, won't be around very long. "The attitude of the bureaucracy toward the legislature is condescending and uncooperative," says McClintock. "They are unresponsive to requests from the legislature and are almost disdainful of legislators."
If all of these impressions can be taken at face value, the score would seem to be 3-1 in favor of term limits: Term limit advocates win on competitive elections, more citizen-legislators, and a reduction in the power of special interests and staff. Term limit opponents may be right that the bureaucracy comes out stronger vis-à-vis short-term legislators.
But the bottom-line test for term limits will be whether term-limited legislators slow the growth of government and ultimately contribute to a reversal in its size. The early signs are not encouraging. Even this supposedly amateur legislature has managed to produce a law encouraging the state to sue the tobacco industry and intrusive legislation requiring business owners to allow breast-feeding on their property. A measure promoting the public paddling of juvenile offenders was high on the legislative agenda last year. A bill now heading for Wilson's desk will declare San Joaquin Valley dirt the official state soil.
This is arguably a slight improvement over the bill offered a few years ago that sought to make the banana slug the official state mollusk. And the legislature has shown a few signs of being slower to impose new regulation. But on the biggest issue of all–taxing and spending–the new legislature flunked. The surging California economy is swelling state coffers with a huge unanticipated surplus, the first in 10 years. Suddenly the revenue available to be spent jumped by $1.4 billion. Assembly Republicans issued a pro forma call for a tax rate cut, but soon dropped the idea and joined Democrats in voting to spend virtually every dime of the new revenue. Instead of a genuine reduction in taxes, at the 11th hour the legislature passed a so-called middle-class tax cut consisting of the same gimmicks, such as child tax credits, as the federal tax cut bill. (By contrast, in 1987, the last time the state had a large surge of revenue, Californians enjoyed a $400 million income tax rebate.) The tax credits don't take effect until next year, and they will do little to restrain the growth of state spending. California's budget has grown by nearly $10 billion over the past four years. This is the most sober portent for extending the example of California to Congress. We simply don't have any good evidence yet that frequent rotation will lead to a reduction of government.
My persistent doubts about term limits arise for precisely this reason, namely, that term limits don't get to the heart of what ails our political life. The heart of the problem is an administrative state that has corrupted the legislative function, forcing legislators to be glorified civil servants rather than deliberative lawmakers and rewarding them for increased spending and additional bureaucracy. To the extent that tenure in office aggravates this problem, term limits are worth keeping and perhaps extending to Congress, but they are no substitute for the changes in public opinion that would be necessary to shrink the size and scope of government.
And we have not yet seen enough to know what unintended consequences might come with term limits in the long run. The forces of big government are irrepressible and may eventually prove adaptable to a term-limited environment. Californians have seen this before with reforms such as Proposition 13, a great blow for low taxes which nonetheless did not provide a lasting bulwark against expanding centralized government in California (and which in some ways made things worse; see "Pushing the Limit," November 1993).
Hence the most interesting question about term limits, and their final test, will be how term-limited legislatures adapt to the loss of "experience" and institutional memory. Term limit opponents are way too hasty in declaring victory on the issue of experience, because the place of experience in our political life is far from settled. You needn't believe that gridlock is good to divine a silver lining to the supposedly sorry circumstance of rookie legislators and staff who don't know how to work the process and meet the calendar.
"One good thing that term limits might do is force a debate about the level of complexity in our legislative institutions," says U.C.-Irvine's Mark Petracca. "Does the claim that issues are complex necessitate the kind of experience that can only be gained through long tenure in office? Or is it our complex institutional design that currently requires experience? I am suspicious about whether the complexity of the current legislative process was designed by the people who have been there for the last 30 years so that it is impenetrable to outsiders." Institutional complexity, Petracca notes, serves the interests of long-tenured officeholders, who can then market themselves to voters and special interests not only as indispensable to the legislative process but also as necessary ombudsmen for dealing with the administrative state they have conspired to extend. But it is not obvious that the process of legislating is inherently complex; the current complexity, Petracca suggests, is probably more a deliberate product.
Petracca thinks term-limited legislators eventually will change the legislative process to make it simpler and more accessible. "How much experience is necessary to redesign the legislative process in a way that is comportable to the characteristics of term-limited legislators?" he asks. The ability of less-experienced citizen-legislators to adapt to the legislative process will be an excellent case study of whether government has grown beyond the capacity of ordinary citizens to understand and reform. It will show whether democracy has diminished to the point where elections are merely ancillary to government, or whether elections are still at the heart of our democracy. For this reason alone–and no matter what the courts say about the constitutionality of Prop. 140–the experiment should be allowed to continue. (If the courts strike down Prop. 140, term limits advocates have prepared new initiatives they believe will withstand any further constitutional challenges.)
Meanwhile, Willie Brown, the career politician who helped spawn term limits, is having the time of his life as mayor of San Francisco. Democrats are back in control of the legislature, and spending is unrestrained. Was it all worth it, just to get rid of Willie Brown and exact revenge on the political class? The liberal machine in Sacramento sorely misses him, which suggests that the answer is yes.
Contributing Editor Steven Hayward (email@example.com) is a Bradley Fellow at the Heritage Foundation in Washington and the author of Churchill on Leadership (Prima Publishing).