Term Limits Are Constitutional ---- By William H. Mellor
State statutes that bar first-time candidates from running for Congress have been held to add to the qualifications set forth in the Constitution and have been invalidated. For example, the 1972 decision in Dillon v. Fiorina struck down a New Mexico law requiring candidates entering a congressional primary to have belonged to their party for a year and to pay a registration fee. But state statutes that simply limit the tenure of existing congressional officeholders have not yet been tested in court. The constitutionality of such state term limits may, however, be tested next month. Florida's attorney general has asked its state Supreme Court for an advisory opinion on a term-limit initiative that would limit the state's members of Congress to eight consecutive years in office. Three U.S. House members, led by Democrat Larry Smith, have filed briefs asking the court to rule state term limits unconstitutional. The court will hear arguments Friday, and may rule later this month. By 6 to 1, the California Supreme Court ruled this month that the state's new term-limit law was constitutional. The court said the "state's strong interests in protecting against an entrenched, dynastic legislative bureaucracy" outweighed objections that term limits restrict voter choice at the ballot box. But the court's decision affected only term limits on state officials; federal officeholders weren't included in California's limits. Nevertheless, the California decision demolished many of the legal arguments made by incumbents. They claimed there is a "fundamental right to be a candidate for public office," which they found among the "associational rights" in the First Amendment. They argued that voters were denied the right to be represented by the same legislator indefinitely, and that term limits discriminated against incumbents and denied them their right to equal protection of the laws. California's highest court rejected all of these arguments. Term limitations do not restrict the right to vote for a candidate because of his or her ideology or party. Therefore, they do not deprive voters of the freedom to associate with candidates based on their viewpoint or with any particular party. Rather, they prevent citizens from voting for a particular candidate after he has served in office a set number of years. They may vote for that candidate again after a "waiting period" has ended. The restriction is imposed in a non-discriminatory manner on all candidates regardless of viewpoint or party affiliation. In its 1972 decision Bullock v. Carter and again in its 1982 decision Clements v. Fashing, the U.S. Supreme Court determined that a particular candidate has no "fundamental" right to ballot access or to run for office. Federal courts have upheld many state restrictions on who may qualify for ballot access. They have never held reasonable, non-discriminatory restrictions on who may run a violation of the right to vote. Likewise, term limits do not violate the Equal Protection Clause of the 14th Amendment. The Supreme Court has found that clause violated only in those cases where ballot access restrictions discriminate against the poor and against new, small or independent party candidates. Unlike the age, residency and citizenship requirements, term limits do not prevent any non-incumbent from running for Congress. Nor do they prevent a House member who has reached a term limit from running for the U.S. Senate or vice versa. Nor do they limit an incumbent who leaves office for a period of time (six years in Washington state) from running again. Moreover, term limits do not in any way modify the age, residency or citizenship requirements in the Constitution. Consequently, the argument that term limits are "qualifications" just like those already in the Constitution -- and that therefore they can be added only by amending the Constitution -- isn't particularly convincing. Viewed in this way, term limits imposed by states would be constitutional. The Supreme Court has long held that the power to ensure a fair electoral system, truly responsive representation in Congress and a high degree of citizen participation in elections rests with the states. In its 1974 decision Storer v. Brown, the Supreme Court upheld a California law that prohibited an independent candidate from running for Congress because he had changed his registration to Independent less than 11 months before the election. This law was found not to be an improper additional qualification because a valid state interest was pursued. In explaining that interest, the court recognized that "there must be a substantial regulation of elections {by the states} if they are to be fair and honest," and if some sort of order is to accompany the democratic process. As recently as June of this year, the Supreme Court again reiterated that the states have reserved to themselves, via the Tenth Amendment, "the power to regulate elections." Elsewhere, the court in 1988 ruled in South Carolina v. Baker, that certain "extraordinary defects in the national political process might render congressional regulation of state activities invalid under the Tenth Amendment." The court has not defined what it means by "extraordinary defects," but surely the fact that 98% of House incumbents are routinely re-elected and that one out of five incumbents ran with no major-party opposition in 1990 might qualify. Where the incumbent is almost the pre-ordained winner in an election, there is no effective competition of ideas or candidates and incumbents are less responsive to the will of the electorate. On this basis, term limits merely ensure a fair election system and the "republican form of government" guaranteed the states under the Constitution. Should the court rule against term limits by the states, numerous other ballot access restrictions will likely be passed that have many of the same effects as term limits. One option would limit an incumbents' access to the ballot. States could allow an incumbent who has served a set number of years in the same office to run again, but only as a "write-in" candidate. Presumably, if an incumbent were truly effective and popular he wouldn't find that a crushing obstacle. Two sitting U.S. House Members won their first terms as write-in candidates. Incumbents would certainly have the resources to educate voters in write-in procedures. Another option would require candidates to have "ballot statements" appear next to their names. Each candidate would have to answer the question: "Will you adhere to a -- year term limit?" The answer would appear on the ballot so voters would know a candidate's views on term limits. Many such ballot restrictions have been upheld by the courts. Incumbents should take heed. If they count only on the courts to safeguard their political castles, they may be in for a rude surprise. --- Mr. Mellor is president and general counsel of the Institute for Justice, a Washington, D.C., litigation and educational organization.
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