A Coming to Terms

By Howard Chua-Eoan

Ed Jaksha of Omaha, Nebraska, is a true believer, but he looked like a true eccentric in early November as he roamed 600 miles across the plains of Nebraska, covering much of the distance on foot. The retired telephone-company manager, 79, wore a Revolutionary War-era costume, complete with brocade knickers, flounced tie and a white wig. His message was equally rambunctious. "We have a distant, oppressive government in Washington," he told people along the way. "It is time to restore a citizen legislature. If we didn't have liars and cheaters and people who wanted to be in office forever, we wouldn't be doing this."

Jaksha's attitude, however, was anything but fringe. He was supporting the ballot proposition to limit the terms of congressional officeholders, a measure that rolled to victory Nov. 8 in Nebraska and six other states: Alaska, Colorado, Idaho, Maine, Massachusetts and Nevada. Only voters in Utah, which earlier had adopted limits, turned down a proposed addition to their restrictions. The past election brings to 22 the number of states that have imposed term limits on members of Congress since 1990. "It would be pointless to mount an opposition," said Ernie Chambers, a 24-year veteran in the Nebraska state senate. "It's like a house is burning down, and all you have to put it out with is a teaspoon of water." What could have a drenching effect on the term-limits movement, however, is the Supreme Court. Officeholders will keenly be following the oral arguments this week in the case of U.S. Term Limits v. Thornton and Bryant v. Hill, which will be the first tests of the constitutionality of such limits. The cases involve a constitutional amendment passed by Arkansas voters in 1992 that limits U.S. Representatives to three two-year terms and Senators to two six-year terms. The amendment in question states, "The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with re-election and ignore their duties as representatives of the people."

The Clinton Administration will join the League of Women Voters in arguing against the law even as the attorney general of the President's home state defends it. "If the Supreme Court upholds the constitutionality of term limits, it will change the political landscape," says Professor Ronald Rotunda of the University of Illinois College of Law. "It will be as important to voting as Brown v. Board of Education was to desegregation."

The legal battleground covers two sections of the Constitution. Proponents of term limits will highlight Article I, Section 4, which they say gives each state the authority to prescribe the "time, place and manner" of congressional elections, therefore delegating to the local level the rules of who gets to run. Opponents will counter that such an interpretation of the Constitution is much too broad. They will also point out that the exclusive qualifications for members of the House of Representatives and the Senate are explicitly set forth in Article I, Sections 2 and 3 -- members of Congress must be at least 25 years old and citizens of the U.S. for at least seven years; Senators must be at least 30 years old and citizens for at least nine years; both Senators and Representatives must be residents in the state. Plainly, they reiterate, there is no reference to term limits.

The Arkansas law has been struck down by every lower tribunal, and the Supreme Court is likely to do the same. Says Professor Tracey Maclin of Boston University Law School: "The court realizes this is a pressing issue. If they duck this case, another one will come up soon. This is a good vehicle for stopping the whole movement in its tracks." Nevertheless, laws limiting the terms of state officials, which have generally been upheld by lower courts and are not at issue in next week's Supreme Court case, have changed the nature of political activity from the school board to the Governor's mansion. A case in point: California's term limits may require assembly speaker Willie Brown, who has won re-election every time since 1964, to run for a state senate seat the next time around if he wants to stay in the legislature.

If term limits were to be successfully imposed on the federal level, some critics are worried that Congress may become too much of an amateur's game. The career support staff, along with lobbyists and bureaucrats, may run roughshod over green legislators. Furthermore, many states would lose the clout of established Representatives and Senators, the hoary politicos whose years of service guarantee them influence and chairmanships of committees. Says Pat Schroeder, the 10-term Representative from Colorado: "Four states have half the votes in Congress. A state with only six votes and no seniority isn't going to get far. Six votes won't stop a speeding train. I guess people just don't understand we're six out of 435. You've got to have power and seniority to get anywhere." Schroeder, an ardent opponent of term limits, won re-election three weeks ago even as her state voted to tighten its 1990 federal strictures and also extend limits to all locally elected officials.

Opponents of term limits argue that Americans have always had the power to turn incumbents out of office -- by voting. It's not that simple, says Cleta Deatherage Mitchell, the general counsel for the Term Limits Legal Institute and co-counsel in Bryant v. Hill. "Incumbents have such enormous advantages that it makes the whole notion of competitive elections a mockery," she says. "It almost takes a national temper tantrum to dislodge incumbents." Meanwhile, Rotunda points to the existence of one federal-term limit -- the two terms of the President. "The nation has survived, indeed flourished," he adds. Furthermore, there is another benefit to shorter terms. "When you have open seats, women and minorities have a better chance of getting elected."

The term-limits sentiment, of course, was exploited for political gain during the election. Republicans espoused such initiatives to pry long-lived Democrats from power -- outgoing House Speaker Tom Foley in Washington State being the most notable victim. But now that the G.O.P. is ensconced, the party is discovering that the movement is a class-action suit against every politician. A Supreme Court decision against the Arkansas law will, for the moment, calm the nerves and further the ambitions of officeholders. But that merely moves the battle to another site. "If we lose the Supreme Court case," says Mitchell, "it puts a tremendous amount of pressure on Congress to enact term limits." Support there is spotty -- and certainly less than heartfelt. While Newt Gingrich's Contract with America features a term-limits constitutional amendment, a parallel agenda, which is set forth by senior Senate Republicans, does not mention the issue at all.

Mere lip service by Congress won't assuage the national temper tantrum. "Serious problems -- like health care and the deficit were rumbling for years," says Lawrence Dodd, a University of Colorado political scientist. "Now they've broken out in serious dramatic ways, and Congress isn't equipped to deal with them." More legislative inaction will merely heighten what Dodd calls the crisis of legitimization that taints officeholders and encourages widespread sentiments in favor of term limits. The movement seems to spring spontaneously out of the lower depths, producing autonomous local chapters with minimal nurturing required. In Colorado, for example, term- limits proponents spent only $2,500 on what proved to be their victorious campaign to win approval for Amendment 17. Not that the movement isn't capable of raising money or organizing. Americans for Term Limits attracted $1.6 million in the past election alone, and the National Term Limits Coalition tries to coordinate the activities of the plethora of groups across the country.

"I think term limits are here to stay, regardless of what the Supreme Court does," says Winston Bryant, the Arkansas attorney general whose name is attached to the Supreme Court case and who will argue it this week. "It's a nationwide grass-roots movement. The states would pass a constitutional proposition quickly and easily. The holdup is in the Congress, and eventually that opposition will disappear." If not, that opposition may simply be voted out again.

With reporting by Laurence I. Barrett/Washington, Wendy Cole/Chicago, Andrea Sachs/New York and Richard Woodbury/Denver