Calling One Side Ignorant Won’t End the Argument

Some things don’t change. Americans have been arguing about term limits since the founding fathers began shaping the republic.

James Madison wanted House members to serve one term and then go home. Otherwise, he feared, politicians and power blocs would become entrenched. He believed term limits were needed to make sure that congressmen represented the people, not “factions . . . the mortal diseases under which popular governments have everywhere perished.”

Alexander Hamilton, however, argued that if elected officials were denied the right to seek reelection, they would spend their time serving themselves and angling for the next job. “There would be a diminution of the inducements to good behavior,” he wrote, because “the desire of reward is one of the strongest incentives of human conduct.” He also noted that “experience is the parent of wisdom.”

Two hundred years later, Californians had their own argument over term limits. They wound up narrowly passing a ballot initiative--Proposition 140--that limited legislators to three two-year terms in the Assembly and two four-year stints in the Senate. It was a loud, healthy debate in the American tradition.

Unfortunately, the dialogue was not advanced last week by a federal judge, who said merely that Californians were ignorant of 140 and didn’t know what they were voting on, therefore their action was invalid. Specifically, they didn’t understand, he said, that the initiative forbade lawmakers from ever again running for their old seats once they had been termed-out.

Of course, nobody understood this for sure until the state Supreme Court decided it long after the election. As the federal judge noted, the initiative was “ambiguous” regarding a lifetime ban.

Even if a lifetime ban was not mentioned by the measure’s backers, however, it was featured in the public discourse. Opponents shouted many warnings, including a half-dozen in the state ballot pamphlet mailed to every voter.

But regardless, since when did full knowledge of an issue become a prerequisite for voting? We don’t have poll quizzes.

*

“Voters were not [provided] adequate notice of the severity of the [term] limitation,” wrote liberal jurist Stephen Reinhardt of Los Angeles in a protracted, repetitive opinion for the U.S. 9th Circuit Court of Appeals. Absent this knowledge, he said, “we cannot hold that the people intended severely to [restrict] their most fundamental right, the right to vote. In matters this important, the state simply must tell its citizens what they are voting on.”

Right, because they certainly can’t figure it out for themselves. They probably thought 140 was about booting out career politicians--such as then-Speaker Willie Brown, the term limit poster pol--and corrupt lawmakers akin to those nabbed in an FBI sting still fresh in people’s minds.

Reinhardt also asserted “it is likely” there were enough voters unaware of the lifetime ban--”the initiative’s principal effect”--that they could have changed the election outcome. The judge, a former Democratic party leader, didn’t say how he reached this conclusion. A swing of 155,891 votes--2.17% of those cast--would have been needed to reverse the result.

In its 2-1 decision, the court ruled that permitting “voter ignorance” of the lifetime ban was unconstitutional. But it did not rule on whether the ban itself was unconstitutional. Reinhardt cited former Supreme Court Justice Lewis F. Powell’s admonition that “important constitutional issues [should] not be decided unnecessarily where narrower grounds exist.”

*

Well, a lot of people think this was a cop-out. They believe Reinhardt wanted to junk 140, but also avoid a U.S. Supreme Court decision. If his panel had ruled that the lifetime ban is unconstitutional, it would have clashed with the state Supreme Court, which had affirmed 140. It’s likely the U.S. Supreme Court then would have resolved the conflict. Now, it’s anybody’s guess what will happen.

Contrast Reinhardt’s elitist opinion with the thoughtful decision last April of a lower court federal judge, Claudia Wilken. She stepped up and did rule that the lifetime ban is unconstitutional. Even people who disagree concede that her opinion was well written and substantive.

Personally, I’m against term limits. They infringe on my voting rights. They produce too many rookie lawmakers. Assembly sessions become amateur hour.

But this debate will last as long as the republic. Just spare us insults about voter ignorance. If term limits are unconstitutional, the judiciary should say so. Otherwise, this is a policy decision for voters.

Decreeing we don’t know enough to decide for ourselves smacks of that old tyrant who riled up the founders, George III.