Limited Terms or Limitless Folly?

Reading the Fine Print on Colorado's Amendment 12
March 30, 1997

Do you favor limiting the number of terms an elected official may serve? If so, how badly?

That is the question you must ask yourself before the Colorado General Assembly votes on Amendment 12, which was approved by a 54-46 percent margin by Colorado voters in last fall's general election. Only about a quarter of the wording of the proposed amendment has anything to do with term limits per se. The remainder of the amendment calls for our state senators and representatives to apply for a constitutional convention, and promises to make life miserable for those who vote against it.

Amendment 12 was sold as an innocuous term limits measure. A goodly number of people who signed petitions to put it on the ballot believed this. (Too many people sign petitions without reading the fine print.) Unfortunately, many right-minded people (including some of my brethren in the Libertarian Party, who are meticulous fine print readers) support Amendment 12.

Herewith is the text of the amendment. Judge for yourself if it is merely about term limits.

An amendment to the Colorado Constitution concerning congressional term limits, and, in connection therewith, specifying a proposed amendment to the U.S. Constitution that limits U.S. senators to two terms, former and incumbent U.S. senators to one additional term, U.S. representatives to three terms, and former and incumbent U.S. representatives to two additional terms; instructing Colorado's state senators and representatives to vote to apply for an AMENDMENT-PROPOSING CONVENTION; (capitals mine) instructing Colorado's U.S. senators and representatives to pass said term limits amendment; requiring that all election ballots have "disregarded voter instruction on term limits" next to the name of an incumbent U.S. senator or representative or incumbent state senator or representative when such senator or representative fails to take specific actions in support of said term limits amendment; providing that non-incumbent candidates for U.S. and state senator and representative be given an opportunity to take a pledge in support of said term limits amendment; requiring that primary and general election ballots have "declined to take pledge to support term limits" next to the name of a non-incumbent candidate who has not signed such pledge; authorizing the Secretary of State to determine whether the terms of this amendment have been complied with and whether such designations should appear on the ballot; and allowing any legal challenge to this amendment to be filed with the Supreme Court of Colorado as an original action.

I am reminded of what William F. Buckley said some years ago, opposing a purported civil rights proposal because, in short, it had nothing to do with equal rights for minorities. He said that if he were a congressman, he would introduce the "Nuclear First Strike Against the Soviet Union Civil Rights Act," and brand anyone who opposed it "an opponent of Civil Rights." Most of Amendment 12 deals with smearing incumbent and aspiring office holders who vote either in response to their constituents' wishes regarding term limits, or against applying for constitutional convention.

If ballots are to be marked with candidates' and incumbents' positions regarding term limits, why then can they not be marked with their positions on other issues? Also, would post-Amendment 12 ballots not violate state law regarding electioneering at the polls?

If the Amendment were a simple petition to Congress regarding term limits, this would be one thing. Clearly Amendment 12 is something completely different.

Concerning the "amendment-proposing convention" clause, Amendment 12 proponents need to ask themselves if they really want this convention. Article V of the Constitution specifies two methods for ratifying amendments. The first such method, wherein the amendment is approved by two-thirds of both houses of Congress and legislatures in three-fourths of the states, has been the method by which all of the 26 current amendments have been ratified.

The second method of ratification is by means of a constitutional convention. Article V of the Constitution states that "The Congress ... on the Application of the Legislatures of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, ... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof ..."

Let's look at the fine print. Amendment 12 does not limit what may happen at this convention. Article V says Amendments (plural), not Amendment (singular). Once in session, there is no limit on what could happen at such a convention. Even if Congress moved that the convention be limited to term limits, such a resolution would not be binding.

How many of your rights would you put in jeopardy in order to have term limits? Would you surrender your right to free speech? To practice your religion? To vote? To self-defense? To private property? To due process? To all your unspecified rights under the Ninth Amendment? A constitutional convention might not propose to limit any of these rights. But then again, nothing would prevent them from doing so.

To be sure, whatever was decided upon at this convention would still have to pass muster with either 38 state legislatures or 38 state conventions. Very well, then: who would choose delegates to these conventions? Would you or I have any say in choosing these delegates? What mindset would characterize these state delegates? In short, how much control would you or I have over this ratification process?

It has been said that "nothing can save a society from its top 100,000 people." We live in a time when too many of our political, social, cultural, media, and academic elites, i.e. the idea-generators of our society, have extreme contempt for the Constitution. It is from this stratum that delegates to the main constitutional convention as well as the state conventions are likely to be drawn. The 1787 convention which gave us our current Constitution threw out the entire Articles of Confederation, including the process for ratifying amendments to these Articles. Do you trust that our contemporary elites would preserve our Constitutions given the temptations of a convention?

Term limits are not necessarily a bad idea. There is quite a bit to be said in favor of limiting the time for which people can hold office, and thereby limiting their ability to accumulate power. However, do we really want to jeopardize our entire Constitution because of our impatience over term limits?

This is a classic example of no new law being better than a bad new law. In the absence of having all we want in the area of term limits, we can always vote against public officials whom we do not like. The high turnover rate in Congress in recent years shows that this method is very effective. Indeed, this is about the only part of our Constitution that anyone seems to take seriously anymore.

Freely Speaking: Essays by Doug Newman

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