Living within the limits.

Editor's Note:

The Milbank Memorial Fund and the National Conference of State Legislatures in 1996 co-sponsored a meeting of experienced legislators and legislative leaders from states with term limits to discuss the potential impact of such limitations on social and health policy and on the legislative institution. While all the impacts of term limits are not discernible, it is already apparent that they will alter legislative membership, operations and public policy in fundamental ways. The series that begins this month in State Legislatures is based in part on these discussions. A report jointly published by Milbank Memorial Fund and NCSL elaborating on these discussions and offering recommendations for dealing with term limits will be available this summer and may be obtained by calling the Milbank Memorial Fund at 1-800-835-6770 or by calling NCSL at [phone].

The way legislatures ran, the way lawmakers conduct business, our very concept of representative democracy is likely to be shaken up by term limits. In this first article of a three-part series, State Legislatures examines the recent history of the term limits movement and the maturation of American state legislatures.

"The branch of government which holds the most hope, I think, for bringing society together is the legislative branch. Computer technology cannot replace the importance of men and women coming from many different societal backgrounds to meet and deliberate, to learn from each other and do consensus building. The executive branch isn't in a position to do that. The judicial branch is not. That's why I find term limits so troubling, because I think term limits attack the heart of what is a good representative process."

-Paul Hillegonds Michigan Speaker of the House, 1995-96

Term limits are one of the decade's most popular political ideas. And they have taken the states by storm. Well-financed, well-orchestrated and well-planned, the term limitation movement has won over voters in 20 states. Citizens in those states are beginning to learn if this experiment in democracy delivers on its promise - a more responsive, effective and energized government - or whether it is the wrong prescription.

A new characteristic now distinguishes states: those with term limits and those without. Twenty states are term limited - they prohibit their members by constitution or law from running for reelection beyond a prescribed term. No state legislature to date has swept out all the incumbents and voted in new lawmakers under term limits. But the clock is running. In 2008, limits will be fully implemented in all the states that passed them. Legislators in California and Maine were the first to find themselves out of work as lawmakers, not in an election defeat, but because of term limits. The houses in Arkansas, Colorado, Michigan, Montana, Oregon and Washington and the California Senate will be the next to replace incumbents after the 1998 elections. There will soon be a time when entire chambers have members with fewer than six years' experience.

THE RUSH OF THE 1990s

The rush to limit terms began in 1990. The early successes in California, Colorado and Oklahoma provided momentum in the following five years. In 1992, 14 initiatives were certified and placed on the ballot and every one passed.

With the exception of Utah, where the Legislature imposed limits on itself, and Louisiana, the only state where the Legislature itself put term limits on the ballot, citizen groups have spawned successful petition drives to curb the time lawmakers may serve. These have not been undertaken in isolation, however. National advocacy groups such as U.S. Term Limits, Americans for Limited Terms and Americans Back in Charge have coordinated initiative campaigns and encouraged similar ballot language in many states.

A DIVERSE GROUP OF STATES

Forty-two percent of the American population lives in the 20 term-limited states. The states are geographically, economically and politically diverse. Their legislatures are full-time, part-time and citizen. Their populations are large - California, Florida, Massachusetts, Michigan, Ohio - and small - Montana, South Dakota, Utah, Wyoming. They are located in the East, South, Midwest and the West. Their economies are agricultural, industrial, high tech, tourist, petroleum- and mining-based. They have large budgets, and relatively small ones.

Of these 20 states, 14 have constitutional limits on service (Arizona, Arkansas, California, Colorado, Florida, Louisiana, Michigan, Missouri, Montana, Nevada, Ohio, Oklahoma, Oregon and South Dakota). Limits in the remaining six (Idaho, Maine, Massachusetts, Utah, Washington and Wyoming) are statutory. The issue was brought to the ballot by citizen initiative in 18 states. Alaska, Illinois, Mississippi and North Dakota are the only remaining states that permit citizens to place measures on the ballot that have not enacted term limits.

The states vary significantly. California, Massachusetts, Michigan and Ohio all have full-time legislatures with both central and partisan staffs and lawmakers who are paid higher annual salaries than their peers in other states. They meet year-round. Arizona, Colorado, Florida, Louisiana, Missouri, Oklahoma, Oregon and Washington, on the other hand, are part-time legislatures, but they are nevertheless well-staffed and comparatively well-paid. Florida, for example, is a large state with a large professional staff, but its Legislature meets only two months of the year. Colorado is constitutionally limited to 120 session days per year. The term-limited states with part-time legislators, low pay and small staffs are Arkansas, Idaho, Maine, Montana, Nevada, South Dakota, Utah and Wyoming. Arkansas, Montana, Nevada and Oregon meet only every other year. In three of these states, House members will meet in session only three times before term limits force them out of office.

The men and women serving in these 20 legislatures are responsible for budgets that range from $94 billion in California to $1.7 billion in South Dakota. They are writing some of the most significant legislation in the history of the states as Congress turns over programs formerly administered by the federal government, and they are doing it without the benefit of legislative historical perspective and institutional memory.

"That's what has been the beauty of representative government. We have an enormously diverse society, and we've been able to stay together as a country because we have representative bodies that have found ways to reach consensus across geographical and philosophical lines," says former Michigan Speaker Paul Hillegonds, now president of Detroit Renaissance, a corporate alliance dedicated to revitalizing the city. "That process is enhanced by personal relationships and this thing I call institutional memory - people who have been through issues on a periodic basis and have a better understanding when the same issue arises again."

"I think institutional memory is very important, to have people who remember as far back as possible to avoid mistakes and to have people who were eyewitnesses to what has happened before," says Massachusetts Representative John McDonough. "It doesn't have the same impact on people's thinking to have a written document that says this is what happened versus having someone stand up in a caucus or on the floor and say, 'Wait a minute, I was here, and this is what really happened.' It makes a very, very big difference."

"It's just knowing the history and the context - why something didn't happen," says Senator Don Wesely of Nebraska. "Maybe those reasons have changed, and that helps you fashion better solutions to problems. To take that away, in my view, is reinventing the wheel."

LEGISLATURES UNDER CHALLENGE

"Today, state legislatures are among the most revitalized and changed institutions in America with a vastly increased capacity to govern," says William T. Pound, executive director of the National Conference of State Legislatures.

The ability of legislatures to create and shape programs has never been greater than it is now. Yet they also are under challenge as never before. Public perception, the citizen initiative, the demand to maintain government programs in a tax restricted environment are but a few of the difficulties facing legislatures today. And the movement to limit terms is among the most serious.

Almost every national policy innovation can be traced back to the states. Old age pensions created by state legislatures were the model for the federal Social Security Act. States created programs to compensate workers who were injured on the job. Today, all but three states have workers' compensation plans. And more recently, state legislatures have effected health reform even as Congress and the president struggled with increasing access to health insurance. The federal Health Insurance Portability and Accountability Act of 1996 nationalized many of the reforms already enacted in the majority of states. State legislatures have streamlined Medicaid, increasing coverage and stabilizing costs, while the federal government continues to debate whether to hand the program in its entirety to the states. State legislatures have reformed welfare and provided the inspiration for congressional action.

Progressive and creative social policy and institutional innovations in the states rival the very best of federal legislation:

* Oregon passed one of the most comprehensive health programs in the nation, increasing by 60 percent the number of people covered by Medicaid by guaranteeing health coverage for all people living below 100 percent of the poverty level. The state also created a high-risk pool for people with pre-existing medical conditions and a health insurance purchasing pool for small businesses.

* Florida enacted one of the nation's first managed competition approaches to health care reform - Florida Health Access - that allowed small businesses to purchase health care at group rates, providing access to health insurance to more than 17,000 employers and more than 76,000 people who had gone without it. The Florida plan has become a model for the nation.

* Michigan scrapped its school finance system, replacing local property taxes with a 2-cent increase in the state sales tax and other state taxes, and provided substantial new funding to improve the poorest schools in the state.

* In a special session that was the first of its kind in the nation, Colorado passed a tough new ban on kids possessing guns and created a new penal system for hard core offenders.

* Massachusetts prohibited HMOs from restricting communication between providers and patients about various medical procedures.

* Congress and the Environmental Protection Agency modeled the 1993 Clean Air Act Amendments on California's innovative air quality program that allows emissions trading in polluted areas and encourages the use of electric cars.

These states share creativity in public policy. But they also share another bond: Their terms are limited.

TURNOVER - ALREADY A REALITY

Term limits' promise - and appeal - is to oust the entrenched and bring in the new - new people, new ideas, new ways of doing things. By forcing turnover, the argument goes, term limits ensure that public policy, not politics and the personal gain of politicians, is the outcome of government. Scrapping the seniority system means that no single person can have a stranglehold on a leadership position, a committee chairmanship or a district.

There are 7,424 state legislators in the United States; 2,615, or 35 percent, serve under term limits. There is clearly a belief among voters who supported term limits that they were the only way to get rid of superannuated veterans. But natural turnover and the ballot box achieve the same end.

Statistics from the National Conference of State Legislatures illustrate that state legislatures change through natural turnover every decade without term limits. Turnover in state legislatures is, on average, 20 percent every two years. In 10 years, theoretically, everybody is new. A study of turnover in state legislatures between 1987 and 1997 showed actual turnover to be 72 percent for the nation's state senates and 84 percent for houses. The statistics for leadership turnover are even more impressive: From 1990 to 1997, 86 percent of senate presidents, house speakers and majority and minority leaders changed.

Total membership turnover is much higher in state legislatures than in Congress. According to the Congressional Research Service, the reelection rate for House incumbents has fallen below 70 percent only three times since the turn of the century and has averaged more than 90 percent since 1950.

By comparing actual turnover rates in the 1990s with the enforced turnover under various term limitations, it is evident that some states get to 100 percent more quickly than others - and even faster than term limits require. Statistically, membership in lower chambers of Louisiana, Nevada, Montana, Idaho, Oklahoma and Utah would naturally turn over in about six years, while the term limitations in those states range from eight to 12 years. On the other hand, natural turnover in the Ohio, California and Michigan houses takes about 18 years. Their term limitations are stringent - eight years in Ohio, six in California and Michigan.

But voters who passed term limits may not really want drastic change. In Michigan, a state that overwhelmingly passed one of the nation's most severe term limit laws in 1992, only one seat changed parties in 1994, tilting a previously tied chamber to the Republicans for the first time in 25 years. The Legislature had had its most productive session in years, according to the former [TABULAR DATA OMITTED] speaker of the House, and the public showed its approval by returning all but one member to office.

But that option is no longer available to Michigan citizens.

"In 1999, there will be 67 new legislators out of 110 in the Michigan House," Hillegonds says. "The court of public opinion will have to decide how we feel about those we had and how the new group is performing."

The court of public opinion clearly had its say in other states in 1994 when voters accomplished through the ballot box what term limits will impose on state legislatures beginning in 1998. That Election Day knockout punch was the largest mid-term election sweep of the century. Republicans not only took control of Congress for the first time since the Eisenhower era, but made huge gains in state legislatures. When the final count was taken, Republicans, who held the majority in eight legislatures going into the election, had taken control of 19. The number of new state legislative seats told the story: Republicans, 472, Democrats 11. The voters had spoken more persuasively and personally than they did in approving term limits.

Democrats went into the 1996 election the underdog for the first time in 36 years. With the net switch of some 100 seats from a total of 5,989 seats up for election, they won the majority in eight legislative chambers that were formerly controlled by the GOP or were tied. Republicans, on the other hand, won three chambers controlled by the Democrats before the election and maintained the numerical hold on legislatures they had in 1995. Six of the 11 chambers that switched party control are in term-limited states. Once again, the public effected change through the ballot box.

AN IDEA REVISITED

Term limits are a new idea with old roots. The Continental Congress limited the terms of its representatives to "three years in six" in the Articles of Confederation. But then members of the Constitutional Convention in 1787 ultimately determined that the people should decide who represented them and for how long. In the 1990s, a frustrated public, encouraged and directed by well-financed and well-orchestrated term limitation campaigns, took aim at Congress for what it perceived as gridlock, abuses of political power and privilege, the influence of lobbies, and the failure to deal effectively with issues of crime and the economy. Of the first term limitation initiatives in California, Colorado and Oklahoma - passed in 1990 - only Colorado attempted to limit federal as well as state legislative terms. Subsequent initiatives in 21 other states also targeted federal lawmakers.

Today, the terms of legislators in 20 states are limited. Those of Congress are not. The U.S. Supreme Court in May 1995 ruled that states may not put restrictions on federal lawmakers other than those spelled out in the Constitution. Writing for the Court in Thornton vs. Arkansas, Justice John Paul Stevens stated: "If there is one watchword for representation of the various states in Congress it is uniformity. Federal legislators speak to national issues that affect the citizens of every state...The uniformity in qualifications mandated in Article I provides the tenor and the fabric for representation in Congress. Piecemeal restrictions by states would fly in the face of that order."

So for the moment, at least, America's experiment with limiting terms will be conducted in the states. Are term limits good medicine for the ills of democracy? Will term limits make representative government less effective or more? What effect will term limits have on the legislature's ability to enact a responsible state budget, to hold the executive branch accountable, to "solve problems" and to pursue "good government"?

In next month's installment, we explore the loss of institutional memory and collegiality that term limits have produced, as well as what both proponents and opponents say the impact of term limits will be.

CHRONOLOGY OF LEGISLATIVE TERM LIMITS

1781

Articles of Confederation limit representation to "three years in six."

1787

New Constitution for federal Congress has no limitations set on representatives or senators.

1951

Twenty-second Amendment to U.S. Constitution limiting presidential terms to two four-year terms is approved.

1978

U.S. Senate judiciary subcommittee holds, hearings on congressional term limits. No action taken.

1988

GOP platform includes plank advocating congressional term limits.

1990

Oklahoma, California, Colorado pass term limits on state elected officials. (Colorado's provisions also include federal lawmakers.)

1991

April

California Legislature challenges Proposition 140, which includes term limits for state lawmakers, in state Supreme Court.

October

California Supreme Court upholds term limits.

November

Washington state fails to pass term limits.

December

California Legislature appeals term limits case to U.S. Supreme Court, which declines to hear it.

1992

November

Fourteen ballot initiatives limiting state or federal officials pass in Arizona, Arkansas, California, Florida, Michigan, Missouri, Montana, Nebraska, North Dakota, Ohio, Oregon, South Dakota, Washington and Wyoming.

1993

November

Maine passes limits on state officials. It becomes the first state to make limits retroactive.

1994

March

Arkansas Supreme Court rules that voters cannot restrict eligibility of federal candidates, but upholds limits for state lawmakers.

Utah Legislature passes term limits on itself.

May

Nebraska Supreme Court overthrows 1992 term limits initiative on a signature technicality.

October

U.S. Supreme court agrees to hear appeal of Arkansas Case. (U.S. Term Limits vs. Thornton)

November

Alaska, Idaho, Maine, Massachusetts, Nebraska and Nevada voters approve term limits measures for state lawmakers. Colorado voters extend limits to local officials. A ballot initiative in Utah does not pass, but a law passed by the Legislature in March 1994 remains in effect.

1995

May

U.S. Supreme Court rules on Thornton, arguing that individual states may not limit terms in Congress.

October

Louisiana voters pass a referendum proposed by the Legislature that sets term limits on state lawmakers.

November

Mississippi fails to pass a term limit initiative for state officeholders.

1996

February

Nebraska Supreme Court utilizes Thornton to overthrow limits approved in 1994.

Maine federal district court denies a request brought by the League of Women Voters for a preliminary injunctions against the term limits law.

September

Maine Supreme Court rules that term limits are constitutional under the state constitution.

October

Arkansas Supreme court strikes down a proposal requiring ballots to indicate whether candidates back term limits legislation. Despite this ruling, the court allows the measure to remain on the ballot.

November

Voters in nine states (Alaska, Arkansas, Colorado, Idaho, Maine, Missouri, Nebraska. Nevada and South Dakota) pass "inform and instruct" measures requiring ballots to note whether candidates support term limits legislation. Such measures fail in Montana, North Dakota, Oregon, Washington and Wyoming.

North Dakota fails to pass an initiative limiting state legislative terms.

1997

January

The first three chambers to be entirely "termed out" - the California Assembly, the Maine House and Senate - convene for their annual sessions.

February

U.S. district court judge in Maine rejects constitutionality challenge to the Maine term limits law.

The U.S. Supreme Court lets stand the ruling of the Arkansas Supreme Court on the constitutionality of voter initiatives as a method for amending the U.S. Constitution.

1997

February

The South Dakota Legislature repeals the "inform and instruct" initiative passed by the voters in 1996.

April

A federal judge in California rules that lifetime limits for legislative service imposed under Proposition 140 is unconstitutional. She suspends implementation of the ruling for the 1998 elections, pending the results of an appeal.

Arkansas legislators mount a challenge to their state's term limits law using arguments similar to those presented in the California case.

May

A federal district court temporarily halts Nebraska's inform and instruct law.

A federal judge throws out Maine's inform and instruct law calling it "intentionally intimidating."

Source:

Nancy Rhyme, George Peery, NCSL

RELATED ARTICLE: VETERAN LAWMAKERS DISCUSS TERM LIMITS

In the summer of 1995 and again in January 1996, NCSL and the Milbank Memorial Fund invited a group of veteran legislators to consider the implications of term limits on the legislative institution. State Legislatures is publishing a three-part series of articles based in part on the discussions of these lawmakers.

The participants were:

John J.H. Schwarz - The Michigan Senate president pro tern, Schwarz chaired the NCSL-Milbank discussions. A surgeon, he has served 11 years in the Legislature. He was mayor of Battle Creek and a city commissioner before his election to the state Senate.

"Term limits will empower lobbyists, bureaucrats, professional legislative staff and governors (even those who are term limited themselves). Term limits both trivialize and marginalize the legislature. The people's representatives are neutered. The people lose - large impersonal government wins."

Jane Campbell - Elected to six terms in the Ohio House of Representatives, Campbell was majority whip and assistant minority leader. She served as president of NCSL in 1995 and is now vice president of the Cuyahoga Board of County Commissioners.

"Term limits were a dramatic prescription that I don't think solve the problem. People wanted more responsive governments, and term limits were presented as a mechanism for that. As soon as they passed, however, we began losing talented members because they couldn't make a career here."

Larry Campbell - Currently president of The Victory Group in Eugene, Ore., Campbell served as speaker of the Oregon House from 1991 to 1995. He was the House Republican leader for eight years and served as a state representative from 1979 to 1995.

"All states have a pressing need to take actions that contribute to maintaining legislatures as co-equal branches of government. This need, however, is greatly increased in term-limited states." John Dorso - Elected in 1984, Dorso is the majority leader in the North Dakota House of Representatives. He also is vice chairman of the legislative council.

"The people of North Dakota have rejected term limits because we are a citizen legislature. We are open and accountable to the people of our state. They know us and trust us."

Art Hamilton - The minority leader of the Arizona House of Representatives since 1981, Hamilton has served in the Legislature since 1973. He was president of NCSL in 1992-93. He is a public affairs representative for Salt River Project.

"There is a clear loss of collegiality and much more contentiousness between the House and the Senate."

Paul Hillegonds - Currently president of Detroit Renaissance, Hillegonds served as speaker of the Michigan House of Representatives, co-speaker, and Republican leader during his 18-year legislative career.

"Will term limits truly make government more responsive and accountable to the people? I remain very skeptical and concerned.

Bobby Hogue - Speaker Hogue is the only the fourth person in the history of Arkansas to serve more than one term as speaker. He has served in the legislature since 1979.

"While the negative impact of term limitation is clear to me, I am not willing to devote my energy to fighting its repeal. I am more interested in developing a positive response. This involves creating a legislative branch of government in which new members are trained well and given the resources needed to participate quickly and fully in the process."

Phillip Isenberg - A lawyer and college professor, Isenberg served 14 years in the California Assembly, where he was assistant speaker pro tem. Isenberg was mayor of Sacramento and a member of the city council.

"State legislators spend far too much time worrying about term limits and predicting that if they are adopted, disaster is around the corner. To be honest, we won't have a clue about the impact of term limits for 10 to 15 years."

John McDonough - A member of the Massachusetts House, McDonough was elected in 1985. He is an adjunct professor of public health at the Boston University School of Medicine.

"If someone suggested term limits for partners in law firms, corporate directors, medical department heads - people would think you were crazy. There's a real lack of appreciation of the need for institutional memory for legislative bodies. And loss of that institutional memory is one of the most damaging things about term limits."

Joyce McRoberts - Currently regional director for the Idaho Department of Health and Welfare, McRoberts was elected to the state Senate in 1989. She was named assistant majority leader in 1991 and majority leader in 1993.

"In Idaho where every year we pass significant water laws that are critical to keeping our own water in our own state, we are losing two legislators who are national experts in water law because of term limits. We will never have their institutional knowledge again."

Thomas Norton - A professional engineer, Norton has been president of the Colorado Senate since 1992. Norton was elected to the Colorado House in 1986 and to the Colorado Senate in 1988.

"The effect of term limits on a legislative institution can be positive if leaders create changes that encourage optimum member participation and training in legislative management and procedural issues. Leadership also needs to redefine the role of staff to better serve legislative members."

Raymond Rawson - A dentist and college pro-lessor, Rawson was elected to the Nevada Senate in 1984. He has served as assistant majority floor leader and assistant minority floor leader.

"Term limits remind me of the difference between modern warfare and indiscriminate warfare. The winnowing process without term limits is discriminate - the bad get weeded out. But term limits indiscriminately target the good with the bad."

Michael Wagner - Elected to the South Dakota House of Representatives in 1988, Wagner was assistant majority leader. He left the Legislature in 1996 to consult for the Advisory Board Company in Washington, D.C.

"One of the reasons state legislatures traditionally have been more effective than Congress on some issues is because legislators have to live with each other over time. Now term limits are ripping that very fabric."

Don Wesely - Elected in 1978, Wesely was the third youngest person to serve in Nebraska's Unicametal Legislature. He currently serves as chairman of the Health and Human Services Committee. He is a senior research associate with Aliant Communications.

"In Mexico, they've had term limits since about 1910 and there's a movement to get rid of them. What they've found is they didn't work because people who were very good could only serve three or six years."

RELATED ARTICLE: CALIFORNIA TERM LIMITS DECLARED UNCONSTITUTIONAL

Just as California's legislative term limits were about to finish the job the voters started more than six years ago, a federal judge in April struck down the law as unconstitutional.

Federal District Judge Claudia Wilken, however, suspended her own decision pending an appeal, leaving 27 termed out lawmakers in limbo, wondering whether a final decision will be reached before the 1998 elections.

Legislators were divided over whether to place a new term limits measure on the ballot, possibly in a special election this year or let the appeals run their course. Governor Pete Wilson, who would have to call a special election if there is to be one, said he was not inclined to do so.

"I respect the will of the people of California who enacted term limits," Senate President Pro Tern Bill Lockyer said. "However, sometimes even the will of the voters is constrained by the right of free speech and association guaranteed by the United States Constitution. I am convinced that we can reconcile the two by enacting a term limits law which, without a lifetime ban, would be constitutional."

California's term limits, enacted by voters in 1990, limit members of the Assembly to three, two-year terms and cap Senate service at two, four-year terms. Once members reach those limits they must leave office and can never run again.

The November 1996 elections marked a watershed, for it was then that the last of the 80 Assembly members in office when term limits were approved were forced to retire. Nine state senators remain from the 1990 class and will be forced out next year if term limits remain in effect.

Wilken, appointed to the bench in 1993 by President Clinton, ruled that the law's lifetime ban violated the right of voters to choose candidates with extensive legislative experience. She said it also infringed unduly on the right of citizens with legislative experience to seek office. And she said the structure of the law, as interpreted in an earlier case by the state Supreme Court, required her to strike it down entirely rather than simply remove the offending provision.

Term limits themselves, Wilken said, need not be found unconstitutional. But their goal - limiting the power of incumbency - could be achieved by requiring legislators to sit out for a period rather than banning them for life, she said.

"Because California's extreme version of term limits imposes a severe burden on the right of its citizens to vote for candidates of their choice, and because it is not narrowly tailored to advance compelling state interests, it violates the First and 14th Amendments to the United States Constitution," Wilken wrote.

The decision came in a case filed in 1995 by then-Democratic Assemblyman Tom Bates and several constituents. Their lawyer, Joseph Remcho, praised the ruling and predicted it would withstand review by the 9th District Court of Appeals and, if necessary, the U.S. Supreme Court.

"I think the ninth circuit can and should have this decided by the end of the year," Remcho said. "We're going to ask them to move very quickly."

Attorney General Dan Lungten, who is running for governor in 1998, will defend the law on appeal. Lungten offered no quick legal analysis of Wilken's ruling, but criticized her for overturning "the clear will of California voters."

Several legislators, meanwhile, suggested calling a special election for November to allow voters to decide the issue before the 1998 campaign season gets under way. Among them was Democratic Assembly Speaker Cruz Bustamante, who also said he would suggest adding at least one more term to the limit, which would allow him to serve beyond 1998. Lockyer, who was planning to run for attorney general next year, issued a similar statement.

Republicans, however, generally urged caution on going to the voters with a new term limits law before the appeals are exhausted. Assembly Republican Leader Curt Pringle said he feared that a special election would "restart the clock" for legislators who are approaching their limit. That, he said, would be a "phony fix."

And while there were suggestions of a possible deal linking a new term limits law to the creation of an independent redistricting commission, which Republicans would like, Governor Wilson was cool to the idea of a special election.

"I don't know if that would be quicker or if it would be better," Wilson said.

Daniel Weintraub Sacramento bureau chief Orange County Register

RELATED ARTICLE: TERM LIMITS' NEW INCARNATION: THE SCARLET LETTER 

The 1996 election saw a lot of term limit activity on the ballot - but with a new wrinkle. The "scarlet letter."

In this case, the sign of disgrace is a designation on the ballot that the candidate has refused to sign a "pledge" or otherwise does not support congressional term limits. In 14 states last November, citizens voted on measures to limit congressional terms, even though the U.S. Supreme Court in 1995 ruled such limits unconstitutional. Each of these measures contained the so-called "inform and instruct" or "pledge" provision. They passed in nine states: Alaska, Arkansas, Colorado, Idaho, Maine, Missouri, Nebraska, Nevada and South Dakota; and failed in five: Montana, North Dakota, Oregon, Washington and Wyoming.

But in the first of several challenges against "inform and instruct" measures, the Arkansas Supreme Court ruled that state's initiative unconstitutional, and the United States Supreme Court in February, without comment, let the ruling stand, casting doubt on the constitutionality of all such measures.

In February, the South Dakota Legislature repealed the "inform and instruct" initiative approved by citizens three months earlier. That measure would have required the South Dakota congressional delegation to support an amendment to the U.S. Constitution limiting members to three two-year terms in the U.S. House and two six-year terms in the Senate. Failure to support that exact amendment would have resulted in a notation next to their names on the ballot stating "disregarded voters' instructions on term limits." A similar label would have been placed next to the names of nonincumbents who refused to sign a pledge supporting the constitutional amendment.

"Folks, I really haven't seen anything quite this incredible or onerous to me in all of terms in the Legislature," said Representative Linda Barker, chief sponsor of the repeal legislation.

Within a month, South Dakotans for Term Limits filed documents for a new petition drive. The group needs 15,581 signatures to place on the 1998 ballot on initiative reversing the Legislature's action repealing the 1996 initiative.

"The people of South Dakota are not going to be blunted in their efforts to bring change to Washington, D.C.," said Jerry Munson, co-chairman of the term limitation group.

What makes the scarlet letter measures controversial is not whether legislative bodies support term limits or not, but whether individual lawmakers have the constitutional right to vote freely on the matters before them. And further, whether it is constitutional to use ballot measures to require state legislatures to call for a constitutional convention.

State Supreme Courts in unrelated cases in California, Maine and Montana have ruled that it is not. A federal district court in May temporarily halted Nebraska's law. In the Maine case, the federal judge called the inform and instruct law "intentionally intimidating." Other cases relating to scarlet letter laws are pending in Colorado and Idaho.

And court challenges to the initial term limits law persist. A federal district court judge in California has already ruled that state's term limits law unconstitutional (see story on Page 17). Legislators in Arkansas are challenging their law in federal district court. Michigan, with a term limits law identical to California's, is weighing the possibility of a challenge. Washington leaders from both sides of the aisle are considering a challenge to their law limiting legislative terms. In Washington, the Legislature could itself overturn the limits because they are statutory rather than constitution.

- Nancy Rhyme, NCSL Leaders' Center