Majority Whip Rep. Cindy Younkin (R-Bozeman) raised a single finger in the air and surveyed the House floor.
“Come on, we need one more vote so we don’t have to do this again.”
Younkin and the Republicans needed a single vote to pass the much-amended Senate Bill 407—the major tax bill of the session. After arriving from the Senate, SB 407 had gone through four debate-stage votes over the course of several days without being passed. By Monday, April 14, the future of the bill looked grim.
The preliminary running vote, seen only by Younkin, the day’s presiding officer, showed a 50-50 tie. So Younkin kept the vote open, raised her finger and implored her partymates to find her one more vote to pass the bill. Many were furious at what they perceived as a clear violation of House protocol—continuing debate during a vote. They hissed and booed and some, like Rep. Gail Gutsche (D-Missoula), even pounded fists on desks. But Younkin continued to hold the vote open until finally Rep. John Sinrud (R-Bozeman) changed his vote, at which point Younkin closed the voting and the bill passed 51-49. Many stood amazed, baffled at what the House had become—and many attributed it to a body that, thanks to term limits, has become unskilled, clumsy and in over its collective head.
“[Senate] bill 407 was certainly a procedural guffaw,” says Gutsche. “It was over the top for most of us.”
House Minority Leader Rep. Dave Wanzenried (D-Missoula) agrees.
“Is it illegal to do what was done? Certainly not,” says Wanzenried. “Is it in bad form and is it inappropriate behavior? Yes, it is.”
Democrats maintain that once a debate over a bill is closed, it is inappropriate for the person chairing the house to reopen the debate. Younkin’s move had a direct bearing on the passage of one of the session’s most important pieces of legislation, and many consider Younkin’s end run for an additional vote to be one of the great faux pas in the modern history of the Montana Legislature.
“You’d be hard pressed to find a breaking of protocol of that magnitude under [former House Speaker] John Mercer, or for that matter, under any other speaker,” says Wanzenried.
Younkin’s move was a single example in a session riddled with procedural problems. The session also saw an unprecedented number of freshman and sophomores in the Legislature. Many Democrats, and more than a handful of Republicans, believe that before term limits began weeding out Montana’s most experienced lawmakers, the endless arguments and confusion over the rules that surrounded SB 407 wouldn’t have occurred.
The stock arguments for term limits say that they stimulate political competition and increase legislative diversity, that they initiate positive institutional changes and limit the power of entrenched leaders. Some say they even act as a natural campaign finance reform by diminishing the importance of particular legislative seats to lobbyists. A portion, maybe all of these arguments may be correct, but a larger question remains: “Do term limits improve the quality of legislation?”
For the majority of lawmakers who are ready to give the system a tweak, the answer is “No.”
Brave new world
In the late ’80s, momentum began to build around the country to limit the amount of time a politician could serve in office. Corruption, abuses of power and illegal practices wracked Washington, D.C. and the state capitols.
“The public wanted new people,” says Stacie Rumenap executive director of U.S. Term Limits—a term limits advocacy group.
“Ultimately with new people you have new ideas and experiences coming into office…And this is something that voters understand.”
In 1990, Oklahoma became the first state to enact term limits, and in the 13 years since, 19 states have followed Oklahoma’s lead. Shortly after Oklahoma’s legislation, a grassroots movement in Montana began with a similar mission.
“It was something at that time that was stirring nationwide,” says Sen. Edward Butcher (R-Winifred), who chaired the Montana Term Limits Committee in the early ’90s. “Fred Thomas actually started stirring on the thing in the early ’80s.”
At the time, Sen. Fred Thomas (R-Stevensville) was one of Montana’s most experienced legislators, with nearly a decade in the House. Of all Montana’s public officials, he was the most active in pushing for limits on the length of time people could spend in public service. In three separate sessions—’87, ’89 and ’91—he carried resolutions encouraging Congress to pass term limits. Then in ’92 he worked with Butcher on an initiative campaign, working to place term limits on the ballot in the form of a constitutional initiative.
While many of the powers that be fought Butcher and Thomas’ campaign, more than two-thirds of the voters elected to approve the limits.
“This happened against overwhelming odds,” says Butcher. “I mean all the media was against it, and the politicians were fighting it like crazy. We ran into cou-nty clerks that wouldn’t accept [signatures on the initiative petitions]. They absolutely looked for anything. If the ‘i’ was not dotted the name was thrown out.”
The constitutional amendment limited how long statewide elected executive officers, state legislators and members of Congress could hold office, but it didn’t stick at the federal level. In 1995, the U.S. Supreme Court struck down the limits on congressional terms, ruling that states don’t have the authority to impose limits on federal legislators. And though the limits stayed on the books in Montana, the pendulum began slowly to swing as state legislators hammered away at the new amendment.
Last February, the Montana Supreme Court heard a case by a group of lawmakers hoping to overturn the limits. But with a vote of 6-1, the court deci-ded that the challengers had waited too long to file the case. Champions of term limits applauded the decision, saying it counteracted an arrogant self-importantness on the part of legislators who were ignoring the will of the voters. Yet lawmakers weren’t done second-guessing.
“The court said, ‘No, you’ve waited almost ten years before bringing some sort of case before us, term limits are constitutional, this is what voters passed, this is what the voters want and you’re going to have to live under it,’” says Rumenap. “But what did [the Legislature] do? They came back this legislative session and sent a measure out that seeks to lengthen term limits and seeks to keep them in power longer.”
In the Montana Supreme Court ruling, Justice James Nelson wrote that while the challenge wouldn’t be considered, “the Legislature may still seek to repeal the term limits initiative by adopting and submitting a referendum to the voters.” Legislators may have lost in the courts, but they picked up an idea they would act on a year later. Now, with former President Bill Clinton suggesting that presidential limits should be modified, Montana lawmakers are hoping that the time is right to alter the amendment limiting their service.
Undoing the voters will
One of the 2003 session’s most distinguishing marks has been an unprecedented effort to overturn citizen-passed initiatives. From mining to smoking to term limits, there were few issues that voters had approved though the initiative process that Helena didn’t try to undo.
Three bills this session took aim at changing term limits. Sen. Bea McCarthy’s (D-Anaconda) bill to repeal limits and Mike Taylor’s (R-Proctor) bill to extend them were tabled in committee—McCarthy and Taylor will both be termed out in 2004. But Rep. Monica Lindeen’s (D-Huntley) House Bill 277 survived. Lindeen’s bill gives voters the chance in the fall of 2004 to decide if they want to extend term limits for legislators from eight years in a 16-year period to 12 years in a 24-year period.
The extension wasn’t Lindeen’s preference—she would rather have done away with term limits altogether, but didn’t think voters would allow it.
“I realized that the chances of overturning term limits are pretty slim, and so I thought this would be a compromise,” she says. “Obviously term limits are something legislators have been talking about for a while. Even before I went to Helena [for the 2003 session], there were a lot of people in my district and even outside my district who said that they had changed their minds about term limits. There are definitely people throughout the state that want to reconsider this.”
Originally, it was Lindeen’s intent to extend term limits for all state elective offices, but when the bill reached the Senate, lawmakers thought that idea too brash, and some—like term limits proponent Sen. Butcher—think that any overhaul of the voters’ will is going too far.
“It really boils down to the fact that all the ones opposing term limits are ones being termed out,” he says. “You’ve got to remember that this started with grassroots people going out and getting their 40,000 signatures. They went door to door and it was little old ladies and retired people and everybody else going out and standing on street corners.”
Butcher is quick to point out that the idea to reevaluate term limits didn’t come from the citizenry that instituted them, but from those who could directly benefit from the reevaluation.
“[Extending limits] has no popular support,” he says. “This wasn’t a cry of the voters out there saying, ‘We want this.’ This was strictly propelled by the self interests of the lobbyists and the politicians that were already sitting in office.”
But others in Helena agree with Lindeen that there is voter momentum to at least extend term limits.
“I think that the voters were really taking out anger on the federal level, and not their local state legislators,” says former Sen. and current Rep. Bill Wilson (D-Great Falls) of the ’92 initiative campaign. “I also think it’s fair to say that many constituents have had a reversal on this issue. There is an undercurrent of feeling that it wasn’t such a bright move.”
It’s thinking like this that infuriates Butcher, who worked so hard to put the ’92 initiative on the ballot. While Reps. Wilson, Lindeen, Wanzenried and Gutsche all say they never liked the idea of term limits and didn’t vote for them, Butcher knows some have reversed their stance on the subject now that they are facing expulsion.
“I look at my colleagues and tell them they’re a bunch of damned hypocrites,” he says. “Even Fred Thomas, who supported this thing from the beginning, is looking to at least extend term limits. He’s a whole different Fred Thomas than we saw in the ’80s.”
Thomas admits that his views have partly changed, but adds that circumstances have changed as well.
“In the ’80s and maybe before, I came to believe that term limits were a good thing, and I still hold that position,” he says. “But at this point in time, term limits have come to be fully in effect, and it seems to me that the original language in the Constitution limiting this to eight years out of a 16-year period is just too short for a new legislator.”
Thomas sees no problem with tweaking an experiment he has watched closely. Over the last decade, there have been great successes to the experiment—like breaking up stale, stagnant power structures and getting enthusiastic new blood into the process—says Thomas. Yet he has also seen where the experiment has broken down—like the loss of experience to guide new enthusiasm. This is why Lindeen’s bill is needed, he says.
“It continues the ideas and the principles of term limits,” says Thomas. “But then it allows a legislator in Montana, where we have a biannual session, to learn the ropes and gain the expertise and then have some sessions that they really shine in.”
The fall out of being termed out
Montana lawmakers aren’t professional politicians. They are elementary school teachers and retired auctioneers, dentists and ranchers. These citizen legislators can be smart and passionate and hard-working, but are often unfamiliar with the intricacies of tax codes and million-dollar budgets. As freshmen or veterans, they have a lot to learn in 90 days.
“I know it’s very easy for the public to say, ‘They should do better and they’re a bunch of idiots,’” says Sen. Robert DePratu (R-Whitefish), who will be termed out in 2004. “But it takes awhile to learn who to go to and where to go to get information. By the time people know where to get all the accurate information that they need, why, they’re termed out.”
DePratu points out that if a senator or representative serves his or her full eight years, they’ll still spend only 360 days in Helena.
“I am sure there are a lot of people out there a lot smarter than I am that could learn it in one or two sessions,” he says. “But what you’ve got to do is stop and think about what they are dealing with in just 90 days.”
DePratu says that newcomers are enthusiastic, but enthusiasm isn’t a substitute for learning the process. With most legislators working 12 to 14 hours a day there’s little to spend with the rulebooks, he says. The result is a body that is not only lacking in knowledge of the rules, but in history. Without that history, that institutional knowledge, parties are less likely to remember how to cooperate, says DePratu.
“They communicated because they had relationships and they had trust,” says Lindeen. “Since 1999, I’ve just seen incredible deterioration of the legislative process as a result of this lack of knowledge, the lack of experience, the lack of trust, the lack of communication and the lack of relationships. I think that is detrimental to the legislative process, which is detrimental to the people of Montana.”
Most current legislators against term limits have a favorite termed out peer whose loss they believe has made the body less effective. For Democrat Gutsche, it’s Republican John Mercer who “knew the rules and the nuances” and wouldn’t have permitted the type of problems created by Younkin’s extended finger. For Republican DePratu, it’s Democrat Mike Halligan, who was a “walking book of knowledge and just a tremendous person.” The loss of experienced peers, even those on the other side of the aisle, is why they say they support Lindeen’s bill.
But Butcher says that the lawmakers are looking at the situation as a zero sum game. He argues that for every loss in the Legislature, there is a gain somewhere else. And he points to the same ex-legislators to make his case.
Shuffling the deck
By many accounts John Mercer was a great and powerful legislator. He served in the House for 15 years, was the Minority Whip in 1989, and Speaker of the House from 1993 to 2000. When Mercer was termed out, many from both parties mourned his departure. But instead of disappearing into his Polson law practice, Mercer was tapped by Gov. Judy Martz to serve on the Board of Regents in 2001.
From local school boards to county commissioners to posts in the executive branch, Butcher points out examples of Montanans who have been forced out of the legislature, but who haven’t opted out of public service.
“They are bringing an invaluable experience to [other posts], and that is worth keeping guys out of the Legislature,” says Butcher.
But is losing legislators to other public service positions worth the trouble generated in a Legislature that doesn’t know what it’s doing? Butcher says that that trade-off needn’t be made.
The biggest challenge of the 2003 session was balancing a state budget with a $250 million shortfall. But 89 days into the session, the task was done. Critics of the budget fix say it was done poorly—par-tly because of inexperience bred by term limits. Butcher believes that it wouldn’t have been done at all if not for the fresh thinking fostered by new blood.
“This session, because of term limits, we had creative guys in the leadership like [Bob] Keenan (R-Bigfork), and we started out with a new idea,” he says. The idea Butcher refers to is zero-based budgeting—where the budget is built from the bottom up, as opposed to starting with the baseline of the previous biennium’s budget. Butcher says that this approach led to the balancing of the budget on time. “You look at the states without term limits and they are going to meet until hell freezes over. They will constantly do battle, but here in Montana we were able to get the thing done with one day to spare.”
Under the old system, a younger legislator like Keenan—who is currently serving his second term in the Senate—would have never been elected President of the Senate, says Butcher. But gone are the days of a ruling seniority. Now all that matters is who’s the best person for the job, he adds. And Thomas agrees.
“Is it more based on their ability than their seniority?” he asks himself. “I think there is some good proof of that.”
Not only are leadership positions going to unlikely candidates, but there has been an increased movement between the House and the Senate due to the limits. Mostly, it’s representatives matriculating to the Senate, but occasionally senators want to stay in the action, even if it means running for the House.
“I would call it lateral move,” jokes Rep. Bill Wilson (D-Great Falls), who was termed out of the Senate in 2000 and elected to the House in 2003. Wilson admits that senators are treated a little better than representatives—they get their own phones, offices and desks. But he says he likes the raucous House more than the Senate, and “missed serving in the Legislature” too much not to run.
But even with the shuffling deck and the “lateral move” possibilities, the vast majority of Democrat and Republican lawmakers—110 out of 150—voted to expand the limits.
Putting it to the people
Butcher has heard all the arguments, and he’ll concede that there are some negatives to term limits—but he still doesn’t think they outweigh the positives. He relies on Lord Acton’s aphorism to explain his stance:
“Power corrupts and absolute power corrupts absolutely,” he says. “And that’s the problem we have in this system.”
Yet the die is cast, and the voters must reconsi-der the issue with a vote in 2004—and not only in Montana. Attributing their motives to the pendulum swing, similar efforts to change term limit laws in Arkansas and Maine are being mounted by state Legislatures. In no state are the efforts coming from voters. Not having the push originate with the citizens is troublesome, but not out of line, says Thomas.
“It’d be better if it came from the public,” he says. “But just because all the elected offices are asking the citizens to vote on it doesn’t mean it’s tainted.”
Lindeen echoes Thomas’ words.
“I’m just asking [voters] to extend them,” she says. “And if they don’t want to they don’t have to.”
No matter what side of the debate a voter or lawmaker stands on, it can’t be denied that things have changed in Montana as a result of the Butcher and Thomas reform campaign of ’92. Public servants have found themselves in different roles, leadership has been shaken up, and experience has waned, while passion has waxed.
“Clearly there have been consequences,” says Gutsche. “If the voting public thinks those consequences are a positive, are good for this process, they will probably vote against the change.”