Intentional or not, the U.S. Supreme Court sometimes shows a prodigious talent for ironic scheduling. Today, on the eve of a federal election, they choose to hear a term-limits case predicated on the same conviction that may sweep George W. Bush into office. The conviction? That elections are about fat-cat lifetime politicians scrabbling to preserve the status quo, while spunky "outsiders" fight for the little guy by making of their own littleness (intellectual or otherwise) a moral virtue.
Regardless of where you come down along this whole insider/outsider continuum, take a moment to applaud those spunky Missouri voters and their efforts to impose term limits on the fat-cat insiders. Sure, the mechanism they came up with in 1996 is both artless and ham-fisted. But, if you are all about the Little Guy, today's case is for you.
Back in the days when term limits were the sexy voting issue (and you thought it couldn't get any sexier than prescription drugs), states tried all sorts of schemes to impose limits on their immovable elected officials. But in 1995, the Supremes decided Term Limits Inc. v. Thornton, striking down an Arkansas constitutional amendment actually removing the names of candidates who'd served the capped number of terms from the ballot. The court decided Thornton in a 5-4 decision, on the theory that the federal Constitution's Article I "Qualifications Clause" forbade handicapping a whole class of candidates due to the number of terms they served, and holding that term limits could only be imposed via constitutional amendment.
Enter the Missouri voters, who recognized that the only way to impose term limits was by blackmailing their congressmen into voting for a federal constitutional amendment. The result was a 1996 ransom note/ballot initiative, which—ranked from ridiculous to sublime—states the intention of the people of Missouri to amend the U.S. Constitution to impose three two-year term limits on representatives and two six-year terms on senators. The amendment then "instructs" representatives to do whatever they must to get such an amendment passed (here it delineates how they must vote in favor of such limits, second any such votes, reject stalling efforts, and so on). The sublime part comes when incumbents fail to perform any of the above actions, in which case their name is printed on the next election ballot with the label "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS." (Capital letters from 8th Circuit opinion.)
Non-incumbent candidates get their own scarlet letter, which reads "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS," unless they take a pledge to follow the above instructions. Oh, and the Missouri secretary of state has unbridled discretion to determine whether the labels are appropriate, while candidates may appeal her decision to the Missouri Supreme Court. Which will do them a fat lot of good in the upcoming elections.
The amendments were enjoined in Gralike v. Cook, first in federal district court, then again in the 8th Circuit—which held the "labeling law" unconstitutional in four different ways (the judicial equivalent of a grand slam): violating the compelled speech jurisprudence of the First Amendment; the "Speech and Debate" clause of Article I; the "Qualifications Clause" of Article I; and the provisions for amending the Constitution in Article V.
The state of Missouri argues this morning that the labels simply provide voters with some extra "information" with which to make an informed vote. Like putting a "Mothers Against Drunk Presidents" rider next to Dubya's name on the ballot. It's hard to be opposed to giving voters more information, but the question today is whether the information that "Congressman X Is a Colossal Weasel for Failing the Public Trust" is "information" or disembowelment. Oddly, James McAdams, on behalf of the Missouri secretary of state, Rebecca McDowell Cook, starts his oral argument not with the proposition that the labels are constitutional, but urging that the sections of the amendments without teeth—those merely expressing the intentions of the Missouri voters—are constitutional. Seeming almost to concede that the labels may be unconstitutional, he argues that the sliver of the amendment stating, "term limits might be nice" should be preserved.
McAdams and the justices go back and forth for a while on whether the constitutional bits of the amendments may be "severable" from the dopey bits, before Justice Souter jumps in to ask whether the language labeling a congressman as "having violated the public trust" isn't more than mere information. McAdams replies testily that it's just voter information and that no one has shown voters to be "overwhelmed" by the language on the ballot. Which suggests that so long as no one is clubbing voters with mallets in the polling booth, efforts to sway them are clearly constitutional.
Ginsburg asks for any example of this kind of label being used before, and McAdams offers a 100-year-old Nebraska label for state candidates. "But that's state candidates," presses Ginsburg, urging that states can hold their state legislators to whatever odd conduct they may require, but the federal legislative body represents "all people." She presses McAdams for an example of someone running for federal office burdened by a state label, and when he cannot answer, Rehnquist chimes in that in Arizona in the '70s, federal candidates had to pledge to resign if the state recalled them. For some reason this gets the chief all giggly, and later, referring to the same recall pledge, he cracks up again. McAdams admits he was unaware of the Arizona pledge.
Breyer returns to whether this label is "information" or whether it undermines the state mandate to administer elections with generally applicable, evenhanded laws. McAdams argues that party affiliation information is as damaging to candidates as the Missouri Label, and Scalia, who exults in Oral Devil's Advocacy, adds that historically some candidates in the South might have loved to have run without the burden of party affiliation beside their names on the ballot. Souter wonders idly whether a Republican state could label all the Democrats as "Dirty Democrats" on the ballot, adding, "that's why it's a scarlet letter."
Here is what Justice Thomas does not say at oral argument, but will say in his long historical exegesis of a dissent (here, I crib liberally from his dissent in Thornton): "Framers ... blah, blah, blah ... Philadelphia Convention ... blah, blah ... original intent ... blah ... historical evidence ... blah ... papers of George Mason."
Kennedy, presumably one of the swing voters in this case, lets us know he's not swinging anyplace when he tells McAdams, "If you're trying to say these labels won't disadvantage a candidate, I find that hard to accept." And O'Connor chimes in with the million-dollar question: "If we upheld this, could a state by referendum instruct its congressmen to support a constitutional amendment allowing prayer in schools, or to reverse our abortion decisions?" And McAdams, fumbling for a lifeline, replies yes, if the amendment were adopted through the Missouri mechanism.
O'Connor observes that this would "change the election process as we know it"; the understatement of the millennium so far. Under the McAdams scheme, the court need never decide another partial-birth abortion case. It could just hear the maritime or admiralty disputes that don't make it to state ballot initiatives.
Jonathan Franklin argues against the ballot initiative but finds himself in the strange position of arguing "severability," an issue he insists is not before the court. The justices seem suddenly inclined to uphold the vague, toothless part of the Missouri Amendment ("term limits are nice") and invalidate the rest of it. Now this court has at least four grounds on which to invalidate the whole law, but—whether it's judicial gutlessness or "minimalism"—the idea that they might uphold some part of this goofy law seems to appeal to them; even to Scalia, who seems to concede that the labeling segment of the law is impermissible, but that there is nothing constitutionally wrong with the voters "instructing" their representatives on their will, so long as their instructions are not enforceable.
It all sounds a bit like a ballot initiative falling in the forest.
Most of Franklin's remaining time is spent trying to explain why severing an unenforceable statement from its unconstitutional "teeth" is silly; like sending your senator a candygram with a card requesting that he abide by term limits. And Barbara Underwood, the deputy solicitor general, argues her part of the anti-Missouri case as though she's either sleepy or bored. She banters with Scalia over whether the word "instructs" is somehow enforceable, but wherever her heart is, it's not in Missouri today.
Beware, gentle justices. For you may someday find yourselves, your salaries, your terms of office, or your prior decisions, overridden by state ballot initiatives. And whether those initiatives "instruct" you how to decide school vouchers or just "advise" you, it won't be a 5-4 decision when that happens.