Opinion Editorial

By Dennis Polhill

The Founders wrote in the Declaration of Independence, “whenever any form of government becomes destructive, it is the right of the people to alter or to abolish it.” Since 1990 Americans have sought to “alter” an out-of-control government by imposing new limits: term limits.

Other limits proposed include tax and expenditure limits, balanced budget limits, campaign finance limits and others. Forty-one state Constitutions prohibit omnibus bills. Omnibus bills, also called “Christmas Tree” bills, are those that append unrelated provisions (read: payoffs) in order to attract enough votes to pass. They offer a little something for everyone, but end up authorizing things that lack merit — bad public policy. Omnibus bills make virtually everyone worse off, except politicians. Acknowledging this flaw, the original Confederate constitution, with comparatively few departures from the U.S. Constitution, prohibited omnibus bills. If omnibus prohibition or term limits or other ideas are worthy, by what mechanism are they to be achieved? “Alter” infers a means for achieving alteration, short of revolution or creating an entirely new document.

A written constitution defines the structure of government and specifies the limits under which it may operate, partially in the form of enumerated individual rights. That is, we the people delegate limited powers to be governed by. Laws are conformity agreements between all citizens negotiated by representatives. Constitution limits government. Statutes are the rules for the people.

Thus, legitimacy is ascertained by who a Constitutions owner is; irrespective of the quality contained within, who controls the amendment process? If a government controls the amendment process, then the government owns the document, not the sovereign people. This problem is evident in fledgling democracies all over the world. They draft Constitutions, copying provisions of others, but rarely come to grips with the notion that the people are sovereign, not the state.

Article V of the U.S. Constitution addresses the amendment process. Three-quarters of the states must agree to ratify a proposed amendment. The control question hinges on drafting proposed amendments. Most familiar is drafting proposed amendments in Congress, because all 27 amendments originated via this path. Congress can effectively draft the proposal when there is a national consensus and no conflict of interest. However, limits on Congressional power, such as term limits, are conflicts of interest. Like a first-grader setting his own bedtime, Congress is paralyzed.

Aware of the problem, the Founders included a second path for drafting proposals: “two-thirds of the several states, shall call a convention for proposing amendments.” Since 1787 there have been about 400 applications from 49 states, including Colorado. Congress has neglected to define the rules that would either convene or govern a convention. After all, Congress would lose power if a convention occurred. Constitutional scholars are divided over interpreting the 400 convention applications and it is likely that someone will file suit to clarify the situation. Is it proper that Congress may frustrate efforts to set Congressional limits merely because Congress has neglected to set the rules? Should dereliction of duty be rewarded by empowerment?

Interestingly, the widely supported proposals for new limits originate from the left, the right and the center, suggesting a very broad and growing awareness of the need for new Congressional limits.

Some defend Congressman Tancredos betrayal of his word with “unilateral disarmament.” Meaning: with seniority Colorado will more effectively rip off other states using the corrupt omnibus system. For Colorado to win, other states must lose. This reasoning was rejected overwhelmingly in 1990 when Colorado became the first and only state to impose term limits on its Congressional delegation. Sixteen other states agreed in 1992. Colorado reaffirmed statewide support for Congressional term limits in 1994, 1996, and 1998.

Now the politicians hope that interest in term limits has faded. The statewide 65:35 vote against lifting District Attorney term limits proves otherwise. A Rocky Mountain News poll in mid-October discovered 62% support for term limits, virtually the same level as the 1990s. Support for term limits will not fade merely because politicians declare it so, or because they deceptively delete part of the Colorado Constitution under a false ballot title, or because they fail to exercise leadership and are unresponsive or lack accountability.

Did voters send Tom Strickland a term limits message when he appeared on the ballot as the only one of five U.S. Senate candidates who did not support term limits? Pundits and pollsters have thus far failed to offer an explanation for Allards surprise victory.

Arrogant politicians should be cautious in their contempt for term limits. How likely is it that Americas political establishment can continue to succeed in denying the peoples will? We, the people, patiently, but eagerly, await political leaders who will provide the kind of government we wish. The longer they dawdle, the more this is a measure of power and control without merit, and an indication of the need for possible further limitations to be placed on the politicians.

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Copyright 2002, Independence Institute

INDEPENDENCE INSTITUTE is a non-profit, non-partisan Colorado think tank. It is governed by a statewide board of trustees and holds a 501(c)(3) tax exemption from the IRS. Its public policy research focuses on economic growth, education reform, local government effectiveness, and Constitutional rights.

JON CALDARA is President of the Institute.

DENNIS POLHILL is a SENIOR FELLOW with the Independence Institute.

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