Could this be the year when the anti-incumbent mood in Maryland results in legislative term limits? If so, there is only one way it could happen: via the statewide ballot item on Nov. 2 to convene a state constitutional convention (con-con).
A common refrain by con-con opponents is that if a constitutional change is popular, the legislature will make it, so a con-con is unnecessary. But this overlooks why the American system of government is based on checks and balances. Political scientists have long recognized that elections aren’t always enough to get legislators to respond to public opinion.
Consider legislative term limits. They are wildly popular, but legislators frequently refuse to pass them. When they are placed on the ballot, they usually receive majority support even when opponents vastly outspend supporters and when the proposed term limits are so strict that many term limits supporters oppose them.
State legislators have such a blatant conflict of interest in passing term limits for themselves that the only way they have been passed – with only one exception – is in states with the ballot initiative, which allows citizens to bypass their elected legislators. Of the 21 states that have passed legislative term limits, only Louisiana lacks the initiative – and unsurprisingly, Louisiana has the weakest term limits law in the U.S.
Maryland doesn’t have the initiative. But it does have the constitutional convention, a similar checks-and-balances mechanism to bypass the General Assembly when legislators have a conflict of interest with voters. Six other states with the con-con, unlike Maryland, also have the initiative.
Maryland’s constitution mandates that every 20 years a referendum be placed on the ballot asking voters whether they want to convene a state constitutional convention.
If November’s referendum passes, voters will be asked to elect a con-con of the same size and geographic distribution as the Maryland General Assembly. In Michigan, con-con members cannot be incumbent officeholders. Maryland doesn’t have that rule, but the last time Marylanders elected con-con delegates, fewer than 10 percent were incumbents. The con-con meets briefly and passes no legislation, only ballot referendums subject to voter approval.
A state con-con should be viewed as the voters’ best opportunity to pass democratic reforms – such as term limits, independent redistricting, accessible ballots and legislative transparency – when incumbent legislators have a blatant conflict of interest with voters and seek to create barriers to political competition. A con-con need not be limited to conflict-of-interest issues, but that’s where it can contribute most to the democratic process.
Term limits are certainly no panacea. Indeed, like democracy, they are awful – but better than the alternatives. A 2009 study by Columbia University professors Jeffrey R. Lax and Justin H. Phillips found that state legislatures without term limits had a larger democratic deficit, measured in terms of legislators’ responsiveness to majority opinion, than those with them.
Although foreign to the General Assembly, Marylanders have lots of experience with term limits. The governor and many county executives have them. In the legislative branch, many school boards and county councils also have them. Their absence from the General Assembly is telling. For example, during the 2006 general election for the 47 seats in Maryland’s state Senate, the average difference between first- and second-place finishers was a whopping 54.8 percentage points, including 15 uncontested seats. Only two incumbents lost, and only two seats changed political party. No office with term limits has similar uncompetitive electoral statistics.
A state con-con is also no panacea. Like any democratic process, it can be abused. But it is nevertheless the best mechanism available in Maryland for voters to combat the countless little ways incumbent legislators can erect undemocratic barriers to political competition.
Since a con-con challenges their power, incumbents from both political parties and the special interests that benefit from the status quo have in modern times opposed them. The last con-con to convene in Maryland was more than 40 years ago and was in response to a U.S. Supreme Court ruling that the General Assembly had for decades willfully violated the law of one person, one vote. The current anti-incumbent mood may create similar impetus.
–J.H. Snider, a resident of Severna Park, is the president of iSolon.org and has written widely on democratic reform. For more information, see www.MarylandConCon.org.
Source: Snider, J.H., “Constitutional Convention: The road to term limits in Maryland,” Baltimore Sun, September 22, 2010