And then there were Term Limits
Part II: On the April 5 referendum to reduce the size of the Common Council
Part I on the April 5 binding referendum to reduce the size of the Wauwatosa Common Council is here.
Part II below discusses a second part of the referendum—an imposition of term limits on common council members.
I.
The idea of imposing term limits on legislative representatives attracts a lot of popular support. After all, when most people think of legislative representation, they think of Congress. And if there is one thing that can unite Americans, it is in their contempt for our nation’s highest lawmaking body. Of all institutions, it has the lowest approval ratings. It’s really bad. Americans hold more favorable opinions of traffic jams, colonoscopies, and head lice. To be fair, the American public does hold Congress in higher esteem than literal North Korea (61%-to-26% in favor, although I would consider the 13% that answered Not sure to also be pretty damning), but this seems like a low bar.
II.
Residents of Wauwatosa who vote ‘yes’ on the referendum appearing on the April 5 ballot will, in addition to voicing support for a reduction in the size of the common council from 16 to 12 members, also impose term limits on elected council members. The website devoted to the 2022 referendum actually does not provide much detail on how the term limits will work, but the text of the proposed ordinance as discussed in the June 15 Common Council meeting does:
Section 20.09 of the Charter Ordinances of the City of Wauwatosa is hereby created to read in its entirety as follows:
Section 20.09 - Term Limits Imposed
Beginning with the general election in April, 2026, and notwithstanding any other provision of law to the contrary, no person shall be eligible to be nominated, elected or to serve in the office of Alderperson if that person shall previously have held such office for two or more full consecutive terms, unless one full term or more has elapsed since that person last held such office. For the purposes of this section, a term shall be deemed full if a person has served at least half of the time allotted for the term. Service prior to the passage of this section shall not count in determining length of service.
In short, the April 5 referendum proposes to limit council members to two consecutive four-year terms. They are eligible to run again, and may serve as many terms as they like in their lifetime, as long as there is a gap of at least four years.
On a side-note, these changes—both the term limits and the reduction in council size—were originally proposed not as a binding referendum subject to public vote but as an ordinance recommended for approval by the common council. It was defeated:
The Government Affairs committee recommended 4-4 for approval of the ordinance to make these changes.
When the proposed ordinance went to the Common Council meeting on June 15, 2021, it was defeated 8-8.
It then went back to the Government Affairs committee, and on July 13 members voted unanimously to recommend its approval by the Common Council this time as a binding referendum (although two of the more vocal critics of the change, Ald. Franzen and Welch, were not present.)
On July 20, 2021, the Common Council voted to approve the binding referendum on an 8-5 vote. Ald. Causier, Franzen, Gustafson, Tilleson, Byrne, O'Reilly, Kofroth, and Morgan voted in support. Ald. Moldenhauer, Dubinski, Welch, Walsh, and Wilson voted against.
III.
One might wonder whether term limits have anything to do with reductions in council size, and, if not, why both were included together in the binding referendum.
And there was significant discussion about this. Some alders did feel that things like committee assignments and term limits could be worked out after the reduction in council size was approved. However, Ald. Tilleson, in a Government Affairs committee meeting on May 11, 2021, made his support for the reduction in council size contingent on including term limits for council members as well:
I am aware that an issue of term limits or the mayor's role or all those things could be taken separate from the idea of the council reduction size, but I'm explicitly stating that my opinion is that I view this as a comprehensive reform of the current process, and so those issues have to be included for my support to remain. I would not be comfortable voting, as I said earlier, on the council reduction on a hope and a prayer that then these issues are taken up or added later. [...] I do think term limits is directly relevant to some of those concerns about going down to districts with just one alder and having that incumbency survive in perpetuity.
Others supported term limits because they thought it might help increase diversity on the council, encourage more competition during elections, and lead to fresher ideas. When Ald. Tilleson proposed an amendment to include term limits in the original ordinance to reduce the council size, it was approved 4-3.
Some, like Ald. Wilke and Ald. Franzen, raised objections about the relative lack of evidence that any of these changes would have the intended effects to which Ald. Koforth eventually responded:
We’re at this point, because the individuals that are against it want us to continue to provide them concrete evidence that this is the best way of doing it. And the reality is, providing you concrete evidence or studies to prove it is not going to happen. What I would say is, ‘Provide us something that says it won’t?’ We want to talk about a more diverse council, we want to talk about getting more people involved, what we have right now does not do that. There’s nothing we’ve had in the past that says the way we’ve had it structured is going to bring on more diversity and bring out better discussions and better understanding of city government and better participation. But you haven’t proven that that will. We’ve had all these years of looking at it, and it hasn’t done any of that.
[…]
The individuals against it are not bringing on any additional items to discuss, they’re not bringing on any true opposition besides the argument, Well, just prove to me it will be better and that’s now how these discussions work. If you can’t get yourself to support it, don’t support it. That’s fine. Vote against it. But let’s not keep having these same discussions over and over again just for the sake of having to try to convince individuals through some study or real world evidence in other cities that we can all go and look and see for ourselves is pretty apparent that the structure we have does not work all that great. We have evidence from residents that don’t support the structure, we have evidence from alders that don’t support the structure, and we’ve got evidence from staff that don’t support the structure. I don’t know what else you’re really looking for if that isn’t going to convince you.
Additionally, the lack of evidence for the beneficial effects of these changes came up in a June 8 meeting of the Common Council as part of a discussion about hiring an outside consultant to study neighboring municipalities with smaller councils and to deliver a report on their experiences. Ald. Byrne responded:
The public overwhelmingly wanted this the last time it was put out to the public. Staff is in favor. […] What I do not think the public would want is for us to spend $20,000 on a subjective study, because we have seen that the size of council is subjective. […] We are voted in, so if we make this decision, that is a representation of the public’s opinion and the public voice. And if we wanted to be a more direct representation of public voice, I think a consultant is not the answer. I think putting it on in a binding referendum is a way for the public to clearly express how they feel about a reduction in council size which can be subjective.
IV.
I find these responses somewhat understandable but also somewhat baffling. As noted before, the fact that something is not happening under current conditions is not strong evidence that doing any one particular thing differently will make it happen. The opposite of stupidity, after all, is not intelligence, it’s often just a different kind of stupidity. Otherwise, the world would be a lot easier to improve. To be clear, I am not saying the proposal is stupid, but I think the idea that because the current situation, which some do not like, involves term limits and a common council of 16, that changing those things will create a situation we do like, to be overly simplistic.
At the same time, there does indeed appear to be no objective answer to the question of how many people should represent a community, though as I argued before, that doesn’t mean that one cannot get a better understanding of the relevant tradeoffs. However, it is also not the only issue being put to a referendum.
The late-1980s saw a huge wave of support develop for exactly these types of reform at the state level. From 1990 through 2000, 21 states enacted term limits for its legislators. Since 2000, two of those states (Utah and Idaho) repealed those term limits, and four states (Massachusetts, Washington, Wyoming, and Oregon) had their term limit provisions struck down by the state supreme courts. Two states (California and Arkansas), still have term limits but have extended them. These changes have allowed researchers to better understand their effects and determine whether the proposed benefits were ever actually realized in practice.
Many theorized that imposing term limits would result in:
Less campaigning and fundraising by elected officials. If incumbents know they can’t serve indefinitely, they’ll spend less time trying to get re-elected and more time trying to do a good job of legislating.
Make elected official less beholden to special interests. If incumbents cannot serve indefinitely, they will be less swayed by promises of future support from special interests and lobbying groups. They are less susceptible to corruption.
Give them less fear of reprisal for unpopular but necessary votes. Of course, everyone loves democracy until the demos starts demanding something ridiculous, at which point it’s usually labeled populism. But there is a sense in which elected officials should help attenuate the passions of the public and make reasoned, sober judgments even when they might be unpopular in the short-term. Enforcing term limits means incumbents are less beholden to the public which can sometimes lead to better decision-making.
New blood is good. A greater number of newer council members will bring more fresh ideas, and they will be less beholden to tradition or the status quo.
More diversity. It can be intimidating running against an incumbent, so term limits will make the bar lower for new candidates and lead to more women and minority elected officials.
Higher voter turnout. Races without an incumbent tend to draw more voters, so reducing the number of races with incumbents will lead to greater voter participation.
Other than the idea of new blood and greater diversity, the benefits proposed by the city council in implementing term limits don't really revolve around any of these issues.
And there are real downsides. A significant, mentioned both by researchers who study these things and members of the council itself, is a loss of expertise. And this loss can manifest itself in several ways.
Fresh ideas are great. But it's important to note two distinct mechanisms. One is surfacing creative and fresh ideas and the other is getting them passed. These are not necessarily the same skills and having one does not guarantee having the other. In fact, one might reasonably think that the two are inversely related as new lawmakers, while perhaps less beholden to the status quo, as outsiders also lack the level of knowledge and connections to turn their fresh visions into reality.
By reducing the ability for council members to gain experience, it gives relatively greater power to those who already have experience, particularly in making laws or in the minutia of government processes. Lawmaking is complex. Writing good laws that aren't ambiguous or that don't have inadvertent loopholes requires experience. It is interesting that the most vigorous proponent of term limits is Ald. Tilleson who does in fact happen to be a lawyer. My point is not that he has some hidden agenda to consolidate power—either for himself or some nefarious cabal of power-hungry local lawyers—but I would expect him to give less weight to arguments about the usefulness of experienced lawmakers since he obtained that experience in other ways.
A loss of expertise among elected officials means not necessarily doing without that expertise but looking for it in other places. These might be citizen committees, government employees, or consultants. Wauwatosa makes use of all three, and there are legitimate reasons to do so and many benefits. Importantly, however, these three groups are distinct from elected officials in that they are not elected. And so not only does imposing term limits limit the amount of expertise that can be brought to bear by elected council members, but it increases the value of expertise held by unelected individuals.
Finally, one could argue that term limits are undemocratic in a second sense as well. It is, after all, telling voters that they are not allowed to elect the person they've previously considered most suitable for the job, and it is telling a subset of potential candidates that they are not allowed to run. These restrictions, coincidentally, were the basis for the U.S. Supreme Court to strike down congressional term limits imposed by 23 states in 1995. They ruled that states could not impose requirements for candidates stricter than those imposed by the Constitution.
V.
Ultimately, if one cares to look, there isn’t very strong evidence that the positive things people think will happen by imposing term limits actually occur. They don’t seem to lead more women to get elected, they don’t lead to more diversity in general, and they don’t appear to reduce fundraising (and, in some cases, increase it). They do appear to make term-limited elected officials less beholden to their constituents, but one could interpret this both negatively and positively.
And there are negative effects. In California, when the state legislature created term limits, researchers found that “the Legislature now screens fewer bills and is less likely to alter the Governor’s Budget. For a variety of reasons related to term limits, there is more room for fiscal irresponsibility in the Legislature now and less incentive, experience, and leadership to correct it.” Another finds that term limits can actually decrease voter turnout, potentially because of decreased name-recognition. A good summary of this research can be found here.
The point is not that any of these studies are conclusive. For one, most concern state-level elections which are dissimilar to city and municipal government elections in important ways. For another, it is difficult to identify true cause and effect. Is reduced voter turnout after the imposition of term limits really because of the term limits or because of something else? The point is that such evidence wasn’t even considered by the common council.
Again, I think the suggestion of term limits and the advocacy for it, like the larger discussion on reducing the size of the common council, is partly driven by saliency. New ideas are hard to come by, especially in government, and especially when busy. We are often compelled to do something but do not know what, and in the absence of new ideas we gravitate toward familiar ones. The talking points are well-understood, even if disputed, and the contours of debate comfortable enough that one feels secure getting by on gut feel. But I think Wauwatosa residents would have been better served by a clearer articulation of the problems this referendum is meant to solve and why it might be preferable to other solutions.