High Anxiety

As Nevada’s long-delayed term limits finally heave into view, the anxiety in the state’s ruling political class is evident.

Having achieved power in a no-term-limits environment, the state’s back-room crowd deeply fears that the new dispensation could mean the loss of that power.

Consequently, the search is on for some new anti-term-limits rabbit to pull out of the establishment’s collective hat.

This would not be the first such rabbit. Just consider 1996.

The term limits provisions that Nevada voters added to the state constitution that year were, and are, exceptionally clear:

No person may be elected or appointed as a Senator [or, in the case of the Assembly provision, as a member of the Assembly] who has served in that office, or at the expiration of his current term if he is so serving will have served, 12 years or more, from any district of this state. (Emphasis added.)

As former Deputy Attorney General Chuck Gardner wrote in 2001, “These words of Article 4 of the Nevada Constitution were precisely crafted to make no mistake about what happens to incumbents who have served, or ‘will have served,’ 12 years or more by the time the provision went into effect.”

Nevertheless, after the constitutional amendment took effect, a whole host of lawmakers took office having already served substantially more than the 12-year limit.

“Just more than four years after it went into effect,” noted Gardner, “10 of the 21 members of the Nevada Senate and eight members of the Nevada Assembly took office in violation of it. The 2001 session of the Legislature was incurably compromised by 18 unconstitutional legislators.”

What the lawmakers were relying on were highly debatable opinions issued by the legislature’s own wholly-owned Legislative Counsel Bureau and then-Attorney General Frankie Sue Del Papa. Since LCB lawyers serve more or less at the pleasure of powerful lawmakers, the bureau’s stance surprised few.

The Office of the Attorney General, however, is constitutionally independent of the Legislature. Thus it carried a bit more weight when Del Papa announced her position: that “only periods of service commencing after November 27, 1996, will be counted as a term for limitation purposes,”

In short, Nevada’s term limits, according to Del Papa, would not legally kick in for another 12 years—at the earliest.  

Del Papa spent much of her argument brandishing some prior opinions of Nevada’s highly political Supreme Court. But she could only have recourse to them by first asserting something that was false on its face: that the constitutional amendments were “ambiguous” and “not clear as to when the tenure limitations start.”

Apparently the word “current,” in the phrase “current term,” could mean something other than “current”; similarly, the word “is”—shades of Bill Clinton—in the phrase “is so serving,” did not necessarily mean “is.”

But while the opinions coming from Del Papa and the LCB might be lawyerly nonsense, their subtext was exceedingly clear: Any citizen seeking an immediate housecleaning at the Nevada Legislature would have to match legal purses with the entire state of Nevada, which would be drawing on virtually unlimited financial resources. The privileges of the state’s current political class would not be given up easily.

Reformers were also implicitly reminded that their legal appeals would most likely end up before Nevada’s frequently farcical high court—unless they were able to pursue the case much farther, and more expensively, into and through the federal courts.

Faced with this unspoken appeal to the law of force, reformers appear to have judged that the wiser course, for the moment, would be to remain content with the new constitutional provisions that had been achieved and to postpone the climactic fight.

Now, however, it appears to be coming to a head.  Assemblywoman Chris Giunchigliani—who sits at the heart of Nevada Democrats’ strategic counsels and works tirelessly for ever-higher taxes—has introduced Assembly Joint Resolution 7. This constitutional amendment would, if passed, end legislative term limits before they even take effect—along with term limitations on the governor, secretary of state, treasurer, controller and attorney general.

But Giunchigliani’s measure would need more than approval by the Legislature’s self-interested incumbents. It would also require the thumbs-up of Nevada voters at a general election. Yet no American voters have ever voted to remove term limits from a state constitution.

So Giunchigliani & Co. have a fall-back plan: an end-run around voters with a legal challenge before the Nevada Supreme Court.

They’re hoping, of course, for a reprise of the Court’s 2003 travesty.

Next week: The surprisingly weak arguments of term-limit foes.

Steven Miller is policy director for the Nevada Policy Research Institute.

Chuck Gardner’s 2001 article was published in the Las Vegas Review-Journal. It can be found at this R-J link:
http://www.reviewjournal.com/lvrj_home/2001/Aug-05-Sun-2001/opinion/16693383.html