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Eric Lane’s article in the last issue of CityLaw makes the case that the council should extend term limits for council members to a three-term limit. While reasonable people can differ on the merits of a two-term limit for members of New York’s local legislature, I do not agree that the council should legislate the change. Any change should come through a public referendum. Opponents of a two-term eight-year limit can point to the failed promises of backers that the law would breed a generation of non-political legislators. Rather it welcomed a spate of sons and daughters and aides of term-limited council members, not to mention former state legislators. Lane also pointed to the alarming rise of spending on lobbying and a worry that a loss of experience in the council has weakened the institution as a check and balance on the mayor and the agencies.

Proponents can argue that term limits have helped the process of democratizing the council and empowering committee chairs. They can also argue that in the old days, lobbyists only needed to develop a relationship with an all-powerful speaker of a unicameral legislature. And a feisty council headed by Gifford Miller — installed due to term limits — overrode Mayor Bloomberg a record twenty-seven times.

Civic groups were divided on the original 1993 referenda on term limits. Some opposed it, like Common Cause/NY, Citizens Union and the New York City League of Women Voters. Some were neutral, including my organization, the New York Public Interest Research Group. Some supported twoterm limits, such as the City Club of New York.

But now there’s virtual unity among these organizations and newspaper editorial boards that it would be a grave mistake for the New York City Council to seek to overturn or extend term limits legislatively without taking the issue back to city voters, who clearly supported two-term limits at the polls in both 1993 and again in 1996.

Concern originally arose in December when all seven candidates for Speaker said that they were leaning toward a legislative extension of term limits from two terms to three.

That’s why it was good news to hear that adjusting term limits was not a top priority of the new City Council Speaker Christine Quinn and that she was open to a future referendum. In a January 11, 2006 interview, she noted that “I’m open to looking at changes legislatively. We’re also open to looking at changes through a referendum process. But, it’s not the top or immediate part of our agenda, and it’s something that’s going to take a fair amount of internal discussion and dialogue. And, then a lot of external discussion and dialogue with New Yorkers before we figure out how or if we’re going to address it as the Council.”

There are far more pressing issues before the council, from encouraging construction of affordable housing to vigorously monitoring the work of Mayor Bloomberg’s Department of Education. Indeed, Ms. Quinn indicated that the first piece of legislation she wants to pass is to protect the health care rights of the uninsured.

A Poor Message
If the council overrules two clear votes in support of a two-term limit for itself or all elected city officials it would send a poor message to New Yorkers that their vote doesn’t count. Indeed, a term limits extension or repeal by the council alone under these circumstances would badly weaken the city council as a check on the city’s executive branch.

Civic groups were united in supporting increased council powers when the city revised its charter in 1989, more than 16 years ago. Since then, the council has grown more effective and is a better forum in which communities, groups and individuals can raise issues often ignored by city agencies. There’s a track record of accomplishment, from the nation’s best campaign finance reform law to one of the nation’s best set of safeguards against the public health impacts of cigarette smoking.

It will be a tremendous blow to this progress if council members defy the will of the voters to keep themselves in office. As The New York Times editorialized on January 8, 2006, “The speaker should also do her best to turn the council around on the matter of term limits, which some members would extend from two terms to three by legislative fiat. The voters have twice endorsed the present limits and any change should be theirs to make.”

Times columnist Clyde Haberman caught the public mood when he wrote on January 3, 2006, “How about some members of the City Council? Quite a few have talked about voting themselves an extra term beyond the two terms to which the City Charter now limits them. Never mind that New Yorkers voted not once but twice to impose a limit of two terms. Some in the Council now believe that they have a right to change the voter-determined rules by legislative fiat. Hmm. Could there be a handy word for such people? Many in New York might wonder.”

This view reflects the strong bi-partisan political opposition to a council extension of term limits by legislative fiat alone. For example, Mayor Bloomberg has been strongly critical of the council altering them. City Comptroller Bill Thompson has said that members of the council shouldn’t tinker with the term limits law on their own and should instead leave the issue to the voters. Even former City Council Speaker Gifford Miller — who left office because of term limits — opposes unilateral action by the council. While he opposes term limits in principle, he believes that any change should be put before voters.

Some argue that term limits are “unarguably” undemocratic, depriving voters of the right to choose a candidate of their choice. But overturning their votes would be at least equally undemocratic.

When the courts first ordered the 1993 term limits proposal on the ballot — over the active legal objections of the council — Justice Martin Evans of Manhattan ruled that “it seems paradoxical to say that the proposed law, if enacted, would unconditionally infringe on the right of the voters to choose candidates of their own choice, when it is the very same voters who would be given the choice of enacting the proposed local law.”

The City Council once before seriously contemplated repealing term limits on its own; in a narrow 5- 4 vote in March 2001, the Council Government Operations Committee voted not to report a bill which would have repealed term limits by legislative fiat.

In casting the deciding vote against legislative repeal, former Council Member Stephen Fiala said: “Twice the voters cast their vote. Their vote. Those weren’t polls, they were votes. And in America, votes are sacred.” Noting a general anti-government mood, he also warned that “the contempt and disengagement of the voter for and toward its democratic institutions is new. And it poses a dangerous threat to our way of life.”

Be Careful What You Wish
It’s true that the City Council and other local legislatures have reversed other city charter provisions approved by the voters. Those in favor of a legislative amendment will take comfort in the 2003 appellate division case that approved the council’s 2003 action amending the term limits law to avoid the situation where some members might have been limited to six years rather than eight. But the decision also included the following “look-before-you-leap” language: “The only issue to be determined on this appeal is whether a law created by a voter-initiated referendum can be amended by the New York City Council … without referendum. We do not consider whether such action by the City Council is moral, ethical, or politically advisable.”

Proponents of an amendment, and the appellate division, relied on a 1961 Buffalo case for support. Whatever the legal arguments, the factual differences between the Buffalo case point to the political dangers of proceeding unilaterally. In the Buffalo case, the city’s Common Council overturned a limit for the chief executive that had been approved 34 years earlier by the voters.

New York City’s term limit law is a far different story. Voters approved termlimits 13 years ago, and reratified two-term limits ten years ago, not a generation or two before. And we are not talking about rallying around keeping a well-known chief executive in office. A council-only term-limit exemption by council-only approval would likely face a political firestorm.

If the council were to decide eventually to go the legislative route, it might become a case of “be careful what you wish, it may come true.” The New York Times recently noted that Ronald Lauder “the cosmetics heir who spent $4 million on the two earlier term limits referendums, said that he would not just stand by while the Council tried to change the law. That could mean bankrolling a new term limit referenda.

And Mayor Michael Bloomberg might again toss the issue to the voters, creating a charter revision commission to push a ballot proposal on term limits. Mayor Bloomberg has been clear: ‘The public wants term limits, and if that’s what they want, we should all learn to live with them. The issue is not whether term limits are right. The issue here is whether the public has a right in a democracy to have government the way it wants.”

The Mayor has the authority to back his words with action through a charter revision commission, which could place the issue directly before the voters. He has appointed three charter commissions in four years in office; the three commissions went on to approve previously- held views of the Mayor, ranging from quicklyheld elections to fill a vacated Mayor’s office and budgetary safeguards (both of which passed) to non-partisan elections (which failed in 2003.)

There are serious arguments in favor of a threeterm limit to allow a legislature to be a more effective check and balance on a city administration. Twelve versus eight years arguably allows for greater experience and makes it harder to pull the wool over legislators’ eyes. Many groups and individuals might ultimately support lengthening terms if it is done through the right process.

A referendum to extend term limits is not automatically dead on arrival with voters. The 1996 referendum to expand term limits failed by a healthy but not overwhelming 54-46% margin, and that with controversies over fat cat supporters and confusing wording.

The reality is that at the polls, New Yorkers supported two-term limits twice. If the council wants to change term limits, it should go back to the voters in an orderly way with adequate time for public debate and try hard to win in the court of public opinion.

Gene Russianoff is the senior attorney for the New York Public Interest Research Group (NYPIRG) and the Straphangers Campaign.