Supreme Court to wade back into term-limits debate with Missouri case

Tuesday, April 18, 2000

The Supreme Court, which has already done considerable damage to the term-limits movement, is poised to do it again in a Missouri case that it will take up this fall.

The justices yesterday agreed to consider the case of Cook v. Gralike which tests the constitutionality of what some call “scarlet letter” laws aimed at forcing candidates for office to support term limits.

The court’s action also reflects its continuing interest in cases that raise First Amendment issues in the context of election and ballot procedures.

In 1995, the Supreme Court in U.S. Term Limits v. Thornton said term limits could be imposed on members of Congress only by constitutional amendment, a decision that weakened the then-burgeoning term-limits movement.

In the wake of that decision, Missouri voters in 1996 passed a state constitutional amendment ordering the state’s members of Congress to work and vote in favor of a term-limits constitutional amendment. It also required new candidates for congressional seats to pledge to work for a constitutional amendment if elected.

Members of Congress and candidates who did not cooperate would have the label “Disregarded Voters’ Instructions on Term Limits” or “Declined to Pledge To Support Term Limits” placed next to their names on the next election ballot. No label would be placed next to the name of candidates who favor term limits.

Similar measures were passed that year in Alaska, Arkansas, Colorado, Idaho, Maine, Nebraska, Nevada and South Dakota. Two years later, California also approved an “instruct and inform” initiative. Every such initiative that has been challenged in court has been struck down on one or more constitutional grounds. One is the “speech and debate clause,” which forbids the punishment of members of Congress for the positions they take on the floor of Congress.

Other judges have found the measures to be an unconstitutional method of amending the Constitution, while others say they unconstitutionally add new qualifications for becoming a member of Congress.

The First Amendment weakness of the provisions has been the “compelled speech” issue, namely that they place government in the position of forcing candidates and public officials to speak on a certain subject and in a certain way. Not only must they take a position on term limits, they must also favor term limits to avoid being branded on the officials state ballot as opponents.

That was the basis of the claim made by Missouri congressional candidate Don Gralike when he challenged the constitutional amendment by suing Secretary of State Rebecca Cook. Two lower courts sided with Gralike.

In a decision last August, the 8th U.S. Circuit Court of Appeals found the Missouri amendment clearly violated the First Amendment. “The Missouri amendment does not allow candidates to remain silent on the issue, which is precisely the type of state-compelled speech which violates the First Amendment right not to speak.”

The state of Missouri disputed that finding, asserting that the state amendment does not force candidates to take a position or punish them if they don’t; it merely informs voters what the candidates’ views are.

“It’s clear to us that Missourians support term limits and any information on the ballot to help voters to make informed decisions is useful,” state Attorney General Jay Nixon said yesterday.

“The labels do far more than advise voters of a candidates’ opposition to term limits,” the 8th Circuit found. “The ballot labels are a serious sanction, which we believe is sufficient to coerce candidates to speak out in favor of term limits rather than risk the political consequences associated with being labeled on the ballot.”

The court also found that “speech restrictions are particularly destructive in the political arena, where the importance of free exchange of ideas and information — a vital aspect of our democratic system — is at its zenith.”

Those points are likely to carry weight with the Supreme Court, which regards protection of core political speech as one of its highest callings. Justice Antonin Scalia and others are also usually adamant about not allowing government to favor one viewpoint over another.

Still, the court’s action in taking the Missouri case came as something of a surprise. Usually the court takes up a case when lower courts have disagreed on a point of law raised by that case. But in this instance all of the lower courts that have ruled have struck down measures like Missouri’s.

The court may have agreed to decide the issue nonetheless to put its own stamp on how these initiatives should be evaluated, and to keep states from inventing other ways to force candidates to take positions on term limits or other issues. The case will be argued in the fall, with a decision unlikely before next year.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.