Columns written for the Berkeley Daily Planet newspaper, Berkeley, CA




March 16, 2007

One of the least likeable things about California State Senate President Don Perata is that even on issues where you support him in principle, the Oakland Democrat often does it in such a backhanded, underhanded, and throw-a-brick-and-hide-your-hand-handed kind of way that you end up having to oppose him because of the particularly unprincipled way he goes about trying to apply those principles.

So it is with Mr. Perata’s attempts to modify legislative term limits in California in order for him to be able to run for another term in the State Senate.

Some background, for those who have been busy with other concerns.

Legislative and executive term limits have distinctly different backgrounds. The idea for executive term limits can be traced directly back to the period of the American Revolution and the writing of the Constitution, in which many American revolutionary leaders and thinkers were worried that the country would slide into a New World monarchy to replace the British one so recently overturned. The concern was that an elected executive—a president, for example—would be able to consolidate so much power in the office that un-electing him or her would eventually become a practical impossibility, and a virtual “democratic dictatorship” would be established. George Washington alleviated those fears by voluntarily limiting his time in the presidency to two four-year terms. American presidents down through the years followed that lead until Franklin Roosevelt, who ran for and won a third and fourth term in the midst of war. Congress reacted by passing the 22nd Amendment that constitutionalized the two-term presidential limit and gave future presidents no choice in the matter.

Legislative term limits have never had the same push or popularity in America as executive term limits have, perhaps on the theory that no single legislator can amass the dangerous kind of power that an executive can, and absent that danger, the right of people to choose whomsoever they want to represent them in the legislature or Congress should not be unnecessarily disturbed. But in recent years our conservative friends—who sometimes tend to loudly proclaim their support for America’s democratic ideals only until they find the results of that democracy inconvenient to their other goals—have complained that the legislature is bad because the legislators stay there too long. And, so, in 1990, California conservatives enduced California voters to pass Proposition 140, a bare-bones measure, simply-written and easily-understood, which limited the terms of California legislators to three two-year terms in the Assembly and two four-year terms in the Senate.

Except, that is, in the case of Mr. Perata, who plays a different sort of game, with rules he makes up as he goes along, getting himself judged by friendly umpires if anyone complains that he’s cheating.

More details.

Mr. Perata was originally elected in November of 1998 to serve out the last two years of Barbara Lee’s District 9 State Senate term after Ms. Lee moved up to Congress. Mr. Perata was then re-elected in 2000 to a full four-year term. Since one of the provisions of Prop. 140 was that the two-term Senate limit applies to partial terms as well except for “any unexpired term to which a person is elected or appointed if the remainder of the term is less than half of the full term,” and since Mr. Perata was originally elected to serve out the full second half of Ms. Lee’s 1996-2000 term, it was assumed by most observers that Mr. Perata’s time in the State Senate would legally come to an end of his second term in 2004. (I'll wait while you read that last paragraph back over, if you'd like, to make sure the reasoning and math on this is correct.)

The ambitious Mr. Perata, however, got an opinion by then-California Attorney General Billy Lockyer and a ruling by a California Superior Court Judge that he, Perata, was eligible for a third term under Prop 140 because even though Mr. Perata was elected before the beginning of the second half of Ms. Lee’s full term, he did not actually report for duty until a couple of days after the term had begun. Call it the “slacker rule,” in which you win if you don’t report to work on time.

And so Mr. Perata was able to extend his term through the 2008 season after which, presumably, the California Constitution required that the State Senate game was up for him.

But politicians often find it hard to give up the perks of office after they have gotten so used to them. And so Mr. Perata now seeks to continue his tenure in Sacramento’s upper house by scrambling next year’s elections all to hell.

The easiest, cleanest, simple way to accomplish this would have been to put before voters a new initiative to abolish legislative term limits altogether, therefore allowing Mr. Perata or anyone else to continue to run for the legislature and win until the voters got tired of them. There being no identifiable statewide sentiment to pass such a voter initiative, however, Mr. Perata and his supporters had to go the modified, limited route, to paraphrase a term from the Nixon years.

Stick with me, friends, because here it gets quick and complicated.

Because current state law under Proposition 140 prohibited termed-out legislators from running in the June, 2008 primaries for nomination to their positions, placing a modification of the term-limit law on the June ballot would come too late and would not help Mr. Perata retain his seat in the state Senate past the 2008 term. Thus, he had the need for an election to be held in 2008 earlier than the June primary, so that a term-limit referendum could be put on it. That wish was fulfilled neatly for Mr. Perata—funny how these things seem to often work out for the powerful and influential amongst us—when the legislature recently passed a bill to establish a February Presidential primary, which could, conveniently, host other ballot measures as well. The downside for Californians was this means that the state will have to hold two spring elections next year—a Presidential primary in February, primaries for state and local partisan offices in June—with the legislature leaving it to the counties to come up with the money to pay for all of this (our Republican friends in the legislature, to their credit, voted against the double-primary because it didn’t provide state money to the counties to fund the February affair).

That left the way open for term limit opponents to draft a term-limit modification referendum for the February ballot in time for Mr. Perata to be able to run on the June ballot. In mid February, therefore, the San Leandro public interest law firm of Remcho, Johansen & Purcell submitted such a term-limit change initiative to the California Secretary of State’s office in advance of the initiative being disseminated to the public for petition signatures and ballot qualification.

But here comes the “oops” factor that revealed that this was less a term-limit-limiting initiative than it was a keep-Mr.-Perata-in-office drive.

A month ago, in a blog posting on his California Progress Report entitled “Drafting of Initiative on Term Limits May Prevent Perata, President pro Tem of California Senate, from Running for Re-election Next Year,” Oakland Democratic Party activist Frank Russo reported that “the problem for Perata and the other Senators is with [one of the] proposed [amendments], which provides that one cannot run for the Senate or Assembly if the ‘service of the full term of office’ to which you are seeking be elected ‘would exceed the maximum years of service permitted’ of 12 years. By my count,” Mr. Russo concluded, “if Perata were re-elected in 2008, he would have 14 years at the end of that term and therefore would not be able to do so.”

A day later, as a comment to his original blog post, Mr. Russo wrote that “Robert Salladay of the LA Times ‘Political Muscle’ blog has reported … that: ‘Citing an "abundance of caution," attorneys for the initiative filed an amendment this afternoon removing the disputed section. Whew! Don Perata can enjoy the long weekend now.’"

Beyond Chron reporter Paul Hogarth wrote late last month in an article entitled "Term Limits Measure Has Special 'Don Perata' Provision" that in order to save Mr. Perata’s job for another term, the amendments to the original initiative “added that if a legislator served less than half of a full term (i.e., Don Perata’s service from 1998-2000), that time would not be counted towards the 12-year cutoff. In other words," Mr. Hogarth concluded, "the amendments were designed so that Don Perata could serve as State Senate President until 2012.” (And much thanks to Mr. Hogarth whose Beyond Chron posting for originally alerting us to this scam.)

I was opposed to legislative term limits in California when they were first passed by voters in 1990. I’m opposed to them now. The California State Legislature is too-often a broken institution, with power concentrated in a small circle of policymakers at the expense of the rest of the people of this state. Term limits have not broken up that concentration, however, they have only changed some of its names and faces involved, and merely transferred a lot of the power from the politicians themselves to staffmembers—who have no term limits and can be passed on from legislator to legislator—and to corporate and other big-interest lobbyists. For the average person sitting in Berkeley or Oakland, we are as far removed from influencing that power as we are in walking distance from the Bay Area to Sacramento.

But fiddling with state law merely to make sure Mr. Perata has a job in two years is not the way to reform that system, particularly when it comes at the expense of California counties who will have to cut other services in order to satisfy this exercise in dual primaries. My guess is, voting down the Perata Proposal will let the state’s politicians know we’d prefer a better way to do this.