Term Limits for Orange County Constitutional Officers?
Thomas Katheder
May 22, 2012
On May 10, 2012, the Florida Supreme Court, overturning a decade-long precedent, held
that charter counties may impose term limits in their charters on county constitutional officers
(i.e., sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court
and comptroller).1 The court declared that its prior case on county term limits, Cook v. City of
Jacksonville, “undermines the ability of counties to govern themselves” in violation of the
“broad authority” granted to them under the Florida Constitution.
Although this decision has arrived late in the Orange County Charter Review
Commission’s (OCCR) proceedings, our duty as commission members requires us to consider
the issue of term limits for county constitutional officers before we finish our term.
I.
Historical Background
Term limits are as old as democracy itself. In ancient Athens, members of the governing
council served a maximum of two years. British political theorist John Locke, who lived through
the English Civil War, the restoration of the monarchy and the so-called Glorious Revolution of
1688, believed term limits were an essential bulwark against tyrannical rule. In colonial
America, the Founders were split on the issue. John Adams, Benjamin Franklin and Thomas
Jefferson supported term limits as a protection against corruption or excessive power, and the
Articles of Confederation included term limits. Alexander Hamilton, on the other hand,
staunchly opposed term limits. Hamilton also wanted the president and members of the U.S. to
hold office for life.
The U.S. Constitution adopted in 1787 had no term limits, but the topic did not become a
major national issue until the twentieth century. George Washington stepped aside after two
terms, even though many Americans were prepared to keep him in office for life if that’s what he
had wanted. Washington, whose sense of honor and self-control were his most distinctive traits,
set a precedent that stayed unbroken until Franklin D. Roosevelt bid for a third presidential term
in 1940.2 In Congress, the average tenure of most legislators was significantly less than in the
post-World War II era.
In the late 1980s and early 90s, Republican activists sought to wrest control of the U.S.
House of Representatives and a number of state legislatures from Democratic majorities by
1
William Telli v. Broward County, SC11-1737 (May 10, 2012), available at:
http://www.floridasupremecourt.org/decisions/2012/sc11-1737.pdf.
2
In 1947, Congress passed the 22nd Amendment to the Constitution, which limited American presidents to two
four-year terms.
promoting term limits. Oklahoma, followed by several other states, implemented term limits that
sought to limit the terms of Congressional members from those states. However, in 1995, the
U.S. Supreme Court ruled in a 5-4 decision that states could not add additional qualifications or
requirements for Congressional service beyond those enumerated in the Constitution.3
While the Supreme Court’s decision effectively ended the term-limits movement in
Congress, since 1990 nearly half of the states have enacted some form of term limits. Some of
these have been abrogated by the same legislatures that enacted them or declared
unconstitutional by state supreme courts. Thirty-eight states limit gubernatorial terms.
In Florida, under a ballot initiative called “Eight is Enough,” term limits for state
legislators were approved by constitutional amendment in 1992 and became effective in 2000.
Ten of Florida’s 20 home-rule counties have enacted term limits in their charters:
Charter County:
Term Limits:
Alachua
Brevard
Broward
Charlotte
Clay
Columbia
Duval
Hillsborough
Lee
Leon
Miami-Dade
Orange
Osceola
Palm Beach
Pinellas
Polk
Sarasota
Seminole
Volusia
Wakulla
No
Yes, 2 terms
Yes, 3 terms
No
Yes, 2 terms
No
Yes, 2 terms
Yes, 2 terms
No
No
No
Yes, 2 terms
No
Yes, 2 terms
No
Yes, 2 terms
Yes, 2 terms
No
Yes, 2 terms
No
II.
Term Limits—Pros and Cons
Much of the debate about term limits stems from drawing different and sometimes
emotional conclusions from the same facts. Consider a state legislator who has served, say, for
20 years. Opponents of term limits would emphasize his long experience, pointing out that he is
able to get things done by virtue of his accumulated institutional knowledge and his deep well of
3
U.S. Term Limits, Inc. v. Thorton, 115 S. Ct. 1842 (1995).
2
personal relationships. Proponents of term limits would argue that this legislator is a part of a
self-interested class of “career politicians” who are more interested in getting re-elected and are
insufficiently attentive to the needs of their constituents. Term-limit supporters would also claim
that such a career politician is more susceptible to being unduly swayed by lobbyists and special,
well-funded interests. The arguments for and against term limits can be summarized as follows:
Summary of Pros and Cons Regarding Term Limits:
Pros:
Cons:
complacency
tyranny/abuse of power
inattention to constituents
opens offices up to others, esp.
women and minorities
limits voter choice
turnover can be disruptive or inefficient
loss of experience
strong legislators can be effective check
against executive or judiciary
Several important studies have concluded that state term limits have, for the most part,
succeeded in furthering at least some of the key goals of term-limit proponents. (See the
suggested readings following the end of this paper.) Other studies focusing on state legislatures
have found that an arbitrary two-term limit is inefficient because it takes legislators many years
of contacts and experience to be most effective. Of all the arguments against two-term
legislative limits, these are the most persuasive and merit further review by state legislatures,
including Florida.
III.
Term Limits—Legislative vs. Executive
Most of the literature about term limits focuses on the legislative branch, probably
because that’s where most of the activity since the 1990s has occurred. In evaluating the wisdom
of term limits for county constitutional officers, OCCR members should bear in mind that at least
some of the reasons against term limits regarding legislators may not apply with respect to
county officers, who are public executives rather than law makers. For example, concerns about
agency disruption or loss of experience are arguably lessened for county officers because they
are supported by administrative staffs with well-established institutional knowledge. Moreover,
concerns about long-entrenched power may be greater with agency executives than with
legislators. Though admittedly an extreme example, J. Edgar Hoover’s worst excesses were
made possible by his extraordinarily long term as director of the FBI.
3
IV.
Term Limits—Why Not Let Voters Decide?
A key argument made by term-limit opponents is, “Why not let the voters decide?” In an
editorial published on May 23, 2012, the Orlando Sentinel made a similar point: “If Orange
County's constitutional officers think they can hold on to their posts indefinitely based on name
recognition alone, it's up to voters to set them straight and throw them out.” In a country with
well-established democratic traditions and values like the United States, this argument has a
strong if superficial appeal. But the argument fails to account for the enormous power of
incumbency. Combined with low voter turnout, and absent a scandal or unusual public hostility,
incumbency too often becomes an insuperable moat that will deter many qualified candidates
from even trying to breach it.
V.
Term-Limit Options
Perhaps because of George Washington’s personal example of a two-term limit,
invariably term-limit proponents reflexively gravitate towards a maximum of two terms. Of the
10 Florida home-rule counties that adopted term limits, nine opted for a two-term maximum.
Broward County chose a three-term limit.
In considering the question of term limits, OCCR members should consider options
beyond a two-term limit, such as a three- or four-term limit, a prohibition against more than two
successive terms (which would allow someone to run again after an intervening term) or an
absolute maximum number of years in the same office, such as 12 years.
4
Suggested Readings
Michael Harris and Gideon Doron, Term Limits (Lanham, Md., 2001).
Daniel Baracskay, “Rotation in Office and Term Limits: A Closer Examination,” Georgia
Political Science Association Conference Proceedings (2006), available at:
http://a-s.clayton.edu/trachtenberg/GPSA%20Proceedings%2020052010/2006%20Proceedings%20Baracskay.pdf
Patrick Basham, “Assessing the Term Limits Experiment: California and Beyond,” Policy
Analysis (Cato Institute), Aug. 31, 2001, available at:
https://www.socialsecurity.org/pubs/pas/pa413.pdf
John M. Carey, Richard G. Niemi and Lynds W. Powell, Term Limits in the State Legislatures
(Ann Arbor, Mich., 2000).
Rebecca Herrick and Sue Thomas, “Do Term Limits Make a Difference?—Ambition and
Motivation Among U.S. State Legislators, American Politics Research, Vol. 33, No. 5 (Sept.
2005), 726-47.
Ben Ruzow, “Throwing Out the Bums: A Study of the Behavioral Effects of Term Limits in
State Legislatures,” (Honors Thesis), April 22, 2005, available at:
http://politics.as.nyu.edu/docs/IO/4600/ruzow_thesis.pdf
Joe Waczewski, “An Analysis of the Impact of Term Limits on the Florida Legislature,” Florida
State Univ. School of Public Administration (Dec. 2006), available at:
http://www.askew.fsu.edu/current/masters/actionreport/fa2006/Joe%20Waczewski%20%20Analysis%20of%20the%20Impact%20of%20Term%20Limits.pdf