Con-Con: Hawaii’s only hope for term limits

by J.H. Snider, Ph.D., Hawaiʻi State Constitutional Convention Clearinghouse

Hawaii has arguably the least competitive state legislative elections among the 50 U.S. states. At its Aug. 11 primary, 96.2 percent of elected state legislators seeking re-election won. No incumbent is expected to lose in the Nov. 6 general election.

Another measure of competitiveness is the number of seats in a legislature held by a single party. In Hawaii, it’s 93.4 percent, the highest percentage in the United States. In the state Senate, one party holds 100 percent of the seats.

When the monetary advantage of winning candidates is factored in, Hawaii also comes out at the bottom. According to the National Institute on Money in Politics, 100 percent of Hawaii candidates with both an incumbency and monetary advantage won in the last general election — the worst among the 50 states.

In the 2018 primary, all three challengers who beat incumbents were backed by the Hawaii State Teachers Association, one of Hawaii’s most powerful trade associations. One was HSTA’s secretary-treasurer, one of HSTA’s top four positions; another had been deputy director of Hawaii’s Department of Labor and Industrial Relations.

When voters feel the system is rigged and their vote doesn’t matter, they are more likely not to vote. This is a major factor in explaining Hawaii’s extraordinarily low voter turnout.

For details on the lack of competitiveness in Hawaii State Legislature Elections, check the Legislature Entrenchment page on the The Hawaiʻi State Constitutional Convention Clearinghouse.

Term Limits As A Solution

Term limits for state legislators would reduce Hawaii’s excessive level of legislative entrenchment. To be sure, term limits is a second-best solution to this problem. In an ideal world, a better solution would be to tackle the many contributing factors to incumbent entrenchment, including pro-incumbent legislative redistricting, ethics, transparency, campaign finance, voting rules and ballot access.

But the public rightfully trusts the term limits solution because, although imperfect, they know this solution cannot be rigged to favor incumbents.

In Hawaii, as in other states, legislative terms limits are highly popular. A Civil Beat poll found 68 percent support among all respondents and 81 percent support among respondents expressing support or opposition.

A state constitutional amendment is necessary to enact term limits. But the State Legislature will never place such an amendment on the ballot because it’s not in its institutional self-interest to do so. In contrast, it has acceded to popular opinion on term limits for the governor, lieutenant governor, county mayors and county councilors in part because such term limits don’t directly limit its own power.

Other states have circumvented state legislature opposition via the constitutional initiative (often called “direct democracy”). Although Hawaii lacks that legislative bypass mechanism, it does have the alternative: the periodic state constitutional convention referendum. The lack of a constitutional initiative is why a constitutional convention is Hawaii’s only hope to pass legislative term limits.

Throughout most of American history, the average term of a state legislator was relatively short, so term limits weren’t needed.  During that period, legislators predominantly thought of themselves as citizen-legislators rather than career-legislators; couldn’t expect to earn a living, let alone make a career, out of serving in office; and had less incentive to fine-tune government institutions to entrench themselves.

Term Limits Politics

The coalition members opposing a yes vote on the Nov. 6 state constitutional convention referendum have avoided discussing the issue of legislative term limits in their ads, op-eds, and news interviews.  This is because they know how popular term limits are in Hawaii and the unique ability of a state constitutional convention to bypass the State Legislature’s implacable opposition to giving the people what they want on this issue.

Instead, they have attacked the state constitutional convention as a needless, costly, and risky democratic reform mechanism. But what is costly and risky to special interests may be beneficial to the people of Hawaii.

Consider term limits as a case study to think about the cost and risk issue. 

Opponents say a convention would cost too much. But would you be willing to spend $5 to win term limits for state legislators? (Hawaii’s last convention in 1978 cost $2.03 million, or about $7.5 million in today’s dollars, which comes to about $5 per citizen; in contrast, Hawaii state and local government costs about $10,000/year per citizen.)

And how risky would it be if a convention proposed term limits? Clearly, state legislators and the special interest groups that have invested heavily in securing influence over them would view it as a grave risk.  But the average citizen would have a very different risk profile.

Conclusion

At Hawaii’s revered 1978 constitutional convention, the people won term limits for the governor and lieutenant governor.  At Hawaii’s next convention, they could do the same for the State Legislature, which has a 21% approval rating, far lower than in 1978 when seats for the Legislature were far more competitive.

Hawaii’s Framers created a government based on checks & balances because they feared legislative tyranny if checks weren’t placed on the Legislature. Among those checks are the executive branch, judicial branch, local government, and the constitutional convention.

As an integral part of this checks & balances system, Hawaii’s Framers created the periodic state constitutional convention referendum so the people could bypass the Legislature when the Legislature’s and people’s interests conflicted.  They understood the Legislature wouldn’t call an independent constitutional convention on its own, so the periodic referendum was created to allow the people to call a convention despite the Legislature’s opposition. 

Term limits is a vivid example of an issue well-suited for a convention to address. But there are also many others. It is these other issues that Hawaii’s special interests most fear, and it is why as of Oct. 22 they had already spent more than $600,000 on TV, radio, newspaper, and digital ads opposing a convention. Of that $600,000, 100% was spent by unions, including approximately two-thirds by the National Education Association and two of its Hawaii affiliates, and one-third by the Hawaii Government Employees Association. No money was spent on ads favoring a yes vote.

We should honor the Framers’ foresight in granting the people a practical, if flawed, mechanism to bypass the Legislature. The people’s right to reform their government, including in the face of a Legislature’s self-interested opposition, is their most fundamental and thus precious democratic right.

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J.H. Snider is editor of the The Hawaiʻi State Constitutional Convention Clearinghouse and author of Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other US States, 1776–2015. 

LINK: Articles by J H Snider PhD