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Thursday, Oct. 04, 2001

Rudolph Giuliani has said that he wants to continue to be New York City's Mayor beyond January 1, 2002, when his term would naturally expire. Initially, he said that he would like to accomplish this either through an agreement with the newly elected Mayor, under which Giuliani would serve for three more months, or — failing that — through the state legislature's repeal of the term limits statute that prevents Giuliani from running again.

Yesterday, however, it was reported that Giuliani seems to have dropped his bid for a third term, after facing opposition from within the state legislature. That's a shame, because from a legal perspective, repealing the term limits statute is much more tenable than extending Giuliani's current term by agreement.

Term Limits: Anti-Democratic, or Democracy-Enhancing?

In 1995, the Supreme Court decided a case on term limits, U.S. Term Limits, Inc. v. Thornton. Thornton's basic holding is that a State cannot impose term limits on federal officeholders such as Congresspersons or Senators. That holding itself is not relevant to the debate over extending Giuliani's term. Nevertheless, Thornton's strong suggestion that term limits are anti-democratic is worth considering when one considers Giuliani's original proposals.

In an opinion written by Justice Stevens, the Thornton majority harshly condemned term limits — deeming them "contrary to the 'fundamental principle of our representative democracy,' embodied in the Constitution, that 'the people should choose whom they please to govern them.'" Put another way, as the majority remarked later in its opinion, term limits "unquestionably restrict the ability of voters to vote for whom they wish." If the people would like to re-elect an incumbent, the Court reasoned, it is undemocratic to tell them they cannot.

The Arkansas voters who amended the Arkansas Constitution to impose term limits, and thereby gave rise to the Thornton case, certainly disagreed (as did dissenting Justices Thomas, Rehnquist, O'Connor, and Scalia). Indeed, the Amendment Arkansas voters passed itself claimed term limits would enhance democracy — asserting that incumbents who remain in office too long "become preoccupied with reelection and ignore their duties as representatives of the people." Incumbency itself, the Amendment asserted, hurts democracy by "reduc[ing] voter participation" and leads to a "less representative" electoral system than that "established by the Founding Fathers."

Others who are also in favor of term limits have offered additional arguments for why such limits enhance democracy. One frequently invoked argument is that term limits simply level the playing field — compensating for incumbents' name recognition and their increased ability to command campaign donations, and thus merely giving challengers a fair chance to be elected. After all, an incumbent always has the advantage of running on his or her record, whereas a challenger must make promises of what he will do in office that are necessarily less concrete and convincing than the actual accomplishments to which the incumbent can point.

How do these arguments apply to Giuliani's current proposal that his term be extended by at least three months or his original proposal that, alternatively, he be allowed to serve another term as Mayor? Interestingly, the reasoning of Thornton both undermines Giuliani's three-month solution, and bolsters his initial attempt to overturn term limit legislation and run for an additional term.

A Term Extension: Not By Agreement Alone

Giuliani apparently believes that he can extend his term (set to end January 1) by an additional three months via an agreement with the incoming Mayor, whomever he may be. But democracy doesn't work that way. The elected Mayor who takes over after January 1 can no more "agree" to have Giuliani step in and take over for him for a few months, than he can agree to have Julia Roberts do so.

Nor should the New York State legislature's approval of the extension agreement make a difference: As Thornton pointed out, in a somewhat different context, "the right to choose representatives belongs not to the States, but to the people." Any extension of Giuliani's term should occur only through an election — not through any kind of back-room agreement.

Not only would such an agreement be undemocratic, it would also very likely trigger a lawsuit on behalf of the voters of New York City, who would be asserting the basic right to have the person they just elected Mayor — and not someone else — actually serve as Mayor, perhaps the most fundamental right in all democracy. The uncertainty such a lawsuit would raise would, in turn, contribute to destabilizing the ultimate transition between Giuliani and the next Mayor.

Moreover, those who believe such a lawsuit would not be brought due to New York's current unity should remember that the suit would be brought months from now, when the climate may have changed. Everything in New York seems to become contentious and adversarial — except lately — and the City's litigious mood may be back by then.

They should also remember that it takes only one voter and one lawyer to start such a suit. In addition, that voter and that lawyer would think of themselves as heroes vindicating democracy — pushing for a civil rights victory relating to the basic right to vote, even in a time of emergency.

Once brought, the lawsuit would raise questions such as: Will a court force Giuliani to step down, and if so, when? Will the adverse publicity from the lawsuit convince the newly elected Mayor to take office earlier than the agreement with Giuliani stipulated? If so, could Giuliani then somehow sue to get the office back?

Certainly doubt as to who is the Mayor, and who is the pretender, would be destructive to any sense of stability or continuity in the City. And any animosity between Giuliani and the newly elected Mayor is likely to interfere with the prized smooth transition that Giuliani claims to want, and that is so crucial for a damaged city.

Why It Makes Sense to Repeal New York's Term Limits Now

Although an agreement to extend Giuliani's term would be highly problematic, eliminating the term limits statute might be a good thing, given the recent tragedy in the City.

Recall the arguments marshaled by Arkansas voters in the Thornton case, and others, in favor of term limits — unresponsive officials, disillusioned voters, and the need to level the playing field to give challengers a fair chance and negate the unfair incumbent's advantage. The first two considerations just don't seem to apply right now in New York City.

Giuliani has been the most responsive official imaginable lately — so responsive to New Yorkers' needs that he nearly got himself killed by falling debris. And any voter who doesn't bother to show up for the mayoral election after what has happened has neither a sense of civic responsibility, nor any common sense — for our destinies as New York City residents are inextricably intertwined with our choice of Mayor.

The idea that term limits are necessary to unseat jaded officials and rouse lazy voters could not be more inapplicable in New York City now.

Still, what about leveling the playing field? Certainly that is a much more serious concern, and probably the best argument for keeping the term limits statute on the books. After all, in some sense, Giuliani has the largest incumbent's advantage in the City's history.

An Unfair Advantage of Incumbency?

Unlike other candidates, Giuliani can now offer national fame and popularity that are likely translate to extraordinary leverage in working with the federal government — leverage that will be crucial as New York rebuilds and protects itself from future attacks. He can also offer a deep familiarity with the City's security system, its personnel, and the myriad other ways in which the complex City works — and might work in an emergency. Those who mocked his emergency center as a "bunker" have been shamed by recent events.

If these are obvious incumbent's advantages, however, we should also ask this question: Are they unfair advantages, injustices that need to be remedied by the term limits statute? I would argue that the answer is no.

Giuliani is not an incumbent resting on his laurels, attempting to use a familiar name and a network of donors to skate on voters' inertia to yet another undeserved term in office. Indeed, that description could hardly be more inaccurate. Giuliani earned his laurels as recently as a few weeks ago. And he may literally have experience that we cannot live without.

In this context, the simple argument — the one the Court raised in Thornton — is very likely the right one: "The people should choose whom they please to govern them." Fifteen percent of New Yorkers wrote in Giuliani's name on their ballots in the mayoral primary — even despite the fact that he had urged them not to, suggesting that if he became a candidate, that would happen after the primary. Those voters, and others who may join them in the ultimate balloting, should have the right to vote for the candidate of their choice.

FindLaw columnist Julie Hilden lives in Manhattan. A graduate of Yale Law School, she practiced First Amendment law at the D.C. firm of Williams & Connolly from 1996-99. Her memoir, The Bad Daughter, was published by Algonquin Books in 1998, and she is currently working on a novel.

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