Former lawmakers sue to undo Michigan's term limits

Beth LeBlanc
The Detroit News

Lansing — Eight former Republican and Democratic lawmakers are suing Secretary of State Jocelyn Benson over Michigan’s shortest-in-the-nation term limits, which they say are an “unconstitutional bar to their ballot access.”

State lawmakers are limited to serving a total of 14 years across the two legislative chambers — three, two-year terms in the House and two, four-year terms in the Senate. Voters approved the constitutional amendment initiative in 1992. 

Attorney John Bursch speaks about a new lawsuit challenging Michigan's term limits on Wednesday, Nov. 20, 2019, beside former lawmakers Roger Kahn (left) and Mary Valentine (right).

“It has not been good for Michigan government or for people,” attorney John Bursch said Wednesday. “When you take the most experienced people out of government, it shifts the balance of power to career bureaucrats and to lobbyists.”

The lawsuit prompted strong opposition from East Lansing economist Patrick Anderson, a leader of the 1992 term limits initiative, who said lawmakers should pursue changes through ballot initiative, not a judicial ruling.

"It is disgraceful for people who took an oath to uphold the Michigan constitution, to now go before a federal judge and ask for it to be put aside," Anderson said.

The former lawmakers involved in the lawsuit include former Sen. Roger Kahn and ex-Reps. Scott Dianda, Clark Harder, Joseph Haveman, David Nathan, Paul Opsommer, Douglas Spade and Mary Valentine. 

Five of the lawmakers are now registered lobbyists. The 501(c)4 or social welfare group funding the lawsuit lists Rusty Merchant, a lobbyist, as its resident agent and the press conference announcing the lawsuit was held in a conference room belonging to lobby firm McAlvey Merchant & Associates.

“Our ability to legislate effectively requires us to one, develop some competence; two, to develop relationships; and three — something that was hard for me — is to learn how to do that without getting too emotional,” said Kahn, a Saginaw Republican who state records show is a registered lobbyist whose client is the Detroit Medical Center. 

The suit seeks a permanent injunction, alleging the term limits violate the U.S. Constitution's guarantees to ballot access and freedom of association, and infringe on the state Constitution's title-object clause.

Specifically, Bursch said the title of the 1992 initiative, the "Michigan State Office Amendment," failed to reflect that the initiative also sought to impose term limits on federal congressional offices. In 1995, the U.S. Supreme Court ruled that states can't impose qualifications for congressional members stricter than those specified in the Constitution, invalidating parts of congressional term limit laws in 23 states, including Michigan.

The former lawmakers are suing for ballot access and as registered voters unable to vote for candidates who have reached their term limits, according to the suit. 

The lawsuit differs from an unsuccessful attempt shortly after the 1992 passage of the limits because it is filed by lawmakers denied access to the ballot instead of voters denied the ability to vote for whomever they wish, Bursch said. The passage of time since that lawsuit also has allowed for additional research into the effects of term limits in Michigan.

"Michigan's term limits can survive no level of scrutiny," the lawsuit said. "Instead, the amendment has proven a failed social experiment: it has decreased the experience and competency of the legislature, decreased bipartisanship and coalition building, increased dynastic and recruitment-based representation, and increased the influence of lobbyists and special interest groups."

The lawsuit is being funded by Michiganders for Good Government, whose donors Bursch would not disclose except to say they were bipartisan. 

The initiative was spurred by requests from both sides of the aisle, Bursch said, and likely would aid any effort that sought to alter term limits. 

The group anticipates that any ballot initiative effort seeking to repeal or scale back the state’s term limits would be flooded and potentially defeated by out-of-state donors seeking to keep the current system in place. 

But a legal ruling declaring the current laws unconstitutional could “clear the brush” ahead of legislation or an initiative seeking more reasonable restrictions, Bursch said. A federal ruling could also provide guidance regarding future restrictions on term limits, he said. 

“We’re not opposed to a ballot initiative,” said Bursch, a former state solicitor general. “We don’t see these as mutually exclusive routes. We see these as parallel routes.”

The lawsuit comes as legislative leaders and a government reform group contemplate ways to repeal or scale back the state’s term limits.

Sen. Mike Shirkey, R-Clarklake, and House Speaker Lee Chatfield, R-Levering, have held preliminary discussions with the Michigan Chamber of Commerce and government reform group Voters Not Politicians about a possible ballot initiative in 2020. The plan would address Michigan’s strictest-in-the-nation term limits as part of several reforms aimed at ethics and transparency issues.

The groups have two ways to get a constitutional amendment before voters in November 2020. The Michigan House and Senate could approve putting the issue on the ballot with at least two-thirds support or a ballot group would have to gather 425,059 valid signatures by July 6.

Craig Mauger contributed.