Could a single Idaho ballot initiative both let counties opt out of term limits and impose a multi-year lobbying ban on former state legislators?

Plain-English summary

This 1997 initiative (the "State Term Limits and Lobbying Reform Act of 1998") tried to do two unrelated things at once. First, it would have amended Idaho Code § 34-907 to let counties, municipalities, and school districts hold their own local citizen initiatives to repeal the term limits the state had imposed on their elected offices. Second, it would have created a new revolving-door lobbying restriction: any current or future Idaho legislator or legislative employee could not "for compensation, lobby, solicit, or represent any organization, business, government, or state recognized legal entity" before any state government member, employee, or representative until "the number of years served in or employed by the Idaho legislature have intervened." Violations carried a maximum $10,000 fine or two years in prison.

Deputy AG Matthew J. McKeown, writing for AG Alan G. Lance, identified two probably-fatal problems.

First, Article 3, section 16 of the Idaho Constitution requires that "every act shall embrace but one subject and matters properly connected therewith." The Idaho Supreme Court has applied this rule strictly: in State v. Banks, 37 Idaho 27, 215 P. 468 (1923), the court ruled that even the sale of general fund treasury notes and the sale of refunding bonds were separate subjects that could not be combined in one bill. County term limits and lobbying restrictions are no more closely related than those topics. The AG also concluded that the single-subject rule applies to initiative legislation just as to ordinary legislation, drawing on the "equal footing" rule from Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943) and Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988). When a court finds a single-subject violation, the rule from Banks is that "the act is absolutely void" — the severability clause in section 6 of the initiative would not save the rest.

Second, even setting aside the single-subject problem, the lobbying restriction itself was probably unconstitutional. The Ohio Court of Appeals in State v. Nipps, 419 N.E.2d 1128 (Ohio Ct. App. 1979) had upheld a narrowly drawn revolving-door statute that barred former officials only from representing clients in matters they had personally and substantially worked on while in office, and only for twelve months. Idaho's proposed restriction was not so confined: it covered all matters before any state employee, lasted for as many years as the lobbyist had served in the legislature, and contained no findings explaining why a more narrowly tailored rule would not address the same concerns. A reviewing court might find the breadth and absence of tailoring incompatible with the freedom of association under the First Amendment and Article 1, sections 9 and 10 of the Idaho Constitution.

Section 4 of the initiative contained a drafting omission: it intended to add the local-initiative term-limits option to the school district term-limits provisions, but the actual amendatory language for that section was missing.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why was bundling term limits with lobbying restrictions a problem?

Article 3, section 16 of the Idaho Constitution requires that an act embrace one subject and matters properly connected with it. The Idaho Supreme Court in Amer. Fed. of Labor v. Langley, 66 Idaho 763, 168 P.2d 831 (1946) said the statute "must disclose, either by express declaration or by clear intendment, or at least portend the common object in order that it may be determined whether all parts are congruous and mutually supporting." County term limits (a question about who can hold local office) and former-legislator lobbying restrictions (a question about post-employment conduct of state officials) do not share a common object. Banks and Hailey v. Huston, 25 Idaho 165, 136 P. 212 (1913) had already invalidated bills that combined less-distant topics; this combination was harder to defend.

Does the single-subject rule even apply to citizen initiatives?

The AG concluded yes, drawing on Luker v. Curtis's "equal footing" reasoning that initiative legislation has the same legal force as legislative acts. If the single-subject rule constrains the legislature, it likewise constrains the people exercising legislative power through initiative. The Idaho Supreme Court reaffirmed that equal-footing rule in Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988).

Why did the lobbying ban look unconstitutional?

State v. Nipps illustrated the model for a constitutional revolving-door statute: narrow scope (matters in which the official "personally participated . . . by a substantial and material exercise of administrative discretion"), short duration (twelve months), and a clear connection to a substantial state interest (preventing the use of inside knowledge for private benefit). Idaho's initiative had none of those features: it covered all matters before any state actor, ran for as many years as the legislator had served (which for a long-serving legislator could be a decade or more), and offered no legislative findings explaining why this particular reach was needed. Without tailoring or findings, a court would have a hard time concluding that the restriction was narrowly drawn to serve a compelling interest in protecting freedom of association under the First Amendment and Idaho Constitution Article 1, sections 9 and 10.

What was the section 4 drafting issue?

Section 4 was supposed to amend Idaho Code § 33-443A to give school districts the same local-initiative option to repeal term limits that sections 2 and 3 gave to counties and municipalities. But the version submitted to the AG was missing the actual amendatory text for section 4. The AG flagged it so the petitioner could fix the drafting before submitting petitions for circulation.

Would severability save anything if the single-subject rule were violated?

No. The AG cited Banks's flat statement that "where [article 3, § 16, is violated] the act is absolutely void." A severability clause cannot rescue an act that is void as a whole, because severability presumes a valid statute from which an invalid part can be removed. When the single-subject violation infects the entire act, there is nothing left to sever.

Background and statutory framework

This certificate was one of three the AG's office issued on July 7, 1997, addressing different term-limits-related ballot initiatives filed in late June. Idaho voters had passed an initial term-limits measure in 1994; the U.S. Supreme Court's 1995 decision in U.S. Term Limits, Inc. v. Thornton invalidated the congressional portions, but the state and local term-limits provisions survived. The 1997 initiatives, including this one, represented an effort to recalibrate Idaho's term-limits architecture in the wake of Thornton and in anticipation of the Idaho Supreme Court's pending decision in Simpson v. Cenarrusa about ballot legend mechanics.

The lobbying restrictions in section 2 belong to a separate body of state-law innovation generally known as "revolving door" statutes. Most states have some form of post-employment cooling-off period for legislators and senior executive-branch officials. The constitutional question on those statutes is usually whether the restriction is narrowly tailored to advance a substantial state interest in preventing the appearance or reality of corruption while still respecting former officials' First Amendment right to associate with clients and engage in political activity.

Citations

• Idaho Const. art. 3, § 16; art. 1, §§ 9, 10
• U.S. Const. amend. I
• Idaho Code §§ 31-717, 33-443A, 34-907, 34-1809, 50-478
• American Federation of Labor v. Langley, 66 Idaho 763, 168 P.2d 831 (1946)
• Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943)
• Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988)
• State v. Banks, 37 Idaho 27, 215 P. 468 (1923)
• Hailey v. Huston, 25 Idaho 165, 136 P. 212 (1913)
• State v. Nipps, 419 N.E.2d 1128 (Ohio Ct. App. 1979)
• In re Advisory from the Governor, 633 A.2d 664 (R.I. 1993)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C070797_c.pdf

Original opinion text

July 7, 1997
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
RE: Certificate of Review Initiative Regarding State Term Limits and Lobbying Reform

Dear Mr. Cenarrusa:

A proposed initiative petition was filed with your office on June 26, 1997. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative purports to make two changes to Idaho law. First, the proposed initiative would give counties, municipalities and school districts the option to eliminate term limits via local citizen initiative. In addition, the proposed initiative would place certain restrictions on lobbying activities by former Idaho legislators and legislative employees.

Section 2

Section two of the proposed initiative would add two new sub-sections to Idaho Code § 34-907. A new section would state that, "[t]he people shall have the right through the county initiative process provided in Idaho Code § 31-717 to eliminate the term limits created herein for county commissioners or any other county elected officials."

A second new section would create the following restriction:

Any person who currently serves or subsequent to the enactment of this act serves as a member of the Idaho House of Representatives or Senate or is employed by the Idaho legislature shall not, for compensation, lobby, solicit, or represent any organization, business, government, or state recognized legal entity before any member, employee or representative of the Idaho state government until the number of years served in or employed by the Idaho legislature have intervened.

This section also would establish a maximum penalty of either a $10,000 fine or a two year prison sentence, or both, for an intentional or willful violation of the new lobbying limitation. As it is currently written, section two contains two potential constitutional problems that will probably prevent implementation of the proposed initiative.

Article 3, § 16 of the Idaho Constitution states:

Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which is not expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.

The Idaho Supreme Court has provided the following guidance: "To comply with Article 3, Section 16, the statute must disclose, either by express declaration or by clear intendment, or at least portend the common object in order that it may be determined whether all parts are congruous and mutually supporting, and reasonably designed to accomplish the common aim." Amer. Fed. of Labor v. Langley, 66 Idaho 763, 768, 168 P.2d 831 (1946).

In Luker v. Curtis, 64 Idaho 703, 706, 136 P.2d 978 (1943), the Idaho Supreme Court compared the power of initiative to the power of legislation: "This power of legislation, reclaimed by the people through the medium of the amendment to the constitution, did not give any more force or effect to initiative legislation than to legislative acts but placed them on equal footing." The supreme court reiterated its adherence to the "equal footing" rule in Westerberg v. Andrus, 114 Idaho 401, 404, 757 P.2d 664 (1988).

Section 2 of the proposed initiative attempts to enact legislation concerning two distinct subjects: county term limits and restrictions on lobbying. To avoid violating article 3, § 16, these two subjects must be "considered as falling within the same subject matter" or be "necessary as ends and means to the attainment of each other." State v. Banks, 37 Idaho 27, 31, 215 P. 468 (1923). The Banks court determined that the sale of general fund treasury notes and the sale of refunding bonds are separate subjects that cannot be included in one piece of legislation. In another case, the Idaho Supreme Court has determined that a salary increase for a state employee contained in an appropriations bill violates article 3, § 16. Hailey v. Huston, 25 Idaho 165, 136 P. 212 (1913).

County term limits and lobbying restrictions are no more closely related than the topics at issue in Banks and Hailey. Based on the Idaho Supreme Court's precedent, this office concludes that a reviewing court is likely to rule that the entire proposed initiative is void.

Assuming the proposed initiative survives an article 3, § 16, challenge, the proposed lobbying restriction may also violate the freedom of association protected by the First Amendment to the United States Constitution and article 1, §§ 9 and 10 of the Idaho Constitution.

The Ohio Court of Appeals considered a "revolving door" restriction in State v. Nipps, 419 N.E.2d 1128, 1131 (Ohio 1979). The Ohio court ruled that the challenged statute did not violate the First Amendment because it was "not a blanket prohibition on all representation by defendant before his former employer, but only in those matters in which he, as an official or employee of the state, was directly concerned and in which he personally participated by a substantial and material exercise of administrative discretion." 419 N.E.2d at 1132.

The lobbying restriction in the proposed initiative is not limited to matters in which former officials and employees either were directly concerned or personally participated. In addition, the prohibition is not limited to one year. Finally, the proposed initiative does not contain any findings that would help a reviewing court understand why a more narrowly tailored proposal would not adequately address the interests of the petitioners. Because the proposed initiative's lobbying restriction is so broad, and since there are no findings to guide a reviewing court, a reviewing court might rule that the lobbying restriction violates the First Amendment to the United States Constitution, article 1, §§ 9 and 10 of the Idaho Constitution, or both.

Section 3

Section 3 of the proposed initiative adds the local initiative term limits option to the provision establishing municipal term limits, Idaho Code § 50-478.

Section 4

Section 4 of the proposed initiative probably intends to add the local initiative option to the provision establishing school district term limits. However, that addition is omitted from the version of the proposed initiative submitted to this office.

Section 6

Section 6 contains a severability clause. However, as explained above, the Idaho Supreme Court has ruled that statutes violating article 3, § 16, are "absolutely void." Therefore, the severability clause may not save the remainder of the statute.

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Donna Weaver by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,
ALAN G. LANCE
Attorney General

Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General