Can Maine voters use a citizen initiative to limit how many years state or federal legislators can serve?

Plain-English summary

A citizen petition was presented to Secretary of State G. William Diamond proposing to limit, by statute, the number of years anyone could serve in the Maine Senate, Maine House, or as one of Maine's members of the U.S. Senate or U.S. House. Diamond asked Attorney General Michael Carpenter whether such legislation would be constitutional. The AG said no.

The core principle, taken from the Maine Supreme Judicial Court's advisory Opinion of the Justices, 343 A.2d 196, 203 (Me. 1975), is straightforward. When the Constitution fixes the tenure of a civil office, the Legislature cannot affect that tenure. People holding constitutional offices can only be removed by methods the Constitution itself authorizes.

The offices targeted by the initiative are constitutional offices. The Maine Senate is created by Me. Const. art. IV, pt. 2, § 1; the Maine House by art. IV, pt. 1, § 3. Both bodies elect members to two-year terms with no constitutional restriction on re-election. The U.S. Senate is created by U.S. Const. art. I, § 3 (modified by the Seventeenth Amendment); the U.S. House by art. I, § 2. None of these provisions imposes a tenure limit, and none of them allows ordinary legislation to add one.

Because the targeted offices are constitutional, restrictions on eligibility for them can only come from a constitutional amendment, not from statute. That applies equally whether the statute is enacted by the Legislature or by citizen initiative.

The AG added a footnote about the federal angle: the proposal also suffered from the separate problem of trying to limit federal legislative eligibility by state statute, which raises a long line of Supremacy Clause issues even before reaching the state-constitution analysis.

Practical consequence: under 21-A M.R.S.A. §§ 901 and 906, the Secretary of State could decline to develop a petition form for circulation.

Historical context: the U.S. Supreme Court did not directly settle the federal side of this question until 1995, when it held that states cannot add term limits to the qualifications fixed by the U.S. Constitution for congressional office. This 1991 Maine opinion reached a parallel conclusion about ordinary state statutes four years earlier.

Currency note

This opinion was issued in 1991. 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.

Background and statutory framework

Maine's citizen-initiative process at Article IV, Part 3, Section 18 lets voters propose legislation. Petitions are reviewed for form by the Secretary of State under 21-A M.R.S.A. §§ 901 and 906. Either the Legislature can adopt the proposal as written, or it goes to a statewide vote.

The state-constitution rule that grounds this opinion comes from Opinion of the Justices, 343 A.2d 196 (Me. 1975). The Justices recognized a basic distinction in administrative-office law. Where a civil office is constitutional, only the Constitution can govern the conditions for holding it. Where the office is statutory ("created by the Legislature"), the Legislature can shape all of its features, including tenure, by quoting State v. Butler, 105 Me. 91 (1909): "Only the legislature can establish a public office (other than a constitutional office) as an instrumentality of government. Whether the creation of the office is necessary or expedient, its duties, its powers, its beginning, its duration, its tenure, are all questions for the legislature."

For the federal offices, the qualifications and tenure of U.S. Senators and Representatives are set by the U.S. Constitution. The Seventeenth Amendment did not insert a tenure limit. The Constitution allows for state regulation of the time, place, and manner of congressional elections, but not for state restrictions on who can serve.

Common questions

Why not term limits by initiative?
Because the initiative is a form of statute, and statutes cannot override constitutional provisions. The constitutional offices were created by the Maine and U.S. Constitutions, and only constitutional amendments can change the conditions for holding those offices.

Can Maine impose term limits on state legislators through a constitutional amendment?
Yes, but through the constitutional amendment route, not by citizen initiative as a statute. The amendment process is set out in Article X of the Maine Constitution and requires legislative supermajority plus voter ratification.

Could Maine impose term limits on its U.S. Senators and Representatives by constitutional amendment?
The AG's 1991 opinion did not reach that question. The U.S. Supreme Court later answered it in 1995, holding that states cannot add qualifications to federal office, which means even a state constitutional amendment could not impose congressional term limits. Verify the current state of that doctrine before relying on it.

Did Maine ever adopt state-level term limits anyway?
Through a separate constitutional/initiative process in the 1990s, Maine and other states adopted term limits on state legislators. That history sits outside this 1991 opinion. The point of the opinion is just that a statute (not an amendment) cannot do it.

What's the practical role of this opinion for the Secretary of State?
The opinion told the Secretary of State he had legal authority to decline to develop the petition form, because the proposed statute would be unconstitutional on its face.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19910906.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

September 6, 1991

Honorable G. William Diamond
Secretary of State
State House Station 29
Augusta, ME 04333

Dear Secretary of State Diamond:

You have advised this Department that you have been requested to provide forms, pursuant to 21-A M.R.S.A. § 901 and § 906, for a petition to initiate legislation, pursuant to Article IV, Part 3, Section 18 of the Maine Constitution, which would place limits on the ability of members of the Maine Senate and House of Representatives and members elected from Maine of the United States Senate and House of Representatives to serve in those bodies for more than a specified number of years. You have inquired of this Department whether the enactment of such initiated legislation would be constitutional. For the reasons which follow, it is the Opinion of this Department that it would not be constitutional for the voters of the State (or the Legislature itself) to pass legislation limiting the terms of State or Federal legislators.

Under the Maine Constitution, members of the Maine Senate and House of Representatives are elected for two-year terms. Me. Const. art. IV, pt. 2, § 1 (Senate); art. IV, pt. 1, § 3 (House of Representatives). Similar provisions exist in the United States Constitution. U.S. Const. art. I, § 3; amend. XVII (Senate); art. I, § 2 (House of Representatives). All of these provisions are silent on the issue of the continued eligibility of incumbents for election to additional terms. The question which you present is whether such limits may be imposed by ordinary legislation on these constitutionally created offices.

Research does not disclose any instance in the history of the United States in which legislation was passed purporting to limit the terms of members of the United States Congress or of any state legislature and the constitutionality of such legislation was determined by a court. Nonetheless, the Supreme Judicial Court of Maine has set forth, in the context of legislation regarding the tenure of a legislatively created office, the general principle which applies.

When the Constitution fixes the tenure of a civil office, it is beyond the power of the Legislature to affect the tenure. Persons holding such constitutional offices, therefore, may be removed only by methods authorized by the Constitution itself.

---

It does not follow, however, that the same principle governs as to civil offices the tenure of which is fixed by statute. As to such offices it has been held that, in the absence of a constitutional prohibition to the contrary, it is "undisputed" that

"[o]nly the legislature can establish a public office (other than a constitutional office) as an instrumentality of government. Whether the creation of the office is necessary or expedient, its duties, its powers, its beginning, its duration, its tenure, are all questions for the legislature to determine and be responsible to the people for their correct determination." State v. Butler, 105 Me. 91, 96, 97, (1909).

Opinion of the Justices, 343 A.2d 196, 203 (Me. 1975). It is clear, therefore, that when an office is created by the Constitution, restrictions on the ability to hold that office may be imposed only by amendment to the Constitution.

As indicated above, the offices on which the legislation which has been presented to you for approval for submission to the voters seeks to impose limits are created by the State and Federal Constitutions. The proposal, therefore, directly violates the principle outlined above.[1] For this reason, therefore, it is the Opinion of this Department that it would be within your authority under 21-A M.R.S.A. § 901 and § 906 to decline to develop a form permitting the persons submitting the proposal to you to circulate petitions seeking to have it presented to the Legislature and to the general electorate.

I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

Sincerely,

Michael E. Carpenter
Attorney General

MEC: SW

[1] The proposal suffers from the additional disability of attempting, in part, to limit eligibility for service in federal legislative office by State statute.