The Periodic ConCon’s Democratic Function
The function of a state constitutional convention has evolved over time. At the Founding in 1776, the constitutional convention was the only or primary method of drafting a constitution. Eleven of the thirteen original colonies used a constitutional convention to draft their constitutions. The other two retained their colonial charters.
Throughout the 19th century, the use of legislatively initiated constitutional amendments without an intervening constitutional convention gained in popularity. Consequently, legislatively initiated constitutional conventions came to be increasingly conceptualized as an institutional vehicle for major constitutional revisions.
The periodic constitutional convention referendum is a relatively new institution in both the United States and in world history. By the end of the 19th century, six of 45 U.S. states (13%) had passed provisions for a periodic constitutional convention referendum. The primary democratic purpose of this particular type of constitutional convention was to overcome the legislative veto on constitutional change. By the end of the 20th century, fourteen states (28%) had such a provision. Six of the fourteen added the provision after 1956.
The last great wave of states adding this provision occurred in the wake of the U.S. Supreme Court’s Baker v. Carr decision in 1962, which forced states, in the face of legislative opposition, to reapportion their legislatures based on the principle of one-person, one-vote. Previously, legislators from rural areas, which were predominantly white and non-immigrant, held a disproportionate number of seats in state legislatures.
The mid-19th century wave came in the wake of the widely reported Dorr Rebellion in Rhode Island in the early 1840s, which sought to enhance political equality via violence in the face of a recalcitrant legislature. A periodic constitutional convention referendum was viewed as a peaceful way to achieve similar ends. The financial crisis of the 1840s, which was caused by legislatures’ financial speculation and led some states to default on their debt, also contributed to a general desire to reign in legislative powers.
The primary democratic function of a legislature-initiated constitutional convention remains major constitutional revision. But the primary democratic function of a periodic constitutional convention referendum is to propose democratic reforms that a legislature would not otherwise allow the people (the “sovereign”) to vote upon. Failure to appreciate this distinction between legislature-initiated and sovereign-initiated constitutional conventions is common.
This is not intended as an exhaustive classification of constitutional conventions. Other important variations include the legislature-restricted vs. open agenda constitutional convention (legislators obviously prefer the former), and constitutional conventions with and without popular convening and ratifying referendums. The periodic constitutional convention is inimical to both of these variations because a legislatively restricted agenda would defeat its purpose and it presupposes a popular convening referendum. Modern theories of state constitutionalism also presuppose that all constitutional change be ratified by the sovereign, which helps explain why by the early 20th century all types of state constitutional reform employed ratifying referendums.
This conceptualization of the democratic purpose of a constitutional convention is not without controversy. For example, legislatures and the powerful special interests that tend to dominate them rarely conceptualize a periodic constitutional convention in this way. Since they tend to view a constitutional convention as a threat to their power, they have no interest in framing the purpose of a constitutional convention in terms of the realization of legitimate democratic purposes. Instead, when faced with a convening referendum on the ballot, they tend to argue that a constitutional convention would serve no vital democratic purpose and would be more likely to result in harm than good. To the extent that periodic constitutional conventions have been poorly designed to serve their democratic function, the naysayers’ arguments have merit.
Even public interest advocates may have perverse incentives to oppose framing a periodic constitutional convention referendum in such democracy enhancing terms. They may prioritize protecting their relationships with powerful legislators and special interest group allies to enhance their political influence on issues more important to their organizations. They may also recognize that legislatures often retain significant control over the constitutional convention process, so framing the primary purpose of a constitutional convention in such terms would be self-defeating.
I rank periodic constitutional convention features based on two primary criteria: First, genuine independence from the control of other government agents, notably the legislature. Second, the need to create a deliberative majority.
If a periodic constitutional convention is not independent of the legislature, it defeats its purpose. One might as well let the legislature propose the desired constitutional reforms.
For example, in Oklahoma, only the legislature can put the periodic constitutional convention referendum on the ballot. When it has failed to do so, there has been no recourse. In contrast, in Rhode Island, if the legislature fails to place the convening referendum on the ballot, the Secretary of State is tasked to do so. Fixed dates for electing delegates and convening the convention also help prevent a situation, such as in Iowa, where even after a convention had been approved by voters, the legislature did not convene it. Pre-established districts for convention delegates as well as bans on legislators serving as convention delegates also reduce opportunities for the legislature to subvert the process.
It is also vital that the sovereign have ample time and resources to deliberate on the proposed constitutional changes. This is less of a practical problem than the requirement for independence from the legislature because much of the deliberative space is built into the design of a periodic constitutional convention. There are three votes by the sovereign: 1) to convene a constitutional convention, 2) to elect delegates to the convention, and 3) to ratify a convention’s proposals. The constitutional convention is also likely to follow standard legislative procedure, with three public readings of all proposed reforms and at least one final vote, on the public record, for each proposed reform.
But even here there is room for variance. For example, the entire process from the convening referendum to the ratifying referendum should take at least a year, with at least three months each between the convening referendum and the delegate election, the delegate election and the beginning of the convention (so delegates can engage in due diligence), and the end of the convention and the ratifying referendum. Ample time between the convention and the ratifying referendum is most important because that’s when the public has the proposals in hand and can deliberate on whether they serve its interests.
Similarly, during all stages of the process there should be transparency provisions. For example, delegates should be required to file campaign finance reports just as legislators are required to. And during the campaigns for both convening and ratifying referendums there should be enforceable campaign finance disclosure for significant advocacy groups. The constitutional convention itself should be viewed as an outstanding opportunity to educate the public about the diverse viewpoints concerning the various proposals.
I will have more to say about such issues in a public policy paper I plan to release in early 2015.
This ranking is under development and should be looked at only after perusing the much more thorough features page, on which it is based. The primary feature on which I rank periodic constitutional convention provisions is their capacity to provide the people (“the sovereign”) a vehicle to propose a democratic reform agenda independently of the legislature. This is in keeping with a key democratic purpose of a constitution, which is to create a body of sovereign created fundamental law to parcel out power to government agents (primarily the legislative, executive, and judicial branches of government) while retaining the balance for the sovereign. In America, this is popularly known as the “checks & balances system,” although that term has traditionally not been used in reference to the periodic constitutional convention.
For a preliminary ranking, I have divided periodic state constitutional convention referendums into two categories: 1) those where the legislature retains effective veto power over convening a constitutional convention, and 2) those where it doesn’t. In the first category, there is a negligible difference between a legislature initiated constitutional convention and a periodic (sovereign) initiated one.
In the first category are five states: Oklahoma, Connecticut, Maryland, Hawaii, and Iowa. The specific features that lead a state to be placed on this list vary, but the result is that the legislature has excessive power to either stifle a constitutional convention in its cradle or control its members. In Oklahoma, for example, the legislature hasn’t placed a constitutional convention referendum on the ballot since 1970, despite the fact that the constitution mandates it be placed on the ballot at least once every 20 years. In Connecticut, the problem is different. The legislature has so much control over the selection of convention delegates that it defeats the purpose of convening a constitutional convention in the first place. In 2008, this control was one of the major arguments opponents used to defeat the periodic referendum. It was an especially good argument because it was true.
In the second category are nine states: Alaska, Illinois, Michigan, Missouri, Montana, New Hampshire, New York, Ohio, and Rhode Island. In all these states, the legislature faces substantially greater hurdles in stifling a constitutional convention in its cradle or stacking its membership, but it may nevertheless exert undue influence over a convention in a way that undermines its function.
I have not ranked these states, partly because I think all fourteen of them have periodic constitutional convention clauses with serious deficiencies. In my opinion, none deserves even close to an “A” rating, but a numerical ranking from one to fourteen might suggest otherwise.
My features analysis is also incomplete, as it is based only on features included in the future amendments section of a constitution as well as glaring implementation abuses such as in Oklahoma, Iowa, and Maryland. Generally missing from the analysis are statutory law, case law, court advisory opinions, and relatively minor implementation abuses.
For a modicum of guidance, however, I’d place Oklahoma at the bottom and Michigan, while holding my nose, at the top. Oklahoma gets the bottom ranking because its legislature simply ignores its constitutional requirement to convene a periodic referendum every twenty years. Whereas most legislatures seek to subvert the periodic constitutional convention clause through subtle procedural maneuvers, Oklahoma does not even bother with such public relations and legal niceties.
Michigan gets the top spot primarily because of its attempt to minimize the risk of legislative abuse. It’s less that Michigan excels than that it avoids red flags. Nor does it have all the best features.
In Michigan, the key actors who are responsible for making ministerial decisions at different stages of the process are generally named and from the executive rather than the legislative branch. Modern periodic constitutional convention provisions tend to place elected branch officials in control of such ministerial duties because they have less of an intrinsic conflict of interest in such matters and are viewed as more democratically accountable than legislators who have better means of shirking their constitutional responsibilities without penalty.
In addition, incumbent legislators cannot run for constitutional convention delegate; the constitutional convention is generally given power over its own internal procedures, including the compensation of its support staff; and there is adequate time for public deliberation after the convention adjourns.
Michigan had the advantage of a generally late revision (1960) of its periodic constitutional convention clause, so it could learn from others. It was also only one of two states with clauses created or reformed via a constitutional initiative. The other was Missouri (1920), which also has one of the best clauses.
Connecticut’s clause may be the most baffling. Its periodic constitutional convention provision was passed relatively recently (1965). It is also, unlike 19th century provisions, more than a vague sketch. Nevertheless, as previously noted, the legislature was given undue control of decision making in each of the key stages of a constitutional convention, the result being that it offers little advantage over conventional constitutional amendment procedures. The baffling part is why the constitutional convention even bothered to include such a useless provision.
August 20, 2014