Brian Bishop: A Turning Point in RI: Will Voters Approve a Constitutional Convention?

Thursday, October 30, 2014

Brian Bishop, GoLocalProv Guest MINDSETTER™

This is the second in a two-part series providing context for the ballot questions you will vote on in November. It is OSTPA’s contention that the decision to further indebt our state or the decision to hold a Constitutional Convention should not be a vacuous check mark on the ballot, there must be a frame of reference when making these decisions. You can view part I on the Bond Referenda here. 

Proponents of a yes vote on question #3, which would convene a Constitutional Convention, cite legislative failure as their key concern. They recommend consideration of ideas such as line item veto, run-off elections for statewide office, Ethics Commission jurisdiction over the General Assembly, less political influence in redistricting, and rethinking  the scope of collective bargaining with state employees - all seemingly worthy process issues that should be up for a robust debate.

While, for the most part, these reforms would not directly reduce state spending or change compensation for state workers, it is clear that the bulk of the opposition to a Constitutional Convention is funded by public employee unions, a pattern that has been seen in other states. A recent Providence Journal commentary even highlights the chicanery in the past to squash a Constitutional Convention. 

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Progressives have also voiced concerns that Conventions are rife with opportunity for attacks on civil rights, although liberal reformers, such as Providence education litigator and City Councilman Sam Zurier, have suggested a positive rights approach to education. While Zurier points to Massachusetts as an educational example, the Rhode Island experience has been that trying to achieve educational reform through the judiciary is clumsy and inappropriate.

Turning to the government or to the people?

The very notion of positive rights, the idea of a constitutional guarantee of government (i.e. the rest of the people) will do something for you rather than refrain from preventing you doing it for yourself, is at odds with the American constitutional experience.  Rhode Island’s legion welfare state policies are at least subject to correction by legislation at this point. The idea of ensconcing these policies as rights is never far from the minds of progressives, who at this juncture, are opposed to a Convention but can be expected to field their own slate of candidates and reform ideas if one is convened.

However, it would appear that progressives generally think themselves better served by the entrenched Democrat majority in the legislature despite the effectively populist character that the wholly new (temporarily) elected body for such a Convention would constitute.

Are Rhode Islanders as a whole known to strip away civil rights?

Ironically, the proposal of a constitutional ban on abortions from the 1986 Convention drives the fear of ‘civil rights’ activists. This conundrum forgets that pro-life advocates generally consider themselves equally concerned with civil rights.  But on this thorny question, in this predominately Catholic state, the outright ban proposed by the Constitutional Convention was voted down 66 to 34%.  This should moot fears that a Convention is likely to sneak through amendments that actually threaten our consensus on civil rights and that voters will be inconsiderate of other points of view in their approach to approving constitutional change.

What about civic rights? Is this met with a simple majority?

This definitive rejection of that controversial effort actually raises what we view as a more serious constitutional issue: shouldn’t there be a more definitive statement to adopt changes to the RI Constitution as to reject them? Shouldn't’t laws and debt that binds across generations, without the ability of the legislature to alter it, require a two-thirds majority vote? This gives a greater protection so that any changes adopted represent a consensus and not a transient majority. Neither side has proposed this as an issue to consider at a Constitutional Convention.

Those who defend the current Constitutional Convention process point to the steps necessary:

approve a Convention,

elect delegates, and then,

submit questions  to the people. 

But all of these are simple majority exercises. The process represents checks and balances, but checks and balances are appropriate to legislation and statute. Constitutions are laws that bind across generations and they require greater consensus.

For example

Indeed, it is careless, inappropriate and lawless binding of the people that allows pension reform to languish in litigation, when common law is clear that the legislature is without the power to bind future legislatures as to the level of pensions. Clarity on this question would make equally clear the fact that Rhode Island owes no duty to 38 Studios bondholders. And, had we a RI Attorney General willing to fight for the average taxpayer, the ratings agencies would be on the legal spit for implying otherwise.

Currently, the closest mirror of consensus in Rhode Island’s constitutional process is the more arduous work undertaken on the last two major changes to that document: Separation of Powers and Judicial Selection. These amendments were adopted through a process of public communication and focus over virtually a generation. This resulted in such an apparent super majority of the public opinion in their favor that even legislators hostile to these enactments found no alternative but to put them before the people.

Proponents of a Convention point out that these changes historically are proffered as antidotes to Constitutional Conventions, pointing to the Judicial Selection amendment placed before electors simultaneously with the Constitutional Convention question in 1994; the Separation of Powers amendment contemporaneous with the Constitutional Convention question in 2004; and the adoption of long resisted Master Lever reform just this year with the Convention question in the offing.  While it could beg cynicism, this pattern suggests that the very notion that the legislature itself is subject to the check of a Convention can incentivize more reasoned behavior in its ranks occasionally.

Are You Dissatisfied Enough?

Is one serious measured reform every ten years as a prophylactic against a Constitutional Convention enough? The Burkians amongst us might suggest that is indeed a reasoned pace for what Convention proponents proudly refer to as a “restructuring” of government – not something to be lightly undertaken. But, because nearly 80% of the people in RI are dissatisfied with the way the state is being governed, it may be that a Constitutional Convention is viewed as the only means to fix that.   

It is clearly within the right and competency of the electorate to call for such a Convention. One can hope that such a call would include the election of a slate of delegates bent on rekindling the state’s economy, with sensible additional safeguards, especially in the realm of binding future generations to pay for current goodies – however deserving or corrupt those contemporary recipients may be.

You may color us cynical if we think it is likely that Rhode Islanders, recognizing this need, will vote in favor of a Constitutional Convention – looking to rein in spending - but at the very same time will vote in favor of virtually every bond issue for spending on the ballot. Even Marie Antoinette didn't’t say, let them eat cake and have it too.

Brian Bishop is a Board Member of OSTPA, a taxpayer advocacy organization in Rhode Island.

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