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A Historic Year for State Con-Cons

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2010 marks a historic year for state constitutional conventions (con-cons). On November 2, 2010, four states (Maryland, Michigan, Montana, and Iowa) have referendums on the ballot asking voters whether they want to convene a state con-con. Never before in U.S. history have so many such referendums been on the ballot at one time.

The constitutions in these four states mandate that such ballot questions be put before the voters periodically, so that they can decide whether to revise their constitutions. Fourteen states give their citizens this opportunity, and this is exactly what Thomas Jefferson wanted. "The earth belongs to the living," he said, and so each generation should have the opportunity to choose its own political institutions.

The large number of con-cons this year results from a historical coincidence. When Montana revised its constution in 1972 as a result of a con-con, it included an automatic con-con referendum provision with a 20-year cycle beginning in 1990. The result is that every 20 years three of the four states have the referendum on the ballot on the same date. The fourth state, Michigan, has a con-con scheduled for every 16 years, leading to an 80 year cycle when its referendum coincides with the other three . The next time four con-con referendums are expected to be on the ballot at the same time is in 2090.

The last three decades have been the worst period in U.S. history for state con-cons. There have been 233 in U.S. history, including five in Maryland, but only three since 1980 and only one convened as a result of a referendum mandated by a state constitution. As a result, the vast majority of living Americans, including reporters, haven't witnessed a con-con in their adult life. This popular ignorance has made it easy for misinformation about con-cons to spread, especially during the last few days before a con-con election when there is virtually no accountability for what is said. Based on the historical record, the following rebuts some of that misinformation.

1. State constitutions don't matter.

It's true that state constitutions are very long and, for the average person, unloved and rarely read. But state and local governments affect citizens every day, and it is the state constitution that creates, structures, and limits those governments. The Maryland Constitution, for example, guarantees the rights of victims of crime, limits governors to two terms of office, requires a balanced state budget, limits state indebtedness, and requires the establishment of "a thorough and efficient System of Free Public Schools." More negatively, the less important a passage may be to the average person, the more important it may be to a special interest group who fought with blood, sweat, and tears to get a legislature to codify one of its privileges not just in law but in constitutional law -- the hardest type of law to change and the type of change only the most powerful special interests are likely to win. State constitutions indeed do matter.

2. State legislatures can be trusted to propose needed constitutional changes.

For most constitutional revision, the legislature is indeed the appropriate institution to take the lead in either proposing amendments or calling for a constitutional convention. But on issues such as term limits, campaign finance, redistricting, legislative transparency, and ballot access, elected officials from both political parties may have an inherent conflict of interest with voters. America's constitutional system establishes checks & balances because elections alone do not guarantee that legislators will always place their constituents' interests ahead of their own interests. Constitutional provisions to automatically place state con-con items on the ballot, including provisions to elect con-con members independently of the legislature, are necessary to ensure that state constitutions reflect the public's views.

3. A constitutional convention would open up a Pandora's Box.

Like the original con-con that created the U.S. Constitution in 1787, most con-cons have been efficient and effective democratic institutions. The last con-con in Maryland proposed a number of worthwhile constitutional reforms, and although voters rejected the complete package of constitutional changes it proposed, they have in the ensuing years adopted piecemeal a number of its better proposals.

Admittedly, the democratic process is often messy and unpredictable. Like most state legislatures, con-cons will generate their fair share of harebrained and undemocratic proposals, but none can become law unless adopted by a majority of the delegates and a majority of the electorate. States have held 233 con-cons, and none have produced the horrors that opponents fear, because they are democratically accountable. State voters decide whether to have a con-con, elect the delegates, and ratify or reject the con-con's proposals. Conventions face extensive press and public scrutiny, and courts can strike down any constitutional changes that violate the U.S. Constitution.

In Maryland, the misconception about a con-con's limitless, unaccountable power may result from the wording of its con-con ballot referendum, which reads: "Should a constitutional convention be called for the purpose of changing the Maryland Constitution?" A more accurate ballot description would have read: "Should a constitutional convention be called for the purpose of proposing changes to the Maryland Constitution that would then be submitted to the electorate for its approval or disapproval by majority vote?" In short, con-cons cannot approve constitutional changes; they can only place them on the ballot for voter approval.

4. A constitutional convention would just be politics as usual.

The politics of getting a con-con called suggests just the opposite. Entrenched interests, such as unions and business groups, oppose conventions because they trust state legislatures to protect their special privileges more than independently elected con-cons. So when these groups sense that a referendum to convene a con-con might pass, as in both Illinois and Connecticut in 2008 (in both states the yes vote was ahead in the polls only a week before the election), they are willing to spend large amounts of money on PR campaigns to kill them. Since the yes advocates don't have any concentrated and thus powerful economic interests backing them, it is not unusual in close races for the "no" interests to outspend the "yes" interests by a factor of ten- or even a hundred-to-one for each vote they win. When combined with the fact that the vast majority of incumbent legislators from both political parties recognize that con-cons were designed to serve as a check on their power and thus oppose them, it can be a wonder why con-cons ever get any yes votes at all. The nature of the opposition they attract is itself proof that con-cons can make a real difference.

Con-cons can also be a good mechanism to update archaic constitutions. Most state constitutions designed in the 19th century, including Maryland's, weren't designed for the long term. Compared to the federal constitution, they tend to be much longer and filled with detail that doesn't differ much from ordinary legislation both in substance and in its propensity to become outdated. Such constitutions have often been patched and patched again with amendments (more than 5,000 across all state constitutions). But over time such patches tend to make constitutions incoherent and unreadable; they are no substitute for the type of careful review that a con-con can provide.

5. A con-con would deprive citizens of their rights.

The U.S. Constitution is the primary guardian of political and civil rights for minorities in the U.S., including such rights as freedom of the press, religion, and assembly; protection from unreasonable search and seizure; and one-person, one-vote. Nothing a con-con could propose could supersede the rights protected in the U.S. Constitution. Indeed, con-cons, often responding to U.S. Constitutional changes, have been a great force for expanding rights, including expanded white suffrage in the early 19th century, black suffrage in the late 19th century, and equal representation for urban citizens in the mid-20th century. Of course, rights not covered by the U.S. Constitution could be changed. But history suggests that con-cons, reflecting changing public sentiment, have done far more to enhance than diminish such rights.

6. A con-con cannot justify its cost to taxpayers.

Con-cons are either expensive or not depending on the size of a state's democratic deficit and whether they can reasonably be expected to significantly reduce it. A Gallup poll taken in 2009 found that the American public believes that, of every dollar spent, the federal government wastes fifty cents, state government 42 cents, and local government 37 cents. Presumably the cause of this waste is the government's democratic deficit. Democratic deficits also reflect injustice to individuals and mismanagement of private enterprise leading to monopoly and inefficiency. Anyone who questions the importance of democratic deficits in influencing the wealth of societies may want to compare the quality of democracy in poor and wealthy countries.

Using Maryland to illustrate the economics of con-cons, let's assume that a con-con would cost approximately $1 per person, or $6 million in total (Maryland has a population of close to 6 million). The Maryland legislature currently spends $32 billion/year, and a referendum to convene a con-con only appears on the ballot once every twenty years. That means the cost of a con-con would be .00001 of the 20-year budget. Let's also assume that the public approved one or more of the con-con's proposed constitutional amendments, reducing the presumed 42% of government waste by only 1%. Ignoring any benefits from a reduction in injustice and private sector mismanagement, that would result in the public receiving a 500 to 1 return on its investment in the con-con. Of course, there are a lot of contestable assumptions here. The key point is that even if a con-con makes only a slight improvement in the quality of state democracy, the payback can dwarf the cost.

J.H. Snider, the president of iSolon.org, has written widely on democratic reform and state constitutional conventions. He maintains a clearinghouse of information about the Maryland con-con ballot referendum at www.MarylandConCon.org. G. Alan Tarr is the director of the Center for State Constitutional Studies at Rutgers University-Camden and co-editor of State Constitutions for the Twenty-First Century: The Politics of State Constitutional Reform.

On October 22, 2010 from 3:00 pm to 4:30 pm, iSolon.org will be hosting an event at the National Press Club in Washington, DC entitled "Is State Con-Con Phobia Justified?" Leading state constitutional scholars will discuss the state constitutional convention referendums on the Nov. 2 ballots in Maryland, Michigan, Montana, and Iowa.