A Constitutional Convention Is In Order

Ever since the ill-fated pay raise of 2005 angered citizens and energized reform groups across Pennsylvania, interest has brewed in a constitutional convention.  In recent weeks a fresh push has materialized, spearheaded by Representative Stephen Bloom and Senator John Eichelberger.

Given the fracturing of viewpoints and the rising intensity of divisiveness within our state, it might not seem a propitious time for thoughtful and deliberate changes to the guiding document for our Commonwealth.  Concerns that the risks outweigh the potential advantages are not entirely misbegotten.

But when we consider the glacial pace of reform, the relative infrequency of amendments being submitted to voters, and the growing number of citizens who are losing faith in public institutions and leaders, it is harder to make a convincing argument against a convention.  Something has to shake up the system.

A constitutional convention could alter the dynamic of state government.  However, a common reaction is cautious: perhaps, if it is very limited.  Then there is the contrary view: if Pennsylvania is going to the time and trouble of assembling a convention, it should be ambitious in objectives.

This is not to devalue the proposed reforms attached to the call.  Each item on the provisional list enjoys substantial public support.  Yet, some just tinker with the process, rather than attempting to settle enduring disputes that have flared almost from the day the last convention concluded its business.  For comparison purposes, the limited constitutional convention of 1967-68 occurred after a series of proposed amendments were submitted to voters, essentially taking a series of weighty subjects off the consideration list.

Check this list of seven prominent controversies that could be part of the convention agenda:

*What issue for forty years has caused the most public fury and prompted the most extensive array of legislative plans?  Easy answer: property taxes.  If taxpayers truly want to see limits placed on property taxes and viable revenue alternatives offered, a convention could be the last resort for action.

*With a structural deficit becoming a fixture in the annual state budget deliberations, accompanied by a chorus of calls for tax reform and modernization, thought is turning toward a graduated income tax.  Remember, a flat rate income tax was not the first choice.  A graduated income tax was approved under Governor Milton Shapp, but was rejected by the state Supreme Court.

*Convention advocates want to adjust the budget process.  How about the traditional Holy Grail of fiscal conservatives worried about the expansion of state government – state spending limits?  Constitutional amendments to accomplish that have been proposed off and on for decades, but always fall short of the ballot.

*Not long after the last convention, a question providing for merit selection of judges was submitted to voters and narrowly defeated.  The argument over the advantages of selection versus election has been carried on ever since.  With painful examples of judicial misconduct fresh in mind, voters should have another crack at this choice.

*How about removing language that was discriminatory in purpose?  The provisions entangling school choice were not a highly principled statement about separating public and religious education.  They were born of anti-Catholic bias.  Even if the determination is to delineate strict separation, the ambiguity should be cleared up.

*For decades, judges and legislators have expressed very different views of defining a purely public charity.  In the latest ruling, justices again asserted primacy.  Why not craft language in the constitution to settle the matter?

*While a separate transportation budget has worked well, a couple of issues cause annual complications: funding for mass transit and the diversion of dollars for the state police.  Acknowledging that mass transit is an integral part of transportation and that the portion of the state police budget attributable to patrolling highways is a transportation cost could save a lot of political contention and connivance.

Concededly, this is by no means an exhaustive list, or the essential one.  It may prove the public is as divided on these matters as legislative opinion has been, and agreement is not in the cards.  But considering the public interest and policy stakes involved, these ought to be seriously explored.  More subjects probably make for a longer convention, but that is hardly a frivolous commitment.

Oh, and there is the King Kong of policy issues.  If the notion of citizen empowerment has truly reached critical mass, then why not weigh adding broad initiative and referendum powers to the constitution?

Consistent with this, some calls provide for a purely citizens convention, no public officials invited.  That has never struck as a particularly good idea.  Still, the matter of delegate selection is a key consideration.  The proposal to elect 150 delegates – 3 per state Senate district – is a reasonable one.  If the agenda is enlarged, making it four or five delegates per district might be advisable.  But the other side of the slate, according an additional 13 ex officio spots for state legislators, is too limited in scope and number.

Those who have vital experience in governance should be guaranteed spots, former governors for example.  This has two advantages, the obvious adding valuable insight to the proceedings, and the less obvious opening more elected delegate slots to regular citizens.  Suspicious types fear that system defenders can somehow hijack a convention and render reform stillborn.  That is highly unlikely.  Pennsylvanians do not lose control, because they possess the ultimate power to accept or reject the work of the convention.

Political skills are desirable.  First, inside a representative convention, there will be sharply conflicting viewpoints.  In addition to the usual differences of politics and philosophies, there will be equally pronounced regional differences.  Someone is going to have to round up sufficient support for whatever amendments the convention hopes to approve for submission to the voters.  Elder statesman types will help with the public sales job necessary to gain voter approval.

A productive convention will likely add verbiage to the document.  Our state constitution is already far lengthier than the federal counterpart.  So maybe there are places where improvement comes from clearing out the clutter accreted over time.

What should a convention not do?  Putting the declaration of rights off limits is a wise safeguard.  There will be pressure to write in too many specifics – say funding formulas – that should be resisted.  Constitutional language works best when it establishes the ground rules for operating, rather than dictating details of decision-making.  Those details are properly hammered out in implementing legislation.

Two useful perspectives on the possibilities and limitations of a convention have been offered.

For a demonstration of the intelligent, informed, thoughtful, and principled approach we hope delegates will bring, check out a reflection by former Governor Dick Thornburgh on his participation in 1967-68.  It can be found on a Duquesne University website devoted to the last convention.

The other is more cautionary, rendered by Jim Panyard in 2006: “What do we need a new Constitution for?  They do not pay any attention to the one we have now.”  That sardonic expression of frustration over political practice contains a very pertinent warning.  Even with work of the most productive and wise gathering, we will still depend on electing and appointing public officials who adhere to the spirit and intent of the revised constitution.  And we will need watchdogs who speak out and act when transgressions occur, contrary to carefully crafted provisions.

Weighing the public interest and public opinion, four assertions are warranted:

  1. Pennsylvania is due for a constitutional convention.
  2. The makeup of the delegation should afford broad participation on the part of citizens and those with governing experience.
  3. The goal should be to improve the efficiency and accountability of state government, rather than to hamstring or disassemble it.
  4. The convention should present the opportunity to develop remedies for major problems that have defied legislative solution for decades.

David A. Atkinson is an Associate with The Susquehanna Valley Center’s Edward H. Arnold Institute for Policy Studies.

Nothing contained here should be considered as an attempt to aid or hinder the passage of any legislation before the General Assembly.

The views expressed here are those of the author and not necessarily those of the Susquehanna Valley Center for Public Policy.