No matter how much is accomplished during any two-year legislative session, the menu of reforms and systemic changes sought by taxpayers, commentators, and interest groups never seems to diminish. There are multiple avenues for changing state government – through laws, regulations, executive actions, court decisions, and federal dictates.
The kingmaker of change is an amendment to the state Constitution. There is no shortage of live proposals, ranging from fixes of existing language to insertion of new provisions. In recent times, few substantial changes have made it onto the ballot. This is less a commentary on the level of public support than it is on the political capacity of those comfortable with or benefiting from the status quo.
Now, constitutional change really should not happen as frequently as trading in toothbrushes. There is validity in not tinkering with the many provisions that have held up well over time. On one hand, not everything advertised as constructive change qualifies for the taxpayer seal of approval. On the other, while we respect the thought and effort that have been poured into shaping the Constitution, it is not chiseled onto stone tablets brought down from Mount Sinai.
The state Constitution has been redone several times by convention. Despite occasional bursts of public interest, there appears no serious stirring in that direction. So change will come issue by issue.
The procedure for amending the Constitution is purposefully involved and time-consuming, to ensure that changes are made with the full knowledge and consent of our citizens. A proposal must be passed in identical form by two consecutive sessions of the General Assembly and then submitted to the voters as a ballot question. The timetable from start to finish can range from three to five years. Each time a proposed constitutional amendment gains legislative approval, it must be advertised throughout the state ninety days before the next election. This seems a simple ministerial action, but amendments have been overturned when challenged for perceived technical violations.
A process that prevents a rush to judgment is also a political gauntlet to run. It provides ample time and opportunity for opponents to ambush a proposal. It allows for a strategy of running out the clock under the guises of information gathering and reaction collecting.
In June, a welcome breakthrough came when a proposed amendment titled Marsy’s Law gained second round approval and qualified for the November ballot. This is a victim rights amendment, meant to balance the scale during criminal proceedings and give greater weight to the victims’ rights laws passed over two decades. A growing group of victims’ rights advocates have passionately pushed this amendment. Some opposition registered from within the legal and enforcement communities, but in the early going it does not look to be compelling enough to predict voter rejection of the question.
Does the amendment put some needed balance into criminal justice, or does it swing too far away from the criminal rights to due process and a fair trial? Seems the sort of question perfectly suited for public resolution. There is an associated benefit – a ballot question likely juices turnout in a traditionally low-interest election cycle.
The judgment rendered by voters in November might signal an appetite for additional changes beyond criminal justice. For those championing amendments that have been stopped short of the ballot and amendments ignored session after session, Marsy’s Law gives hope of a more favorable climate. The obstacles to a particular change have not disappeared, but the overall psychology of success has improved.
In prior sessions, two notable proposals fell in the stopped short category. One would have reasserted the role of the legislature in defining purely public charities. First round approval was gained without much controversy. But the second time out, local taxing authorities and critical commentators kneecapped it right out of the starting blocks. Because those same opponents would have run an aggressive anti campaign by exploiting public antipathy toward property taxes, this proposition was no sure winner on the ballot.
The second was a holy-grail measure for government reformers – cutting the size of the State House of Representatives. This was a sure-fire winner if put to the voters. It succumbed to an odd coalition of convenience, between traditionalists wedded to the large body and small districts and reformers who insisted on commensurate cuts in the state Senate complement.
Staunch advocates of issues do not give up. There is no better example than the taxpayer groups who have fought for fifty years to eliminate property taxes as the primary means of financing public education. Despite their bitter defeats in moving a comprehensive plan, they did achieve passage of a constitutional amendment allowing for a full homestead exemption. By taking away the unintended consequence of a huge commercial tax break, this amendment changes the dynamic on the issue.
Ever since the last Constitutional Convention, judicial reformers in concert with governors and some stalwart legislative leaders have tried to get merit selection of judges on the ballot. It has not come close since a narrow referendum loss in 1969. Groups who believe they are successful in electing their kind of judges see no reason to change things, despite the rising costs of elections and too many ethical breaches by judges that tie into the politics of running for the bench.
The list of high-profile amendments that advocates are looking to get into the game include altering redistricting procedures, changing lieutenant governor selection, and addressing the window for sexual abuse cases. Old standbys such as state spending limits still show a pulse.
Pennsylvanians lack the broad powers of initiative and referendum available in half the states. When the legislative process fails to deliver or is unwilling to even offer consideration of bills to remedy major, long-running public concerns, public discontent rises and constitutional change becomes more appealing. Well-crafted constitutional questions provide an avenue of involvement for citizens who feel marginalized or shut out of the everyday decisionmaking in the legislative process.
David A. Atkinson is a Research 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.
The views contained here are those of the author and not necessarily those of The Susquehanna Valley Center.