By David A. Atkinson
Every state legislator takes an oath of office to support and defend the Constitution. Presumably, that oath is meant to include ensuring the integrity and functionality of our state Constitution. There are not fine-print exceptions for when legislating becomes hard, or for when the governor is difficult to negotiate with, or for when powerful special interest groups contend a mere law is not good enough.
Years ago, someone pointed out there are fewer words in our national Constitution than in the typical auto owner’s manual. We cannot say the same for the state Constitution, because it is considerably cluttered in multiple places, through the work of several conventions and heavier amendment traffic than has happened nationally.
Lately, Pennsylvanians are seeing a fevered outbreak of putting every notion imaginable on the ballot as a proposed amendment. The explanation is Tom Wolf’s penchant for vetoing bills, coupled with Republicans’ continual inability to mount a successful override.
The ostensible justification offered for this frenzy is to let the voters decide. Now, that is quite a selective application of the theory. If those who say such truly believe it, they could simply amend the Constitution to grant citizens the power of initiative and referendum. That has had proponents for decades, but never mustered much momentum. When the voters are only trustworthy in limited instances, it sounds closer to partisan manipulation than democracy writ large.
Ever since the end of Prohibition and the imposition of the Commonwealth’s liquor control system, there has been strenuous debate between wet and dry forces. Over the past forty years, dozens of proposals have been advanced to demolish the control system, or to at least sever the retail functions. None has really come close, despite an occasional gubernatorial recommendation. True, some of the rules have loosened on hours, locations, wine, beer, self-service, and selection, but these in sum fall short of the divestiture that private enterprise advocates seek.
Now, a plan has materialized to park the demise of modern prohibition in the state Constitution. The problem is that it comes in the form of a popular vote, essentially polling voters on their druthers.
If this sounds vaguely familiar, it is. During the Ridge Administration, a move was made to ask voters to weigh in on legalized gambling. Then Senator David J. “Chip” Brightbill did some quick research and determined that a non-binding referendum was nowhere authorized in the state Constitution. His argument won the day. Blocking the non-binding referendum did not prevent the eventual adoption of slots and other forms of gambling through legislation years later, which was the proper way to accomplish it. No one felt compelled to exhume the constitutional opinion poll gambit until 2022. Now we have a new generation making decisions, perhaps heedless of the wisdom and lessons of the past.
Anyone paying the slightest attention over the past forty years can recite the arguments over state stores by heart. On the control side, jobs, state revenues, the advantages of bulk purchases, the societal benefits of limited access to alcohol on the part of minors, constitute the mantra. On the privatization side, state liquor stores are considered a relic, an anti-competitive state monopoly that blights Pennsylvania’s reputation, and poses a barrier to businesses large and small expanding their consumer reach.
Decade after decade, there have been dozens of public opinion polls supporting one side and impeaching the other. This has not altered the legislative outcome. So how does a non-binding referendum change the dynamic? An educated guess would be not one iota. People will complain about the wording of the question, the absence of accurate information available to voters, a misunderstanding of the implications, and the lack of turnout. Whatever the result, it will be an expression of a minority of eligible voters. In other words, a substantial expenditure of taxpayer dollars to prove nothing and accomplish less.
Veteran state government observers will chuckle at the proposed 18-month window for devising a new system. What is a deadline among political friends and adversaries?
Remember when the state Supreme Court ruled a generation ago that state legislators must provide sufficient funding to run the entire unified judicial system?
Remember when Governor Ed Rendell and state legislators went 0-for-8 during his two terms in meeting the rather explicit July 1st deadline for having a new state budget in place?
Remember when the taxpayers who despise property taxes for supporting education came up with a plan to wipe out such taxes and require a replacement within two years?
These are just three notable examples, but deadlines much firmer than the one to overhaul the liquor monopoly do not have a glowing record for compliance. Rather, the system tends to develop work-arounds to keep things going, not much off track from situation normal.
For those who view private liquor sales as some sort of Holy Grail of governance, be careful what you wish for. In 2011, voters in Washington approved a referendum ending their state monopoly on liquor sales. They agreed with the same pitch points made on behalf of privatization here. After years of experience under the nirvana of private sales, it seems the public is suffering from pangs of buyer’s remorse. A recent study indicated that if a similar referendum were held today, voters would nix the change.
There is an additional troubling conjunction of trends evident here. The various proposals to cut back on the means of voting that proved publically popular in 2020 are said to improve the prospects of Republican candidates. If that plays out, it also improves the chances for Republicans to give their assent to this new wave of dubious constitutional amendments.
The central concern is not about whether one adores or despises the state liquor control monopoly. It is about whether perverting the process and further junking up the state
Constitution are good ideas. Politics being the art of imitation, do this and there is another referendum waiting in the wings. Ready for the right to recreational marijuana being embedded in the state Constitution? Toke or choke on that possibility. The new state motto could change to the old advertising jingle – “Double your pleasure and double your fun.”
This is the inevitable result of leaders who practice end-running democratic norms. In recent years, we have heard insults about the media being the enemy of the people, socialist or fascist takeovers, alien invasions, unpatriotic persons who unmask big lies, traitorous officials who fail to espouse the party line. It inverts policy discussion. Ideas and plans that have been unable to muster sufficient support are suddenly portrayed as virtuous causes taking on a corrupt system. Our ends are good, so whatever tactics are necessary to defeat the infidels are justified. This is essentially the renunciation of the checks and balances, the limits and guardrails that undergird a functioning democracy. Putting what should be properly in legislation or regulation into the state Constitution diminishes that document and invites manifold difficulties in the future when opinion changes, as in the case of Washington.
When all is said about merits and demerits, it comes back to an assertion by H.L. Mencken that has held up over a century: “For every problem, there is one solution that is simple, neat, and wrong.”
David A. Atkinson is a research associate with The Susquehanna Valley Center for Public Policy.
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.