Why Con-Con Opponents Willfully Ignore Legislative Bypass Issues

by J H Snider, HawaiiConCon.info

Constitutional convention opponents routinely claim that there has been little public discussion concerning what problems a convention could solve. They then assert not only that such a discussion should take place before voters support calling a convention but also that no compelling reason exists for calling a convention that the legislature couldn't address on its own.

Consider the following statement from the Honolulu Star-Advertiser op-ed that publicly launched the NoConCon.org coalition on September 30, 2018:

[W]e are drifting toward voting “yes” to holding a Constitutional Convention (Con Con) without discernibly good reasons for doing so.... A recent four-part forum on Con Con ... began with expressions of interest in holding a Con Con. Discussion then revealed that no one had proposals for why it should happen, let alone proposals that attracted significant cross-sections of people.

Both the leading no coalition, Preserve Our Hawaii, and its lead organizer, the Hawaii Government Employees Association, put it more concisely after they publicly announced their no campaign on October 8, 2018: "If there isn't a good reason to have a ConCon, why should we?"

The Political Logic of Such Claims

Ironically, the groups making such claims typically seek to have as little public discussion as possible concerning the types of legislative bypass issues a convention could, would, and should address.  If you're a state legislative leader, for example, why raise an issue such as legislative term limits that is overwhelmingly popular but that you don't want to address?  Fostering a public discussion would only make you look bad.

Consequently, these types of popular reforms ("legislative bypass issues") are typically buried in committee and never get a floor vote because legislative leaders don't want a public record of their opposition to them.  The same political logic applies when the opportunity arises to discuss whether a constitutional convention would address such issues.

Groups opposed to calling a convention have adopted the same political strategy: avoid discussion of popular legislative bypass issues that a convention might address.  Instead, they have focused on making vague claims about the risks a convention might pose to highly popular constitutional provisions concerning political rights and the environment. (In doing so, they have also willfully ignored that the public would never approve any amendments that a convention might propose to curtail such overwhelmingly popular and cherished rights.)

If you're a special interest group that has a strong track record of success influencing current legislators, it's in your self-interest not only to not pass democratic reforms that might weaken your power over the Legislature, but also to not call the public's attention to such reforms by publicly debating them.

The opponents' Machiavellian strategy of complaining about not having a public discussion about issues they in fact don't want the public to discuss should be called out. For example, the leadership of the State Legislature and Hawaii Government Employees Association should be invited to public debates to defend their arguments that legislative bypass issues not only haven't been discussed but aren't a good reason to call a convention. Since they're the ones orchestrating such arguments as talking points, they should be the ones defending them.

The Importance of Legislative Bypass Issues

The unique democratic function of the state constitutional convention in Hawaii's Constitution is to bypass the gatekeeping power the Legislature would otherwise have over constitutional amendment.  Thus, any serious discussion of issues a convention could, would, and should address must address potential legislative bypass issues. Any position statement on calling a convention that doesn't explicitly address legislative bypass issues should not be treated as a good faith effort to discuss the issues.

We should not be surprised when the political elites who benefit from the current system don't want to engage in such a good faith public discussion. That's a major reason they focus their advocacy efforts on ad campaigns that don't involve public deliberation: ads are a way to control and limit the discussion. Given the unique democratic function of the constitutional convention, it should be the goal of the press to force a public discussion of legislative bypass issues despite the interests of political elites.

Legislative Bypass Issues In the News

To facilitate such a discussion, The Hawai`i State Constitutional Convention Clearinghouse has compiled recent articles from Hawaii and elsewhere on legislative bypass issues that a state constitutional convention could address. 

The articles are listed under the following categories: 1) articles that summarize legislative bypass issues and 2) articles that describe a particular legislative bypass issue related to a) the entrenchment of incumbent legislators, and b) the power of the State Legislature versus other parts of government.

A secondary class of legislative bypass issues are issues where special interest groups have a lock on the Legislature.  These issues have not been included because I view them as secondary.  They are secondary because the root problem is not special interest influence per se but the lack of legislative accountability that gives the special interests, including Big Labor and Big Business, unfair power.

The listed legislative bypass issues related to incumbent entrenchment include:

• Legislative term limits
• Legislative redistricting
• Legislative transparency
• Legislative voting systems
• Legislative ethics
• Legislative ballot access
• Legislative campaign finance

The listed legislative bypass issues related to the power of the Legislature as an institution include:

• Citizen initiative
• Constitutional convention
• Home rule
• A unicameral legislature
• The judiciary

Citizen Initiative vs. Constitutional Convention

Each of the incumbent entrenchment issues listed above has been the subject of citizen initiatives that the people have passed in other states and localities.  Since Hawaii lacks the citizen initiative, the only legislative bypass mechanism available to it is the constitutional convention.

To the extent that polling exists on incumbent entrenchment questions in Hawaii, polls have shown substantial popular support for policies to reduce incumbent entrenchment.  Not only has the Legislature not responded to this public opinion, it has enacted policies that further its own members' entrenchment.

Regarding the power of the Legislature vs. other government units, the immediate question is less what the balance of power should be than who should decide what it should be.  A key concept behind constitutional democracy is that the Legislature shouldn't have the power to decide its own power relative to other government units that constitute the checks & balances system.

The reason the convention process involves a body separate from the Legislature to propose amendments for the people's approval is that the Framers' of Hawaii's Constitution mistrusted the Legislature, including the Legislature's willingness to discuss and propose popular good government reforms that might undercut its own power.

Conclusion

Contrary to the claims of convention opponents, the lack of public debate about legislative bypass issues among our existing political elites demonstrates the need for a convention, not the opposite. Only after a convention is called is it possible to get substantial public deliberation on such issues.

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J.H. Snider is the author of Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other US States, 1776–2015 and editor of The Hawaiʻi State Constitutional Convention Clearinghouse, including its Legislative Bypass Issues page.  

LINK: Articles by J H Snider PhD