Constitutional Convention

by Tom Yamachika, President, Tax Foundation of Hawaii

The 2018 general election is going to be a special one for our state because we get to vote on whether to have a constitutional convention.

Normally, our legislature acts as the gatekeeper for any changes to the Hawaii Constitution. No proposed amendment can even get on the ballot if our legislature hasn’t approved it. In a way, this is like the fox guarding the henhouse because one of the most fundamental functions of a constitution is to provide limitations on the power of government. If there were no limitations, the majority could do whatever it wants and could be accountable to no one except themselves.

The biggest exception to this gatekeeper rule is the constitutional convention, where the people elect delegates directly, the delegates organize and vote at the convention, and the approved proposals are then presented to the voters for ratification whether the legislature or the governor likes them or not. Since we have been a state, this happened only in 1968 and 1978.

A constitutional convention is authorized only when the people vote for it in an election. Normally, a proposal to have a constitutional convention can be put on the ballot only if the legislature approves it – there’s that gatekeeper role again. But our constitution itself provides that if such a proposal isn’t put on the ballot for nine years in a row, then it automatically goes on the ballot in the next scheduled general election. That is why this question is going to appear on the 2018 general election ballot.

Once the question is on the ballot, the people will then need to decide if we will indeed have a constitutional convention. To have one, “yes” votes are needed – leaving the ballot blank will be counted the same as a “no” vote. Any of your government officials who are comfortable where they are can be expected to discourage people from voting yes. A constitutional convention and constitutional amendments would mean change, and change would mean discomfort for them. Change could also mean more limitations on the power of government, which those in government would instinctively resist.

And then, if the constitutional convention is approved, we would need to go through the process of electing delegates. Delegates to a constitutional convention run in nonpartisan races, similar to many county offices. They campaign and get elected the same way as other politicians. Public employees are also eligible to become convention delegates. Indeed, a person who is so inclined may run for convention delegate and another elective office at the same time. They also get paid -- delegates to the 1978 convention were paid $1,000 a month. However, this election is a one-shot deal and being a convention delegate is not a realistic career for anyone.

Nonetheless, there is much to be said for having a constitutional convention. Since the last time we had one, we have had revolutionary changes in our daily lives, many brought about by technology. The now-ubiquitous smartphone, for example, didn’t even exist in 1978. Its progenitor, IBM’s Simon Personal Communicator, debuted in 1992 and the Apple iPhone came out in 2007.

Also, the state-county balance has radically changed since 1978. Before then, the state administered and collected real property tax; many readers of this column today probably know the real property tax only as a county function. Now, the counties have exclusive control of the tax but are constantly battling state lawmakers for other moneys such as a share of the Transient Accommodations Tax (which also didn’t even exist in 1978).

As voters, we want to think hard about whether the sweeping changes in our society merit a review and perhaps an update of the document forming the bedrock of our state government. This chance might not come by again for another ten years.