Analysis of Candidate Position Statements on the Nov. 6 ConCon Referendum
by J. H. Snider, HawaiiConCon.info
For Hawaii’s August 11, 2018 primary election, Civil Beat collected position statements from candidates on a variety of issues, including Hawaii’s Nov. 6, 2018 state constitutional convention referendum. In this article, I analyze the candidates’ constitutional convention position statements based on the Civil Beat data compiled as of August 2.
In its thoroughness, Civil Beat’s collection of candidate written positions on an upcoming state constitutional convention referendum is unprecedented. When I met with Civil Beat’s editorial board in early May and encouraged Civil Beat to report on candidates’ positions on the upcoming convention referendum, I did not even dream that it would be so ambitious in collecting such information, so it’s a wonderful surprise. Alas, whereas most candidates for governor and lieutenant governor answered Civil Beat’s survey, most candidates for the State Legislature, especially incumbents, did not.
Yes and No Positions
Of the 67 candidates taking a position on the issue, 55% favored calling a convention. Fifteen (18%) cleverly answered a question that wasn’t asked or otherwise took a neutral stand. Candidates for governor and lieutenant governor expressed slightly less support (50%) than candidates for the Legislature (56%).
Given the outcomes of the last few convention referendums in Hawaii, the majority support for calling a convention is surprising. But it should not be taken too seriously. When a constitutional convention referendum is ahead in the polls, as it is in Hawaii (in May, 73% of those expressing an opinion for or against were for), candidates’ public positions tend to be skewed favorably. Civil Beat’s strong endorsement of a convention, presumably read by Civil Beat’s readers, may also have skewed the results favorably. Politicians, after all, tend to adopt positions in accord with the audience they are addressing.
As an analogy, consider the politics of legislative transparency. When campaigning, an overwhelming majority of candidates for the State Legislature favor legislative transparency. But bills implementing legislative transparency rarely get a legislative floor vote, let alone passed, because legislators don’t want to have to vote publicly against a popular reform they oppose. Similarly, voiced support for a convention is probably greater than actual support.
Constitutional convention politics, however, has a very different rhythm and playbook than legislative transparency. Whereas there is virtually no organized public opposition to legislative transparency, there will be substantial public opposition to any convention referendum that is ahead in the polls.* But the opposition is waiting until after Hawaii’s August 11 primary election before launching its campaign. In 2008, the last time the convention referendum was on the ballot, the opposition--a who-is-who of powerful Hawaii interest groups and their coalition allies--didn’t launch until September. After the opposition’s launch, candidate positions will shift toward opposition.
As a rule, when candidates say they are neutral on a convention referendum—e.g., they’ll support whatever voters decide—one can be confident that the candidate’s actual position is to oppose a convention. This is especially true when the candidate is an incumbent legislator and knows enough to feel embarrassed opposing a constitutional provision designed by Hawaii’s Framers to function as a check on the Legislature. In short, taking a neutral position is politically like recusing oneself from a vote on an issue on which one has a well-known conflict of interest.
I have divided my findings into four categories depending on type of office: 1) Governor, 2) Lieutenant Governor, 3) State Senate, and 4) State House.
- Governor: Six candidates answered the question, with 3 expressing support, 2 opposition, and 1 punting on the question. The two leading Democratic candidates, Incumbent Governor David Ige and Congress woman Colleen Hanabusa, were split, with Hanabusa voicing clear opposition and Ige tentative support. Unlike incumbent legislators, it’s common for incumbent governors to voice tentative support for calling a convention because a convention is designed as a check on the legislature, not the governor. The expected Republican winner, Rep. Tupola, didn’t answer any of the survey questions.
- Lieutenant Governor: Nine candidates answered the question, with 3 expressing support, 4 opposition, and 2 punting on the question. The expected Democratic winner, Sen. Green, punted on the issue. Republican Marissa Kerns voiced strident opposition.
- State Senate: Fourteen candidates answered the question, with 6 expressing support, 7 opposition, and 1 punting on the question. Among incumbent senators, three voiced opposition and one support. Of the 11 Democrats who expressed a position on the issues, 5 expressed support and 6 opposition. The lone Republican who expressed a position voiced opposition; and the lone Libertarian who expressed a position voiced support. Sixteen candidates didn’t answer any of the survey questions.
- State House: Forty-nine candidates answered the question, with 24 expressing support, 15 opposition, and 10 punting. Among incumbent legislators, 5 expressed support, 2 opposition, and 4 punted--but note that this is a small fraction of the incumbents on the ballot. Sixteen Democrats expressed support and 15 opposition. All 5 Republicans who answered the question expressed support, as did the 2 Green Party candidates and lone Libertarian Party candidate who answered the question.
There was no clear partisan pattern of support or opposition. This is surprising given that Republican leaders, led by the incumbent Republican lieutenant governor, supported a convention during the last convention referendum in 2008.
Yes and No Arguments
Some arguments against a convention appeared logically contradictory. For example, consider two strong opponents for calling a convention. Republican Lieutenant Governor candidate Marissa Kerns argued that a convention would follow the wishes of the liberal majority in Hawaii and thus be bad for Republicans: “I oppose con con. No way! We do not trust the Hawaii Democrat supermajority-controlled Legislature.” In contrast, Democratic State House candidate Dylan Armstrong argued the opposite: “If we have a state constitutional convention now, the grassroots will have to massively coordinate and organize to prevent major loses to special interests — think the Koch brothers and A.L.E.C.” The Koch brothers and A.L.E.C. are shorthand for conservative Republicans.
Some interpreted similar data in opposite terms, with one side taking a glass half-full and the other a glass half-empty perspective. For example, some were worried that a convention could take away environmental rights won at Hawaii’s last constitutional convention in 1978, whereas other thought a convention could enhance those rights just as they have done in the past. For example, Democratic State House candidate Koohan Paik-Mander argued:“The last constitutional convention took place in 1978. It was not perfect, but from an environmental perspective, it did implement fundamentally important legislation — Article XI, or, the ‘Public Trust Doctrine’… If we were to lose it in the course of holding a state constitutional convention, it would hail a profound tragedy for protection of Hawaii’s precious natural resources.” In contrast, Green Party State House candidate Nick Nikhilananda argued: “The last convention incorporated some significant environmental, cultural and indigenous legislation and requirements. These need to be strengthened….”
Some paradoxically attacked the state constitutional convention process when that process won the rights the arguer was seeking to protect. For example, incumbent State House legislator Chris Dodd argued: “I oppose holding a state constitutional convention because the risks outweigh potential rewards. We currently have very strong labor and environmental protections in our state, and a con con puts that at risk.” Not mentioned is that those labor and environmental protections were primarily won at previous Hawaii state constitutional conventions.
Some candidates clearly did not want to answer the question. A classic dodge in this type of situation is to answer a question that wasn’t asked. One sophisticated implementation of this type of response was to appear to express support for calling a convention but to make the support conditional on the convention referendum already passing—a distinction most readers presumably wouldn’t notice. For example, Democratic State House candidate David Tamas stated: “I would advocate for a constitutional convention to reorganize the statewide school district into school districts in each county with elected school boards in each county school district. The constitutional convention would also be the appropriate forum to reorganize what is the responsibility of the state government and the county government in order to give counties more “home rule” responsibilities. This reorganization of responsibilities would also require a restructuring of our tax code to make sure these newly organized government responsibilities are properly funded.”
More often, candidates were direct in refusing to answer the question. For example, incumbent State House candidate Lynn DeCoite said: “I support what the people want.” Note that even if this were an answer to the question asked, it is a far more ambiguous answer than readers are led to presume and may mask hidden opposition behavior. For such an assertion begs the crucial question of what majority should be used to determine what the people want.
In Hawaii, the majority required to call a convention is a highly controversial issue, with state courts downplaying original intent as a way to interpret the required majority, state and federal courts disagreeing on the required majority, and the Hawaii Legislature acting to codify and otherwise support the majority most favorable to its own institutional interests, including implementing a special constitutional convention referendum in 1998 in part to head off a possible adverse U.S. Supreme Court decision on the issue.
The common political strategy of taking two opposite positions on the same issue was also occasionally used. For example, incumbent State House candidate Tom Brower started explaining his position with a simple endorsement of calling a convention. But he then devoted three paragraphs to explaining why calling a convention is a bad idea. I coded his position statement as a punt because his answer was clearly designed to appeal to both convention supporters and opponents depending on how the political winds were blowing and which audience he was speaking to.
One of the most contentious issues is whether the ordinary Legislature-controlled constitutional amendment process is an adequate substitute for the constitutional convention process, which takes agenda control out of the Legislature’s hands. Democratic State Senate candidate Brenda Ford argued that it was vital for Hawaiians to have and use a legislative bypass procedure: “When the Legislature refuses to pass laws that the people want, disregards issues that even legislators try to get passed, and refuses to have a statewide citizens initiative process, it is time for a constitutional convention.” In contrast, Democratic State House candidate Justin Hughey, a Hawaii State Teachers Association vice president, argued that there was no need for a legislative bypass amendment process: “While I am in favor of the people ultimately deciding this question, I will always be against a con con…. I believe changing the constitution through a legislative bill is the best way to make changes to our state’s founding document. The Legislature can bring up specific issues, debate them, hold hearings, and, if a proposed amendment has enough support, pass a measure placing the question before voters, just like we are doing now with the constitutional amendment to raise property taxes on investment properties in order to adequately fund our public schools.”
Data
For all the candidates’ positions on the convention issue, as well as my coding of their response, see the Hawaii State Constitutional Convention Clearinghouse under the candidate sub-menu under the pro & con menu.
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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.
LINK: Articles by J H Snider PhD