By Melissa Maynard, Stateline Staff Writer
In a year when angry voters have taken to waving “Don’t Tread on Me” flags and dressing up in colonial garb, four states are set to vote on whether to hold an event fit for founding fathers: a constitutional convention for their state.
The measures in Iowa, Maryland, Michigan and Montana would be on the ballot this year with or without the Tea Party movement, however. Those four states are among the 14 that ask voters at set intervals of between 10 and 20 years whether they’d like to write a new constitution.
During a busy election season, the constitutional convention ballot questions have received surprisingly little attention. Many voters are likely to hear of the issue for the first time when they step into the voting booth, even though a “yes” vote could have far-reaching consequences and allow a full-scale overhaul of everything from term limits to the fiscal relationships between state and local units of government.
In the past, voters confronted with the question of whether to call a constitutional convention have tended to say no. The most recent convention to be triggered through this mechanism was Rhode Island’s in 1986. But at a time of economic angst, high unemployment and distrust of government at all levels, anything could happen. In Michigan, supporters of calling for a constitutional convention include the outgoing governor, Democrat Jennifer Granholm.
Opponents of calling a convention in Michigan have said it wouldn’t be worth the estimated $45 million cost of bringing delegates together for weeks or perhaps months to hammer out a new document. There’s also a fear that a convention, especially in an angry political environment, might end up doing more harm than good. “I’m really scared by what might happen if there were a convention,” says Michigan state Representative Jim Slezak, a Democrat. “You don’t want bad decisions made based on something that happened a month ago or a year ago instead of focusing on what’s happened over the course of the last 30 years.”
'If it ain't broke, don't fix it'
The protocol for throwing a convention and chartering a new constitution varies significantly by state. One common feature is that the delegates of the convention don’t get the last word: Voters must approve the new constitution before it can take effect.
In Montana this year, the idea of holding a constitutional convention isn’t generating much enthusiasm. In part, that’s because the state’s 1972 constitution is among the country’s youngest. It’s also a source of state pride. Montana’s constitution is distinctive in its emphasis on environmental protections, for example. The last time the automatic call for a convention came up on the ballot in 2000, it was rejected by 86 percent of the voters.
The last convention is still a fresh enough memory in Montana that the “if it ain’t broke, don’t fix it” argument goes far there. The 1972 convention was open to the public and involved 58 days of intensive work, in addition to extensive preparations in the preceding weeks and months. It was also expensive, and passed only very narrowly — even after a thoughtful process that engaged citizens very intentionally, says Fritz Snyder, a professor at the University of Montana School of Law. “Even if you have another constitutional convention and produce another constitution,” he says, “there’s no reason to think that the voters would pass it.”
This is also an argument that resonates in Maryland, which held its most recent convention in 1967 and 1968. “They wrote a beautiful constitution that was soundly defeated by the voters,” says Dan Friedman, who serves as counsel to the Maryland General Assembly and has written extensively about Maryland’s constitution. Still, many ideas from the last convention, such as a restructuring of the court system, have since been adopted through the amendment process. There hasn’t been much momentum for another convention, according to Friedman. “My guess is that there hasn’t been $200 spent in the state either in support or opposition to a convention.”
Issues drive interest
Most political scientists agree that conventions are more likely to happen when there is a single, tangible issue that voters can rally around. Conventions were common in the 1960s, for example, because states had to figure out how respond to a U.S. Supreme Court decision necessitating reapportionment of state legislative districts. They’ve been far less common since then, with only 13 conventions being held since 1971, and none since Louisiana held one in 1992.
The momentum a single issue can provide is why Iowa is considered to be the most likely state to call a constitutional convention. Many opponents of gay marriage are rallying around the idea as a way to address a state Supreme Court decision that legalized gay marriage in Iowa without help from the Legislature. “The provision for a convention was put into place for just such a situation,” says Tom Chapman, executive director of the Iowa Catholic Conference.
States are far more likely to simply amend their constitutions than hold full conventions. That allows for a more incremental approach to change, but also has the result of making some constitutions messy and self-contradictory. “The public doesn't care about poorly constructed constitutions, but it is a problem,” says J.H. Snider, a political scientist who is advocating for a Maryland constitutional convention. States that have a voter initiative process sometimes add taxing, spending and budgeting provisions that are in conflict with one another, says John Dinan, an associate professor of political science at Wake Forest University. “The main potential benefit of a convention,” he says, “is taking a comprehensive review rather than a piecemeal review of how all the provisions fit together.”
Dorothy Eck of Bozeman, Montana, now 86 years old, was among the 100 delegates who produced the state’s 1972 constitution. She remembers the process as challenging but rewarding. “The smartest decision we made was to seat everyone alphabetically, so that you had people from both parties working together,” says Eck, a Democrat who served in the legislature for 20 years before retiring in 2000. “I sat with Republicans on both sides of me. On my left was a Republican who really thought through the issues and was helpful.”
Eck worries that a new constitutional convention might jeopardize some of the provisions that she and her peers worked so hard to put into place, especially the provisions related to government transparency and the environment. “A convention is a hard thing to do, and it was difficult here,” she says. “It’s a threat to everyone’s interests.”