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Friday, December 02, 2022

Proposed amendment could scrap constitution revision measure

Amendment 2 moves to eliminate the Constitution Revision Commission

Florida has more methods to amend its constitution than any other state, but an upcoming ballot provision in November’s general election may take one of those away.

In the upcoming election, Amendment 2 could dismantle the Constitution Revision Commission, a body that reviews and proposes new provisions to the state constitution every two decades. Though initially formed with bipartisan intentions, the commission has received criticism for its lack of accountability and disruption of the democratic process.

The commission proposes amendments for the ballot without any state legislative interference, drawing on citizen concerns from places like public forums to draft the changes. 

Jonathan Marshfield, a UF constitutional law professor, said this ability to put unedited measures in front of voters makes it especially powerful.

“It doesn’t have to go back to the legislature,” he said. “They can just send them directly to the voters on an up-or-down vote.”

Commission amendments were meant to represent bipartisan interest, but those expectations haven’t materialized in the eyes of the electorate, Marshfield said. This perceived partisan lean, he said, is largely to do with the 37 people who sit on the commission — and how they got there in the first place.

Most commission members are selected by partisan actors. The governor appoints 15 members, including the commission’s chair; the state Senate president appoints nine members; the speaker of the state House appoints nine members and the chief justice of the Florida Supreme Court appoints three members. The state attorney is automatically granted a spot on the commission.

Many commission members work in law as politicians, attorneys and other government actors. Of the 37 members in 2018’s commission, 33 of them were Republican.

Marshfield said the selection process and member makeup — in the public’s view — signified a movement of party influence from one office to another.

“It basically was just a transfer of existing political and partisan division,” he said.

The Constitution Revision Commission was established in 1968 to propose amendments to the Florida Constitution outside the traditional process. Typically, 60% of the Florida House and Senate must approve a proposed amendment for it to make the ballot. If 60% of voters elect to approve the measure, it’s added to the constitution.

Three iterations of the commission — bodies that met in 1977, 1997 and 2017 to draft amendments for the following year’s election — have proposed provisions that are now constitutional amendments. The 1997 commission passed a provision that authorized required background checks for firearm purchases, and the 2017 commission created a state board of education and banned vaping indoors, among other amendments.

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Opponents like state Sen. Jeff Brandes, R-St. Petersburg, said the relatively unrestrained ability to propose legislation creates uncertainty about what will show up on the ballot. He likened the commission to a game of Jumanji, where the results are out of control. 

“We don’t know what’s coming out next,” he said. “It could be something good, it could be something terrible, but I would rather not play the game.”

The approval rating of the commission's proposals has steadily climbed since the first meeting in 1977. Voters rejected all eight of the first commission’s proposals but passed all but one of the nine amendments in the 1998 election. In the 2018 election, all seven amendments proposed by the commission passed.  

Though other states have measures to call constitutional conventions, where selected members will review and amend the state constitution when necessary, Florida is one of the only states with a designated commission written into its constitution. 

Only New Mexico and Arizona have a similar mechanism. A subcommittee within Arizona’s state Legislature can review and propose changes to the pay rates of elected officials, and Amendment 4 of the New Mexico state constitution allows an independent commission to submit proposals to the legislature for ballot consideration. 

The commission is unique in its ability to completely sidestep Florida’s Legislature, drafting constitutional amendments that go directly to the public on that year’s ballot. The lack of legislative oversight on commission proposals presents a dangerous power imbalance, Brandes said.

“This is a tool that is like opening Pandora’s box,” he said. “You literally don’t know what’s going to come out.”

Brandes proposed Amendment 2 to combat what he views as an unchecked ability to put amendments on the ballot. Under the powers of the commission, amendments can make it to a vote in their original language — unedited and unvetted by the legislature.

“It is before the people of the state of Florida without amendment, without discussion, without debate,” Brandes said. “I don’t think that’s how a republic should work.” 

Sen. Keith Perry, R-Gainesville, said he’s similarly opposed to the commission. Amendments to the state constitution should be seriously considered by the legislature, he said, and not left in the hands of unelected officials.

Proposals from the commission have created government agencies like the Fish and Wildlife Conservation. It’s also made it possible for counties to institute mandatory background checks and waiting periods for specific firearm purchases, which Alachua County requires.  

The commission’s impact spans far outside Alachua County, Perry said. Floridians will feel the effects of constitutional changes for years.

“It’s not just the constituents,” he said. “It’s generational.”  

Calls to scrap the commission could stem from its inefficiency, Marshfield said. In years where massive constitutional overhaul isn’t necessary, he said the time spent forming and running the commission may outweigh any positive change.

“It involves a lot of state resources. It probably takes a lot of popular energy and interest,” Marshfield said. “If we don’t actually need to make any changes, why are we wasting all this time?” 

Many of the commission’s proposed amendments are jumbled, Brandes said. Ballot measures like 2018’s Amendment 7 — which called for death benefits to first responders and military spouses, a higher approval threshold for college boards of trustees to increase fees and a constitutionally mandated state college system — combine provisions that Brandes said should be proposed as individual laws in the legislature.

Despite perceived partisanship, past members of the commission, like Carlos Beruff, maintain they acted only in the interest of the state. Beruff, a former Republican state Senate candidate and chair of the 2017 commission, said commissioners traveled up and down Florida to host meetings where residents could propose ballot measures and share their concerns ahead of the 2017 deliberations.

The meetings, which the commission hosted as part of the “Floridians Speak, We Listen” tour from mid-2017 to early 2018, paid off, Beruff said. In addition to the commission’s 100% success rate in passing amendments, he said no fewer than 100 people showed up to each of the 15 meetings.

“We must’ve been pretty good,” Beruff said.

Though critics of the commission warn of a practically limitless ability to propose policy, Beruff said the lack of legislative input ensures constituents’ voices are heard unfiltered. Without the hurdle of state legislative approval, residents’ concerns make it straight to the ballot, Beruff said.

“It’s a great way for citizens of Florida to have input into what became central to the legislative process,” he said. “It becomes a direct document that they can vote on.”

Whether the commission remains intact is in the hands of Florida voters. Amendment 2 passed the 60% threshold in the state Legislature — 67% in the House and 71% in the Senate — and will make it to the ballot. 

As a direct amplifier of voter concerns and policy suggestions, Beruff said he’s confident the public will vote to keep the commission. 

“If the citizens of Florida want to vote to disempower themselves, then obviously that’s their right,” he said. “But I don’t think that’s going to happen.”

Contact Heather at hbushman@alligator.org. Follow her on Twitter @hmb_1013.

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Heather Bushman

Heather Bushman is a fourth-year journalism and political science student and the enterprise elections reporter. She previously wrote and edited for the Avenue desk and reported for WUFT News. You can usually find her writing, listening to music or writing about listening to music. Ask her about synesthesia or her album tier list sometime.


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