Why the opposition’s weird fixation on easily fixable ConCon flaws?

By J.H. SNIDER
Posted 10/3/24

On Nov. 5, Rhode Islanders will vote on whether to call a constitutional convention. Convention opponents argue that a convention will be as corrupt as the legislature because the legislature and the …

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Why the opposition’s weird fixation on easily fixable ConCon flaws?

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On Nov. 5, Rhode Islanders will vote on whether to call a constitutional convention. Convention opponents argue that a convention will be as corrupt as the legislature because the legislature and the special interests that excel at influencing it will have excessive influence over the convention. They have a point. A convention is supposed to break the legislature’s monopoly power over proposing constitutional amendments, so if the same elites control a convention, they will have successfully subverted its democratic function.

But why, then, are Rhode Island’s legislature and most powerful special interests so forcefully opposed to calling a convention?  The answer is that they fear a convention won’t be under their complete control.

Consider that Rhode Island’s last convention in 1986 proposed many reforms popular with the voters but not the legislature. These included creating a meaningful ethics/anti-corruption commission, allowing public access to Rhode Island’s shoreline, and creating a dramatically shorter and more readable constitution so the average voter could understand it (by 1986, new federal laws and countless state legislative amendments conflicted with the constitutional text, making much of the text obsolete and unreadable except for lobbyists and constitutional lawyers).

The opposition’s favorite illustration of convention corruption are the statistics concerning who got elected to Rhode Island’s last convention in 1986. These included no incumbent legislators but four of their immediate family members and 15 former elected office holders (including seven former legislators). And of the elected delegates, 17, including some of the former office holders, ran for the legislature at the next election.

Concerning this list of claimed horribles, I see no problem per se with former elected officials running for delegate. Recall that a major democratic function of a constitution is to limit the powers of government. A corollary is that incumbent government officials shouldn’t be able to design their own powers. Thus, delegates who are neither incumbents nor running to become one lack this conflict of interest.

As for incumbent legislators’ immediate family members running for delegate and delegates running for another office, these are indeed problems. But they are problems that can be easily fixed. And even if they weren’t fixed, only 21 of the 100 delegates at the 1986 convention had these conflicts.

Consider that no member of one of the existing three branches of government — the legislative, executive, and judicial — is allowed to simultaneously serve in another branch.  And consider that many so-called fourth branch government entities, such as ethics/anti-corruption commissions, redistricting commissions, election commissions, and, yes, conventions, may have even more extensive restrictions covering who can serve on them and what their members can do after serving. Conventions tend not to have as many restrictions on membership as commissions, but they can still ban many conflicts. For example, Michigan, Missouri, and Montana ban incumbent legislators from running for convention delegate (in Missouri, the ban includes all state government officials). In the recent convention in Chile, delegates were also banned from running for office at the next election. Why not extend these and other appropriate anti-corruption rules to Rhode Island’s convention delegate election?

Thus the question: Why all this whining about easily fixable problems? Could it be that the opposition’s core backers prefer to whine about or even exacerbate problems rather than fix them?

Consider that in 1986 an average of 5.58 candidates ran for each delegate seat, with the average winner spending only $811 in today’s dollars. Compared to what Rhode Island’s incumbent legislators spend on campaigns despite minimal competition, it was a remarkable example of an egalitarian and competitive election.

To be sure, like all democratic institutions, a convention is flawed. But it still serves a vital democratic function because the alternative of granting the legislature and its special interests allies veto power over all constitutional amendments is even worse. Convention opponents’ pretense that easily fixable problems are inherent in a convention’s nature would be weird if it wasn’t so self-serving.

J.H. Snider is the editor of The Rhode Island State Constitutional Convention Clearinghouse.

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