SADOW: PAR Has Some Good Ideas For Reform, But…

The best way to sum up (yet) another effort by the interest group Public Affairs Research Council (PAR) to improve Louisiana’s governance is right ideas, wrong way to get there.

PAR has a long-time obsession with constitutional reform which, as its latest installment demonstrates, isn’t unreasonable. About every decade it cranks out arguments about how this should happen and why that would benefit Louisiana, even as it has varied in approach (such as the utility of a convention or whether a limited one legally may exist and should be pursued). The latest effort, its most extensive ever, started in 2019 with a report on general principles that should guide a constitution in the process of which asserting that Louisiana’s needs more fiscal flexibility, and at the beginning of this month issued the latest that mainly deals with restructure of constitutional funds to acquire that freedom to match better funding with priorities.

Insofar as its basic argument that few of the present 28 dedicated funds protected in the Constitution should stay unchanged, a few more should stay but with proceeds more widely distributable, and the remainder downgraded into statute or thrown into the dumpster, there’s little reason to dissent. However, more interestingly this second part delves into the question of how constitutional change should occur, which expands upon cursory remarks PAR made on the subject almost two decades ago.

Basically, the report draws three conclusions about how this should happen: (1) arguing as this option doesn’t already exist, provide for a limited constitutional convention, (2) rather than enact an initiative process, requiring not one but two, in succession, legislative approvals before putting a matter to voters, and (3) mandating a higher level of voter engagement for amendment enactment. The problem is, most of this is wrong-headed.

The group may have a case regarding the inclusion of constitutional language exactly specifying admissibility of a limited convention, supplementing the general statement that only implies one could exist. This has served as one of several arguments – all wanting – against the idea of a limited convention, that no legal power could keep it from becoming a runaway into other matters. PAR argues that an old attorney general’s opinion and subsequent rejection to insert this language into the document justifies this fear – even as, ironically, it also notes the general constitutional presumption of legislative plenary power, meaning as the Constitution doesn’t prohibit the Legislature in its convention-calling power from making such a thing limited, then the Legislature does have that power constitutionally.

Nevertheless, explicit affirmation can’t hurt. PAR strays further, however, in rejecting initiatives that can bypass legislators and requiring successive regular session approvals, saying that “the deliberative, consensus-building process of legislative consideration is preferable to the initiative process, in which voters may be asked to make simple yes-no decisions about complex issues without constitutional context or legal analysis,” because “[v]oters … unlike legislators, are not being asked to balance competing needs with limited resources.” Thus, “[f]undamentally, a ballot initiative process would run counter to our representative form of government and decision making.”

Not only does this entirely misunderstand the nature of republican governance in America, but it also assumes an unnecessarily attenuated field of policy and takes a haughty, elitist view of governance. A detailed explanation of these shortcomings can be postponed in favor of a simple example from last year: in California last year, voters defeated a measure placed by their legislature to reverse their 1996 initiative that banned the use of quota-based affirmative action policies in hiring, spending, and higher education admission decisions. You can’t seriously argue that elected officials have superior knowledge about the impact of the ban over that experienced within the public, nor that they wished to act directly inimically to the policy desires of the public.

So, why bar this measure of accountability over policy-makers, which offers the possibility of a constitution not impeding beneficial policy? PAR may be part of the “Tuna Tartare” crowd (only in sensibilities, certainly not in exhibiting its hypocrisy) but it doesn’t mean the mass public outsiders as a whole doesn’t often have a good sense of what fulfills their own interests. Voters may misfire – witness the minimum wage hike Floridians imposed upon their own fortunes at the same time Californians salvaged theirs – but to write off interested self-awareness that can improve policy outputs does PAR no intellectual credit.

Nor do you need consecutive approvals in order to make the amount of amendments – over 200 since the 1974 version came into effect – less casually adopted. PAR has a better notion in requiring more voter engagement, but stops short by only recommending that amendment votes come only during regular statewide or federal elections. Instead, it should take a cue from a practice in many democracies worldwide with initiatives – the “double majority,” where something on which citizens vote to pass must achieve both a majority and a certain level of participation. For example, an amendment could pass only with a majority and at least a third of registered voters participated in the vote.

Therefore, the best changes – optionally tacking on an amendment explicitly recognizing limited conventions, adding an initiative process, and requiring double majorities for amendment passage – PAR mostly misses. Proceed with these alterations first, then take up PAR on its specific amendments to the Constitution’s fiscal matters.

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