In another case of the fox guarding the chicken coop, Rhode Island’s bipartisan preparatory commission has been a failed experiment in explaining to the public the advantages of constitutional convention over legislature-initiated democratic reform.
Rhode Island’s next state constitutional convention referendum, which its Constitution mandates be held every 10 years, is scheduled for Nov. 4. The Constitution also mandates that prior to that referendum “the general assembly, or the governor if the general assembly fails to act, shall provide for a bipartisan preparatory commission to assemble information on constitutional questions for the electors.”
Under legislation passed to implement that requirement, General Assembly leaders were required to appoint 12 members to a preparatory commission that would issue a report by July 30. The commission failed to issue its report by that deadline, so at this writing there is no report to evaluate.
But the dismal history of implementing the bipartisan preparatory commission provides some guidance. The clause was inserted into Rhode Island’s Constitution in 1973 and first implemented in 1984. In 1984, the high-water mark for its implementation, the commission met 14 times over many months and issued its report on July 5 that year.
In 1994, the legislature failed to appoint a commission. As the constitutional backstop for the legislature, the governor appointed commission members — but not until Nov. 7, only one day before the election. The commission issued no report.
This constitutional violation led to a lawsuit, which Rhode Island’s Superior Court dismissed, arguing that the plaintiffs lacked standing. Essentially, the court signaled to the legislature and governor that it viewed this part of Rhode Island’s Constitution as nonjusticiable; that is, it would rely on the court of public opinion, the ordinary political process, for its enforcement. Despite the court’s ruling, the legislature retains a legal incentive to appoint a commission, because otherwise the governor would have that power by default.
In 2004, the commission met seven times and issued a report on Aug. 20. Its report explained why a legislature was a better mechanism to propose constitutional reforms than a constitutional convention. Only one of eight pages was devoted to listing potential issues a state constitutional convention could address. Most of the listed issues involved no legislative conflict of interest. None of the ideas were new; some were archaic.
These failures demonstrate that mandating a legislature to engage in public deliberation adverse to its own interests is unrealistic. To the extent that it is in the interest of a legislature to convene a constitutional convention, a commission may be desirable. But in that case, there is no need for a constitutional mandate.
We recommend a different educational approach. Rhode Island’s secretary of state should set up a public website inviting proposals on why Rhode Island should or shouldn’t convene a state constitutional convention. A commission of three individuals appointed by Rhode Island’s secretary of state, governor and Supreme Court chief justice could moderate the website for spam. The proposals should be machine-readable so private media outlets could easily download them, set up interfaces to foster public deliberation via reader commentary and ratings, and include the results in news articles and commentaries.
Admittedly, the website would attract many crazy proposals and Machiavellian information strategies (such as the current practice of convention opponents promoting unpopular proposals that they can then attack). But readers of reviews on Yelp, TripAdvisor, Amazon and other web-based services have proven that a vigorous marketplace of ideas, even if it includes many bad ideas, is better than the type of top-down information control that previously existed.
Most important, the track record of the bipartisan preparatory commissions remind us why a constitutional convention is needed in the first place. The same conflicts of interest that have prevented incumbent legislators from engaging in serious deliberation about democratic reforms that would reduce their power and the power of their special interest allies also cause them to veto constitutional amendments adverse to their interests.
A constitutional convention is no panacea, but it is premised on a realistic assessment of the limited trust that should be placed in a legislature to make itself more democratically accountable. For serious discussions and proposals on issues where the legislature has a blatant conflict of interest, such as redistricting, ethics, transparency, campaign finance, ballot access, term limits and executive power, neither a legislatively appointed commission nor the legislature itself is the right institutional vehicle.
–J.H. Snider is the president of iSolon.org and maintains the RhodeIslandConCon.info website. Beverly Clay was Operation Clean Government’s research director from 1993 to 2011.
Source: Snider, J.H. and Beverly Clay, R.I.’s poor preparation for convention, Providence Journal, August 2, 2014.
