Pa. House Majority Leader Kerry Benninghoff, R-Centre (L) and Rep. Seth Grove, R-York (R) speak during a state Capitol news conference on Wednesday, 9/2/20 (Screen Capture)
By Patrick Beaty
Article I of the Pennsylvania Constitution declares the fundamental rights of all Commonwealth citizens and defines in many respects the relationship between them and their elected representatives.
Among the rights reserved to the people themselves is “the inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.” The sovereignty of the people to decide how they shall be governed is a bedrock principle of a democratic society.
Now imagine a society in which the people have no ability to alter or reform their government unless their elected representatives allow it to happen.
Worse, that lawmakers of a single political party could control when and how the state Constitution should be altered. Imagine that they could shift the balance of power among the three branches of government against the will of the governor and with the consent of just 13% of people registered to vote.
You don’t have to strain to imagine that scenario because it is already the unfortunate reality in Pennsylvania. We saw it play out just last year when Republican lawmakers realized they could use the Constitution to terminate Governor Wolf’s pandemic emergency declaration.
And it appears we haven’t seen the last of one-party constitutional change. At least seven proposals – covering a range of issues from judicial elections to redistricting to abortion access – are lined up for votes when the Senate and House return to session later this month. With many more awaiting action in legislative committees.
How is this possible? What happened to the lofty promise by our founding fathers that the people would remain in control of our own democratic institutions? Turns out we gave away the keys quite a while ago. And we need to start thinking about how we can get them back.
In the mid-nineteenth century, Pennsylvania was one of several states looking for an easier way to make changes to their constitution without all the complexity, delay and expense involved in calling a convention of delegates. The Convention of 1837 offered a solution to the problem, which became Article X of the Constitution of 1838 and remains to this day the only way to alter the state Constitution without a convention.
Constitutional revisions were allowed to occur through a quasi-legislative process that excludes the governor’s normal role in enacting laws, but requires a voter referendum before changes can take effect. Proposed amendments must pass twice in consecutive sessions of the General Assembly before being submitted to the voters. The process has sometimes been described as lengthy or years-long, and it can take as long as five years depending upon when the bill is put to a vote in each chamber in each two-year session.
But it can also be completed much more quickly as happened with the amendment to rein in a governor’s power to respond to emergencies such as the COVID-19 pandemic.
That constitutional change, which significantly altered the balance of power between the executive and legislative branches, was accomplished in just eleven months from the time it was first introduced in June 2020 until its final approval by the voters last May. To accomplish that feat, Republican lawmakers exploited two major flaws in the rules for constitutional amendment.
Because the Constitution requires only a simple majority in each legislative chamber, a party that controls both can do whatever they want and certainly does not have to reach for bi-partisan consensus. In most other states it isn’t so easy for one political party to push through amendments to their constitution.
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According to Ballotpedia, Pennsylvania is among just 17 states that require only a simple majority vote in each legislative chamber. Thirty-three states require a super-majority of 60% or greater.
It also helped that the Constitution allowed the question to be put before the voters in an off-year municipal primary election when turnout was low. Because barely one quarter of registered voters cast a vote on that referendum, it only took 13% of the electorate to approve the change.
Yet the sponsors of these proposals still insist they only want to “let the people decide.” Fair enough. We’ve given it some thought and here’s what we decided.
If you can pass a constitutional change with true bipartisan votes, we will be happy to consider it. We also have some issues we would like a chance to decide, like whether to scrap our politician-controlled redistricting processes and replace it with an independent redistricting commission.
What we don’t want is any more partisan constitutional amendments. On those, we’ve already decided, and the answer is no.
Patrick Beaty is the volunteer legislative director of Fair Districts PA. His work appears frequently on the Capital-Star’s Commentary Page.
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