Our sclerotic Constitution

In the past, I’ve tossed around the notion that Vermont’s Founding Fathers were drunk when they wrote our Constitution. Partly, that’s a matter of historic record. In those days, everyone drank to what we’d consider wretched excess; and it was common practice for men to gather in taverns to talk politics. As a simple matter of probability, those guys were hammered when they drafted our founding document.

But there’s also the matter of content. This has come up in the context of our current ethics debate, in which many lawmakers have asserted that the Constitution gives the Legislature sole authority over the ethics of its members. That seems like a terrible idea on its face.

And kind of undemocratic as well. And it’s far from the only undemocratic thread in our Constitution. At the risk of being overly cynical, you might even conclude that the Constitution was written by political elites to provide themselves a measure of protection from those pesky voters.

Just a few undemocratic aspects, off the top of my head:

There is no way to recall an elected official. Even if, say, one of them gets arrested on the Statehouse grounds and charged with numerous sex crimes. Sorry, voters: you’re stuck with this guy as your elected representative until the next election — unless his peers are so outraged (or embarrassed) that they take action on their own.

In which case, you’re stuck with no representative at all until the next election. Yes, the people of Franklin County can thank our Founding Fathers for leaving them scandalized and without full representation in the Senate for more than a year.

There is no initiative process. The voters cannot petition for an issue to be placed on the ballot. This process is sometimes misused, but it also provides a valuable outlet for voters who feel that an issue is not being addressed by the state.

It is virtually impossible to amend the Constitution. There are more obstacles than your average Spartan Race. Even with overwhelming multipartisan support, the process takes years and years. The short version, from the Secretary of State’s website:

Proposals of amendment can be initiated every four years by the senate. A proposal must be approved by two/thirds of the senate (20 votes) before being sent to the house, where a majority vote is required for passage. Successful proposals are taken up by the succeeding legislature, the intervening election allowing voters an opportunity to instruct their legislators on whether to support any amendments. The proposal must then survive majority votes of the senate and house, before being placed before the voters for ratification.

Got that?

And please note that any amendment requires strong and consistent support from state lawmakers, who tend to have a vested interest in the status quo when it comes to government processes.

— As noted above, the Constitution appears to give the Legislature sole authority over its own ethics. Fox/henhouse, inmates/asylum, choose your metaphor.

There’s one other big thing worth mentioning. Ironically, in a state that places a high value on local control, Vermont’s power flows from the top down. VTDigger’s Jon Margolis pointed this out a few months ago, in an article about Burlington’s proposed charter changes on gun control. Vermont is a “Dillon’s Rule” state, which means that…

“municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature.”

… Vermont, said Karen Horn, the director of public Policy and advocacy for the Vermont League of Cities and Towns, is a strong Dillon’s Rule state, “one of the most centrally controlled states,” where “local control is kind of a myth.”

A very popular myth, however. A myth frequently cited by (among many others) Republicans attacking Governor Shumlin’s education reform efforts, and anti-renewable activists complaining about the siting process. Deference to local wishes would be, in fact, a departure from Vermont’s established political order.

The practical effect

I believe all of this does have an effect on our politics. There’s a certain insularity to the Legislature. The Statehouse is its own bubble, and its residents tend to identify with each other. That includes not only lawmakers, but government officials, lobbyists and advocates. And members of the media, to some extent.

A lot of that is circumstantial. They do spend a lot of time together. Even though they serve different masters, they do share a workplace. They know each other, they form friendships (and more), they know and protect each other’s secrets.

But some of it is due, directly or otherwise, to the lack of recourse afforded the electorate. We cannot recall a lawmaker; we cannot enact a law or proposal rejected by the Legislature; we cannot amend the Constitution without the Legislature’s overwhelming consent. We are, in many ways, shut out. And there are quite a few issues where opinion polls suggest strong majorities, but nonetheless (a) progress is slow and incremental, or (b) gridlock is the rule of the day.

For example, how would Vermonters react to a statewide referendum establishing single-payer health care? We’ll never know, will we?

But wait, I can just hear some of you saying: Vermonters have a say every two years, when all those elected officials have to face the people. That’s true, I say; and under the current system, I would be opposed to longer terms for any of them.

The problem is, the vast majority of our lawmakers (especially in the Senate) represent districts that lean strongly to the left or right. It’s almost impossible to knock off an incumbent when a district is basically a one-party fiefdom. And incumbency is a powerful advantage; Vermonters tend to opt for a known name, regardless of qualifications or record.

Here’s my suggestion: We should institute a California-style Top Two Primary, in which all candidates are listed on a single primary ballot and the top two finishers move on to the general election. That could mean two Democrats, two Republicans, or two Progressives. This system would give people in a one-party district much more of a say in their representation.

Combine that with four-year terms for, say, the statewide officeholders and the Senate, and I think you’ve got a better system.

But that would require Constitutional amendments, which would require the approval of two successive Legislatures. What are the chances that lawmakers would approve a system that would make it harder to win re-election in “safe” districts? I’m not holding my breath.

Our Founders favored limited democracy, because they didn’t fully trust the wisdom of the electorate. And that’s what we’ve got: a system that is less responsive and more insular than it might be otherwise.

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5 thoughts on “Our sclerotic Constitution

  1. H. Brooke Paige

    John,

    Kudos on your well reasoned discussion, however as you said we probably shouldn’t hold our breath waiting for reform, As to the two year terms for those wish to attend to matters under the Golden Bubble, I cannot dream of wanting to lengthen their two year terms – many don’t deserve that much time !

    All the Best, Brooke.

    Reply
  2. Walter Carpenter

    “Our Founders favored limited democracy, because they didn’t fully trust the wisdom of the electorate. And that’s what we’ve got: a system that is less responsive and more insular than it might be otherwise.”

    I agree here in many ways. To read how not a few of the founding fathers (where were the founding mothers?) who crafted this country and wrote our so-called great documents, like the Constitution, mistrusted democracy and the voters and found clever ways like the electoral college to insulate themselves from the decisions of the voters is breathtaking. It is true that they came from an age which generally thought of the people as common rabble — which, come to think of it, is not a great deal different in this regard from how the one percent thinks of the voters today.

    I am also coming around to agree on the initiative and “the four-year terms for statewide officeholders and the senate.” If we had this, for example, I think we would have had single-payer a long, long time ago and marijuana would have been legalized by now. I think two-year election cycles just grinds everyone down.

    Reply
  3. NanuqFC

    In early January I contacted a Republican Senator from another district to suggest that longer terms might work, and that I would support such, but only if there was a recall provision, and only if the governor’s term and the Senate’s were of the same length.

    No response was received.

    Reply

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