March 1 2008

IssuesPA offers some background and history on state constitutional conventions. Recently, there have been discussions about the current Pennsylvania Constitution, with some contemplating a need for changes. Many proponents argue that a constitutional convention is in order because it’s been more than 40 years since the last one. IssuesPA has taken a look at the issue of a state constitutional convention and just what it might mean in the 21st century.

Why a convention? Two schools of thought:

On one hand, there are groups calling for a convention in order to focus on single and related issues. Examples of such issues include tort reform, abortion, taxation, gay rights, or government reform. Sometimes, a single event, such as the legislative and judicial pay raise of 2005, can spark interest in a specific constitutional reform. Hence, the size of the legislature, legislative pay, and operational procedures, all of which require constitutional amendment, may be targets of action.

In addition to those who seek targeted reform, there are groups that believe a thorough review of the entire Constitution should take place periodically, to modernize out-of-date sections and to adapt as needed to reflect changes in Pennsylvania’s economy, environment, and demographics. Many of the current provisions were put into the Constitution in 1874, and some were enacted even before then.

Conventions in PA -- A History Lesson:

Constitutional conventions in Pennsylvania have been rare occurrences. The last total revision of the document occurred in 1874. However, between 1874 and 1967, the electorate rejected calls for a convention on five different occasions. However, there was no shortage of single amendments introduced in the legislature during that period. During those 85 years between conventions, there were 86 proposed amendments, of which 59 were approved. For most of Pennsylvania’s history, constitutional reform happened one amendment at a time.

In the late 1950s and early 1960s, there was renewed interest in a constitutional convention, although establishing the convention was no easy task: it turned out to be a ten- year undertaking.

The first step was the creation of a Commission that recommended specific changes to the Constitution. After more than a year of study, the “Woodside Commission” transmitted its report to the Governor and General Assembly. The Preparatory Committee, consisting of the leadership of the General Assembly and chaired by the Lieutenant Governor as an ex-officio member, started its work within a week of the approval by the voters. John Ingram, then- Executive Director of the Pennsylvania Economy League’s State Office, served as Executive Director of the Preparatory Committee. The Committee drafted procedures for the convention, provided manuals for the delegates, and generally paved the way for constitutional revision.

Although voters rejected a call for a convention in 1963, the Pennsylvania Bar Association initiated its own study recommending 12 proposals for constitutional revision through the legislative referendum process. Governor Scranton appointed a commission that recommended 13 amendments for the State Constitution. Two of 13 amendments were approved by voters in 1966 – and another seven in 1967. Finally, a convention was approved as the best way to accomplish additional reform.

The General Assembly passed and Governor Shafer signed Act 2, which put the convention proposal on the ballot and set out the process and structure for a convention. The proposal passed by more than 400,000 votes. Act 2 outlined the membership and election of delegates, provided for a Preparatory Committee, the organization of the convention, the manners for submitting proposals to the electorate, and last but not least, the set out the powers, limitations and duties of the convention. The limitations focused the convention on legislative apportionment, the judicial administration, organization, selection and tenure, local government, and taxation and state finance, except that the consideration of a graduated income tax or any change in the uniformity clause or the section relating to the Motor License Fund was specifically and emphatically prohibited.

The convention convened on December 1, 1967 and adjourned sine die on February 29, 1968. The voters approved all five convention proposals by substantial margins at the primary election on April 23, 1968.

Implications for Future Constitutional Convention Initiatives

History has shown that passing an amendment to the Constitution is an arduous process – surely the intent of the framers. Getting approval to rewrite the bulk of the document is an even more intimidating prospect, as proven by history.

The experience of the 1967-68 amendments and limited convention has important implications for contemplating actions going forward, particularly in the context of the current disparate calls for change. The most important include:

  • A convention is unlikely to be convened without policy-makers – specifically the Governor and legislative leadership – having a firm understanding and general agreement on what is expected in the final reframing. Policy-makers likely will have a specific list of problems to be addressed and probably a general understanding of the likely solutions. For example, if the Uniformity Clause, which governs taxation, were targeted for change, some form of authorization for a progressive income tax would be expected. This requires significant up front research, discussion, and recommendation-making, possibly using a study commission approach before the referendum for a convention is placed on the ballot.
  • Voters are unlikely to approve a convention without a major education and marketing campaign preceding the referendum. Traditionally, Pennsylvanians have taken a “let well enough alone” approach to many public policy issues, and amending the constitution is no exception. The changes enacted in 1968 percolated for at least a decade, and the convention itself may not have come to fruition had it not been for the non-profit organization created by Governor Scranton to promote the concept prior to the referendum.
  • Coalition building is an important pre-convention activity. The number of organizations seeking the status quo is significant enough to derail the process using a divide and conquer strategy. It’s probably easier to arrest a convention authorization process than nurture one. Building a coalition of advocates, often “odd bedfellows,” that can inform and pressure the Governor and legislature for the necessary legislative action is essential. This means convincing many of the single- issue advocates to agree to some things that may make them uncomfortable. In summary, even if contemporary thinking welcomes a constitutional convention in Pennsylvania, there may be years of preliminary study and preparation necessary for a successful outcome.