Ohio House lawmakers consider Senate version of supermajority resolution
The Ohio Statehouse, Columbus, Ohio. (Photo by Graham Stokes for the Ohio Capital Journal. Republish photo only with original story.)
Ohio House lawmakers took up the Senate version of a measure asking voters to raise the threshold for future constitutional amendments. The House’s version of the proposal is already awaiting a floor vote.
The jousting between sponsors or supporters and the Democratic members attempting to forestall the measure covered familiar territory. But a few new ideas snuck in.
Last minute amdendments?
Most notably, Republican Brett Hudson Hillyer floated a trial balloon for a potential compromise amendment. In questions with Buckeye Firearms’ Rob Sexton and Ohio Right to Life’s Mike Gonidakis, the Ulrichsville representative asked if they’d support adding a safe harbor for initiated statutes.
Critics of lawmakers’ attempt to raise the threshold argue organizations pursue amendments because lawmakers can overturn initiated statutes immediately. The inclusion of an amendment to make initiated statues more useful might mollify some opponents. It would likely also frustrate some supporters.
Sexton, speaking on behalf of Buckeye Firearms and the Sportsmen’s Alliance, quickly agreed to the idea.
“Yes, we would still support SJR 2,” he said, “but we would defer to the legislature on making that call.”
Gonidakis meanwhile was less amenable — arguing he couldn’t speak on behalf of the organization.
“It’s very dangerous to deal on hypotheticals,” he said. “I’d have to see the language, we would have to see the language, what are those safe harbors? What would be in it? And then we’d have to debate whether the timing is right to do it or not, or do a separate standalone resolution.”
It’s not entirely clear such an amendment would pass constitutional muster. But it’s also far from clear it wouldn’t.
What’s good for the goose is good for the gander
Democrats on the panel floated a change they’d like to see, as well. That amendment would amount to a rider limiting the amendment from taking effect unless 60% of the electorate voted in favor of it. Sen. Rob McColley, R-Napoleon, dismissed the idea out of hand.
“I think that would be unconstitutional,” he said, “for us to go ahead and change the operation of a provision in our Constitution by simply putting language into a document like this for passage.”
Rep. Brian Stewart, R-Ashville, who is sponsoring the House resolution raising the constitutional threshold was quick to join the chorus.
“When I follow that logic,” he said “that would suggest to me that if you can just arbitrarily raise the threshold in the resolution itself, you can also lower the vote threshold in the resolution itself.”
“You would have this sort of hitherto undiscovered cheat code in the Constitution that for 200 years nobody just thought to use,” he added.
Notably, even if Democrats successfully tacked on such an amendment, it’s hard to imagine an interest group that favors the higher threshold wouldn’t file a court challenge. Should a majority — but not a 60% supermajority — back the idea at the polls, they could argue those higher threshold provisions aren’t constitutional, and so the court should set them aside. Those arguments would likely find a receptive audience in the Supreme Court’s new conservative majority.
Undermining the arguments
After debating the merits of the raising constitutional threshold for nearly six months, there’s little that hasn’t already been said. But Minority Leader Russo landed two significant punches during Wednesday’s hearing.
Sponsors have brought forward Professor Lee Strang, from the University of Toledo, to provide the intellectual underpinnings of their case. He argues that making the constitution more difficult to amend will help ensure it covers only fundamental law, rather than more temporary policy better handled in statute.
It’s not an unreasonable position, but it often lacks context.
Strang argues the constitution is “too long,” for instance, without mentioning the state limit on bonds hasn’t gone up since 1851. As a result, Article VIII is bogged down with 18 bond issues stretching back to 1947. Those provisions cover everything from borrowing for roads and schools, to additional pay for veterans — veterans of World War II. Those provisions are simply taking up space, but no one is rushing to shorten the constitution by clearing that dead wood or making it easier for officials to borrow in the future.
And Strang considers the higher threshold such an un-alloyed good, that he refused to address Russo’s question about bringing it forward during a low-turnout, August election.
“I get to choose what I comment on what I don’t comment on, and what I have expertise on what I don’t have expertise on,” he said. “And I think how elections are run is something that’s deeply practical and about which I have little experience.”
Later Russo took aim at one of the most fundamental arguments offered by supporters — the higher threshold will scare off out of state special interests. McColley laid out the logic during his testimony.
“It’s going to, in many ways, be a protective measure of our Constitution against out of state interests,” he argued. “And the reason for that is they’re not going to be able to come in and say, oh, we only have to find and get 50% plus one vote.”
Of the eighteen states that allow initiated constitutional amendments, only Florida follows the 60% across the board threshold the Ohio proposals envision. She noted since 2010, Ohio has seen 16 amendments, 11 of which came from the general assembly. Over the same stretch Florida saw 46 proposals.
“So I guess my point here is it seems to have had zero impact on both these efforts to change the constitution, and presumably the influx of special interests or outside money to either help or prevent those from being passed” Russo said.
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