From home rule to the initiative itself, Ohio would have never won many reforms under a 60% rule

Michael F. Curtin is a retired editor and associate publisher of The Columbus Dispatch and a former member of the Ohio House of Representatives serving from 2013 through 2016. Reprinted with permission, Curtin delivered the following remarks to the Federalist Society of Columbus on Ohio Issue 1, which seeks to make it harder for voters to bring ballot initiatives and amend the Ohio Constitution. Issue 1 will be decided by voters on August 8.

The Federalist Society’s statement of purpose says it exists to “preserve freedom” and especially “the rule of law to preserve individual freedom.” It calls itself “an organization of individuals who believe and trust that individual citizens can make the best choices for themselves and society.”

This principle of trusting individual citizens to make the best choices for themselves and society is at the heart – is at the very core – of the debate over State Issue 1.

Trusting citizens to make the best choices for themselves is what Ohio’s founders believed. And it is what their successors believed and insisted upon across many generations.

Thomas J. Moyer, who at the time of his death in 2010 was the longest-serving chief justice of the Ohio Supreme Court, wrote that Ohio’s settlers “brought with them a strong faith that civilized society works best if its authority is vested in popular sovereignty. The belief that citizens could regulate their own progress.

“Popular sovereignty can rebalance the balance of power, provide citizens with direct access to the legislative process, and be the civic embodiment of our morals and beliefs.”

Ohio’s political heritage, from the outset, has been marked first and foremost by a suspicion of governmental power and mechanisms to place more trust in individual citizens – in the common man.

The farmers and frontiersmen who carved Ohio from the Northwest Territory distrusted the elite, big-money interests that dominated politics in the Atlantic states that emerged from the original 13 colonies.

They also wanted no part of the authoritarianism that dominated the political cultures of the Southern states of the old Confederacy.

Ohio’s founders, as Chief Justice Moyer explained, would insist on putting strong curbs on official authority. They would craft an original constitution in 1802 that would make that principle very clear.

The governor was made a figurehead. And state lawmakers were put on tight leashes – one-year terms for state representatives, two-year terms for state senators.

That first constitution remained in place for a half-century.

Our second constitution, adopted in 1851, expanded popular sovereignty in several ways, including a requirement that all state executive officeholders, county officeholders, and state and local judges be elected by the people, and requiring that every 20 years voters be asked whether to call a convention to revise the constitution.

The convention call next will be on the statewide ballot in 2032. As someone who turns 72 in a few months, I’d be delighted to be around for the convention call.

Ohioans rejected the convention call in 1871 and 1891 and were scheduled to vote on it again in 1911, but the General Assembly sped up the process and placed it on the ballot in 1910 amid the turbulence of the Progressive movement, with much of the country – and certainly Ohio – demanding more citizen participation in government.

Ohioans voted overwhelmingly in favor of a convention. It convened at the Statehouse in January 1912, with 119 elected delegates – one from each Ohio House district – elected, by the way, on nonpartisan ballots. And they would be again if we have another convention.

This was the era – the late 19th and early 20th centuries – of big corporations, monopolies and trusts dominating much of the American economy – limiting competition, controlling prices, and buying the loyalty of party bosses, state lawmakers and city halls.

The big money in Ohio belonged to tycoons in iron, steel, coal, oil, machinery, banking, utilities, and railroads. They were willing to pay for the type of government they wanted. Many state and city officeholders were on company payrolls. What big business wanted more than anything else was little to no government regulation.

Reformers within both major political parties emerged, elected many of the delegates to the 1912 convention, and the spirit of reform produced 42 proposed amendments to the constitution, 34 of which were adopted by voters in the fall of 1912.

Of those 34, 19 did not achieve 60% of the vote, including some of the most important reforms in our state’s history. Such as:

• Establishing a system of civil service, to end public office payrolls overflowing with family members and shirt-tail relatives. It passed with 59.99% of the vote – 41 votes shy of 60%.
• Municipal Home Rule – 58.3%, and
• The Initiative and Referendum – 57.5%

A 60% requirement is a very high bar in any era.

The 1912 convention highlight, on Feb. 21, was an address by former President Theodore Roosevelt, the great trust buster and vigorous champion of the initiative and referendum.

“With Lincoln,” Roosevelt said, “I hold that this country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it.”

Roosevelt warned delegates of “the false constitutionalism” of self-professed conservatives who are beholden to monied interests, not the common man, not popular sovereignty.

Over the 111 years since adoption of the constitutional initiative, Ohioans have been very judicious with the use of this power.

They have adopted just 19 of 71 citizen-led amendments. Vital, citizen-led reforms have included home rule power for liquor sales, the 10-mill limit on unvoted property taxes, home rule for counties, elimination of straight-ticket voting, and a recent one and one I am very proud of, because I was its co-sponsor, the 2015 anti-special interest amendment that forbids use of the initiative for the creation of any special benefit.

None of the reforms just mentioned reached a 60% passage rate.

Speaking of false constitutionalism, the proponents of Issue 1 proclaim the Ohio Constitution should more resemble the U.S. Constitution in brevity and difficulty of amendment.

This is nonsense. This completely misunderstands federalism. 

As Madison explained in Federalist #45, the founders intended powers reserved to the federal government to be “few and defined,” while powers reserved to the states would be “numerous and indefinite.”

That’s why the U.S. Constitution contains not one word on education, corporations, state finance or taxes. Nothing on state judiciaries. Nothing on counties, cities, or townships. Nothing on civil service. Nothing on redistricting. Nothing on dozens of other governmental responsibilities that must – that must — be addressed by state constitutions.

State constitutions must be living documents, capable of changing with the times.

No one made this point more convincingly that William G. Batchelder, arguably the most influential conservative and constitutionalist in state legislative history.

In discussing the length of Ohio’s constitution, Batchelder explained, “While many provisions are detailed, they reflect our experience as a people and the spirit of the times.”

Batchelder was a strong supporter of the citizen initiative, as he explained in a 2009 commencement speech at Grove City College in Pennsylvania.

Explaining the adoption of the initiative power in 1912, Batchelder explained to the graduates with his customary brio, “Well, the legislature got a power haircut.”

And on March 20, 2013, then-Speaker Batchelder, upon passage of legislation to revise ballot signature-gathering procedures, said: “I fully support the right to the ballot initiative and referendum found in the Ohio Constitution, and I believe these should remain worthwhile options for keeping state government accountable to the people it serves.”

To remain accountable to the people it serves, a constitution as old as Ohio’s – 172 years old, the nation’s 9th oldest – must be able to, as Batchelder said, “reflect our experience as a people and the spirit of the times.”

We must learn from history. History is our best teacher.

In 1953, the Ohio Constitution still proclaimed that the Ohio National Guard was open to white males only.

The General Assembly placed an amendment on the November 1953 ballot to remove the word “white” from the qualifications.

That amendment passed with 58.2% of the vote.

Eight years later, in November 1961, Ohioans voted on an amendment to remove the males-only language. Ohioans approved the amendment, with 50.1% of the vote.

Many essential reforms, in any era, do not reach 60%.

One other prime example.

Our constitution’s municipal home-rule amendment of 1912 limited publicly owned utilities to servicing customers mostly inside their municipal boundaries. Service sold outside city limits could total no more than half the amount sold within.

For about four decades, this restriction caused few problems. But after World War II, suburbs boomed as automobile-loving Ohioans sought more acreage and elbow room.

As the 1950s unfolded, smaller-scale, privately-owned providers of water and sewer services could not begin to keep up with demand.

State health officials implored the General Assembly to place an amendment on the November 1959 ballot to remove the 1912 limits on the sale of water and sewer services. The General Assembly listened, and the amendment was approved with 58.3% of the vote.

Suburban growth would have been absolutely stifled without passage of that amendment. Today, the Cleveland Water Department serves 80 separate jurisdictions throughout northeast Ohio. In central Ohio, the Columbus Division of Water serves 32 separate jurisdictions.

History has a way of hiding behind the headlines. Over the long course of Ohio’s constitutional history, these are just a few of many amendments, that should have been considered noncontroversial, that failed to win 60% of the vote.

There is no doubt that adoption of a 60% passage requirement  would produce many unforeseeable consequences in the future.

From the start, State Issue 1, has been a rush job. To hurriedly move the goalposts because of an issue or two that current state lawmakers see coming down the road.

Constitutional change, especially one as monumental as this proposal, should never be a rush job.

Many of you likely are familiar with the work and legacy of the late Russell Kirk, whose influence on 20th century American conservatism perhaps was unrivaled. 

The Russell Kirk Center in Mecosta, Michigan – dedicated to preserving and advancing his principles – lists his Ten Conservative Principles. Among them:

“Any public measure ought to be judged by its probable long-run consequences, not merely temporary advantage or popularity.

State Issue 1 is not a conservative proposal. Issue 1 is an authoritarian proposal – the antithesis of popular sovereignty. An attempt to enshrine super-minority rule into our state constitution, perhaps for the rest of time.