A convention to amend the state constitution?
This week, a number of freshman lawmakers filed legislation to call a convention to amend the South Carolina constitution. Much like the United States Constitution, the South Carolina Constitution can be amended either through the legislative process or through a constitutional convention, and both methods have been used in the past.
The idea behind this bill is that much of the gridlock in Columbia is due to our current governmental structure, in which the power is centralized in a handful of legislative leaders.
SCPC has extensively discussed the problems that have arisen from this system. In South Carolina, the bulk of state power is firmly in the hands of a few legislative leaders who are effectively accountable to no one for the exercise of that power, and who routinely make decisions in the absence of public oversight.
The concerns here are real and there is a way to address them. However, there are two major problems with the idea of calling a constitutional convention: 1) the convention approach is dangerous and would be unlikely to achieve desired reforms, and 2) most of the needed reforms do not require constitutional amendments.
The convention approach: ineffective and dangerous
Calling a constitutional convention in South Carolina requires a two-thirds vote in both the House and Senate, at which point it goes on the ballot at the next general election to be voted on by the public. If the referendum passes (a simple majority vote is all that is required), lawmakers must pass a bill calling the convention.
Significantly, the convention mechanics would be shaped by current legislative leaders. Much like a federal Article V Convention of States, nothing in either state law or the state constitution details how delegates would be selected, parameters for what can be discussed, etc. The only provisions are that sitting lawmakers could not serve as delegates, and the overall number of delegates would equal the number of lawmakers in the House.
The rest of the convention process would be spelled out in the bill that must be passed before the convention can occur – which would be overseen by the same legislative leadership that the bill’s sponsors blame for the failure to reform government. Anyone who has observed political party conventions can attest to how easily they can be controlled and manipulated, particularly when skillful politicians also control the rules and selection of delegates.
Moreover, there is no guarantee that the convention would result in reforms. Any current legislative gridlock would likely be amplified tenfold in a convention to change the state constitution, especially if delegates attempted to remove power from the legislature in general and legislative leadership in particular.
In reality, the idea of “gridlock” is a bit of a misnomer. The gas tax hike passed last year with overwhelming majorities in both the House and the Senate. In 2016, legislation to perpetuate legislative self-policing passed with even larger majorities (see here and here for vote breakdowns), as did an enormous bond bill that funneled additional revenue into the State Transportation Infrastructure Bank (STIB). Going further back, the Base Load Review Act of 2007 passed the House with only six opposing votes (there was no roll call vote in the Senate).
If anything, there is too much unanimity in the legislature.
Most of the needed reforms are simple statutory changes.
In 2013, SCPC released a list of eight reforms that make significant progress towards ending the legislative concentration of power and culture of corruption. Only one of these needed reforms – restoring judicial independence – would require a constitutional amendment.
The remaining seven –making the governor accountable for the executive branch, ending legislative self-policing, etc. – are easily within the General Assembly’s power, no convention or public referendum needed. Lawmakers would not necessarily even need a two-thirds majority vote to pass them.
If lawmakers cannot even pass these simple changes, why should they be allowed to rewrite the state constitution?
What is lacking in state government is not the mechanism to outmaneuver legislative leadership, but the simple will to make government accountable to the people of this state.
Moreover, the control maintained by legislative leaders is not purely derived from statute. Some of it exists simply because it is allowed to by the membership of the General Assembly. Ending this stranglehold – both the informal and the statutory elements – depends on the willingness to elect and hold accountable representatives whose allegiance is to the citizens of South Carolina rather than to legislative leaders.
The key, therefore, to reforming government is for legislators to be held accountable by the people they represent.