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Part II: Chapter One

How our Constitution came to be • A culture of binge, diet, repeat
• The powerful allure of constitutional restrictions • A Legislature
that mistrusts itself • The types of revisions allowed • A limited
convention • Maybe we’re better than this • A higher standard

Culture, trust and reform
The Public Affairs Research Council of Louisiana (PAR) has embarked on an
ambitious project to examine the current Louisiana Constitution and consider worthwhile revisions. Called Louisiana Constitutional Reform, the project was launched to provide sound principles to guide the drafting of a new constitution and to identify recommended changes and innovative options in clearly defined terms.

PAR’s independent analysis does not attempt to satisfy any constituency or sacred cow. The multi-part report is focused on the desired substantive outcome of any reform effort, whether brought about by a convention or legislative revisions presented to the voters. It is intended to elevate the discussion about the purpose of a revision and to build common ground for the goals to be achieved. In doing so, the project is providing much of what would have been presented to the public had the Legislature created a study commission or task force.

Having more than doubled in length since 1974, the Louisiana Constitution has morphed into an unwieldy and restrictive document that governs through narrow rules and restrictions rather than broad grants of authority. The proposed changes contained in this report are designed to create a more foundational document that grants the Legislature greater flexibility to implement reforms that will help achieve a better Louisiana. As a first step with this project, the principles of a better constitution were advanced in Part I: Getting the Foundation Right.

Now comes Part II: An Enduring Fiscal Framework, which provides critical background information and recommendations addressing potential reforms of the tax and spending portions of the state Constitution. Focused mainly on fiscal matters, Part II includes an Executive Summary and four underlying chapters. Chapter One broadly covers relevant history and future options for constitutional revisions. Chapter Two is about taxation and fiscal controls. Chapter Three proposes recommendations about state spending and dedicated funds while offering innovative ideas for restructuring the relationship between the Constitution and corresponding fiscal statutes and legislative appropriations. Chapter Four is a detailed breakdown with recommendations for all the trust funds and money pots embedded in the Louisiana Constitution.

Together, these chapters in Part II contain the most thorough examination to date of how our state’s fundamental governing document has been fiscally warped and how it can be fixed. Part II also comes with a host of links to supplemental resources for those who want to venture ever deeper into the subject matter or who just enjoy reviewing historical documents. The next installment will be Part III, which will cover the relationship between state and local governments and key issues such as pensions and civil service, all within the context of the Constitution. PAR will also post public comments about these reports.

We are well along into a fast-moving 21st Century. At its current rate, Louisiana may never make enough progress to lift itself from the bottom of national economic and social rankings. And yet the state is bestowed with a generous fortune of natural, human and public revenue resources. The Pelican State has the opportunity to be the architect of its own good fortune. A willingness to change our constitutional ways would open paths to reform. More significantly, it would signal that we in Louisiana are willing to change our culture and our self-image for the better.

How We Got Here
Before undertaking a discussion of specific changes, we should examine how our current Constitution came to be. After all, as a great philosopher once said, “Those who cannot remember the past are condemned to repeat it.” A look back at the evolution of the 1974 Constitution reveals a document that has grown increasingly restrictive over time. As the Legislature and voters have approved amendments that impose detailed and complex controls on the Legislature’s ability to adjust and spend revenue, we have been induced to continue amending the document to accommodate desired policy changes.

Meanwhile, once special interest groups are successful at gaining favored status in the Constitution for a particular priority, history has revealed there is little chance the Legislature will remove the protection if and when priorities change. Louisiana has been caught in a vicious cycle that is doomed to repeat itself without real reform to our governing document.

But even with real reform, the question remains: how do we ensure that we do not find ourselves back in this same predicament 40 years from now, searching for solutions to simplify a document that once again has grown too long and restrictive?

As an initial matter, we must look to other state constitutions that may serve as models for a better governing document for Louisiana. Not surprisingly, the data reveal that constitutions that are harder to amend are amended less often. Thus, making it more difficult to amend the Louisiana Constitution may be one way to help protect against proposed constitutional amendments that are more appropriate for statute. Another option is to adopt a higher threshold for voter engagement to approve proposed amendments.

In Louisiana, as in many other states, proposed amendments are sometimes approved by a small fraction of statewide voters and frequently by less than half of the voters. If the only difference between adding something to statute and adding it to the Constitution is a vote of the people, then a worthy goal might be to make sure a threshold portion of voters participate
before allowing fundamental change.

Binge. Diet. Repeat.
Since Louisiana became a state in 1812, it has been governed by 11 separate state constitutions — more constitutions than any other state. The states with the next highest number of constitutions include Georgia (10), followed by Alabama (6), Florida (6) and Virginia (6). Louisiana’s current constitution was written by a constitutional convention held in 1973 and 1974, ratified by voters in 1974 and became effective on Jan. 1, 1975. The events that brought about the 1973 convention were partially similar to the conditions prompting current discourse about the need for a major constitutional rewrite.

Louisiana’s Constitution of 1921 contained 48,378 words when it was adopted, but with 536 amendments in 51 years, the document grew to nearly 255,500 words. That’s about the length of Shakespeare’s 11 longest tragedies combined. Not even the most consummate attorney could have known all that was in it. In his pitch for reform, newly elected Gov. Edwin Edwards appeared on television decrying the massive volumes of books needed to contain the state constitution.

Louisiana’s practice had become “government by constitutional amendment.” In 1970, a package of amendments was proposed to address the criticisms, but voters rejected all 53 proposals on the statewide ballot. Nineteen of the 53 proposals concerned only New Orleans. In two subsequent elections held during 1972, voters again turned down 36 of 42
proposed amendments, many of which again affected only New Orleans. With a constitution so detailed that it placed restrictions on many key facets of governance and no realistic prospect for continued use of the amendment process, the alternatives were either a constitutional convention or a revision commission followed by a convention.

With the newly inaugurated administration of Gov. Edwards, the 1972 Legislature passed Act 2 calling for a convention. There were 132 delegates in all, 105 of whom were elected from the corresponding number of single-member districts for the Louisiana House of Representatives, together with 27 delegates appointed by the governor. Fifteen of the appointments were from the public at large and the rest from various industry groups and unions.

The Act required the delegates to convene on January 5, 1973, to elect officers and organize committees and then recess until July 5th. During those seven months, a research team worked with each of the committees to draft a preliminary constitution. At the same time, convention delegates held a series of public meetings throughout the state to gather input on what should or should not be included in a new constitution. When the delegates reconvened in July 1973, the majority of the document had been written, which meant the delegates focused their time debating and refining. The convention process was highly publicized statewide, and PAR published analyses and commentary on matters before the body.

After more than a year of work, the convention produced a new constitution in January 1974. The proposed document was much shorter (36,252 words) and simpler than the unwieldy document that the 1921 Constitution had become. Portions of the 1921 Constitution’s 15 articles were lifted from the Constitution and reenacted as statutes, and many other provisions were repealed altogether. Nonetheless, the new document, in the eyes of many, still was not perfect. Indeed, on January 10, 1974, Gov. Edwards acknowledged the practical challenges of crafting an ideal constitution when he addressed the convention:

“Now, I must suggest to you … that what criticisms I have of the document, and what problems have arisen in the feel and the hustlings and bustlings of our state, arise, very candidly, from your failure to recognize that you were here to write a constitution, rather than to serve as legislators. Had you stopped your work after completion of the Bill of Rights and the three Articles on the Executive, the Legislature, and the Judiciary, a beautiful, fantastically well-engineered and prepared document would have been your work product. Practical aspects of your job, however, required you to go further; and it is when you got into those provisions which are really legislative, and not constitutional matters, that the problems began to develop …”

Despite these perceived shortcomings, the new 1974 Constitution was ratified by voters in a statewide election on April 20, 1974. Although fewer than 40% of the electorate turned out and voters in 36 of 64 parishes rejected the proposed document, the new constitution was ratified by a statewide vote with 58% in favor, or 358,588 to 262,030.

Forty-five years later, that Constitution looks much different. The first changes came in 1978, and since then 293 constitutional amendments have been proposed, of which 202 have been adopted. That is an average of seven amendments per year placed before voters, who approve nearly five per year on average, for an approval rate of 69%. In 2006 alone, voters were asked to decide on 21 amendments, the largest number of proposed changes in a calendar year since the 1974 Constitution was adopted. All were approved, with less than 30% voter turnout.

The result of this constant and frequent constitutional modification is a document that is about 72,000 words — twice as long as the original. As of January 1, 2018, Louisiana had the fourth longest constitution in the country, lagging only Alabama (388,882), Texas (86,936), and Oklahoma (81,666). What was once a reasonably short document that not only legislators, but also the general public, could read and understand, has now morphed into a document that would take days, not hours, to read. Moreover, many provisions that were once simple and straightforward have now been amended into detailed and often confusing restrictions that only attorneys and academics can understand.

As one constitutional scholar observed, “Some states have resorted to constitutional amendments for more than tuning up the machinery of government. California, Georgia and Louisiana in particular have chosen to shift many ordinary political disputes to the constitutional realm, using constitutional amendment as legislation by other means.”1 Another remarked, “Constitutional revision in Louisiana, whether in conventions or by amendment, has been sufficiently continuous to justify including it with Mardi Gras, football and corruption as one of the premier components of state culture.”2

Overwhelmingly, the article of our Constitution most often amended by voters has been Article VII regarding revenue and taxation. Article VII of the original 1974 Constitution was a mere 6,125 words and contained only a handful of dedications. Since then, more than half of the approved amendments (104 of 202), were amendments to Article VII, and most related to taxes, constitutional dedications and exemptions. About 25,000 words have been added to Article VII alone since 1974.

Increasingly, voters have ratified proposals that decrease the Legislature’s
spending authority through constitutional dedications. The original 1974 document contained fewer than 10 dedications; today, that number has grown to more than two dozen constitutional funds and even more constitutional dedications. As a result, nearly two-thirds of all Louisiana revenue that comes into the State Treasury is siphoned off for a specific use or program. The result is a budget that is, to a large extent, self-executing, leaving legislators with very little flexibility to craft a budget that funds today’s priorities and needs.

Why We Have This Culture
Changes in our state Constitution should promote stability so that we do not once again find ourselves wishing for a new, simpler and more effective constitution in the future. For this reason, those crafting a revised document should examine trends in state constitutions generally. They also should see how state constitutions compare with the U.S. Constitution—a concise document that has remained stable and effective for more than two centuries.

Throughout the 20th century, the pace of state constitutional amendments quickened, as did the ratification rate for proposed amendments. State constitutional amendments are thus being proposed and adopted more frequently. Various theories exist as to why this is true. Some have argued that the trend simply reflects changing public opinion and attitudes towards specific policies. However, this theory is at least partially undermined by the fact that despite the vast majority of proposed constitutional amendments being ratified, many are approved by only a small percentage of the electorate. Indeed, amendments just in the past two years have been ratified in Louisiana by as few as 14% of registered voters.

Others attribute the increased frequency of constitutional revision to growing dissatisfaction and distrust of the institutions and individuals tasked with operating state government. Under this theory, constitutional revision is the inevitable response to a lack of confidence in state legislators who are prone to shortsightedness and vulnerable to political pressures of the day. A recent study showed that for every 1% decrease in the level of trust voters have in their legislatures, their state constitution is 75 words longer.

In evaluating the theory that lengthy and heavily amended state constitutions reflect a general distrust of politicians, it is also informative to look at how states compare to the federal constitution. The average state constitution length is 39,861 words, and this number drops to 32,783 if you omit the mammoth Alabama constitution. (CSG 2018 Book of States). The average state constitution has been amended 152 times. By contrast, the United States Constitution is a short 7,591 words and has been amended only 27 times since its adoption in 1789. This vast discrepancy in length and amendment, at least in part, is likely related to the underlying substance and structure of the two types of constitutions.

Article I of the U.S. Constitution grants Congress a long list of specific powers, such as the right to borrow and coin money, regulate commerce, establish post offices, and define and punish “piracies.” The Supreme Court has long held that the federal government can exercise only those legislative powers granted to it by the U.S. Constitution. By contrast, state governments have historically been understood to possess plenary legislative powers, meaning they possess all legislative powers not otherwise ceded to the federal government or prohibited by the
federal Constitution. Louisiana courts have repeatedly confirmed the Legislature’s plenary authority over state finances, which allows it to take any action relating to finances not expressly forbidden by the state constitution. For this reason, rather than granting state legislators specific powers, state constitutions tend to restrict legislative power by placing limitations on the Legislature’s ability to do things such as enact local or special laws, create new taxes, increase existing taxes, authorize gambling or regulate the business of local governments without voter approval.

The plenary character of state legislative power, however, does not, on its own, describe the growing length and detail of state constitutions. Professor Alan Tarr from Rutgers University, who has written extensively about state constitutions, believes that by limiting the power of elected officials, state constitutions also reflect “a tradition of being skeptical of the people we put into political office.” As a result, state constitution makers have deemed it necessary to detail every limitation they seek to impose on legislatures. Louisiana’s Constitution certainly reflects this desire to limit legislative power. Indeed, almost every provision of Article VII is designed to limit the Legislature’s power of the purse by requiring the appropriation of funds to dozens of specific purposes and programs.

Ways to Change the Constitution
Article XIII of the Louisiana Constitution, which addresses constitutional revision, lays out both the requirements for amending the Constitution as well as the requirements for calling a constitutional convention and approving a new constitution.

An in-depth analysis of state constitution data reveals that the frequency with which state constitutions are amended is correlated with their length and with their ease of amendment.

As to the former, the most likely explanation is that longer state constitutions tend to include more detailed prescriptions and proscriptions which build rigidities into the document, thereby limiting the state’s ability to adapt to changing situations and necessitating constitutional change simply to govern. This is often the case with specific parts of state constitutions that have been amended over and over only to solve immediate or short-term problems without addressing the underlying larger problem. As scholars Frank Grad and Robert Williams have noted, “Every detailed constitution thus develops certain sore points, which become the foci for veritable clusters of constitutional amendments.” In this regard, it is safe to say that Article VII of the Louisiana Constitution, which has been amended 104 times, is the “sore point” of our current Constitution. The scholars have a term for it: “an amendment breeder.”

As to the ease with which state constitutions can be amended, Louisiana’s requirement of a 2/3 vote from each legislative chamber and a majority of statewide voters is similar to that of many other states. A few states, however, have made it considerably harder to change their constitutions. Tennessee’s constitution, for example, requires a majority vote from each legislative chamber, followed by a 2/3 vote from each chamber in the next legislative session, plus approval from a majority of statewide voters. This high standard for constitutional revision is reflected in Tennessee’s current constitution, which is a short 13,960 words and has been in place since 1870. Vermont’s constitution, which imposes a similar standard, is only 8,565 words and has been around since 1793.

To help achieve a more stable Louisiana Constitution, revisers should seek to impose a more demanding standard fo constitutional change. One way to achieve this is to adopt a system like Tennessee’s that requires a lengthier approval process. Another way is to ensure that only amendments that have garnered a high level of voter engagement are added to the Constitution. Voter data reveals that popular ratification of a constitutional amendment does not always mean public agreement with the change. Indeed, while approximately 70% of all constitutional amendments are ratified nationally, they are often approved by only a small percentage of the electorate. A PAR chart in the resources section shows the percent of registrants voting on amendments.

A “Limited” Convention?
The Louisiana Constitution does not contain any provision specifically allowing for a limited constitutional convention. Rather, Art. XIII, § 2 simply grants the Legislature general authority to pass a law calling for a convention upon approval by 2/3 vote of each legislative chamber. However, over the years, there has been at least some guidance suggesting that the Legislature could restrict the scope of a convention in a way that binds convention delegates.

In 1992, a State Representative requested an opinion from the Louisiana Attorney General on “whether or not the Legislature, when it calls a constitutional convention, can limit the convention to specific matters or to specific parts of the Constitution.” La. AG Op. 92-25, Mar. 23, 1992. The Attorney General at the time, Richard Ieyoub, concluded the Legislature could. Analyzing Article XIII of the Constitution, the Attorney General wrote:
“From our reading of the Constitution and jurisprudence, it is clear that Article XIII, Section 2 authorizes the legislature to issue a constitutional call. It is also clear that a constitutional call may be to revise the constitution or to propose a new constitution. A mode of revising the constitution is to all a convention. This mode of revision of the constitution was recognized as far back as the Constitution of 1812, Article VII. We conclude, therefore, with the opinion that it is not inconsistent with the 1974 Louisiana Constitution, nor Louisiana jurisprudence, for the Louisiana Legislature to issue a call for a constitutional convention, which may limit the convention to specific matters or to specific parts of the constitution in revising the Constitution. Furthermore, it is our opinion that a constitutional convention can do no more than authorized to do in the convention call by the Legislature.” The Attorney General’s opinion set the stage for two major constitutional revision efforts by the Legislature.

First, during the 1992 Regular Session, the Legislature passed Act 1066 calling itself into a limited constitutional convention “for the purpose of revising the constitution in order to provide for state and local revenue and finance matters relating thereto.” Pursuant to the call, the convention began on Aug. 23, 1992, and was composed solely of existing legislators. Shortly after the convention was convened, it was interrupted by Hurricane Andrew. The delegates nevertheless approved a set of changes to the Constitution that were grouped under a single ballot item and put before the people for a statewide vote on Nov. 3, 1992. The proposed revisions to the Constitution failed miserably, garnering only 38% of the vote.

Second, the Legislature passed a proposed constitutional amendment (Act 1148) that would have granted the Legislature the specific authority to call a limited convention. That proposal was also soundly rejected by voters, 39% FOR, 61% AGAINST.

Today, we are left with a situation in which a former Louisiana Attorney General in May 1992 in a non-binding opinion said that the Legislature can call a limited convention, which the delegates must honor, but in November 1992 Louisiana voters soundly rejected a proposal to expressly allow a limited convention. We have no guidance from the Louisiana Supreme Court.

Thus, when analyzing any proposal for a future constitutional rewrite, it is important to acknowledge that there is no guarantee that a convention called by the Legislature to address specific topics or sections of the Constitution would be bound by a limited call. Indeed, convention delegates, particularly if they include non-legislators who were uninvolved with the convention call, might, once convened, choose to address a broader set of topics. Given that Article XIII states that the “revision of the proposed constitution and any alternative propositions agreed upon by the convention shall be submitted to the people for their ratification,” then that view could well be sustained.

For this reason, PAR recommends amending the Constitution to specifically authorize the Legislature to call a limited convention and to limit the authority of future delegates to only those articles, sections or topics included in the legislative call. Such a provision would eliminate any uncertainty around the scope of a future convention and in turn help alleviate concerns that under today’s Constitution, convention delegates, once convened, might seek to expand the scope of their work outside the bounds of the Legislature’s intent.

We’re Better Than This
Yes, there are giant political, substantive and structural obstacles in the way of revising the Louisiana Constitution. Some of these erupted in 2018 when lawmakers proposed House and Senate bills calling for a constitutional convention, only to fail on the floor of their respective chambers. The concerns and opposition ran deep, especially among local government entities fearing a shift in power or guaranteed funding streams. At the time, the consensus had not grown large enough to lead to action. And many policymakers were uncertain as to exactly what constitutional changes or impact should be sought.

PAR’s fundamental position is that the Louisiana Constitution does not fit the ideal of what a constitution should be. In fact, it’s worse than bad. It is too long, unwieldy and inflexible. It holds us back from pursuing reforms and breaking from unhealthy traditions. PAR also recognizes the challenges and legitimate fears involved. Whenever a long-established pattern of spending is considered for change, opposition will arise. And revenue that is “freed up” from a dedication does not usually count as “new money” to spend, as the ensuing chapters will explain. PAR strongly urges those wishing to redesign the Constitution to consider creating a more foundational document that loosens constraints on potential reforms rather than writing a new document with new constraints that further tie the hands of legislators and local governments. There is a significant difference between an enduring document that allows fiscal reforms to take place versus a constitutional storage box that enshrines a detailed set of reforms that are different but no less flexible than before.

We in Louisiana should be able to create a new constitution that is a true foundational document allowing elected officials to pursue broad reforms and to budget with more flexibility within the same means. We should be able to reexamine the spending priorities locked into the Constitution in the 1980s and 1990s and determine if they truly reflect today’s evolving needs and values. We should be able to establish a constitution of greater permanence that changes less with time. And we should one day hold in our hands a constitution that we as average citizens can read and understand, and that legislators and governors can more readily uphold. With leadership and consensus, we can build a better foundational document that opens the way to greater genuine progress.

Recommendations:

  1. Create a more foundational constitution that loosens obstacles to reforms
    rather than containing constraints that are better housed in a statutory environment. Don’t replace one set of constitutional constraints with another.
  2. Require consideration of proposed constitutional amendments in two
    successive regular legislative sessions before the proposal is put to voters. (Article XIII, § 1)
  3. Require a higher level of voter engagement to approve constitutional amendments. Practically speaking, this might be achieved by scheduling votes on an amendment only during certain statewide or national elections. (Article XIII, § 1)
  4. Provide the option to allow a limited constitutional convention in which
    delegates would be authorized only to address matters and topics specifically included in the legislation calling for the convention. (Art. XIII, § 2) 
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