Florida voters will be asked in November to decide the fate of the work product of the third Constitutional Revision Commission since the 1968 Constitution that created the CRC process. Currently, this CRC has produced perhaps as many as 13 additional ballot questions (total of 18 on the ballot) effecting up to 25 changes to the Florida constitution.
Our current constitution was adopted in 1968 – and is celebrating only its 50th birthday. Florida adopted a new constitution, because the 1885 constitution was deeply flawed. Perhaps in hopes of avoiding the need to completely rewrite the constitution again, the 1968 drafters created the extremely unique process – the CRC – no other state has anything like the CRC, even after watching Florida’s 50-year history with one.
Most individuals would agree that the purpose of a constitution is to establish the basic structure of government and the fundamental rights of citizens. But, is this broad agreement as to the purpose of a constitution similar to agreeing that we should eat more broccoli? Or, is our agreement to this principle more significant?
The CRC was never intended to be a “super-Legislature” or a vehicle to propose putting issues in the constitution that ‘can’t get through the Legislature.’ And, it was certainly never intended they would place proposals on the ballot merely because they were thought to be a “good idea.” The CRC acting in this manner is more likely to lead to the need for a constitutional rewrite, similar to 1968, rather than avoid it.
The language creating the CRC clearly seems to envision a commission that is modest and circumspect in its proposals. Article XI Section 2 (c) of the Constitution states:
“Each constitution revision commission shall … not later than one hundred eighty days prior to the next general election, file with the custodian of state records its proposal, if any, of a revision of this constitution or any part of it.”
Modesty and circumspection can be seen in at least three parts of the provision. First, is the word “proposal.” It is singular – which implies that the CRC may put forward limited proposals – not a long list of proposals. Second, is the use of the phrase “if any” which suggests that the 1968 framers realized that the CRC could reasonable find no need to change Florida’s constitution. Third, is the word “a” as in “a revision.” Thus, the language in the Constitution regarding the CRC suggests it exists to consider important issues that require constitutional attention.
The current CRC has many good proposals that do affect the structure of government or basic rights for its citizens – and for those efforts, they are to be commended. They have worked very hard and devoted significant time away from their families and work to undertake this effort. They have addressed serious issues, which, although qualifying as issues of constitutional magnitude, the CRC members have decided not to place before the voters. That too is hard work.
Historically, the CRC process has met with mixed success with less than 40 percent of their proposals being adopted by voters. None of their work product in 1978 passed and in 1998, although most passed they still suffered some defeats. Compared to legislative or citizen proposals, CRC proposals have met with only about half the success. Citizen initiatives and legislative proposals both hover around an 80 percent passage rate.
So, back to broccoli. What is the harm in putting proposals in the constitution that don’t meet the test we all agree they should meet? Proposals that are really legislative issues that ‘seem like good ideas’ or the ‘legislature has refused to pass’ even though they had been repeatedly asked. Besides the possibility of ultimately destroying the constitution, they create the risk that good proposals go down with bad proposals, they demean the constitution as the important document we all want it to be, they create policy that is inflexible, and they can create unintended consequences and cost.
The CRC’s greyhound racing proposal is a classic example of a proposal that fails to rise to the level of a constitutional matter. Former Chief Judge of the Florida Supreme Court Major Harding is one of many legal scholars who shares the view that the greyhound amendment should not be in the Constitution.
In a column Justice Harding recently wrote, he identified the proposed greyhound amendment as one of three CRC proposals that do not belong in the Constitution noting that Florida’s Constitution is already three times longer than the U.S. Constitution and is “riddled with countless, ordinary laws and specifics of government policy and regulation, such as confinement of pregnant pigs, that lessen its status.” The Editorial Board of the Tallahassee Democrat/USA Today Network shares his view and correctly stated in an editorial that the greyhound proposal “… can be done by statute and doesn’t need to be in the Constitution.”
Of the remaining CRC proposals – the greyhound amendment received the fewest votes in the full CRC. The greyhound proposal most certainly does not belong in the Constitution. In fact, you could call the proposal the “Pregnant Pig Amendment” of 2018. It is purely a legislative issue. In past years, individuals have aggressively sought gaming rights, card rooms and slot machines, to ‘protect the historic pari-mutuel industry’ and to ‘enhance prize purses.’ Now, many of these same individuals seek to rid themselves of the ‘historic pari-mutuel industry’ so that they can maintain their gambling monopoly (the proposal is very clear about protection of all gaming monopolies) and enhance their profits because they will not have to roll any of the gaming proceeds into prize purses.
Some of the advocates of the greyhound proposal tell stories of animal abuse that are flat out fiction. Stories, which if true, would result in prosecution. No state attorney or jury in Florida would tolerate the animal abuse described nor would the Division of Pari-mutuel Wagering which closely inspects tracks and kennels every week. The only individuals that would suffer as a result of these alleged abuses would be the dog owners who have invested thousands of dollars to purchase each racing greyhound and thousands more to raise and train each dog.
If the greyhound amendment passes it could extinguish 3,000 direct jobs and 10,000 indirect jobs within 45 days of passage. It would also put the well-being of as many as 15,000 greyhounds in jeopardy. If you take away the ability of their owners and trainers to make a living – you also take away their ability to care for the dogs.
In addition, the amendment would have a significant financial impact on Florida. Over the last five years over $1.2 billion has been bet on live greyhound racing just at track ticket counters (that number is even higher if you count internet bets). The track in Orlando would be forced to close. The state would lose tax revenue and would also incur liability for a taking as they render the hundreds of millions of dollars in property invested by Floridians in this legal enterprise – worthless.
But beyond the economic impact, the gross misrepresentations from the advocates, the unfairness in preserving monopolies while creating – in essence – mini-casinos, there is a much more important reason that the greyhound proposal should not be advanced by the CRC – it simply does not belong in the Constitution.
Jeff Kottkamp is an attorney practicing law in Tallahassee. He served in the Florida House of Representative and was Florida’s 17th Lt. Governor. Paul Hawkes is an attorney practicing law in Tallahassee. He served in the Florida House of Representatives and is a former chief judge of the 1st District Court of Appeals. Their column appears courtesy of FloridaPolitics.com.