Election Alert for October 19, 2012 18 Days and Counting..

New Hampshire needs you please be sure to vote on Tuesday, November 6.

Ballot Question 3: Con-Con in the Era of Citizens United?

Previous Election Alerts discussed the first two of the three questions you will see on your ballot, Question 1 relating to a permanent ban of an income tax and Question 2 regarding the legislature and the court system (see below for an update on Question 2). The third and final question, as it will appear on your ballot, is as follows: Question Proposed pursuant to Part II, Article 100 of the New Hampshire Constitution. 3. Shall there be a convention to amend or revise the constitution? Yes No

Note: While Questions 1 and 2 require two-thirds of those who vote on each for passage, Question 3 needs only a simple majority to pass and begin the process of arranging for a constitutional convention. It is a long road from that point to any changes to our constitution, but the path isnt free of minefields and potholes.

A Pithy Primer on our Constitution and Its History Although we pride ourselves as being first in the nation, our state constitution is only the second oldest permanent constitution in the United States behind, of all states, Massachusetts. Even at that, we had three constitutions before we settled on the final one in

1793. Only those of 1784 and 1793 were actually ratified by the voters of our state. Some may choose to view the first, the Constitution of 1776, as lacking in comparable prestige or credibility to the latter. Indeed, the 1776 document established only a rudimentary government and failed to contain arguably the most important part of our current constitution, the Bill of Rights. (For a deeper appreciation of each element of our current constitution please see http://www.nh.gov/constitution/constitution.html.) Historically, we have approached changing our constitution very cautiously and very sparingly. While the average state constitution has been amended 115 times, we have amended ours a mere 78 times (out of 157 attempts). For the curious, the record-holder for treating their constitution like a daily blog is Alabama, whose constitution has been amended 700 times and, not surprisingly, is also the longest of the 50 states constitutions. During New Hampshires infancy and adolescence our citizens showed a surprising restraint in their desire to make any changes to our founding document. In an 85 year period stretching from 1792 to 1877 only one amendment was made. In fact, we turned down more than a dozen opportunities to convene a constitutional convention for the purposes of making alterations to our constitution during the 19th century. Interestingly, if our 19th century ancestors were loath to open up our constitution to tinkering, their 20th century counterparts embraced almost every opportunity. Constitutional conventions were convened every decade leading to the last which was held in 1984. Still, the bar for passing amendment was high and the final number passed minimal. Just How Easy is It to Change New Hampshires Constitution? The short answer is: it is not at all easy to achieve. That is underscored by the fact that in New Hampshire only about half the attempts have been successful. There are two ways to amend our constitution. The first is during the course of the typical legislative session. A constitutional amendment (CACR) requires a hurdle of three-fifths majority in each chamber of the legislature in order to pass and be placed on the ballot for the general election. The alternative route to the ballot is through a constitutional convention. The bar is actually higher for this body. While passage requires three-fifths majority in either body, in the legislative arena that is based on the number of members present and voting, in a constitutional convention the requirement is three-fifths of the membership. If a proposed amendment is successful in navigating through either route to the ballot, it must still garner two-thirds approval by those voting on the ballot question in a subsequent general election in order to pass and become a permanent part of our constitution.

So Just How Does a Constitutional Convention Work Anyway? In our early years a constitutional convention was the only way we could make alterations to our

constitution. The convention itself is comprised of delegates who are elected in the same way and same proportion as the NH House of Representatives. If Question 3 on the November 6 ballot is approved by a simple majority of those voting on the question, the general court will fix the date and time of the convention and make arrangements for the election of 400 delegates. Ostensibly, these delegates run as non-partisan individuals rather than members of a specific political party. Preparations must also be made for the date and location in the capitol at Concord of the convention. When it convenes the body will establish its own rules for procedures and selection of a president and such officers as it deems necessary. The delegates receive $3 per day (just so you know, thats three dollars more per day than your current legislator makes in compensation) and mileage for attending sessions of the convention. Support must be provided by the Secretary of State to the delegates in the form of clerical services, books and documents necessary for deliberation, copying, printing and so on. Delegates can make recommendations to amend any and all portions of the NH Constitution. Subject to whatever specific rules the body adopts at its outset, each amendment must be considered by either the body at large or a designated subset of the convention. As mentioned above, if it gets passed through the convention, the amendments still must be voted on at the next general election in order to be ratified.

So Should We Vote Yea or Nay on Question 3? There is no simple answer to this question and there are plenty of arguments on each side to be persuasive. Some argue, for example, that opening up our entire constitution is a very dangerous enterprise that can result in potentially harmful changes driven by extreme ideologues. Others argue that there are sufficient safeguards in place to prevent such harm and that refreshing the constitution from time to time maintains its currency and relevance. Constitutional scholars JH Snider and G. Alan Tarr lay out the principal arguments relative to constitutional conventions in a 2010 piece titled A Historic Year for Con-Cons, published in HuffPost Politics http://www.huffingtonpost.com/jh-snider/a-historic-year-forstate_b_760455.html. Although seeming generally favorable to the upside potential of a con-con, these authors make one particular point about special interest groups, with plenty of power and money, and how they may effect the outcomes of a constitutional review. It's true that state constitutions are very long and, for the average person, unloved and rarely read. But state and local governments affect citizens every day, and it is the state constitution that creates, structures, and limits those governments.More negatively, the less important a passage may be to the average person, the more important it may be to a special interest group who fought with blood, sweat, and tears to get a legislature to codify one of its privileges not just in law but in constitutional law -- the hardest type of law to change and the type of change only the most powerful special interests are likely to win. State constitutions indeed do

matter. That fear underpins the arguments made by those who oppose holding a constitutional convention and recommend voting no on Question 3. In an era in which our political landscape is dominated by millions of dollars in special interest money approved by our highest court, opponents fear the election of a majority of delegates carrying a specific agenda. Given the extreme nature of our current legislature and the types of legislation they have put forth over the past two years (recall the elimination of core standards for educating our young, attempts to eliminate language mandating state responsibility to educate our children, and so on), this fear is not unfounded. The floodgates of money opened up by the Citizens United case may well be used to support delegates who will promote the desires of special interest groups. The average citizen who wishes to participate in a review of our constitution would be at a significant disadvantage if s/he had to launch a robust campaign in order to win a seat at the table. Consider, if you will, the amount of money now being poured into even NH House races, campaigns that not long ago required a minimal purchase of yard signs and vigorous door-knocking. Perhaps the two most compelling reasons to vote against holding a constitutional convention at this time are 1. there doesnt appear to be a compelling constitutional issue to resolve and 2. the costs of holding a convention are significant and have not been included in the current biennial budget. 1. Is There a Compelling Reason? Clearly the current legislature has found a number of reasons to propose constitutional amendments. Several were taken up in the past legislative session, although only the two represented by Question 1 and Question 2 on the ballot were successful in gaining the threefifths vote for passage. Otherwise, there has been precious little hue and cry by our citizens for changes to our constitution. Some believe, however, that trying for a con-con provides a bit of insurance for the first two questions. For example, if Ballot Questions 1 and 2 are passed in the general election, these will be written into the constitution. If they fail to be passed, holding a convention would provide another opportunity to introduce these amendments. With the polarized political environment we face today, this may not be the best time to hold a convention that needs to focus on the future wellbeing of the state and not just the current political environment. Delegates could bring their political bias to the table and be unable to participate objectively on issues so recently dealt with. Moreover, special interest groups would have more opportunity to spend money in New Hampshire to sway the delegates ahead of the meeting. To be fair, it is also possible that there could be positive outcomes of the deliberation of a constitutional convention. For example, at the most recent constitutional convention in 1984, the weighty matter of whether the state had the right to impose mandates on our communities without funding those mandates was taken up. An amendment was offered and passed at the convention to secure a constitutional provision preventing the state from imposing such

mandates unless these were funded. Although it faced some opposition, this amendment passed and became Part 1, Article 28-A of our constitution. Most would consider that a positive result of that con-con. 2. Significant Costs The issue of costs is much clearer. Just the compensation of $3 per day per delegate accrues to $1,200 per day. At 55.5 cents per mile, mileage expenses for the delegates will amount to thousands of dollars per session requiring 400 delegates from all over the state to travel to Concord. If the proposed convention lasts the same six weeks duration of the 1984 constitutional convention costs will likely amount to between $500,000 and $700,000 just in direct costs for the delegates. Add to that the clerical costs of supporting a body of 400 in materials, printing and recording of the proceedings and the aggregate costs of holding the convention will likely reach a million dollars or more. This does not include the costs of the election of the 400 delegates with its attendant printing of ballots along with logistical work for the Secretary of State and each community to administer. Considering the pros and cons of holding a constitutional convention at this time, I would recommend voting no on ballot Question 3.

Update on Ballot Question 2

The following is an excerpt from an opinion piece penned by former Chief Justice John Broderick on the dangers of ballot Question 2 (CACR 26). Agreeing with former NH Governor, Atty. Stephen Merrill, and former Supreme Court Justice, Joseph Nadeau, Broderick argues that this amendment to our constitution is wrong for New Hampshire and wrong for ensuring justice to our citizens. http://www.seacoastonline.com/articles/20121014-OPINION-210140326?cid=sitesearch Protect judicial independence: Vote no on CACR26 New Hampshire may claim the first written constitution in the United States, adopted in 1776. That constitution was designed for the needs of the time and contained none of the elements one would expect to find in a modern constitution no independent executive branch, no bill of rights, and no provision for an independent judiciary or separation of powers The framers of the 1784 constitution created a permanent and independent judicial branch, for they recognized the preservation of individual rights could only be secured, as stated in Part I, article 35, by the "impartial interpretation of the laws, and administration of justice." This protection is in stark contrast to the original 1776 constitution, under which the Legislature had the authority to appoint judges and to remove them at will. Indeed, the Legislature would often fill vacancies from among its own members, who would then serve

as both legislators and judges Today, another constitutional amendment has been proposed CACR 26 which would modify Part 2, article 73-a to give the Legislature concurrent power to regulate practice and procedure in the courts, with the statute prevailing over the court's rule in the event of a conflict between the two.. It is good to remember, after all, that judicial independence is not just about keeping the Legislature in check, as important as that is. It is also about fulfilling the constitutional guarantee to each citizen that the courts will act impartially and free from the influence of political interests. Politics is essential and important in American life as it should be. But it should have no role inside our courthouses. History shows how the Legislature has undermined the ability of the courts to that in the past, and why the people of New Hampshire should vote "No" on CACR 26. John T. Broderick was chief justice of the New Hampshire Supreme Court from 20042010. Lawrence Friedman is a professor of constitutional law at New England School of Law and at work on a book about the New Hampshire Constitution.

Voting Tip of the Day: The best way to ensure your voice is heard is to plan out your schedule now for voting on Tuesday, November 6. Studies have shown that when you make plans well in advance for when you will go to the polls on election day, there is a far higher probability that you will actually go and cast your vote. Additionally, if you are not yet registered to vote in the town or city in which you are domiciled you should do so on or before October 27 (check with your town/city clerk for times to register). Although you will be allowed to register on election day, doing so now will reduce both your time at the polls and any contribution to waiting lines. Secretary of State Bill Gardner estimates up to 100,000 new registrants on election day. Please encourage friends, family, neighbors and co-workers to register prior to election day to reduce waiting lines at the polls. As mentioned in prior Election Alerts, you will be asked to present a valid photo ID (see http://sos.nh.gov/ for list of acceptable forms of ID). NOTE: If you do not have a valid photo ID you will be permitted to vote after executing a challenged voter affidavit.
Paid for by Jackie Cilley for New Hampshire. Bruce R. Cilley, Treasurer. PO Box 262, Barrington, NH 03825. Stay in touch on Facebook and Twitter