Bil Browning

Constitutional Convention to doom Hoosier queers?

Filed By Bil Browning | July 30, 2007 3:44 PM | comments

Filed in: Marriage Equality, Politics
Tags: constitutional amendment, Indiana, marriage, Mitch Daniels, property taxes, SJR-7

Last week I blogged about the current Indiana property tax revolt and the connection to Indiana's constitutional amendment to outlaw same-sex marriage and civil unions. While the story got tons of local coverage, a few thought I had gone off the deep end. I repeated a rumor I'd heard that the Indiana Republican party (or a faction inside the party) were wanting to play hardball with Democrats over the mounting property tax fiasco. The Pubs would help solve the tax problem in a special session of the legislature if the Dems would agree to pass the amendment.

Word on the street is that the Governor is considering calling a Constitutional Convention - the first since 1851 when the current Constitution was written. With taxes spiraling out of control and problems everywhere with Indiana's antiquated government style, the Governor has formed a blue ribbon commission to study how to best achieve government reform. One of the questions posed to the commission is whether or not we should just scrap the entire constitution and start over by writing a new one.

Suddenly the possible triangulation of property taxes, same-sex marriage and the Constitution has become clear to several others around the state. Kudos to Evansville Courier Press reporter Bryan Corbin for today's article that directly addresses the issue.

But the risk of unintended political consequences concerns state Rep. Dennis Avery, D-Evansville.

"If we have a constitutional convention, there's no guarantee (the delegates) would do the things the governor wants," Avery said. "You're creating an unwieldy animal that could do what it wants to do, as long as the public supports the final project."

Avery recalled controversial social issues that special-interest groups have tried to amend into the state constitution in recent years. Much of this year's Legislature was consumed by debate on one proposed constitutional amendment, SJR 7, the same-sex-marriage ban, which was approved in the state Senate but did not pass in an Indiana House committee.

A constitution rewrite would open the door to adding SJR 7 while bypassing the time-consuming amendment process. But one of the most vocal supporters of SJR 7, lobbyist Eric Miller of the conservative group Advance America, said he opposes a convention.

"You could have a constitutional convention that could get into many more areas other than finding ways to streamline government," said Miller, who ran for governor in 2004. He said he prefers to pursue SJR 7 as an amendment, not through a convention.

So does state Sen. Brandt Hershman, the Senate sponsor of SJR 7.

"I don't believe in mixing issues," said Hershman, R-Wheatfield. Senate President David Long says the "tried-and-true" amendment process allows time for deliberation.

"There's some wisdom in that. You don't race to a conclusion," said Long, R-Fort Wayne, who opposes a convention.

I've been hearing all kinds of rumblings and mumblings lately about possible outcomes and reasons. Let's see what we already know. Maybe we can draw some conclusions...

  • Mitch Daniels ran against Eric Miller in the primary election for Governor. Mitch ran as a moderate. Miller as a conservative.
  • Miller, who runs the faux-religious organization Advance America, has long advocated for SJR-7, the constitutional amendment against civil unions and same-sex marriage. Most of Miller's focus has been on property taxes lately. Every bit of messaging carries the Miller mug and name; even the Advance America site now reflects how much God loves to meddle in tax code.
  • Miller and other religious right organizations in the state have taken swipes at Daniels lately for sending a letter for Indianapolis Pride and not supporting the marriage amendment.
  • Mitch Daniels is not a popular governor. The Republicans are not a popular party currently. Mitch is worried about a possible rematch with Miller.
  • Mitch swings right and announces that while originally saying he thought an amendment was divisive and unnecessary, he didn't mean it and he supports it.
  • The Governor starts looking into ways to appease the right to try and keep control.

One of the most popular rumors I'm hearing goes like this... What better way to ensure that voters will keep you around than scrapping the entire Constitution and starting over from scratch? After all, will you want to vote out the guy that's working like a dog to reform your ancient government? You don't change horses in midstream and Hoosiers aren't big on change to start with. The current "Throw the bums out!" feeling would pass right over Daniels if reform that dramatic were to start happening. Add in the "feel good" special interests amendment for the religious right and he's got himself a wide and easy path to re-election.

The only way for this to get screwed up would be for Miller to announce he's running. Miller - with his face and name on everything - swears he won't be running. (Wonder what Daniels appeased him with? I'd hazard a guess...) Miller also says he doesn't support that constitutional convention. But he doesn't have to, does he? He can sit back and say "Hey, it wasn't me that called this convention. But while we're having one already, could we look at the pretty birdie over here in the gilded cage?" It gives Daniels the prop he'll need from the right while shifting some of the focus off of Miller, a noted lobbyist, who can quietly get the deed done.

So is it game-set-match? Not yet. As I said earlier, Hoosiers are slow to change. After all, this commission still has to study the question and come back with a recommendation. They might not be in favor of a convention. We don't know. But I'll certainly be keeping an eye on it and my ear to the ground.

So whattaya think? Conspiracy theory? Or possible situation?

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Mitch Daniels and the Indiana GOP would love to pretend that the Republican rank and file are 100% behind him and his re-election bid, but the fact of the matter is that there are a lot of disgruntled conservatives across the state. The sale of the Indiana Toll Road was the general equivalent of the Dubai Port Deal at a state level, and a lot of the right-wingers in the state were pissed that their man Mitch would sell a public infrastructure to a foreign consortium.

I think there is a real possibility that Miller could step in and try to get one wing of the party with his talk of fiscal change, and the other with his talk of making homosexuality the illegal act that the good book says it is.

And lets be honest here: If a constitutional convention is called, there is no way in hell that Miller doesn't bring his circus to town, with all of the hateful bells and homophobic whistles he can manage.

VERY good comment, Don. I'd like to know the answer myself. I spent a good long time looking around and couldn't find a clear answer myself and left it out because of it. Thanks for bringing it up right away.

I'm worried about Miller's true motives too, Thomas. All his literature and rallies and e-mails and appearances sure don't send the message "I'm NOT running for office."

[EDITOR'S NOTE:] I accidently deleted Don's comment. I'm recopying it here, but it will be under my name. Sorry Don!

One of the questions all of this raises is what the mechanism would be to call such a convention. Article 16 of the current constitution contains only one method: the current two-separately-elected legislatures have to pass the measure and then a popular vote. I haven't read all the other sections but don't see anything about a constitutional convention.

Interestingly enough the Indiana constitution prior to the current (1851) document had a provision saying that every twelve years the people could vote on holding one, and apparently that is how the convention that produced our current one got called. The U.S. Constitution contains two ways for it to be amended: 2/3 vote in each house of Congress and then ratification by 3/4 of the states, or one that ultimately involves a constitutional convention. So far as I know because of the can of worms it
would open nationally, the latter has never been used. So, back to my original question: without a provision in the current Indiana constitution, how does one get called, by who, and how does this become legitimate? I'm sure people are looking at that one. If anybody knows it would certainly be enlightening.

When this subject came up on TDW, I wrote that maybe we were making too much being worried about Miller and this constitutional convention idea. I was going to write about this on my own blog but am taking a hiatus. Points about a constitutional convention: 1) Don is correct that the 1851 Constitution does not speak of conventions and he might want to take a look at Wright v. House, 115 N.E. 943 (Ind. 1917) and Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1 (1912) (the last one is an amazing bit of conservative judicial activism); 2) I know Mitch talked about this when he ran last and did nothing and so why now is a good question (my own opinion varies between he has no idea of what he is talking about - his knowledge of Indiana's Constitution being shaky - to it is a red herring; and 3) in 1851 there was an election for delegates - two per county, IIRC - and just how well have Miller's candidates done in general elections where the electoral districts have not been gerrymandered? A good deal of oxes could get gored in a constitutional convention but do take a look around at other states who have changed their state constitutions more regularly than we have and you will see that the Bills of Rights do not change. I still think it is a very interesting idea and one that the progressive community ought not reject out of hand.

Bill Groth | July 31, 2007 2:58 PM

I have not really engaged in the debate over whether Gov. Daniels' idea for a constitutional convention is, on the whole, a good or bad idea. But I am intrigued by it. According to Constitution Making in Indiana, Vol. IV. 1930-1960, on Jan. 24, 1945, House Bill 207 was introduced to determine if a constitutional convention should be called. The bill is set forth at length and verbatim at pp. 140-149 of that book. The measure would have scheduled a referendum in Nov. 1946 to vote whether a constitutional convention should have been called in 1947. Interestingly, it forbade political parties from nominating candidates for delegates to such convention. Also from that volume it also appears that a referendum over a proposed constitutional convention was actually held in Indiana during the November 1930 election, which resulted in a vote against such a convention, with 355,546 voting in favor and 439,461 voting against.

Vol. II says there were also attempts to call conventions in 1881, 1895 and 1915, and bills providing for referenda in 1879, 1883, 1885, 1887, 1899, 1903 and 1911. A call for a constitutional convention was endorsed by both the Republican and Progressive Party platforms in 1912. The impetus for a convention that year was the attempt to gain women's suffrage. It appears there was also an actual plebiscite on calling a convention in 1914, which was defeated by a vote of 235,140 to 338,947.

Vol. III contains discussion about other attempts to call a convention in the days before the passage of the amendment giving women the right to vote. It reports on a decision of the Indiana Supreme Court in 1917, Bennett v. Jackson, 186 Ind. 533, holding that the people must vote to call a convention; one cannot be decreed by the governor or legislature.

The point is, there's lots of historical material out there for lawyers and scholars to look into with respect to the procedural requirements for calling a constitutional convention, including bills that have been introduced over the years to do just that. But it does appear that before any constitutional convention may be called, the people must first approve it by majority vote. At least that's what the Supreme Court ruled in the Bennett case in 1917, which as far as I can tell is still good law.