A Citizens’ Guide To A Modern Constitutional Convention (Pennsylvania)
Prepared for the The Constitutional Convention Commission By The Civic Research Alliance
A constitutional convention is among the rarest events in Pennsylvania. After the original constitutions authored during Commonwealth's 1776 and 1789 conventions, citizens of Pennsylvania witnessed only three subsequent conventions over the past 220 years. This infrequency provides scant experience, but a rich history, to guide the next convention in Pennsylvania, should one occur. In preparation, the Constitutional Convention Commission requested this study to explore a process not used in Pennsylvania since the limited convention in 1967-1968, and not fully used for over a century.
Pennsylvania's landmark 2006 and 2008 elections for the state House and Senate have fueled dialogue for meaningful government reform. From quiet conversations among Capitol Hill insiders to public debates, editorials, and legislative hearings, the idea of a constitutional convention has injected itself solidly into recent political debate. Further, there is now movement towards a constitutional convention in several large states, including New York and California.
This study does not include a recommendation for or against a constitutional convention; the chapters that follow determine how best to plan and implement a convention if and when one is called.
Calling a Constitutional Convention in Pennsylvania
The Pennsylvania constitution is silent regarding conventions. The procedures to call a convention are the product of Pennsylvania Supreme Court decisions since the last convention in 1967-1968. The court has decreed that conventions are an acceptable way to change the constitution (if only because the current constitution does not specifically prohibit them), and that conventions can be called only by the General Assembly through special statute. Hence, the prerequisite for a convention in Pennsylvania lies in the General Assembly's decision to enact legislation that takes the approval for a convention to the voters.
Decisions to call a constitutional convention are controversial everywhere, and Pennsylvania is no exception. Some view a convention as an unnecessary or expensive alternative to the use of constitutional amendments or focused statutes. Others see the intricacy of twenty-first century policy issues, with their impact across state agencies, as the preferred solution to revamp the constitution. A position "pro" or "con" often stems from one's purpose to revisit the constitution: adjustments can be made by amendment, but reform requires a convention. Following is a sample of common concerns.
Pro Convention Statements
Responding Con Statements
The constitution presents too broad a range of issues to be addressed one at a time; it is better to institute multiple reforms simultaneously
Similar results can be achieved though a less drastic or threatening way, such as multiple amendments and incremental statutes
The current Pennsylvania constitution of 1874 is a product of that time; 21st century realities (economic, social, and political) mandate a new constitution
There is no guarantee (and even less confidence in some circles) that a convention will provide a better or more modern constitution
The depth and breadth of needed changes demand a change at the constitutional level
Most problems (political and otherwise) present today in Pennsylvania are not a direct product of the current constitution
However, pro or con, a convention can be high risk if not properly planned and managed, or when strong leadership is lacking. All who come to a constitutional convention will have an agenda, and each will bring fears of what could happen. But, as public initiatives and referendums in other states, and the amendment process in Pennsylvania show, similar apprehension can be applied to every method of changing a constitution when one's agenda is highly focused.
The Purpose of a Constitutional Convention
The fundamental purpose of a constitutional convention is to adopt structures and operations that make state government "work." A second purpose is to make sure the constitution remains relevant, providing meaningful and practical solutions to evolving circumstances. A constitution can hinder effective and efficient state government by clinging to provisions that are decades (and in Pennsylvania more than a century) out of date with contemporary economics, social mores, and political practice.
Conventions can also provide an efficient vehicle to create long-term solutions and avoid problems often produced by the (often unintentional) ripple effects of single amendments. Further, a constitutional convention can address many issues, problems, and challenges during a single point in time-a process more difficult, and perhaps less effective, under the "single subject" rule for the amendment process in Pennsylvania.
Preparing for a Constitutional Convention
The role of convention planning and logistics cannot be overstated. The first order of business is setting the time, place, and duration of a convention. At the very least, logistics will include speaker coordination, setting up public meetings, preparing and disseminating materials, managing facility needs, providing for communications, and handling post conference reports, archives, and other follow up activities.
However, in Pennsylvania no convention structure is provided by the constitution. This omission presents two major consequences for convention planning: it must be deferred until a convention structure is framed by legislation, and needed preparations must begin immediately.
The first action is assigning responsibility for planning the convention. The 1967-1968 convention employed, by statute, a Preparatory Committee. Other options include:
- Establish a temporary state agency
- Create and fund a Preparatory Commission
· Have the convention leadership directly hire temporary staff
- Contract a professional events group.
Any deliberative body needs a governance structure to promote the orderly and methodical work of the convention-made more important when its business must be completed in a limited amount of time. The breadth and depth of convention preparation is underscored by the following sample of activities:
· Electing officers
· Setting meeting times and daily agendas
· Establishing the role of the president and other convention officers (powers and duties)
· Agreeing to the rights and duties of convention delegates
· Setting motions and other rules of order
· Identifying experts to present information and analysis to delegates
· Sending invitations to address the convention, and devising rules for debate or presentations
· Creating committee procedures
· Setting convention schedules and agendas
· Establishing a committee on rules and organization
· Adopting standing rules, with the ability to suspend or amend such rules
· Assigning official recorders or reporters for convention activities
· Providing communication systems (including Internet and storage/retrieval systems for the delegates and the public)
· Taking the roll and setting voting procedures
· Establishing committees by topic and for general convention support (such as rules, public relations, reporting, etc.)
· Developing a system for submitting proposals, recommendations, or petitions to the convention
Embracing New Technology
Any discussion of a future constitutional convention in Pennsylvania will include a debate of the advantages/disadvantages of a face-to-face versus a virtual convention. Significant advances in technology and successful use of virtual conventions in private business validate this approach as viable for a constitutional convention. A virtual constitutional convention is a real-time meeting of convention delegates set over a specified period of time with its own online location. In addition, events leading up to the convention, such as public hearings, can be held in this same virtual location. Existing technology and provide convenience, cost savings, and attract public attention and encourage citizen input.
Calling a virtual convention will be controversial. It is becoming a mainstay in the corporate world, but is still "out of the box" for the public sector-due in no small part to the infrequency of state constitutional conventions. However, a virtual convention could attract a limitless audience that transcends age, culture, political affiliation, geography, and points of view. With the recent proliferation of Internet sites and personal devices, a constitutional convention that follows previous formats may not seem important or interesting to a majority of Pennsylvanians who have direct access to many competing choices for the their time and involvement.
The real decision for convention planners is how to best match available technology with convention activities. The options include:
· Planning and holding a completely virtual convention
· Using technology for preparatory work with delegates (with simultaneous access for voters and organizations)
· Maximizing public interactions (message boards, webinars, official convention websites)
· Substituting a virtual application whenever costs can be reduced through access to convention materials from any location at any time for the delegates and for the public.
Citizen participation is, in one sense, built into the constitutional convention process. For instance, voters must approve a call for a convention, must vote for delegates, and must vote to approve/disapprove the proposals from a convention. However, the opportunity for citizen participation in the next convention will go far beyond previous models and be important on two levels. First, there is need for educational programs to assist the general public understand, evaluate, and judge the issues placed before the convention. Second, without an organized educational program Pennsylvania voters will be asked to adopt or not adopt convention proposals they may not fully understand.
Opportunities to increase citizen participation during a constitutional convention include:
· Use of all possible forms of communication-brochures, articles, internet sites-to teach the history, purpose, and issues of the convention
· Use of new technologies, especially computer and telecommunications
· Statewide speakers bureau
· Establishing an official convention website
· Holding regional and town hall meetings
· Offering public hearings with debate and input for the delegates
· Contracting with experts to participate in regional hearings and for the convention
· Asking statewide organizations to assist in the sharing of information among their members
· Use of focus groups
· Providing interviews and prepared programs for radio and television stations
· Creating public service announcement for all media
· Involving universities, law schools, and colleges in the dissemination of information
· Study guides for the public and for students
For many, the decision to support or to not support a constitutional convention is directly linked to the citizen's perception that an open and fair process of delegate selection will first take place. Defining a delegate selection process is an integral part of proposing a convention, which can be accomplished through election, by appointment, by random selection, or through the use of a Citizen Assembly. In addition, eligibility of delegates must be determined; there are two categories of eligibility: universal requirements and specific conditions or characteristics that prevent an individual from serving as a delegate.
The most common definition of delegate eligibility among states is meeting the same eligibility requirements as members of their General Assembly. Further clarifications determine who may or may not be convention delegates (examples from other states include legislators, judges, lobbyists, or certain family members of ineligible delegates).
Most state constitutions provide a method to elect delegates to constitutional conventions (Pennsylvania is an exception). There are, however, differing methods for electing delegates, though each begins by determining the number of delegates per "district," then defining what constitutes a district. Elections can be designed to increase public representation. For instance, a voter, when choosing two candidates from a list, may be required to vote for one woman and one man. This process is common to many organizations, clubs, volunteer agencies, religious groups, nonprofit boards, and political parties.
Another method of choosing delegates is by random selection. This process removes possible bias from delegate selection and provides a statistically accurate representation of the total population of a state. To date, this process is primarily used to call jurors in the United States, but random selection is routinely used to establish citizen commissions and citizen assemblies in countries that include Great Britain and Canada.
Moderating Convention Influence by those Currently in Power
It is certain that the public, either directly or as members of organizations, will carefully watch for any hint of misconduct or lack of transparency during convention proceedings. Certain groups will take the role of watchdog; others will watch presentations and debates in alert mode for opposing views or sources of support.
In the end, there is only one absolute way to moderate the influences that will be drawn to a constitutional convention: Pennsylvania voters must know and elect delegates who will reject expected outside influences. The corollary is nominating delegates who will put constitutionalism and the needs of the Commonwealth before their own interests. Beyond that, the public is dependent upon open media coverage; independent, objective expert testimony; polling results; and public hearings.
Limited Conventions in Pennsylvania
The General Assembly of Pennsylvania in 1967 called a "limited" convention, setting exact issue boundaries for the constitutional convention to be convened that year. A limited constitutional convention sends one clear signal to the delegates: There are specific issues you are to address, but you are not authorized to write a new constitution .
The argument for limiting a convention is to avoid a "Pandora's Box," or a "runaway convention." More specifically, organized groups of all types and motivations try to limit conventions to preserve prior legislative successes (often hard fought), sometimes through constitutional amendment. An open Pennsylvania convention, with its risk of change to any Article or Section, puts at risk past political victories. The level of risk seems inconsequential; the very chance of change, no matter how remote, is sufficient to support a limited convention.
In Pennsylvania any limitations placed upon a constitutional convention are included in the ballot for or against calling a convention. Hence, the General Assembly requires voters to approve a convention with its limitations as part of the same ballot question. This approach was decreed constitutional by the Pennsylvania Supreme Court in the late 1960s.
Conventions may be limited not only to subject matter, but also by time. Again, legal precedent in Pennsylvania allows the enacting legislation to place a time restriction on a constitutional convention, providing a start and ending date. This allows planning, budgeting, and management of the convention. Knowing a convention will adjourn sine die on a date certain provides incentive for the delegates to complete assigned activities. It also allows the recommendations or proposals of the convention to be in sync with the Pennsylvania election cycle-for the upfront election of delegates and for after-the-fact voter approval of convention resolutions.
Summary of research findings
A Brief History of Constitutional Conventions in Pennsylvania
Pennsylvania has convened five constitutional conventions in its history, beginning in 1776 and followed by 1789, 1837, 1872-1873, and 1967-1968. Additional calls for a convention were defeated by the electorate six times. The following circumstances appear crucial to the approval or defeat of a call for a convention in Pennsylvania:
- Timing - Moments in history when a constitution convention is most needed is when the electorate is the least interested, or is distracted (including after World War I and the Great Depression). Public support for a convention is strongly correlated with general discontent among the electorate, not only with government but with a range of institutions.
- Need for Catalysts -Generally, the calling of a convention was approved when publicly supported and endorsed by a coalition of groups. Conversely, conventions supported or endorsed by a narrow group (including individual Governors and/or Commissions) fared badly with the electorate.
- Need for strong, prominent leadership- Strong endorsements from Governors, former Governors, legislative leaders, political party leadership, and statewide organizations played a major role when the electorate approved a convention.
- Need for substantial preparatory work and convention support- The 1967-1968 convention was assigned a Preparatory Committee that began work one full year before the convention was called to order. All together, 216 staffers were hired during the convention to manage and facilitate activities.
- There is slight written history of the behind-the-scene workings of a convention -However, they were not the politically- or lobbying-free idealistic events described by some written accounts. The primary source of information is found in the personal notes of delegates. Even the 1967-1968 convention has no filmed record.
Primary Outcomes by Individual Constitutional Convention in Pennsylvania
Constitutional conventions provide significant change in state government structure and operations. The following table summarizes major contributions of each convention in Pennsylvania's history.
Contributions to the Constitution and to Pennsylvania's History
· Opened delegate selection to citizens from all walks of life and from all parts of the Commonwealth
· Moved quickly to take advantage of the excitement over the Declaration of Independence and the presence in Philadelphia of prominent state leaders
· Established apportionment of representation among Commonwealth counties
· Created a bicameral state legislature
· Moved to single executive in form of a Governor
· Overhauled and began unification of the Commonwealth judicial system
· Took advantage of public discontent following the economic panic of 1837
· Prepared for a public education system in Pennsylvania
· Added a process to amend the constitution
· Provided overall, general reform of state government structures
· Increased the number of representatives in each chamber of the General Assembly
· Increased the majority needed to pass bills in the General Assembly
· Introduced the concept of a limited convention
· Benefited from excellent pre-convention work by the Preparatory Committee
· Was promoted and supported by a large number of prominent Pennsylvanians
Other Avenues for Constitutional Change
Often a constitutional convention is perceived as a component of a larger reform movement. Yet, there are several avenues for government reform outside calling a convention. In fact, there may be specific issues that are better addressed in the form of constitutional amendment or statute. But for umbrella issues-such as the overall structure of checks and balances, creating a unified judiciary, or defining connections between local and state government-a convention may present the best option.
Perhaps the Pennsylvania constitution is silent on conventions because the founders envisioned a structure that would last for generations-though they later added an amendment process for making necessary changes. On the other hand, accounts of debates clearly show intent to make the amendment process sufficiently difficult to make frequent or minor changes, or to substitute for the statutory law process.
Since the adoption of the 1968 Pennsylvania constitution there have been 37 constitutional amendments, or an average of about one per year. All but Articles III and VI have been amended. Despite public arguments to the contrary, Article I-the Declaration of Rights-has been amended more often than any other article (nine times since 1971). Article II-The Legislature-has been amended only twice, the fewest amendments to any Article.
Thought not technically an option for constitutional change, courts in the Commonwealth of Pennsylvania have the authority to rule that the General Assembly acted beyond the intent of the constitution. The Attorney General may also be asked to render opinions regarding the constitutionality of Pennsylvania statutes or bills.
Concise list of Convention Lessons Learned
Pennsylvania's five constitutional conventions collectively reveal the following safeguards necessary to serve the public interest and to support convention leadership:
- Ensuring representative delegate selection
- Encouraging openness of debate
· Drawing upon experts without consideration of political position
- Heeding ongoing public input
· Accessing information held by government agencies and statewide organizations
· Using the most effective technologies to foster public interest and interaction
· Making use of public officials at all levels to advise the convention and to direct delegates and the public to sources of information
· Maintaining media attention to ensure transparency and to promote public awareness and participation
· Sharing convention materials with the public, associations, and interest groups
· Following up to help the electorate prepare for their approval or no approval vote to adopt the convention's recommendations.
The enacting legislation that calls a constitutional convention will include the following if the General Assembly honors the intent of a convention:
· Specify the election (by type and date) when the referendum calling for a convention will be placed before the electorate
- Provide the manner for delegate selection
· Set the date for the election of delegates (if an election process is preferred)
· Establish a Preparatory Committee with the authority to hire staff to plan, budget, facilitate, and manage a convention
· Specify the opening and adjournment dates for the convention; articles or section of the Pennsylvania constitution should be specified for debate and change-prohibited actions should be specified for a limited convention
· Authorize the convention to elect officers and to devise rules
· Direction for placing convention proposal directly on the ballot for voter consideration
· Set the date for an election for the voters to approve-disapprove convention proposals
· Specify when approved proposals will take effect.
Past efforts in Pennsylvania show meaningful outcomes are directly related to pre-convention planning and ongoing facilitation, including:
· Keeping the convention attentive to state legislative and public goals
· Avoiding undue influence by partisan political forces and special interests
· Informing the public, engaging their input, and holding their interest
- Substantial pre-convention preparations
· Presenting a unified front by a large group of stakeholders and prominent leaders.
Post-convention activities are necessary and should be planned before the calling of a convention to ensure necessary documentation, communications, and are later in place. Post convention activities have two primary audiences: the public and the General Assembly. Resolutions from the convention need to be organized, packaged, thoroughly explained, and made available for public scrutiny. It is also prudent to provide background information and understandable research to explain the consequences of each potential change. Addressing the General Assembly exponentially increases the need for specific information and detailed analysis. Sufficient explanation provides informed debate for the Assembly, assists in the preparation of legislative language, and helps determine when and how convention recommendations will be placed on the ballot.
Summary of the most promising options for Pennsylvania
There are feasible options for Pennsylvania to hold a constitutional convention beyond the limited convention model provided in 1967-1968. For instance, a citizens' convention is possible per Commonwealth court rulings.
The potential for a citizens' convention in Pennsylvania is still based upon prior statutory changes. Further, there is no obligation on the part of the General Assembly to consider citizens' convention proposals or to put those proposals to a vote in a general election. But the following options may still be considered and pursued:
1. The General Assembly enacts a citizens' convention
This is the most straightforward, but least likely. The General Assembly would detail the process for calling a citizens' convention as part of the enacting legislation to call for a vote for or against a constitutional convention.
2. The General Assembly enacts a citizens' limited convention
This is similar to the first option, but the General Assembly might be better inclined to enact legislation that limits a citizens' convention in terms of issues to consider and time to adjournment.
3. The General Assembly enacts a citizens' convention that is limited to proposing only constitutional amendments
This may be one of the least efficient methods of constitutional change. Plus, the public might be ill-served by a continuation of single issue solutions. Still, this has been the strategy of past Constitutional Commissions in Pennsylvania.
4. Propose a citizens' convention as an amendment to the Pennsylvania constitution
This seems the most promising solution, though the time and persistence to gain the approval of the General Assembly and approval by the voters could take decades.
5. Call a citizens' commission instead of a convention
Constitutional Commissions may be called by the General Assembly or by the Governor. Other states have used this approach as a substitute for a constitutional convention, either under the leadership of a Governor or as an alternative to a convention feared by the General Assembly.
6. Devise special amendment procedures
The General Assembly would accept proposals from a citizens' assembly or convention, then directly prepare and propose constitutional amendments to be placed before the electorate. Or, proposals can be submitted to the General Assembly for direct action either by constitutional amendment or by stature.
7. Hold a convention of coalitions, or a convention of organizations
It may not be the same as a true citizens' convention, and it obviously has no official or legal standing in Pennsylvania, but a convention of coalitions can attract public attention and media coverage. At the very least it can be used to keep the topic of a constitutional convention in the public eye.
8. Hold an independent citizens' convention
For this option the General Assembly would support facilities and opportunity for citizens to gather and deliberate reform or change. The convention is charged to review and propose reforms to the existing political system, and to hold public debate and deliberations. Proposals are directly submitted to the General Assembly for their consideration.
9. Provide for citizen initiative and referendum
The term "initiative" means different things in different states, but is broadly defined as a proposed statute or proposal placed upon the ballot directly by citizen petition. Its cousin, the Referendum, places legislative action on the ballot for approval or disapproval by the electorate. There has never been a vote in Pennsylvania to approve an initiative process-either by constitutional convention or by the amendment process.
On this 222nd anniversary of the Federal Constitution the Civic Research Alliance presents this study to the Pennsylvania Constitutional Convention Commission and ends this paper with a portion of the speech prepared by Benjamin Franklin, read just before the Federal Constitution was signed Monday, September 17, 1787:
For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does…Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good.