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Monkeying with the Constitution 

Jeremy Alford on how our "small-government" pols in Baton Rouge want to add (and add and add) to the state Constitution

click to enlarge Rep. Franklin Foil has tried to get the Legislature interested in a constitutional convention every year since 2009.
  • Rep. Franklin Foil has tried to get the Legislature interested in a constitutional convention every year since 2009.

Will the third time be the charm for state Rep. Franklin Foil? Probably not, but the freshman Republican from Baton Rouge is at least going out swinging. Every year since 2009, Foil has proposed a commission to study the idea of a constitutional convention and advise the Legislature accordingly.

  Two years ago, the initiative made it all the way to the Senate floor and stalled. Last year, it cleared the House again, but got stuck in a Senate committee. This year, House Concurrent Resolution 3 is off to the same start. It has been approved by the House and Governmental Affairs Committee, but its fate remains in limbo.

  "When I initially thought about this idea," Foil says, "it came to me when we were having all those issues about dedicated funds and what to do with them. And now, we're dealing with the issue of doing away with the state income tax."

  The state treasury is weighed down by dedicated funds, which are pools of cash committed to certain functions that are constitutionally or statutorily protected. When budget shortfalls crop up, such as the current $1.6 billion gap, lawmakers instinctively want to cherry-pick dollars from the dedicated funds, but their hands are tied.

  This year has also seen efforts to abolish or phase out Louisiana's $5.7 billion personal and corporate income taxes. The Senate watered down that idea last week by making it contingent upon replacement taxes or commensurate cuts. Foil cites that as another reason for his proposal, because many want to hold a constitutional convention just to reform the state's tax code.

  Under Foil's resolution, the study commission would be composed of individuals from the state's law schools, good government groups and representatives from the House, Senate, state Supreme Court and Governor's Office. The commission would be charged with investigating convention delegate selection, timetables, structure, staffing and a budget.

  If the measure passes, the commission would deliver its findings by spring 2012. The commission's work, however, would begin much sooner — no less than 60 days after the current session adjourns June 23.

  Of course, lawmakers don't need to call a convention to update our state's charter. Since the last convention was held in 1974, Louisiana's constitution has added 150 amendments. Compared to the U.S., which has only 27 and is almost 200 years older, that's quite a bit.

  State lawmakers, for their part, aren't slowing down the amendment stream. Twenty-eight constitutional amendments were proposed this year. Not surprisingly, most of those given a good chance of success deal with Louisiana's precarious fiscal condition.

  Senate Bill 147 awaits action in the House and would allow money to be taken out of the state's so-called rainy day fund without having to be paid back in the same fiscal year, even if sufficient funds materialize. Senate President Joel Chaisson, D-Destrehan, says his proposed amendment is needed because the current rules are "useless" during difficult economic times. Presently, money taken out of the Budget Stabilization Fund has to be replaced as soon as possible after the withdrawal. Chaisson's proposal would permit a multi-year repayment schedule.

  Also on the House side is Senate Bill 53 by Sen. John Alario Jr., R-Westwego. It would steer all of the state's tobacco settlement proceeds into the TOPS scholarship program once the tobacco fund reaches $1.38 billion. Rep. Jane Smith, R-Bossier City, has a duplicate measure in House Bill 390. "If there is anything the Legislature has done that the people of Louisiana believe is good, it is TOPS," she says.

  Other amendments that appear poised for passage, or at least a close vote, include:

  • House Bill 135 by Rep. Rickey Nowlin, R-Natchitoches, would prohibit the levying of new taxes or fees upon the sale or transfer of immovable property, such as family homes.

  • House Bill 341 by Rep. Chris Hazel, R-Pineville, authorizes the Legislature to establish the Patient's Compensation Fund as a private custodial fund. Any income the fund earns, and anything it owns, would not be public.

  • Senate Bill 113 by Sen. A.G. Crowe, R-Slidell, redirects and transfers dedicated funds to the state budget as needed.

  Among the biggest complaints from the public when it comes to constitutional amendments is the language used on the ballots. The words and sentences can be complex, even for lawmakers, who have grumbled a bit about the matter themselves over the years. That inspired Rep. Barbara Norton, D-Shreveport, to file House Concurrent Resolution 4, which already has cleared the Lower Chamber. The measure calls for "clear, concise, and unbiased language in constitutional amendment ballot language." She argues that all amendments should be posed to voters as questions, beginning with the phrase, "Do you support an amendment to..."

On other fronts, the 10th Amendment to the U.S. Constitution is under fire this year. Rep. Joe Harrison, R-Napoleonville, has brought forth House Concurrent Resolution 51, which once again claims state sovereignty for Louisiana. Many lawmakers view it as a tool to oppose President Barack Obama's federal health care overhaul.

  Primarily, Harrison is pushing the resolution — a non-starter among his colleagues — to demand that the federal government "cease promulgating unconstitutional mandates." Harrison cites a 1992 U.S. Supreme Court case — New York v. United States, 112 S. Ct. 2408 — that found Congress "may not simply commandeer the legislative and regulatory processes of the states."

  The "states' rights" argument is likewise being used by the Louisiana Department of Wildlife and Fisheries this year to wrest oversight of certain species (such as red snapper) from the federal government. Assistant Fisheries Secretary Randy Pausina told lawmakers recently that House Bill 293 would create a pilot program that could help convince the feds that Louisiana would do a better job than the Gulf of Mexico Fisheries Management Council.

  Based on fisheries the state currently manages — spotted (speckled) trout, flounder and crab, to name a few — and compared to those overseen by the federal government (red snapper, amberjack and tuna), there's a strong case to build, Pausina says. "We feel all of the animals we manage are in good shape, and those managed by the federal government, not so good shape," he adds.

  Additionally, he argued that states like Texas and Florida already enjoy such broader authority; he says the legislation would help bring Louisiana up to par. The legislation, authored by House Natural Resources Chairman Gordon Dove, R-Houma, is expected to pass the Senate and win support from Gov. Bobby Jindal.

Finally, what would a debate over constitutional issues be without the input of the Tea Party of Louisiana? Louisiana's tea party has a loud voice at the Capitol, and it has declared war on House Bill 388 by Rep. Nickie Monica, R-LaPlace. Monica's bill would change the way Louisiana selects its presidential electors by implementing a national popular vote system.

  A national popular vote would allow presidential candidates to win the White House by simply earning 50 percent of the popular vote, plus one. Critics say a national popular vote could weaken the role of smaller states in presidential elections because it would allow presidential candidates to win the White House by focusing on places like New York City, Los Angeles and Chicago because of their massive populations.

  "This would be the end of the American republic, if this bill passes," says Bob Reid, spokesman for the Tea Party of Louisiana. At the time of his remarks, the measure appeared to be stalled on the House floor. "The founders of America created the most sophisticated system of government known to man — a government designed to give the people more power than the government. This national popular vote initiative would literally uproot our system of government and would destroy our country."

  No doubt it would take more than a national popular vote to "destroy" the anchor of the free world. Such rhetoric shows how emotional the debate over constitutional issues has become. It also helps brighten the line between those who want to tear into Louisiana's constitution with red pens and those who want to leave well enough alone. At least for now.

Jeremy Alford can be reached at jeremy@jeremyalford.com.

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