Approximately thirty years ago the most active period of state constitutional reform in this century was underway.(1) The numbers of constitutional conventions, commissions and new or revised constitutions reached their highest levels, prompting comparisons with other prolific periods, such as the post-Civil War period and the early days of the nation.(2) The states were responding to pressures for change such as those arising from urbanization and technological advances, from demands for governmental services following World War II and from federal court orders to reapportion and to protect civil rights. State constitutional reforms were integral to the remarkable renaissance of the states as viable partners in the federal system, sometimes referred to as the "quiet revolution." The changes lend support to the proposition that state constitutions do make a difference. Numerous reforms were adopted exemplified by annual legislative sessions, four-year gubernatorial terms, unified judicial systems, local home rule, and relaxation of at least some fiscal restrictions. The idea was to let government govern.

   Today state governments are once again under pressures for change and once again state constitutional reforms are under consideration to bring it about. But there are new twists and turns not least of which is the alarming loss of public confidence in government, a well-documented phenomenon. Many people apparently believe that government is not working but they are confused about what directions government should take. The New York State Temporary Commission on Constitutional Revision in its final report in February of this year addressed these matters as follows:

   Our conversations and public hearings around the state in the past two years have made three things clear. First, the people of New York State believe that they face a series of deepening problems that government is failing to address. Second, most New Yorkers are not united or even certain about what the solutions to these problems are. And, finally, many have no confidence that current institutions are capable of finding solutions to those problems.(3) The California Constitution Revision Commission in its April 1995 newsletter ("CCRC News") indicated that one of the major objectives on which it was focusing was as follows: Finding ways to reconnect state government with the people of California and thereby restore their confidence in these institutions. This means revising how government is structured and how it functions to produce results for all those it serves. To accomplish this goal, we are looking at the Executive and Legislative Branches as well as the initiative process.(4)

   In response to the pressures for change we are also seeing a new generation of reforms some of which are quite different from those adopted earlier. A major target for the new proposals is the state legislature, which ironically, by most accounts, is a far more accountable and modern institution than thirty years ago.(5) Legislative term limits exemplify the new approach. Since their debut in Oklahoma, Colorado and California in 1990, they have been adopted in 20 states, most of them by constitutional amendment. Whatever the merits of term limits, they may be regarded as contrary to the general reform goal of an effective legislature supported by the legislative modernization movement of the 1960s and 1970s. The reforms are probably best summarized in The Sometime Governments, published by the Citizens Conference on State Legislatures (C.C.S.L.) in 1971.(6) The high turnover rates then prevailing were considered impediments to a well functioning legislature. What the impact of the limits will be on the capability of the legislative branch remains to be seen. Early studies suggest that a change in the types and selection of leaders will occur because invariably leaders have enjoyed longer tenure than the average member.(7) Although not applying to most states, there have been other constitutional reforms that are contrary to the C.C.S.L. goal to increase the time available to legislators. Alaska, Oklahoma, Colorado and Louisiana have taken steps to reduce session days. Alaska changed from unlimited to 140-day sessions in 1984. In 1988 Colorado voters approved a 120-day limit on regular sessions, a modification of the 140-day sessions in even-numbered years and unlimited sessions in odd-numbered years. The Louisiana Constitution, which had provided for annual sessions of 60 days, was amended to cut the regular session in even-numbered years to 30 days and to limit it to fiscal topics. The Oklahoma proposition, adopted in 1988, was a little different. It retained the 90-day limit on regular sessions but, by setting deadlines, prevented the legislature from continuing the practice of taking breaks that did not count as legislative days and spreading the 90 days, as it were, into extra months. The California Constitution Revision Commission, among its preliminary recommendations, has suggested that their state's unlimited sessions be limited to six months a year.

   Of all the new reforms, and I am selecting only a few for review, the most troublesome for governments are the proposalsfor severe fiscal restrictions, both state and local. Anyone studying state constitutions learns early that constitutional limits on the power of the purse are commonplace. My biennial surveys of state constitutional amendments show that propositions concerning revenues, expenditures, borrowing and debt are more numerous than any other category. An old reform goal was to get rid of crippling restrictions. This is well summarized in the Model State Constitution published by the National Municipal League (now the National Civic League). The introductory commentary to the Finance Article includes the following ideas:

   The Model State Constitution is based upon confidence in the system of representative democracy. The finance article reflects these beliefs by leaving to the legislature and the governor, the people's elected leaders, broad responsibility for the conduct of the state's fiscal affairs with ample power to adjust needs to the rapid changes characteristic of modern times. Ideally, some authorities believe, a state constitution should be silent on matters of taxation and finance, thus giving the legislature and the governor complete freedom to develop fiscal policies to meet current and emerging requirements . . . the Model should not mirror the complex and lengthy fiscal articles found in many state constitutions and which obviously are barriers to responsible government.(8)

   Obviously a new generation of fiscal reforms based on a far different view of fiscal responsibility from that embraced by the model charter is upon us. Widely regarded as the first volley in a taxpayers' revolt, California's Proposition 13, adopted in 1978, slashed property taxes and added other restrictions, such as a two-thirds vote of local electorates to approve local "special taxes." It was followed by the 1979 Gann Amendment or "Spirit of 13" initiative that limited the rate of growth of state and local spending and provided for refunds of "excess" state tax revenues to the taxpayers.(9) In the 1990s more severe fiscal limitations are on the horizon. Oklahoma and Colorado amendments have added voter approval to supermajority legislative requirements for passage of tax increases. (Supermajorities for state tax increases are not new but they have been adopted in only a few states.) The Oklahoma provision, adopted in 1992, requires approval of revenue increases by 75 percent of the two houses or a majority of voters. Added to the constitution in 1992, the Colorado Amendment, called "The Taxpayers' Bill of Rights" by supporters and "The Terroristic Amendment" by Governor Roy Romer, ranges far and wide to reduce powers of state and local governments over taxes, spending and borrowing. New provisions include a two-thirds vote by the legislature for tax increases followed by popular approval with an exception for emergencies. Similar proposals on the ballot in 1994 in three states, Missouri, Montana and Oregon, were rejected.(10) The Missouri proposition mandated a $1 billion-plus rebate of taxes already collected. In March 1996 Oklahomans will get a chance to roll back local property taxes to 1993 levels and to prevent future increases unless they are based on such factors as change of ownership. Great concern has been expressed over the future of schools and other local services that rely heavily on a tax already low compared to other states.

   The most extreme of the new fiscal reforms are not simply modifications to relieve tax burdens but are designed to cripplegovernment, which cannot long endure without tax revenue. Steve Gold of the Center for the Study of the States is quoted as saying, "They will slow down the growth of revenue significantly . . . [and] will gradually strangle state and local government."(11) One wonders how the federal plans for reduced support for welfare and medicaid by block grants will fare in the states if the reforms of this type become as common as legislative term limits.

    Another recent development relating to constitutional reforms is the more extensive use of the constitutional initiative as a vehicle for constitutional change. Eighteen state constitutions currently include the device.(12) For citizens disenchanted with existing representative institutions, the constitutional initiative offers an ideal alternative to proposing changes unlikely to be passed by the legislature. The initiative has proved to be the preferred method for winning the battle for term limits and new-style tax limitations as well as other novel proposals such as school vouchers, English as the official language, and anti-gay rights measures. Normally about two-thirds of propositions placed on the ballot by constitutional initiative are turned down by the electorate, but in 1988-89, 55 percent were approved and in 1992-93, 61.7 percent. Propositions are not very numerous, however. The largest number in several decades was 34 in 1992-93 among 239 proposals for all methods of constitutional change.(13)

   Other important developments of recent vintage concern the constitutional convention. A difference from the earlier reform period is the limited use of the constitutional convention even in states where the constitution requires a periodic vote on a convention call. (Fourteen state constitutions currently require a periodic mandatory vote.(14)) In fact only in two of the automatic-call states have referenda on calls been approved during the past fifteen years (New Hampshire and Rhode Island). In the 1950s seven conventions convened, in the next decade, nine and in the 1970s, 12. But the number of conventions in the 1980s was the lowest in forty years with only four state conventions and the District of Columbia convention. In the 1990s there has been only one convention, the Louisiana Constitutional Convention of 1992, and it is of questionable pedigree. Regarded by Louisianians as a special legislative session in disguise, it consisted of the bicameral Louisiana Legislature called by statute into session as a convention for thirty days. Governor Edwin Edwards' proposal to call a constitutional convention of the normal citizen type was turned down. To win consideration of revenue proposals during a fiscal crisis he agreed to the legislature-as-convention method but all was for naught as the "revision" failed by a large margin. The governor even apologized for supporting it after the defeat. The only other constitutional convention was held this summer in the Commonwealth of the Northern Mariana Islands.

   One reason for the failure of convention calls is the success of revision during the earlier reform period. This was clearly the case with the defeat in 1988 of the referendum to hold a constitutional convention in Illinois. Delegates to the convention that drafted the new Illinois document of 1970 were virtually unanimous in wanting to defeat the call, and other citizens joined them. But there is also downright opposition to a convention in states where a new constitution is supported. One such state is Oklahoma where in 1988 Governor Henry Bellmon on his own initiative appointed the Oklahoma Constitution Study Commission, which drafted a new constitution to be proposed to the voters in stages by constitutional amendment. Only one of the first three proposed constitutional initiatives survived Oklahoma Supreme Court review on procedural grounds to get on the ballot, and it was approved. The leaders for revision made it clear that they were against a convention. Support for this position may be inferred from the fact that although the Oklahoma Constitution requires a referendum on a convention call every 20 years, there was no referendum in 1990 as there should have been. As far as I can determine no one challenged its absence.

   Compared with other years, constitutional commissions have also been few, certainly a far cry from the record of 51 set in the 1960s. There were eight in the 1980s and probably no more than six in the 1990s to date. (My research on 1994-95 developments is not yet complete.) Although only a few commissions have been in operation recently, they provide significant insight into current constitutional attitudes and proposals. It is also significant that two of the three most populous states, New York and California, have elected to establish them. (Need I remind you that Texas has overtaken New York to become the second most populous state.)

   The Temporary New York State Commission on Constitutional Revision was established by Governor Mario Cuomo's executive order in 1993. In his 1992 state-of-the-state message the governor had expressed his concern about the need for change in New York government and spoke highly of the constitutional convention as a "tool" for making the necessary alterations. In the executive order creating the eighteen-member nonpartisan commission, the governor called attention to the mandatory referendum on a convention call in 1997 and the need to prepare for it or an earlier convention if one should be authorized. He directed the commission to consider the constitutional change process, including the selection of delegates, as well as to determine the views of New Yorkers on constitutional matters, to develop a broad-based agenda on constitutional issues and to disseminate information relating thereto. After fulfilling its obligations in two years (1993-1995), the commission released its final report, which is dated February 1995.

   Compared with other constitutional commissions, the New York Commission took an unusual turn in its final report. In essence the group agreed that real change is necessary in governmental institutions and processes but that a constitutional convention is less desirable as a method of change than a new mechanism outside but related to the regular governmental channels. Specifically, the commission recommended the establishment of four "Action Panels" modeled after such commissions as the National Commission on Social Security (1981) chaired by Alan Greenspan and the Little Hoover Commissions. The panels are recommended as a means of shaking New York "free from a political inertia that has made significant reform impossible."(15) Established by statute, the panels would be appointed by the governor and legislature. They would be small, no larger than 12, and composed of prestigious persons of stature and integrity from public and private life and representative of the state's diversity. The statute would require panel recommendations on a date certain and clear commitment from the legislature and governor to take action so that constitutional amendments and legislation would be introduced in the legislature. Each of the four panels would be assigned one of the following topics: fiscal integrity, state-local relations, education, and public safety. If the panels do not work out, a convention is recommended.

    On the other side of the continent, the California Constitution Revision Commission was created by statute signed by the governor in 1993 with members appointed the following year. Three of the twenty-three members serve ex officio. The underlying pressures for the commission were similar to those in New York, including gridlock on the budget and other intractable problems that the existing institutions seemed unable to resolve. The general problem areas singled out for study were also similar -- education, budget and other fiscal matters, state-local relations and local government. But instead of public safety the California Commission is tackling legislative and executive institutions.

    The California Commission completed its preliminary work in August of this year and has scheduled hearings on its preliminary recommendations. I was told by the executive secretary, Fred Silva, that Governor Pete Wilson in his address to the commission called on the members to be "bold," that the system needs fixing. And indeed the commission has been bold. I will cite only a few reforms. For state governmental institutions it has recommended a unicameral legislature of 121 members who would serve no more than three four-year terms; for the executive it recommends the joint-ticket whereby the governor and lieutenant governor run as a team and appointment rather than election of the state superintendent of public instruction, state treasurer and insurance commissioner. The initiative and referendum process would also be overhauled. An interesting provision on the budget is to require the legislature and the governor to forfeit pay and per diem when the budget is not passed by the deadline set by law. Also interesting is the change from an annual to a biennial budget process. The final recommendations will be submitted to the legislature and the governor and, if approved, will be placed on the 1996 November ballot.

   Constitutional history was made in the 1990s by the Florida Taxation and Budget Reform Commission, originally established by constitutional amendment in 1988. The commission is a novel spinoff from the Florida Constitution Revision Commission incorporated in the 1968 Florida Constitution. Both are unique among state constitutional methods for changing constitutions. Unlike all other commissions they have power to propose amendments directly to the voters, and they are activated at given intervals, another unique feature. The Taxation and Budget Commission, composed of 29 members, was required by the Florida Constitution to organize in 1990 and every ten years thereafter. The group was activated as intended and after two years submitted three proposals to the voters at the 1992 election. Two were approved, marking the first time that a state constitution had been amended by this process. The two measures that passed provided for a significant change in budgeting and planning and directed the legislature to prepare and adopt a "Taxpayers' Bill of Rights." The Florida Constitution Revision Commission was organized in 1978 as required (and will be activated again in twenty years), but its eight proposals were defeated at the polls in 1978.

   It is interesting to compare the Florida Taxation and Budget Reform Commission with the proposed New York Action Panels. Both are responses to the perceived need to resolve difficult problems with new mechanisms that are at least partially separated from the regular representational government channels and to introduce some citizen participation. The Florida scheme obviously goes much further by vesting real power in the commission.

   The Utah Constitutional Revision Commission, a sixteen-member body created by statute in 1977, is the only permanent commission among the states. Originally temporary, it was created after the voters turned down a constitutional convention. The commission is obligated to make recommendations to the legislature sixty days before every regular session. To be adopted, proposed changes, and they have been numerous, must be approved by the legislature and the voters in the same manner as other amendments to the constitution.

   Also worth noting is the Alaska Constitutional Revision Task Force of 1993. After the defeat of the mandatory referendum on a convention call in 1992, the five-member body was created by House Resolution to respond to demands to increase citizen involvement in the constitutional amendment and revision process by such means as a constitutional initiative. The Task Force came up with a novel device for ensuring a citizen voice in the legislative proposal stage of the amendment process. It recommended a permanent seven-member advisory Commission on the Constitution with responsibility to study and make recommendations concerning the Alaska charter and to submit proposed amendments directly to the legislature, which would be required to vote on them. The final report of the Task Force was made in April 1994. To date no action has been taken to implement the recommendations.

   The most recent commission is the Task Force for a New Constitution which Arkansas Governor Jim Guy Tucker established by executive order earlier this year. The governor was reacting to fiscal problems and to the state supreme court's removal of six proposals from the most recent ballot. Funded by the legislature, the 22-member group prepared a preliminary draft of a new charter, submitted it to the legislature and recommended that the legislature call a convention. Following hearings, the legislature passed a measure for a 61-member constitutional convention composed of 26 appointed delegates (ten senators appointed by the Senate President and 16 representatives, by the Speaker) and 35 delegates elected from the state's Senate districts. The election for approval of the convention call and for delegates scheduled for December 12 (1995) was in doubt because of a suit challenging the convention's constitutionality. Finally resolved in favor of the state by the Arkansas Supreme Court (4-3) December 7, the election was held on Tuesday (December 12). If the outcome is favorable, the convention will meet on January 2, 1996, for 32 days, and the Task Force will continue to serve at least throughout the convention.

   This review of recent constitutional experiences indicates that serious efforts are underway or have been taken to respondby constitutional change to perceived failures of state government and to increase citizen involvement in and support for our institutions. I am somewhat concerned, however, by the neglect of the constitutional convention, our time-honored and tested institution by which citizens can change their government either on a limited or unlimited basis. I can understand the difficulties faced in states where calls have been rejected and where there is unease about turning to an assembly with independent power over the constitution. But perhaps it is the time to reinvent the convention as an answer to the basic problems of governance raised by the New York, California and other commissions. A citizens' convention offers unique advantages in a democratic society such as a relatively large and representative body of citizens acting independently of existing governmental institutions, a forum for deliberation on various constitutional options without the distractions of governing, and a great opportunity to educate the citizens about their government. I realize that conventions do not always work out as intended and that there often are seemingly impossible political barriers to calling them. But a convention is certainly worth battling for. I speak from experience in Texas where we experimented with a hybrid convention-legislature. In 1972 the voters approved a constitutional amendment authorizing the legislature to serve as a convention. Although the legislators cannot be faulted for their proposed constitution, a decided improvement over the present document, I was appalled by the unfortunate political entanglements that ended in disaster. The convention was unable to muster enough votes to submit even one proposition to the voters. Public reaction was swift and nasty. The next legislature tried to make amends by submitting a new constitution (except for the Bill of Rights which was retained in full), but the damage had been done. Not only did the constitution fail, but constitutional revision has been dead ever since, for twenty years, a whole generation. I am reminded of an incident at the convention. Looking up at those of us sitting in the gallery, a legislator-delegate said in so many words, "We should not be here. You citizens should write the new constitution for Texas."

Endnotes

1. Albert L. Sturm and Janice C. May, "State Constitutions and Constitutional Revision: 1980-81 and the Past 50 years," in The Book of States, 1982-83, vol. 24 (Lexington, KY: The Council of State Governments, 1982), 120-121. Much of the data in this article are from various editions of The Book of the States.

2. Ibid. 3. The Temporary New York State Commission on Constitutional Revision, "Effective Government Now for the New Century: The Final Report, February 1995,"

3. 4. California Constitution Revision Commission, "CCRC News" (April 1995), 1.

5. Alan Rosenthal, acknowledged national scholar on state legislatures has commented on this point frequently. For one source see his Governors & Legislatures, Contending Powers (Washington, D.C.: Congressional Quarterly, Inc., 1990), 41-47. See also William T. Pound, "Legislatures: Our Dynamic Institutions," State Legislatures, 19 (January 1993): 22-25.

6. The Citizens Conference on State Legislatures (written by John Burns), The Sometime Governments, A Critical Study of the 50 American Legislatures (Toronto, New York, London: Bantom Books, 1971). The specific recommendations for legislative improvement do not mention term limits or specifically address turnover rates. See pages 151-156. But the general thrust of the reforms is toward a more professional legislature and the recommendation on legislative leadership is to eliminate one-term limitations (p. 162).

7. Timothy Hodson, Rich Jones, Karl Kurtz and Gary Moncrief, "Leaders and Limits: Changing Patterns of State Legislative Leadership Under Term Limits," Spectrum, 68 (Summer 1995): 15.

8. Model State Constitution, Sixth Edition (Revised) (New York, National Municipal League, 1963, rev'd 1968), Article VII Finance, 91.

9. Calif. Const. Art. XIII A and Art. XIII B. See Joseph R. Grodin, Calvin R. Massey and Richard B. Cunningham, The California State Constitution: A Reference Guide (Westport, Conn.: Greenwood Press, 1993), 283-263.

10. Penelope Lemov, "The Tax Revolt That Wasn't," Governing, vol. 8 (January 1995): 22-23.

11. Ibid., 22.

12. The eighteen states with the constitutional initiative are Arizona, Arkansas, California, Colorado, Florida, Illinois, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, and South Dakota. For the decade of the 1980s there were 89 proposals and 33 adoptions, the most since the 1930s which saw 133 proposals and 47 adoptions. The Book of the States, 1990-91, vol. 28, 21.

13. The Book of the States, 1993-94, vol. 30, 2.

14. The states are Alaska, Connecticut, Hawaii, Illinois, Iowa, Maryland, Michigan, Missouri, Montana, New Hampshire, New York, Ohio, Oklahoma, and Rhode Island.

15. The Final Report, 12.

Janice C. May is Associate Professor of Government at The University of Texas at Austin and author of current biennial surveys of state constitutional developments in The Book of States published by the Council of State Governments.