Presented to the Senate State Government Committee
March 26, 2007
Good morning, Chairman Piccola and members of the committee. Thank you for the invitation to provide testimony on a matter that is fundamental to our organization.
I'm Tim Potts, co-founder of Democracy Rising PA. Almost since our founding in 2004, we have worked to promote a general constitutional convention in Pennsylvania.
We did not immediately embrace a constitutional convention as an effective remedy for the ills of state government. Nor did we immediately embrace the idea of a general convention.
However, in 2005 we began collecting ideas from business leaders, from newspapers, from academics, and from ordinary citizens who are genuinely interested in making Pennsylvania better by improving our state government. Those ideas, which now number more than 180, apply to every Article of the Constitution, and so we believe it is time for the first general constitutional convention in more than 130 years.
Today I offer our views on two areas of this work: the scope of the convention and the process of selecting delegates to it.
Scope of the Convention
Constitutionally, we do not believe it's possible to prohibit a convention from examining any part of the Constitution the delegates wish to examine. Restrictions such as those commonly proposed simply are unconstitutional because they contradict Article I, Section 2.
To say that citizens are not permitted to examine all of their foundational document amounts to a declaration that Article I, Section 2 does not mean what it plainly says and originally meant in 1776. To deny the right of citizens to discuss their own Constitution is tantamount to King George telling Thomas Jefferson what he could discuss in the Declaration of Independence and to deny that those convened in Philadelphia in 1787 could go beyond the confederation to propose to their fellow citizens a more perfect union. It bespeaks a distrust of citizens that undermines the foundation of this noble experiment.
Here are just a few of the ideas that citizens have submitted that would be precluded under the various recent proposals:
- Whether to impose term limits on committee chairs and legislative leaders, an idea favored by 77% of voting citizens, according to the recent Keystone Poll, but one that the House of Representatives refused to adopt two weeks ago. (Article II, Section 9)
- Whether to prohibit lame-duck session, an idea favored by 82% of voting citizens, according to the same poll. (Article II, Section 14)
- Whether to impose stricter procedural rules on bills that require concurrence or conference committees. (Article III, Section 5)
- Whether to prohibit judges and justices from having private meetings with members of the other branches where issues of public policy are discussed, e.g. the pay raise. (Article V, Section 17)
- Whether to prohibit the use of eminent domain for private purposes. (Article I, Section 10)
- Whether to provide citizens with the power of initiative, referendum and recall. (Article I, Section 20; Article VI, Section 7)
- Whether to guarantee equal access to the ballot for all potential candidates for public office and to permit all voters to participate in all elections. (Article VII, Section 6)
- Whether to permit a graduated income tax (Article VIII, Section 1), to prohibit property taxes (Section 2) and to provide a dedicated funding source for public transportation (Section 2).
- Whether to consolidate municipal governments and school districts and permit revenue sharing in pursuit of regional priorities. (Article IX, Section 8)
Many people whose views we certainly respect have a particular concern about Article I the Declaration of Rights. Do we fear that some of these rights may be jeopardized? In the short run, yes. I know that there is a good chance a convention will recommend to the citizens changes that I personally won't like. But that's the risk we all take in exchange for the right of self-governance in preference to dictatorial or monarchic rule.
Especially at a constitutional convention, we need to take the long view. What we do today can be undone by another generation if it proves to produce more harm than good. The only constant in the long view is the "inalienable and indefeasible right" of citizens "to alter, reform or abolish their government..." (Article I, Section 2)
Rights require affirmation from time to time. A right we don't use is a right we may lose. So it is good at a constitutional convention to affirm rights by examining them and not changing them if they remain valuable to us. And if they do not remain valuable to us, then it is good to make that decision explicit rather than allow those rights to wither by neglect.
The right of citizens to participate in the enactment of laws they must pay for and live with, as promised by Article III, is a perfect example of this. Ignored and violated in recent years by the governor and General Assembly with the complicity of the Supreme Court, this denial of meaningful participation in important legislation is what has citizens most upset with their state government and what many are eager to affirm at a constitutional convention lest those rights be lost altogether.
So we believe that any convention should be a general one and that the General Assembly best serves the citizens by preparing for it rather than seeking to avoid it.
We ask you to consider a process for selecting delegates that provides the best chance to achieve the goal of fair representation for all economic, geographic and demographic segments of the citizenry.
To do that, we believe, requires rejecting any proposal to base delegate selection on senatorial districts. Remember that these districts are part of a political process in which citizens have little confidence the re-apportionment process of 2001. It is a process that people recognize was based in large part on a desire to protect incumbent lawmakers and to configure as many senatorial districts as possible to be as politically safe as possible for one party or the other.
Let me describe two alternatives. The first uses other existing geographic divisions that could serve as the basis for delegate selection.
The Department of Transportation has 12 regions. The Department of Public Welfare has 46 regions for delivering mental health and mental retardation services. The Department of Labor & Industry has seven service regions that conveniently coincide with the media markets defined on Pennsylvania's official web site. Any of these divisions could serve as the basis for delegate selection with the number of delegates being proportional to the population in each region. This guarantees proportionate representation without questions about the regions being politically biased.
A virtue of this approach is that it maintains county borders, which is important because people identify much more strongly with the county where they live than with their senatorial district.
The second proposal concerns the method of selecting delegates. Chairman Piccola's desire to have a "citizens" convention is a great step forward over the method used in 1967 because his proposal makes it possible for ordinary citizens to serve as delegates. But we also should ensure that the delegates who are chosen will, in fact, represent the economic and demographic characteristics of Pennsylvania citizens. To do that requires another mechanism.
A particularly accurate approach occurred recently in British Columbia. Its roots are in ancient Greece, and we continue to use it today in Pennsylvania and elsewhere for selecting juries. British Columbia used this approach in 2004 to conduct the equivalent of a constitutional convention concerning their election laws. They called it a Citizens' Assembly. Historically, the delegate selection process is known as sortition, or allotment.
Using census data and statistical modeling techniques, delegates would be chosen at random from among registered voters to create a delegate body that matches the demographic and economic profile of the region they represent. There is a lot of history and a lot of science in this method of ensuring fair representation, far more of both than I am qualified to address. But the representational benefits are easy to understand:
- If women constitute 50 percent of the population in a given region, they will constitute 50 percent of the region's delegates to the convention.
- If those aged 55 and older constitute 38 percent of the population in a region, they will constitute 38 percent of the region's delegates to the convention.
- If those earning under $40,000 a year constitute 64 percent of the population in a given region, they will constitute 64 percent of the region's delegates to the convention.
And so on.
This is an idea that Pennsylvania has not tried in the past, but it also is one that today's demographic science makes possible. So we encourage the committee to research and consider this approach as one that could achieve the fairest representation and thereby give citizens the highest levels of confidence that they and their views are represented accurately at a constitutional convention.
Again, I thank you for this opportunity, and I welcome your questions.