For the first time in 20 years, Florida embarks on a constitutionally mandated update of the state Constitution next year and, if Florida’s top Republican officials have their way, they will use the process to overturn the most controversial rulings of the state’s high court — on education spending, private school vouchers and political redistricting.
Florida is the only state that requires a citizen panel to be assembled every two decades to review and update its most important legal document, the state Constitution. The 37-member Constitutional Revision Commission has extraordinary power — to put amendments directly onto the 2018 ballot, without legislative or court review, unlike any other proposal.
The CRC can clean up outdated provisions in the Constitution and introduce new issues. It can amend existing provisions, and undo what legislators or citizens have persuaded voters to approve in the past. Like all constitutional amendments, CRC proposals must receive 60 percent of the vote to become law.
But unlike 20 years ago, when Democratic Gov. Lawton Chiles appointed half of the commission and the Republican-controlled Legislature appointed the other half, the current hand-selected panel is expected to lean conservative and advance more ideologically conservative proposals than either of the previous two constitutional commissions, which convened in 1977-78 and 1997-98.
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Republican Gov. Rick Scott will appoint 15 members of the panel, including its chair. House Speaker Richard Corcoran, R-Land O’Lakes, and Senate President Joe Negron, R-Stuart, each have nine appointees. Chief Justice Jorge Labarga will appoint three members and Attorney General Pam Bondi, a Republican, is automatically a member.
The volunteer commission must be appointed before the Legislature convenes in regular session in March and it will have one year to conduct public hearings and propose ballot amendments.
The political posturing for the appointments has begun, as Scott, Negron and Labarga have solicited and received more than 100 applicants. Corcoran has not opened applications yet.
Meanwhile, the list of potential issues is mounting.
Corcoran announced last week that he hopes the CRC will use the opportunity to revise the Fair Districts amendments voters approved on redistricting, repeal the court rulings that invalidated private school vouchers and reinstate the ability of the Legislature to make redistricting decisions in secret without being forced to reveal their intentions under oath in court.
Each of those rulings, “violated the separation of powers, and the will of the people was thwarted,” Corcoran said in an interview.
He believes the Florida Supreme Court’s decision to overturn laws passed by the Legislature constitutes grounds for a constitutional update and, if the CRC doesn’t put them on the ballot, the Legislature will.
“We’re going to do them all,” he said.
“The Constitution, the highest form of all laws in our country, is sacrosanct and should be tampered with limitedly,” he told the Herald/Times. But limited tampering for Corcoran also means overturning the 10-year-old decision that ruled that Florida’s school voucher program was unconstitutional.
In 2006, the court ruled 5-2 that the state’s Opportunity Scholarship program which allowed students in failing schools to obtain taxpayer-financed vouchers to attend private schools violated a provision in the state constitution that requires a “uniform” system of public schools for all students. The decision, known as Bush v. Holmes, has been the bane of school choice advocates, including Negron and Corcoran, since.
In 2012, the Legislature attempted to get around the ruling and clear a path for private school vouchers by repealing the 131-year-old Blaine Amendment, which says state funds may not go to the support of religious institutions. The amendment is a vestige of an era when parochial schools, especially those operated by the Catholic Church, served large immigrant populations. Several states, including Florida, passed Blaine amendments to prohibit state aid from going to those schools.
“It was put into the Constitution for one thing only: pure unadulterated bigotry,” Corcoran said.
In more recent decades, the language was included in the 1968 rewrite of Florida’s Constitution, and it has since been used by school voucher opponents to block taxpayer funds going to private schools. The 2012 proposal to repeal the Blaine language failed to get the required 60 percent as only 56 percent of voters supported it. Now, both Corcoran and Negron want it repealed.
“The opponents of parental choice have used the Constitution in a grotesque way,” Negron said. “Our Constitution needs to make it clear that parents are the first and primary educators, that they get to decide what education is best for their particular student, and it’s perfectly appropriate for the Legislature to provide options for parents to make choices.
“This idea that every student must go to the government school that is zoned for their district is out of step with the way parents are making decisions today.”
Corcoran said that after repealing Bush v. Holmes and the Blaine language, his next priority for constitutional revision is changing or repealing the Fair Districts provisions approved by voters in 2010. The amendments ban lawmakers from intentionally favoring incumbents of political parties when redrawing legislative and congressional districts.
Despite the amendments, the Legislature used the 2012 redistricting process to covertly allow political operatives to influence their maps, prompting the court to throw out both the state Senate and congressional maps in 2015. The court approved redistricting maps proposed by the League of Women Voters and a coalition of Democrat-leaning groups, and it was a painful defeat for GOP leaders.
Negron agrees with Corcoran that the voter-approved Fair District amendments are flawed and should be rewritten by the CRC.
“When actually enforced, it reminds me of the criminal code in the Soviet Union that says no matter what course of action you took, it will be determined to be violating the law,” he said. “Then there’s the Kafkaesque search for intent that attempts to determine what someone is thinking.”
While some have suggested the CRC resolve the dispute by establishing an independent redistricting commission, Corcoran opposes that option; Negron is open to allowing the CRC to decide.
Also on Corcoran’s wish list is imposing term limits on judges, including the Florida Supreme Court.
“The reason we have the demeaning of the will of the people is because they have positions for life,” he argues. “That could be a cure.”
Negron said he would also like to see the CRC ask voters to restore the independently elected education commissioner or the secretary of state. The 1998 commission proposed reducing the size of the Cabinet to three members — attorney general, chief financial officer and agriculture commissioner. It gave the governor an extraordinary vote in the case of a tie, but Negron said the composition should be changed to make it a five-person panel again.
“Deciding bodies are always an odd number,” he said. “I think having a four-member Cabinet does not make sense.”
Negron said that when he selects his appointees to the commission, he won’t look at their political affiliation but he will look at their character and select them based on three factors: do they have sound judgment, come from a “diverse background of life experiences” and share his core values — “the sovereignty of the individual, pro-consumer, and support parental choice in education.”
Corcoran also has criteria for the powerful panel. He wants his appointees to have past elective experience so they know the game as it relates to putting issues before voters. He will reject anyone who is a traditional “special interest” lobbyist, but he is open to consider people who are single-issue advocates.
“Absolutely there is a litmus test,” he said. “I will not choose one selection that is not a conservative. Conservatives get the separation of powers. Conservatives understand the three roles of the three branches.”
But those who have been a part of the revision process in the past have a warning for Negron and Corcoran.
“You ought to be modest. You don’t need to propose too much and if it isn’t broke, don’t fix it,” said Paul Hawkes, a Republican lawyer and former state legislator from Crystal River who served on the 1998 panel.
He predicted that “the CRC will be far more conservative in its outlook and I would guess their real concern is not what they can get through but how far they can go,” he said.
In 1978, the governor’s office and the Legislature were controlled by Democrats and the commission lacked diversity. Voters rejected all eight of their proposals. In 1998, with an evenly divided commission, voters approved eight of its nine proposals.
“Having half and half gave us the luxury of having to come to a meeting of the minds and work with each other, and it also restrained them from going too far in either direction,” said Deborah Kearney, general counsel for the 1998 CRC.
Carol Weissert, a professor of political science at Florida State University, warned about using the commission to advance a political agenda.
“The Legislature has the ability to put all those things on the ballot, so to have the CRC as an extension of the Legislature is not what the people who wrote that provision had in mind,” she said.
For Scott, who he appoints and the degree to which he includes political and demographic diversity in his appointments could become one of the most important legacies he leaves as governor.
“We had conservatives, liberals and those who were just operating in good faith,” said Hawkes at a presentation last week before the Associated Industries of Florida conference. “How the ‘good faith’ people decided something was how the question would go.”
Hawkes said the most important appointment is who the governor selects as chairman. In 1998, Chiles picked Dexter Douglass, his general counsel. Douglass’ personality, knowledge of law and strength of character was seen as pivotal to the success of the commission.
“The chair makes the commission,” he said. “Dexter Douglass was a very disciplined individual who understood what he wanted to accomplish and disciplined enough to know how to do it.”
Tampa Bay Times staff writer Steve Bousquet contributed to this report.