Q&A of the Day – Should Florida Limit Votes on Constitutional Amendments?
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
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Today’s Entry: Good morning, Brian- your response today to my and other Q’s re amendment 2 persuaded me to vote ‘No.’ Thank you for addressing my concerns so clearly. I am already leery of amending the constitution because of how intractable those things are, once adopted. Further, both in the proposal phase and once adopted, an amendment’s meaning and impact is removed from the will of the people and put into the hands of lawyers, judges, and special interest groups, something that is never in the interest of the citizens.
I would like to see a constitutional amendment that limits what can be proposed as a constitutional amendment, if practicable. Is that something you see as feasible, or is it also fraught with unintended consequences? I was also firmly supportive of the failed attempt to raise the threshold for amendment passage several years ago. That would go a ways towards stopping bad amendments.
Again, many thanks for your thoughtful analysis!
Bottom Line: Your point is well taken. As a limited government minded individual, I’ve long been concerned by special interests that attempt to usurp the legislative process by effectively legislating through proposed constitutional amendments. Many interest groups have found that if they can gain access to ballots, they can employ marketing tactics to successfully sway the necessary 60% of Floridians to enact constitutional amendments. There are many examples of this having been achieved over the years, however perhaps the most obvious occurred with 2018’s Amendment 3. As I mentioned in my recommendation for a “No” vote on Amendment 3 that year... First, it takes all forms of non-lottery gambling (including card games, slots and related gaming) and puts it under the banner of “casino gambling”. It then would strip the state legislature of the power to make decisions about new casinos/gaming in Florida – replacing it with voter decisions over new casinos/gaming establishments in our state.
I’m not big on intellectual inconsistencies. I think it’s hypocritical that we don’t consider the state lottery to be a form of gambling or that we view gaming to generally be unacceptable unless it’s on an Indian Reservation. Though I’m not a gambler, I support legalized gambling. The marketing behind Amendment 3 can make it difficult to understand what the implications of your vote would be. The reason this Amendment is being advanced is to make it more difficult to expand gaming in Florida. However, my message wasn’t widely enough understood and people who wanted legalized sports betting/expanded gaming voted in favor of it, and it’s the reason sports betting didn’t come about until years later, and only after numerous legal challenges at the state and federal level. It’s also why only the Seminoles can currently offer sports betting and why popular services like Draft Kings and Fan Duel have been locked out. It was a classic case of voters literally voting for the opposite of what they were intending to do.
To the point of your note, if in doubt on a proposed constitutional amendment the default vote should be a “no” vote because the implications of passing constitutional amendments are extensive and they almost always come with significant strings attached (that are most often decided in the courts – not by voters). Amendment 3 is a perfect example of that in this cycle.
Should we have a constitutional amendment to protect access to aspirin? Of course, not, right? That’s absurd. Do we intend to pass constitutional amendments for all drugs we want to have access to? Well, how is it less absurd to do it for marijuana, which like aspirin, is a drug? This is only a conversation because there’s a large contingent of people that want access to recreational marijuana and don’t care how it happens. However, process matters. As I’ve stated the proper process involves the federal government removing marijuana as a schedule 1 drug meaning that passing Amendment 3 isn’t just principally absurd, but it is also unconstitutional because it flouts the Supremacy Clause in the United States Constitution. A state can’t “make legal” something the federal government says isn’t. Yet there is still a large contingent that isn’t concerned with the false premise and is willing to discard the United States Constitution in the name of legal weed. It’s a dangerous president. What would happen, for example, if the federal government decided to enforce federal law after so-called “legalization”? More significant still, what would happen if officials in the federal government suddenly said, well it looks like a lot of states no longer care about the United States Constitution, so we won’t care about or enforce it either. So, forget the 1st Amendment, if we don’t like your speech, we’ll silence you. Or, forget the 2nd Amendment, we don’t like you possessing firearms, so we’ll no longer allow you to legally possess them. It's a tangled web and dangerous precedent.
The broader point is this. Constitutional rights, and constitutional law, is sacred in this country and within the state of Florida. It’s something that should be treated with the utmost respect and consideration. It’s what’s allowed this country to become the world’s freest country, the most prosperous country, and the world’s leading superpower. The same can be said for the state of Florida being an aspirational destination within our country. It’s become easy and commonplace for those principals to be thrown by the wayside in pursuit of a specific agenda. And that takes us to the specifics of today’s question. Can we pass a constitutional amendment that would limit what can be proposed in a constitutional amendment?
The answer to that question is literally yes, but also principally no. What I mean by that is that we certainly could pass a constitutional amendment that could state what could or couldn’t be proposed as say a citizen led constitutional amendment. That may have the immediate effect of disallowing citizen led initiatives in certain areas. What it wouldn’t prevent is the ability for that amendment to be repealed with a subsequent amendment replacing it in the future. The best way to rein in the special interest abuse of constitutional amendments is what you referenced. To raise the threshold by which they can pass.
Currently constitutional amendments need 60% support to pass. State Representative Rick Roth has repeatedly proposed legislation that would raise the threshold from 60% to 66.67% (two-thirds) - most recently in 2023. It passed the House on a 74 to 35 vote but died in the senate.
In 2019 I provided an analysis of the impact of this change if it were to take effect. As I noted at the time, if the threshold were raised from 60% to 66.67%, 60% of amendments that have historically passed wouldn’t have. In my view this proposal should be revisited again in next year’s state legislative session.