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Constitution rewrite needed to progress

By By Jonathan McElvy
BNI News Wire
Editor's Note: This is the third story in a series addressing Alabama's fiscal crisis and how government officials are tightening the state's financial belt through massive and immediate agency cuts.
The series also details efforts to rewrite the state's 1901 Constitution and how officials hope to offset a $500 million shortfall in revenues.
The adjectives sound like descriptors for a Middle Eastern rogue regime: sordid, convoluted, incoherent, laughable and flawed.
Yet those are the way a noted educator and Alabama's own governor view the document that dictates state law.
"I got interested in the constitution back in college," said Bailey Thomson, a journalism professor at the University of Alabama and a Pulitzer Prize finalist for a series of editorials he wrote on Alabama's antiquated constitution. "I studied the sordid history of it, and particularly its anti-democratic features."
Behind only former Secretary of State Jim Bennett, Thomson has become possibly the most knowledgeable source on the constitution.
We need to "have a cleaner version of what is now a pretty messy, convoluted and incoherent document," he said.
Those hardly are kind words about the basis of law for Alabamians, and they fit well with the adjectives Gov. Bob Riley uses when talking about the constitution.
"It is a flawed document," Riley said. "It's almost laughable," he added when discussing one provision of the constitution that doesn't allow counties to make local decisions.
When Riley ran for governor last year, he distributed a booklet called "A Plan for Change." After a chapter pledging to add more accountability to state government, Riley delved into what he considered the second most pressing need in Alabama.
"There is now general agreement among many Alabamians that our state's central charter, the Constitution of Alabama of 1901, does not adequately serve that purpose," he said.
Upon taking office in January, Riley wasted no time addressing the constitutional crisis in Alabama. He appointed a "Citizens' Constitution Commission" in early February and gave them 120 days to make recommendations on changes that could streamline state government procedures. Not 60 days later, the commission – of which Thomson helped lead – reported back to Riley.
Of the endless number of changes possible for Alabama's constitution, Riley asked the commission to study five specific areas: home rule, earmarking, a line-item veto for the governor, a supermajority requirement to pass tax bills and recompilation of the constitution.
Home Rule
In Alabama's system of government – thanks solely to the restrictive language of the constitution – local governments have little control over decisions that affect only their counties.
For instance, Limestone County apparently had a problem with the disposal of dead farm animals. That didn't mean Limestone County Commissioners could address the problem at the regularly scheduled meeting, though. The issue needed the Alabama Legislature's help, and eventually, a constitutional amendment.
That's why Amendment 482 of the Alabama Constitution grants Limestone County the power to dispose of dead farm animals and to excavate human graves.
That's what Riley dubbed "laughable."
"If a county wants to set up a water and sewer authority, they have to go to Montgomery and get a bill passed," he said. "If a county wants to create a fire district, they must go to Montgomery and, you guessed it, get a bill passed."
There's more to the home rule dilemma than dead farm animals, though.
"We've got many instances of people having their property values jeopardized by corporate hog farms moving next to them, by quarries opening next to them, by businesses that have foul odors opening next to them, massage parlors, things of that nature," Thomson said.
If local decisions were taken out of the hands of Alabama legislators, citizens would have more control over issues that directly affect them.
"Home rule allows them to protect property values better," Thomson said. "It allows governments to be more efficient."
And that is a key for Riley. In the time legislators spend voting on a bingo parlor in Wetumpka, they could address more critical needs for the state.
"Forcing the legislature to debate issues of strictly local interest to a particular county is a poor use of the legislature's time – time that could be better spent addressing the general welfare of this state," Riley said.
Earmarking
The process of setting aside state revenues for specific projects – also known as earmarking – can be as simple or complex as one chooses to make it.
In simple terms, Alabama specifies the use of revenue more than any other state in the union. While all other 49 states earmark an average of 22 cents for every dollar of revenue, Alabama earmarks a whopping 92 cents on the dollar. That means our government has the flexibility to spend only 8 percent of the revenue it takes in – all other revenue is immediately appropriated to a specific agency once it is collected.
"Unless we reexamine our fascination with earmarking in Alabama, our government will never have the flexibility it needs to be responsive to the needs of the people," Riley said.
All of that sounds well and good, but changing the way Alabama earmarks its money isn't so simple.
Paul Hubbert, executive secretary of the Alabama Education Association, is considered the state's most powerful lobbyist. He has problems with Riley's plan to end earmarking. For education leaders, unearmarking tax dollars could lead to less revenue for education.
Riley has pledged to take nothing from education funding, and in fact, the governor has said he's only interested in unearmarking new revenue the state will gain – possibly through tax increases.
David Azbell, Riley's press secretary, told The Mobile Register earlier this week Riley does not want to earmark any new revenue taken in by the state.
And for Bailey Thomson, that's the reason earmarking is such an important issue to address in the state constitution.
"Most funds are not earmarked to a very specific degree," Thomson admitted. "It's not as restrictive as some might think, but we certainly need more flexibility."
The problem, Thomson said, is "we don't have enough revenue." And once new revenue is generated, state government should be able to use that money in areas of highest need.
"The degree of earmarking we have is a measure of distrust people have of state government," he said. "State government, to earn more trust from people, has to show it's more accountable. Accountability and more flexibility with spending kind of go hand-in-hand."
Line-Item Veto
Accountability isn't just a word that applies to earmarking. One of the reforms Riley wants to make with the state constitution is the inability of a governor to make line-by-line changes to legislation.
If the Alabama House and Senate pass a bill – such as an education budget – Alabama's governor has little say-so in the final piece of legislation.
In fact, the governor has only three options: He can sign the bill, veto the bill or pocket veto the bill. The first two options are understandable. The third option – a pocket veto – refers to the governor's ability to let a bill sit on his desk until the end of the session. If that happens, that piece of legislation is dead.
"Gov. Riley believes, if the legislature passes a bill and sends it to the governor, the governor owes it to the people to take a position on that bill – yes or no," said Pepper Bryars, Riley's deputy press secretary. "Being able to line out items will hold the governor accountable."
The line-item veto process is simple. If allowed, the governor would be able to cross out specific "lines" of the legislation without killing the entire piece of legislation.
For Riley, it's about accountability.
"In the past, we've had governors who have said, 'Well, I tried to get the legislature to get the pork out of it, but that's the bill they sent me and I had to do it,'" Bryars said. "Governors in the past have hidden behind a weak veto power, and they haven't had to answer to the people."
Thomson agrees that line-item veto power for the governor is an important change needed to the state constitution.
"It allows the governor to target pork," Thomson said, "and it's an important component of making the legislature and the executive branch work together."
Even still, Thomson admits this may be the toughest change to the constitution Riley has advocated.
"It's going to have a hard time because legislators are going to be reluctant to give up power to the governor," he said.
Supermajority Requirement to Pass Tax Bills
In Alabama, tax-paying citizens spend almost 40 percent of their income on taxes – both on the state and federal level, according to Riley.
As part of a series of changes to the state constitution, Riley said it's too easy for the state legislature to pass a new tax on the people.
Currently only 51 percent of legislators have to pass a tax before it is levied on the public.
"I would like to offer a safeguard to protect Alabama families from increased undue taxation," Riley said.
To do that, the governor plans to ask the legislature to pass a super-majority amendment to the constitution that increases the number of legislative votes it will take to pass a new tax. As opposed to 51 percent – or a simple majority – Riley believes three-fifths of the legislature should approve the tax.
"Gov. Riley feels that you should have to convince slightly more than 50 percent of the people in a room that it is appropriate to take more money from the citizens," Bryars said.
If there is one issue that Thomson believes can be put on the back burner, this is it.
"This is something that the governor will have to propose along with state tax reforms," Thomson said. "At the same time, citizens do want assurances that taxes are going to be well considered before they are raised. This would be a way to give citizens more comfort."
Recompilation
The final aspect to Riley's constitution reform plan focuses on the inordinate amount of useless language floating in the document.
"Recompilation simply looks at how to get rid of the dead language," Thomson explained. "Right now, there are about 350,000 words in the constitution.
Our commission looked at how we could recompile it so there still might be 300,000 words but at least the dead language would be gone."
To Bryars, there's little controversy over this issue.
"I think this is widely viewed as something that is needed, and everybody seems to agree on it," the deputy press secretary said.
That may not be the case, according to Thomson.
"It's a tricky legal issue right now because the Supreme Court has not said you can do that yet," he said. "The [Alabama] Supreme Court justices have been asked to decide whether, legally, the legislature could clean up the constitution, reprint it and say, 'Here's our document.'"
While dead language is important to the perception of Alabama's constitution, Thomson described the recompilation process as "editorial" more than a reform.