CRC Proposals Put the R in Revision

Every 20 years since 1977, Florida puts together a Constitutional Revision Commission to look at possible constitutional amendments it can fast track onto the referendum ballot. This year's commission, led by politically-connected developer Carlos Beruff, has been very busy and their proposals range from benign to asinine.

As state constitutions go, Florida's is relatively flexible, which can be both a good and bad thing. On the one hand, while government by amendment is not ideal, it is a way to bypass partisan gridlock and the disinterest of single-party rule. In recent years, voter initiatives–one of five ways an amendment can get on the ballot–have worked as a check against an obstinate legislature.

However, the CRC presents a rare opportunity to make sweeping changes to the way the state is run, and an onslaught of confusing and even intentionally-misrepresented referendums can have a sudden and profound impact on the state through either intended or unintended consequences.

The CRC will continue to work through May, and many of these proposals will not get out of committees and onto the ballot. But the political manner in which Beruff has already approached the commission, along with a political climate filtering down from Washington that suggests we should welcome sweeping changes to long-established norms and values, provide ample reason for Floridians to pay extra close attention to the process.

Among the more noticeable proposals, is one to change the way charter schools are established. Charter schools were first developed decades ago as laboratories in which progressive ideas could be tested without the impediments of school district bureaucracy. State law requires aspiring charters to petition their county's school board for a charter. However, as the charter school idea has grown into something very different and often sees itself as an alternative to the traditional public school model, its backers have argued that school boards have an obvious conflict of interest in deciding such petitions.

In 2012, the legislature did seek to put the process under a state body called the Florida Schools of Excellence Commission, but the state Supreme Court later struck the statute down as unconstitutional. Proposal 71 would amend the constitution to allow such a body to oversee the charters, making it possible to streamline the petition process, ushering in a wave of new charter schools. Such an amendment, if passed, would have profound implications in the battle between public schools and charters, giving the latter an enormous boost, as the state has typically been far more pro-charter than most school boards.

Proposals 4 and 59 also deal with a controversial educational issue: the separation of church and state as it applies to public education funds. Proposal 4 would "remove the prohibition against using public revenues in aid of any church, sect, or religious denomination or any sectarian institution," while Proposal 59, filed by Florida State Board of Education chair Marva Johnson, would create an exception "if those needs and differences cannot be completely met and accommodated by the student’s zoned public school."

Johnson has been one of Gov. Rick Scott's best soldiers in the war against the traditional public school model through the expansion of "choice" programs, and is clearly carrying political water with this proposal, which would likely be mired down in legal challengers, were it to pass.

Along with education, the judiciary is another cornerstone of society that could be heavily impacted by the CRC. Proposal 58 ostensibly addresses the many conflicts of interests and corruption-inviting aspects of electing our local judges. As I've written in the past, the process of having judicial candidates raise funds, face special interest PAC-funded attacks and form transactional relationships with actors and interests that are likely to come before them, is fraught with inherent danger. That said, it's difficult to conceive of a viable alternative to selecting judges that isn't equally politicized.

Former Florida Governor Reubin Askew sought to do just that when he created judicial nominating commissions that were filled through a layered format of checks and balances. Under Askew's model, the governor appointed three members, three more were appointed by the state bar, and those six would then appoint six more members from among the public, making for a 12-member commission that could remain as independent as seemingly possible. But in a blatantly partisan attempt to politicize the courts, the state legislature scrapped Askew's model in 2001, allowing the governor to appoint the full commission.

Proposal 58 would have county and circuit judges appointed with nominations coming from the governor's judicial nominating commissions. This would only further politicize the process, allowing a party that is in power to stack the benches at all levels with unqualified partisans who could legislate from the bench.

The award for the most obviously-dangerous idea goes to Proposal 22, which attacks Floridians' constitutional right to privacy. The proposal, filed by John Stermberger, an attorney from Orlando whose been involved with a number of right-wing causes, would limit that right specifically to the release of our personal information. Stermberger's proposal seems aimed at pro-life agendas he's supported that have been hindered by the Florida Supreme Court because of this constitutionally-enshrined right, however, it could obviously have implications that reach much farther.

It was the 1977 CRC that proposed an amendment that voters approved overwhelmingly in November of 1978, making Florida the fourth state in the union toadopt an expressed, freestanding right to privacy as a separate section of its state constitution. It expressly defended Floridian's right "to be let alone and free from governmental intrusion," and has often been cited in state supreme court conditions, including a proposed 24-hour waiting period for abortions that the court struck down earlier this year.

The obvious implication is that a challenge of state law on the grounds that it violates our right to be "let alone" would be severely narrowed in that such injury would be limited to whether it released protected personal information. The other side of the coin, so to speak, is that it would also redefine how we access certain public records, as the protection of such information is also specified in the section that would be replaced. Currently, thelegislature can create exemptions to the right of access guaranteed under Article 1 of the constitution and has done so on numerous issues from medical information and social security numbers to personal financial information.

If Proposal 22 is adopted, the legislature's powers would be broadly expanded in this realm. It could, for example, "provide by law" that certain "private" information is no longer public record. The First Amendment Foundation has expressed alarm in that it would seemingly "give the legislature the power to selectively pull existing public records from the public domain," suggesting that, as phrased, it would allow them to declare that certain information, such as a text that may be about public business but is on a personal cell phone, is to be protected as "personal information." This could completely change the way in which Florida's sunshine laws–an immensely-important tool in government watch-dogging–would function.

If those 5 are not enough to scare you, there's plenty in the other 98 proposals that will. As for the public's ability to influence the commission, the CRC demonstrated its disdain for public input when it unceremoniously accepted only six of the nearly 2,000 proposals suggested by the public in a laughably short meeting in October. It looks like our only defense against sweeping changes for the worst will be vigilance in the voting booth.