Oklahoma, like many western states, allows its citizens to directly participate in the democratic process through citizen initiatives and referendums. In a referendum, the legislature directs a question to the people — usually to modify the state constitution, since the legislature can change statutes itself. An initiative requires no legislative involvement, but is initiated by the people via signature gathering, and can be used to modify statute or amend the constitution.
Collectively, the initiatives and referendums that make it onto the ballot are known as State Questions.
Recently, there have been calls to make it more difficult to amend the constitution. At least two proposals are being discussed. One would diversify the signature requirement by demanding that a proportional amount of signatures come from each region of the state. The other would require a sixty percent majority to adopt a constitutional amendment rather than the fifty percent plus one currently in place.
Both of these proposals come from a good place. The constitution is inherently higher than statute; that is to say, when a statute and a constitutional provision conflict, the constitution always carries the day. That means legislators cannot simply overrule it like they could an old statute. While this protects the minority from the tyranny of the majority, it also limits the options that legislators have when circumstances change. This means the constitution needs to be constructed with precision. It needs to provide protections for precious individual liberties, but it shouldn't be crammed full of specific policy determinations, especially those that may need to adapt to changing political or economic conditions.
Protecting the minority from a tyrannical majority is a particularly compelling reason to make the constitution harder to amend. The U.S. Constitution is incredibly difficult to change, so very little policymaking happens there. However, most states operate similarly to Oklahoma, and the length and content of their constitutions reflects this low bar for amendment. But in this instance, the federal model gets it closer to right. There may be an argument that amending the U.S. Constitution should be easier, but its stringent procedures ensure that it contains only the elements one would expect in a constitution. So enacting one or both proposals to make our constitution tougher to amend should be an easy call, right?
Almost. There is one very important caveat that must be considered: what about all those old State Questions? If we used a substandard mechanism to enact them, are we now comfortable locking them in at a new (heightened) standard? If you had a mortgage with a variable rate, would you switch to a fixed rate when interest rates were high? Of course not.
Six months after SQ802 locked in balloon payments, why should we switch to the fixed rate? The time to do so would have been back when rates were low, and 802 had not yet been the subject of one of the most irregular elections in living memory (at least to that time). If a proper three quarters or even sixty percent majority had been required in June, we would not find ourselves in this mess; 802 fell far short of a supermajority, with a margin of victory of less than one percent.
Changing the majority requirement now, without added protections, is akin to someone borrowing money to build a safe right after their house was robbed. There's nothing left to protect, and the effort would have been better put into rebuilding the lost wealth. Fortunately, Oklahoma doesn't have to make such a choice. It should be quite simple to grandfather in old state questions. The new amendment should simply add that any state question that was previously passed may be repealed according to the requirements in place at the time it was passed. This lets us safeguard the future while leaving room to undo past mistakes.
Mike Davis is a Research Fellow at 1889 Institute. He can be reached at firstname.lastname@example.org.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.