Florida convenes a special panel every 20 years. Did this one blow its opportunity?

"It wouldn't surprise me if everything fails,'' one expert said.
The Florida Constitution Revision Commission Education Committee debates whether to end school board member pay, on Jan. 19, 2018. [The Florida Channel]
The Florida Constitution Revision Commission Education Committee debates whether to end school board member pay, on Jan. 19, 2018. [The Florida Channel]
Published Apr. 23, 2018

TALLAHASSEE  — The eight amendments added to the November ballot by the Constitution Revision Commission may be a collection of disparate ideas — banning greyhound racing and oil drilling, expanding charter schools and victims' rights — but to their proponents, they're a logical bundling of initiatives that prepare the state for the future.

To constitution experts, as well as some former members of the CRC, the proposed amendments may be doomed.

"It wouldn't surprise me if everything fails," said Mary E. Adkins, professor at the University of Florida Levin College of Law.

Adkins, who has studied the political history of Florida's Constitution and authored the 2016 book, "Making Modern Florida: How the Spirit of Reform Shaped a New State Constitution," compared the 2018 commission to the CRC of 1978, when voters rejected all eight proposals.

The panel has the unique power to place amendments before voters to modernize the state constitution once every 20 years. In 1978, all but four of the 37-member commission were Democrats. In 2018, all but three were Republicans — 14 appointed by Gov. Rick Scott, nine by House Speaker Richard Corcoran, nine by Senate President Joe Negron and three by Supreme Court Justice Jorge Labarga.

"In 1978, they created a very ambitious agenda and they had some extremely liberal proposals and probably more liberal than voters were willing to do, so they lost every one," Adkins said.

"The mirror image of that happened this year," she said. "The group was nearly all Republicans and, sure enough, it appears its agenda is the agenda of the appointers."

Concerned about "voter fatigue" from a long ballot that also includes five amendments from the Legislature and citizens' initiatives, the commission attempted to find common themes among the varied proposals and bundled several of them together into six amendments.

Previous coverage: Eight ballot measures approved by CRC, voters to consider everything from charter schools to oil spills and vaping

The stand-alone amendments, such as a new ethics standard for elected officials and a phase-out of greyhound racing, give voters a clear idea of what is intended, but Adkins warns that if voters are frustrated that they can't pick and choose between the ideas they like and those they don't because they are bundled together, they may reject them all.

By contrast, she said, the 1998 commission was evenly divided between Democrats and Republicans, so it had to work to get consensus on each proposal and, while they bundled proposals together, "they worked to do an honest grouping of related things." As a result, all nine proposed amendments in 1998 passed.

The overriding complaint of current and former members of the commission interviewed by the Herald/Times is that the 2018 CRC was so intent on the political consequences of its decisions that it packaged them together with barely any public input and squandered the opportunity.

A common theme emerged, they said: Amendments designed to bring out supporters of Scott, a Republican candidate for U.S. Senate, and Corcoran, a likely Republican candidate for governor, were given favor over proposals that might bring out supporters of their opponents.

Among the ideas rejected by the CRC were proposals to repeal the death penalty, to give residents a choice in selecting an energy provider and to establish a right to a clean and healthful environment. Those were all proposed by Republican members of the CRC.

Ideas that were approved and packaged together with the encouragement of many Scott and Corcoran supporters included a controversial plan to allow charter schools to bypass local school boards. It was tethered to a plan to expand civics education in public schools and an eight-year term limit for school board members.

A proposal to require Miami-Dade County to elect its sheriff was rolled together with three unrelated ideas: creating an Office of Domestic Security and Counter-terrorism within the Florida Department of Law Enforcement; making the existing Department of Veterans' Affairs a constitutionally required office, and changing the start of the legislative session in even-numbered years from March to January.

"To me, this whole process just reaffirmed the fact that everybody wants good government until they want something from government and then their own self interest overweighs the idea of good government," said Bob Solari, an Indian River County commissioner appointed to the CRC by Negron.

Previous coverage: Oil industry signals opposition to amendment to ban drilling and vaping

Solari said that "the governor had significant weight" on the Style and Drafting Committee that packaged the proposals and, because the governor influenced Commission Chair Carlos Beruff, "a lot sort of went their way."

Brecht Heuchan, a Tallahassee lobbyist and close political adviser to Scott, chaired the Style and Drafting Committee that proposed the bundling plans and said he disagrees that the proposals were designed to appeal to turn out certain voters.

"There is zero evidence that ballot amendments have one scintilla of anything to do with turnout," he said. "That's a myth."

Heuchan also disagreed that the eight amendments are doomed and is confident that history will judge them favorably.

"Anything that anybody does that is bold, or transformative, people are going to take some exception to," said Heuchan, who was appointed to the CRC by Scott. "You can't do something that's worth anything if there isn't some criticism."

Henry Coxe, a Jacksonville lawyer and one of the Democrats on the panel, said the politicized process may lead future Floridians to conclude that the CRC "has seen its day."

"Unless we shift away from the partisanship and polarization, it's going to be a one-man team dominated by a political interest," he said.

The CRC has the authority to put amendments directly on the ballot and there is nothing that stops it from combining unrelated ideas into one. While some CRC members wanted all the proposals to stand on their own to avoid voter confusion, others argued they wanted them grouped to save voters' time.

Republican Roberto Martinez, a Coral Gables lawyer and former federal prosecutor, said the goal of bundling the amendments in this way was "to put lipstick on a pig by combining proposals that were popular with ones that are not popular."

Martinez, the commissioner who proposed abolishing the death penalty, was among those who urged the commission to separate the bundled items because it could lead to voter confusion. He predicted there may be a legal challenge that argues the bundled amendments violate the constitutional provision against misleading voters.

Former Florida Supreme Court Chief Justice Gerald Kogan, who served on the 1998 CRC, called the idea to bundle this year's amendments "stupid," "ludicrous" and defying "common sense."

He doubted whether the amendments would survive legal challenges, and he doubted even more that voters would approve them.

"This thing is just absurd," he said. "I'd be amazed if anything passes."

He also warned that the decision to bundle so many unrelated items "could be the downfall of the Constitution Revision Commission for this 20-year period."

Heuchan acknowledges there can be disagreement over how the proposals were grouped together, "but to say none of these should be grouped because voters are being scammed or undermined, that is false," he said.

Rep. Chris Sprowls, a Republican from Palm Harbor who was appointed to the commission by Corcoran, said that if the CRC is not allowed to combine unrelated ideas, then the state should do away with it.
"It is able to do things in large chunks that the Legislature is prohibited from doing," he said.

Martha Barnett, an attorney who served on the 1998 CRC, said her commission also bundled ideas into single proposals, but they also tried to group similar ideas together.

Grouping unrelated ideas together runs the risk of people voting against the proposals, she said.

"People are pretty smart. They'll vote no, or they'll not vote at all, before they vote for something they don't understand."

Paul Hawkes, a lawyer who also served on the last CRC, was not outraged by the bundling, saying it was a way to avoid voters' "ballot fatigue" by limiting the overall number of amendments voters would face.

But he did agree that if voters are confused by the amendments, they'll likely vote it down.

He added that the 1998 commission did not struggle with rules and procedure like this year's commission did. He credited the fact that his commission had a steering committee with experienced staff that helped things go smoothly, and this year's did not. And he credited the experience of 1998 commission chairman Dexter Douglass.

"He was very cautious that nothing we do pollute everything we do," Hawkes said.

The rules were a constant source of tension since the CRC had its first meeting a year ago. Unlike the previous commissions, Chairman Carlos Beruff centralized much of the decision making and changed one rule — allowing committees to kill a proposal, not the whole commission.

"Changing that rule changed the whole process," Adkins said.

Other members noted that after conducting dozens of meetings around the state to engage the public on the proposals, there was only one two-hour meeting for the public to respond to the final bundled concepts, and although the commission had until May 10 to debate what made it to the ballot, it completed its work after a marathon 10-hour meeting on Monday.

"I came up expecting to spend at least three days, and I was shocked and dismayed we got it done in one," Solari said. "The way I saw things, you're talking about the Constitution, so why wouldn't you go slowly and deliberately?"

Solari also was dismayed at the amount of work done on the proposals behind closed doors.

"It is clear that different people wanted to be able to talk with each other but they never wanted the public to know they're talking to each other," he said.

Jacqui Thurlow-Lippisch, a Republican former Sewall's Point mayor who sponsored a proposal to ban oil and gas drilling in state waters, said she was "naive" not to realize that the process would get politicized.

"Let's face it. This is not an idealistic situation," she said. "It's about what fits into the politics and what fits into the timing."

She says the reason her amendment made it to the ballot is because "oil drilling is in the news and it's an issue that will be brought up in the Senate race between U.S. Sen. Bill Nelson and Gov. Rick Scott," she said. "They have to prove they care about our environment."

Regardless of the political realities, Thurlow-Lippisch said she is grateful for the chance to work on the commission.

"Politics is a tainted and imperfect world, but you can't completely take it out of a process like this," she said. "Could we have done better? Yes. But did we do OK? Yes, we did well."