Guest Column
The Florida Legislature has declared war on direct democracy | Column
The Legislature resents both the intrusion on its authority and the policies advanced by the people of Florida.
Surrounded by lawmakers, Florida Senate President Wilton Simpson speaks to members of the media after the end of a legislative session, Friday, April 30, 2021, at the Capitol in Tallahassee. (AP Photo/Wilfredo Lee)
Surrounded by lawmakers, Florida Senate President Wilton Simpson speaks to members of the media after the end of a legislative session, Friday, April 30, 2021, at the Capitol in Tallahassee. (AP Photo/Wilfredo Lee) [ WILFREDO LEE | AP ]
Published July 25, 2021

The Legislature has had it with intrusion on its power by the people of Florida.

This past session, lawmakers adopted Senate Bill 1890, sponsored by southwest Florida state Sen. Ray Rodrigues. It is a severe measure designed to shut down citizen petition gathering for constitutional amendments by limiting the financial contributions that are the oxygen of political movements.

This latest restriction imposes a cap of $3,000 on contributions to committees working to place a constitutional amendment before the voters or opposing a proposed amendment, is being challenged in federal court.

Howard L. Simon
Howard L. Simon [ Provided ]

Not surprisingly, on July 1, the day the law was scheduled to take effect, a federal judge issued a preliminary injunction.

For more than 50 years, Floridians have had the right “to propose the revision or amendment” of their constitution by initiative petition. Essentially this allows the people to go over the heads of legislators directly to voters when frustrated by the Legislature’s inability or unwillingness to address problems.

And boy has the Legislature resented both the intrusion on its authority and the policies advanced by the people.

Legislators fought the people’s proposals and, after adoption, did what they could to weaken what voters approved when the people took power into their own hands to:

— Dedicate funds to a trust to purchase land for conservation

— Reduce class size

— Enact Fair District Amendments to ban partisan gerrymandering

— Allow the use of marijuana for medical purposes

— Require a gradual increase in the minimum wage, and

— Restore voting rights for those with felony convictions.

To understand the Legislature’s institutional hostility to direct democracy, it helps to see the forest and not just the latest tree. Recall a few of the weapons legislators used to hinder and frustrate the people’s right to amend their constitution.

— Banning collecting petition signatures close to polling places (where, of course, one would find registered voters)

— Requiring sponsors of constitutional amendments, but not candidates for office, to pay for verifying signatures

— Requiring Secretary of State approval of a proposed amendment’s text and ballot summary

— Requiring that each signature be on a separate sheet of paper rather than allowing multiple voters to sign on a single sheet

— Cutting the expiration date for valid signatures from four to two years

— Mandating Supreme Court review of the language of a citizen-initiated constitutional amendment, but not amendments proposed by the Legislature

— Banning paying petition circulators per-signature

— Permitting electronic signatures on petitions for candidates, but not citizen-initiated constitutional amendments.

The Attorney General (who has the unenviable burden of defending laws enacted by the Legislature regardless of how stupid or unconstitutional) claimed that the latest effort to throttle citizen-initiated constitutional amendments is just a “temporary, targeted cap” (imposed only in the initial petition gathering stage) and designed to ensure that proposed amendments have broad support and are not the project of a few deep-pocket donors. (Here John Morgan’s name is often mentioned, as if he were the only well-heeled sponsor or opponent of a constitutional amendment in Florida history.)

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Let’s note a bit of hypocrisy buried in this attempt to limit contributions that would “curtail debate and discussion of a ballot measure,” as courts have characterized such efforts.

For many conservatives, money is often defended as a form of speech. But as the Supreme Court noted decades ago, “limits on contributions which in turn limit expenditures plainly impairs freedom of expression.” That is, all speech is protected. It can’t be okay for legislators to limit speech because it furthers progressive goals.

In granting the preliminary injunction, the federal judge cited two decisions that have governed for the last 40 years, one from the U.S. Supreme Court. Both hold that a limit on contributions to ballot measures “impairs freedom of expression.”

That the Legislature enacted the contribution cap regardless is a strategy, employed in this and other areas of the law, by which the Legislature hopes to entice appellate courts (and perhaps the U.S. Supreme Court) to abandon precedent and change the law.

The governor’s reaction to the Preliminary Injunction was similarly troubling.

He expressed confidence that the state would prevail when it gets to the Court of Appeals. In this, he gives fuel to the cynicism that erodes respect for the rule of law — namely that what the law is depends on the politics of the judges hearing the case. His comment suggested that he expected the Preliminary Injunction but that his real audience is the 11th Circuit U.S. Court of Appeals, which has a majority of judges appointed by Republican presidents, including six appointed by former President Trump.

But interestingly, so was the federal judge who enjoined the law from taking effect. Hopefully, when appealed, the Injunction will be sustained by the appellate court.

But our rights should not depend on the hope that courts will stand up for constitutional principles.

Did your state representative and senator vote to restrict your rights by approving SB 1890? Probably: 75 state representatives and 23 Senators said yes.

Remember that for the next election.

Howard L. Simon served as Executive Director of the American Civil Liberties Union of Florida from 1997 until his retirement in 2018 following passage of the constitutional amendment, which he helped draft, restoring voting rights for those who completed their felony sentence.