Board Issue Paper Florida Constitution Revision
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II. The Florida Bar Position
Not only does the Florida Constitution permit change, but some say it encourages change by providing numerous methods for amendment and by requiring its own periodic review. The Florida Constitution has five processes for amendment and revision, more than any other state constitution. While it is generally agreed that constitutions must have provisions allowing them to be amended, critics argue that some amendments address issues that should be decided by statute, detracting from the Florida Constitution’s purpose to set enduring legal parameters and making it susceptible to the politics of the moment.
II. The Florida Bar Position
The Florida Bar does not have a legislative position in regard to changing, revising or amending the constitution or the review process for proposed changes to the state constitution.
For the Bar’s position on specific amendment proposals, refer to the Bar’s Legislative Positions 2016-18.
A. History of Florida’s Six Constitutions
The first Florida Constitution was drafted in 1838 at a convention convened in St. Joseph on Dec. 3, 1838. That constitution established a governmental pattern that prevailed in other states: a oneterm governor, a bicameral legislature, and departmental administrators selected by the General Assembly and eligible for re-election by the assembly. The constitution banned bankers and clergymen from being elected as governor or legislators.
On Jan. 3, 1861, a convention assembled in Tallahassee to adopt an Ordinance of Secession to modify the constitution to substitute ‘Confederate States’ for ‘United States.’ Under prevailing law, the changes did not require popular ratification, because the convention was empowered to make necessary changes in a unilateral manner. On Oct. 28, 1865, a new constitution, based on the annulment of the Ordinance of Secession, was devised by convention delegates. However, the new constitution never became effective, because Florida was placed under post-Civil War military jurisdiction.
The fourth Florida Constitution was drafted and ratified in 1868. The fractious delegation convened in Tallahassee on Jan. 20, 1868, with some factions meeting in nearby Monticello. Following bitter deliberation, a consensus was reached, and a new constitution was ratified in May 1868. The Reconstruction or ‘Carpetbag’ Constitution, reflecting northern influence in the post-Civil war period, accorded the governor authority to appoint all county offices; reduced the number of legislators from populous counties; and established a cabinet system of administrators.
Popular election of public officials was restored in the 1885 constitution, which was ratified in November 1886. Among other changes, the new constitution established a legislative structure based on a fixed number of members.
The 1885 constitution endured until 1966. On Jan. 11, 1966, a Constitution Revision Commission assembled to study the Florida Constitution and suggest changes. The commission reported its recommendations to the Legislature on Dec. 13, 1966. The Legislature revised the commission’s draft and adjourned July 3, 1968. The new constitution was ratified by voters on Nov. 5, 1968.
The 1968 constitution provided that “-in the tenth year following that in which this constitution is adopted, and each twentieth year thereafter, there shall be established a constitution revision commission -” The most recent Constitution Revision Commission completed its work in 1998. The next Constitution Revision Commission will complete its work in 2018.
B. Methods to Propose Revisions to State Constitution
There are five methods to amend the Florida Constitution:
- Legislative joint resolution.
- Constitution Revision Commission.
- Citizens initiative.
- Constitutional convention.
- Taxation and Budget Reform Commission.
1. Legislative Joint Resolution
The Legislature can propose revisions through a joint resolution approved by threefifths of the membership of each chamber. In 2016, three amendments were proposed by the Legislature: Solar Devices or Renewable Energy Source Devices, Exemption From Certain Taxation and Assessment; Homestead Tax Exemption for Certain Senior, Low-Income, Long-Term Residents; Determination of Just Value; and Tax Exemption for Totally and Permanently Disabled First Responders. All three were approved by voters.
2. Constitution Revision Commission
A Constitution Revision Commission is appointed every 20 years to review the constitution, suggest revisions, hold public hearings and file recommendations for revisions not later than 180 days before the next general election.
1977-78: The 1977-1978 Constitution Revision Commission, the first under the 1968 constitution, was chaired by Talbot “Sandy” D’Alemberte and had eight proposals on the November 1978 ballot for voter consideration. None of the proposals passed, but some were implemented later by statute or constitutional amendment.
1997-98: Over 11 months, the 37-member Constitution Revision Commission worked to develop a list of proposed changes to the Florida Constitution. The 19 Democrats and 18 Republicans on the commission visited 11 cities to hear proposals at public hearings. They rejected 154 proposals, including restricting abortion rights, altering the citizen initiative process, creating an independent commission to reapportion the Legislature and stopping the flow of so-called ‘soft’ money into political campaigns.
Ultimately, the commission approved nine proposed revisions, which appeared as amendments 5 through 13 on the Nov. 3, 1998, ballot.
In addition to preparing proposals for the ballot, the commission launched a $1 million public campaign to educate Florida’s voters on its nine proposed changes. The Florida Bar produced a 10-minute video explaining each amendment. The Bar also had attorney volunteers speak to community groups on the proposed changes to the Florida Constitution (there were 13 total; nine from the CRC and four that were legislatively referred).
On Nov. 3, 1998, Florida voters passed 12 of the 13 proposed constitutional amendments. The only amendment to fail was a CRC proposal concerning local property tax exemptions. A vote of only 50 percent plus one was needed to pass an amendment.
2017-18: The governor, Florida Senate president, Florida speaker of the House and Florida Supreme Court chief justice will name 36 people to the 2017-18 Constitution Revision Commission. The attorney general is the 37th member. The process requires that members be selected within 30 days of the start of the legislative session.
The timeline calls for the commission to begin its work at the conclusion of the 2017 legislative session. The commission will hold public hearings throughout the state at which citizens can share ideas and feedback on potential proposals. Next, the commission will recommend proposals for the 2018 ballot. Voters ultimately will decide which proposals become part of the constitution. Proposals require 60 percent of the vote to pass.
The Florida Bar’s Special Committee on the 2017 Constitution Revision will monitor the activities of the 2017 commission and, with other groups, coordinate the Bar’s role as an authoritative and unbiased resource to those engaged in the process. The special committee will additionally act as a clearinghouse for the Legislation Committee of the Board of Governors in reviewing CRC proposals for possible legislative or political action by The Florida Bar or other subgroups, and further coordinate the Bar’s informational and educational outreach to the public with the Communications Committee of the Board of Governors once the CRC’s proposed constitutional revisions are finalized for the 2018 general election ballot.
For more information and resources, go to The Florida Bar’s Constitution Revision Commission page or the Partnership for Revising Florida’s Constitution.
Anticipated timeline (from the Partnership for Revising Florida’s Constitution):
- February 2017: 2017-28 Constitution Revision Commission named.
- 2017 Legislative Session: Appropriations for commission’s work.
- Summer 2017: CRC begins work.
- May 10, 2018: Not later than 180 days before the General Election, any proposals to revise the constitution by the Constitution Revision Commission must be filed with the secretary of state.
- Nov. 6, 2018: Citizens vote on proposals.
3. Citizens Initiative
Citizens may seek to amend the constitution through an initiative process in which petitions are ‘signed by a number of electors in each of one half of the congressional districts of the state, and of the state as a whole, equal to eight percent of the votes cast in each of such districts respectively and in the state as a whole in the last preceding election in which presidential electors were chosen.’
The sponsor of an initiative amendment, before obtaining signatures, must register as a political committee and submit the text of the proposed amendment to the secretary of state, with the form on which the signatures will be affixed. The secretary of state must approve the form. The sponsor then collects signatures and submits the forms signed and dated to the local supervisors of elections for verification as to the number of registered voters and verification of the signatures. The certificates of verification are then forwarded to the secretary of state.
The secretary of state must receive verification certificates from the supervisors of elections indicating that the requisite number and distribution of valid signatures of electors have been submitted to and verified by the supervisors. Every signature is dated when made and is valid for a period of four years following such date. Certification by the secretary of state must occur at least 90 days before the proposed revision is to appear on the ballot.
An initiative petition must comply with requirements set forth in the Florida Constitution and the Florida Statutes. The statute provides that ‘whenever a constitutional amendment … is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot. … The substance of the amendment … shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.’
The attorney general must petition the Florida Supreme Court to determine whether the proposed initiative meets the above requirements. The court then issues an advisory opinion. The court scrutinizes the proposed amendment to determine that it in fact deals with only a single subject. The court does not review constitutional issues in its advisory opinion. It does not address the wisdom of the proposal or the accuracy of the information used to promote the change. The purpose of the single-subject requirement is to avoid logrolling (coupling of popular causes with unpopular causes in order to increase chances of passing); guard against extreme changes in the constitution; and direct voters’ attention to the actual change being made.
4. Constitutional Convention
A constitutional convention may be assembled if ‘a number of electors in each of one half of the congressional districts of the state, and equal to 15 percent of the votes cast in each such district respectively and in the state as a whole’ petition for a convention. The petition for a convention must be filed with the secretary of state at least 90 days before the next general election for placement on the ballot. Upon a majority vote in the affirmative, convention participants would be elected at the next general election, and the convention would assemble 21 days thereafter.
Florida has not had a constitutional convention since the 1800s.
5. The Taxation and Budget Reform Commission
This commission, which meets every 20 years, can propose revisions to the constitution dealing with taxation and the state budgetary process. It last met in 2007-08.
C. Proposed Amendments Since 1976:
There have been 149 proposed constitutional amendments on the ballot from 1976 through 2016 — 104 of which were adopted.
Results from past elections are available on the Florida Division of Elections website.
The details of proposed amendments are on the Florida Department of State website
This background paper was prepared by The Florida Bar Department of Public Information and Bar Services with assistance of General Counsel and Governmental Affairs staff.