On August 26, 2014, the Commission met for the fifth and last time. The purpose of the meeting was to approve the Commission’s Report, which it did (well, sort of). The Commission Report was publicly released on September 3—eight days after the wording had supposedly been finalized and voted upon.
The Behind-The-Scenes Prelude to the Meeting
As with its first meeting, the critical business of the Commission was done behind the scenes, prior to the meeting.
For the public, the report drafting process was a mystery. Just as the selection of co-chairs at the Commission’s first meeting was announced and voted on as if by divine providence, the same occurred with the report drafting. At the four previous meetings, there had been no public discussion of who or how the Commission would draft its report. Nor was there a public acknowledgement of which of the legislative leadership’s staff members would be assigned to do the work.
On August 7, the Commission’s meeting chair announced that, as if coming down from Mount Sinai with the Ten Commandments, the Commission’s report would have to be complete by August 25 to meet the Secretary of State’s deadline for inclusion in his Voter Information Handbook, which is distributed at taxpayer expense to all registered Rhode Island voters. Never mind that there is no law stipulating that the Secretary of State must consider, let alone incorporate, the Commission’s report.
But there was a problem with this scenario. The last public hearing was on Thursday, August 21, and the date of the next meeting to discuss and approve the report was August 26. Never mind: the staff would draft the report on its own and send a summary to the Secretary of State by his August 25 deadline for his Voter Information Handbook—without first sending it for review, let alone approval, to all the commissioners. The commissioners did get approximately 24 hours prior to the August 26 meeting to review the draft of the Report on a confidential basis. Commissioners never voted on the final summary text sent to the Secretary of State and at least some were not informed that it was sent.
The August 26 Meeting
The public meeting began inauspiciously as a meaningfully accessible public meeting. Unlike the other four meetings, it wasn’t webcast, violating the legislature’s own rules and the Commission’s promises regarding the transparency and accessibility of its proceedings. Fortunately, Beverly Clay, who had raised concerns about the transparency of the Commission’s proceedings during her testimony before the Commission on August 7, observed the policy violation and managed, despite some opposition by one staffer, to get the recording started within about ten minutes of the meeting’s start. The result was that slightly more than half the meeting was recorded.
The Jones Amendment. Commissioner Judy Jones (one of the four “public” members) moved to amend the report to include the fact that the Women’s Health and Education Fund had testified. Adding the Women’s Health and Education Fund (which did not testify in person but presumably sent a letter to the Commission that wasn’t publicly disclosed) but not, say, The Rhode Island Center for Civil Rights, which did testify in person, brought the total of groups to 5 against and 4 for. Jones’s amendment was approved. This part of the meeting wasn’t webcast.
Since the final report would include the names of groups but not individuals who testified at the hearings, the overall impression created by this amendment was that there was more opposition than support for a constitutional convention. In contrast, if all speakers had been treated equally in the report, the overall score for the three public hearings would have been 15 in favor, 7 opposed, and 3 neutral.
No explanation was provided for the missing individuals; for example, why the National Association of Social Workers should be included after only submitting one page of talking point style written testimony but not individuals who spoke at length in person, such as Mayor Alan Fung of Cranston, John Partridge, one of the 1973 Constitutional Convention Framers of both the Periodic Constitutional Convention Referendum and the Bi-Partisan Preparatory Commission, and Phil West, former executive director of Common Cause Rhode Island and author of a major book on democratic reform in Rhode Island.
The Frias Amendments. The primary discussion involved two amendments to the report proposed by Steve Frias (another “public” member; for Mr. Frias’ account of his amendments, see Interview with Steve Frias, on the Work of the Constitutional Convention Preparatory Commission). The first amendment sought to include in the report the cost of the 1973 constitutional convention as well as the 1986 convention. The cost of the 1973 convention was substantially less than the 1986 convention. Frias’ version of the amendment was voted down, but the meeting chair reworded it and that version was accepted.
A key goal of constitutional convention opponents was to emphasize the costs rather than the benefits of a constitutional convention; for example, by only mentioning the costs of having but not of not having a convention. Convention proponents, in contrast, emphasized that the costs were controlled by the legislature and could be offset by reduced waste, fraud, and abuse (e.g., via the cost cuts expected via a line item veto) and even increased revenue (e.g., as allowing gambling in Rhode Island in 1973 dwarfed the cost of the 1973 convention by more than a hundredfold). The Commission refused to include such potential quantified offsets in its report. (To get a feel for the referendum cost politics involved here, imagine the General Assembly’s uproar if a different referendum commission report included the cost of Rhode Island’s police force or teachers without including the cost of no police force or teachers.)
Similarly, the Commission did not acknowledge the email of former Rhode Island Supreme Court Justice Robert Flanders sent to the Secretary of State’s office on the morning of August 26, and then handed out to every Commission member at the beginning of the meeting on August 26. The key question Flanders asked the Secretary of State’s office to address, which concerned the insertion of the estimated cost of a convention, was worded this way:
The question of whether to hold a constitutional convention does not involve “the issuance of bonds or other evidence of indebtedness or any other long term financial obligation.” So, on what basis can such a statement be included? In my opinion, any insertion of estimated costs or expenses in holding such a convention is not only unauthorized and illegal, but an attempt to put a negative thumb on the voters’ scale.
If it were illegal for the Voter Information Handbook to include such costs in isolation, as it did in 2004, then by logical inference it might be illegal for the Voter Information Handbook to merely link to the Commission’s Report, if the Report exhibited obvious bias by featuring the costs of approving but not of not approving a constitutional convention.
Frias’ other amendment concerned eliminating language in the Report’s conclusion that suggested that a periodic constitutional convention referendum had no distinctive democratic function that wasn’t already provided by other constitutional revision processes included in Rhode Island’s Constitution. Even if the Frias amendment had been accepted, the final report would have been highly misleading because it provides no explanation of the distinctive checks & balances function of a periodic state constitutional convention referendum. In any case, the Frias amendment was defeated, thus retaining what would turn out to be, upon the Report’s public release, its most notable bias.
As in previous meetings, votes were taken without a publicly recorded roll call (nor were there quorum calls to reveal the names of missing commissioners). Even the final vote on the report, although better specified than previous votes, was recorded ambiguously. The no vote was specified (Steve Frias), but the 10 yes votes and one abstention weren’t attached to commissioner names.
The Meeting’s Aftermath
Even after the Commission voted on the final report, the legislature’s leadership staff refused to publicly release it for eight days (even to Commission members) despite many entreaties over the intervening days. The excuse was that the two minor amendments introduced at the Commission’s final meeting had to be incorporated into the 5 page Report before it could be publicly released.
As publicly released on September 3, the Commission’s Report did include an additional minor change that wasn’t voted on at the August 26 meeting. The opening paragraph of the Report approved on August 26 included the sentence: “The information in this report was compiled by the Bi-Partisan Preparatory Commission for a Constitutional Convention.” In the final published Report, this sentence was modified by adding at its conclusion: “after receiving testimony from the public at multiple commission hearings.”
The sentence in both its original and revised version was misleading because it didn’t acknowledge the critical and independent role of the legislative leadership’s staff, including changing the sentence without Commission approval and sending a summary of the Draft Report to the Secretary of State without first passing it by all the commissioners for their approval. The revised version added an additional twist because it implied that the Commission’s Final Report was an objective summary of the public testimony, even though critical arguments in the public testimony were omitted; for example, that a periodic constitutional convention referendum has a democratic role that cannot be duplicated by the legislature and that the costs of convening a convention could be more than offset by creating a more efficient and effective state government.
Unlike the four earlier meetings of the Bi-Partisan Preparatory Commission, the webcast of the August 26 meeting was not posted online within a few hours of the end of the meeting. After queries about the missing webcast, the webcast was finally posted online some time on Thursday, August 28. None of the official minutes of the meeting have been posted online. But via a commissioner, we were able to get a copy of the minutes, and they are now posted on RhodeIslandConCon.info’s Bi-Partisan Preparatory Commission webpage. We were not able to get these minutes until September 3.
The delayed public release date of the Commission Report came after completion of the text in the Secretary of State’s Voter Information Handbook. This may not be a mere coincidence, since the primary influence of the Commission’s Report is indirect via its influence on the Voter Information Handbook, which is printed and mailed at taxpayer expense to all Rhode Island registered voters shortly before the November 4, 2014 election.
As of the posting of this blog on Thursday, September 4, the Secretary of State had still not released the final wording for the Voter Information Handbook that was scheduled to go to print on Friday, September 5, so the relationship between the Commission Report and Voter Information Handbook remains unknown. Since smart politics would be not to release potentially controversial information until after the primary election, the Voter Information Handbook probably won’t be released until then.
–by J.H. Snider, Administrator, RhodeIslandConCon.info, and Beverly Clay, Advisory Committee Member, RhodeIslandConCon.info.
P.S. Professor Tim Murphy has pointed out that the cost estimate for the 1986 constitutional convention included in the Commission Report may be flawed. The cost estimate, $2.5 million, was based on using the cost of the 1986 constitutional convention and then adding to it an inflation factor. Sounds simple and reasonable enough. But the number of Convention delegates would be reduced from 100 to 75 because the number of House districts was reduced by that amount in the intervening period. That would reduce the cost of the convention by 25% ($625,000) on a per-delegate basis, resulting in a revised total of $1.9 million. Of course, some convention costs, such as preparing a record of the convention debates, are largely fixed so would be minimally affected by the reduction in convention delegates. Other fixed costs, such as the use of the State House for convention meetings, are not included because the State doesn’t charge for the use of its facilities. A more accurate estimate of convention costs would separate the fixed and variable costs (a task possibly requiring substantial effort) and then discount only the variable costs by 25%.