Third time the charm for study commission on La. Constitution?

by Leslie Turk

During every regular session since 2009, state Rep. Franklin Foil has offered up for consideration a study commission that would look into the feasibility of holding a constitutional convention and advise the Legislature.

Will the third time be the charm for state Rep. Franklin Foil? Probably not, but the freshman Republican from Baton Rouge is at least going to go out swinging. During every regular session since 2009, Foil has offered up for consideration a study commission that would look into the feasibility of holding a constitutional convention and advise the Legislature.

Three years ago, the initiative made it all the way to the Senate floor and stalled. Two years ago, it cleared the House again, but got stuck in a Senate committee. This year, House Concurrent Resolution 3 is off to the same kind of start. It has been approved by the House and Governmental Affairs Committee, but its fate is largely unknown.

"When I initially thought about this idea," says Foil, "it came to me when we were having all those issues about dedicated funds and what to do with them. And now, we're dealing with the issue of doing away with the state income tax."

The state's treasury is weighed down by dedicated funds, which are basically pools of money for certain functions that are constitutionally protected. When budget shortfalls crop up, like the current $1.6 billion gap, lawmakers naturally want to cherry-pick dollars from the funds, but their hands are tied.

There have also been efforts this session to trash Louisiana's $5.7 billion personal and corporate income tax. But the Senate brought its heel down on the throat of that proposal last week. Foil points to this as an example because many proponents want to hold a constitutional convention just to reform the state's tax code.

Under Foil's resolution, the study commission would be composed of individuals from the state's law schools, good government groups and representatives from the House, Senate, state Supreme Court and governor's office. The commission would be charged with investigating possible membership combinations for a convention, timetables, structure, staffing and a budget.
If the measure passes muster, the commission would have to hand over its findings by spring 2012. The proposed commission's work, however, would begin much sooner - no less than 60 days after the ongoing session adjourns June 23.

Of course, lawmakers don't need to call a convention to update or change our charter. Since the last convention was held in 1974, Louisiana's constitution has grown by 150 amendments. Compared to the U.S., which has 27 addendums, that's quite a bit.

State lawmakers, for their part, aren't slowing down the trend. For the ongoing regular session 28 constitutional amendments were proposed. And not surprisingly, most of the amendments that appear successful so far address Louisiana's precarious fiscal condition.

Senate Bill 147 is pending action on the House side and would allow money to be taken out of the state's so-called rainy day fund and not be immediately paid back. Senate President Joel Chaisson, D-Destrehan, says his constitutional amendment is needed because the current rules are "useless" during trying economic times. Presently, money taken out of the Budget Stabilization Fund has to be replaced soon after the withdrawal. Chaisson's proposal would permit a multi-year repayment schedule.

Also on the House side is Senate Bill 53 by Sen. John Alario, R-Westwego. It would allow all of the state's tobacco settlement proceeds to be funneled into the TOPS scholarship program once the tobacco fund reaches $1.38 billion. Rep. Jane Smith, R-Bossier City, has a duplicate measure in House Bill 390. "If there is anything the Legislature has done that the people of Louisiana believe is good, it is TOPS," she says.

Other amendments that appear poised for passage, or at least a close vote, include:
House Bill 135 by Rep. Rickey Nowlin, R-Natchitoches, which would prohibit the levying of new taxes or fees upon the sale or transfer of immovable property like family home.
House Bill 341 by Rep. Chris Hazel, R-Pineville, which authorizes the Legislature to establish the Patient's Compensation Fund as a private custodial fund in which any income it earns and anything it owns would not be public.
Senate Bill 113 by Sen. A.G. Crowe, R-Slidell, which redirects and transfers dedicated funds to the state budget as needed.

Among the biggest complaints from the public when it comes to constitutional amendments is the language used on the ballots. The words and sentences can be complex, even for lawmakers, who have grumbled a bit about the matter themselves over the years.

That's what inspired Rep. Barbara Norton, D-Shreveport, to file House Concurrent Resolution 4, which has already cleared the lower chamber. The measure calls for "clear, concise, and unbiased language in constitutional amendment ballot language." She argues that all amendments should be posed to voters as questions, beginning with the phrase, "Do you support an amendment to..."

On other fronts, the 10th Amendment to the U.S. Constitution is an issue this session as well. Again. Rep. Joe Harrison, R-Napoleonville, has brought forth House Concurrent Resolution 51, which claims state sovereignty for Louisiana under the amendment. Many lawmakers are viewing it as a tool to oppose President Barack Obama's federal health care overhaul.

Primarily, Harrison is pushing the resolution - a non-starter that was dead for the session when it was filed - to demand that the "federal government cease promulgating unconstitutional mandates." As part of his argument, Harrison cites a 1992 U.S. Supreme Court case - New York v. United States, 112 S. Ct. 2408 - that found Congress "may not simply commandeer the legislative and regulatory processes of the states."

The "states' rights" defense is likewise being used by the Louisiana Department of Wildlife and Fisheries this session to wrestle oversight of species like red snapper away from the federal government. Assistant Fisheries Secretary Randy Pausina told lawmakers recently that House Bill 293 would create a pilot program that could help convince the feds that Louisiana would do a better a job than the Gulf of Mexico Fisheries Management Council.

Based on the fisheries the state manages - spotted trout, flounder and crab, to name a few - and compared to those overseen by the federal government - red snapper, amber jack and tuna, for example - there's a strong case to build, he said. "We feel all of the animals we manage are in good shape and those managed by the federal government, not so good shape," Pausina says.

Additionally, he argued that states like Texas and Florida already enjoy the broader authority and the legislation would help bring Louisiana up to par. The legislation, authored by House Natural Resources Chairman Gordon Dove, R-Houma, is expected to pass the Senate and be endorsed by Gov. Bobby Jindal.
Finally, what would a debate over constitutional issues be without the input of the Tea Party of Louisiana? It seems to be among the most involved tea party groups at the Capitol and it has declared an all-out war on House Bill 388 by Rep. Nickie Monica, R-LaPlace, which would change the way Louisiana selects its presidential electors by implementing a national popular vote system. 
A national popular vote would allow presidential candidates to win the White House by simply earning 50 percent of the popular vote, plus one. It would eliminate the role of the states in elections, tea party faithful argue, and would allow presidential candidates to win the White House by only campaigning in places like New York City, Los Angeles and Chicago because of their massive populations.

"This would be the end of the American republic, if this bill passes," Bob Reid, spokesman for the Tea Party of Louisiana, says of the legislation that may be stalled on the House floor. "The founders of America created the most sophisticated system of government known to man - a government designed to give the people more power than the government. This national popular vote initiative would literally uproot our system of government and would destroy our country."

While it will likely take more than a popular vote initiative to "destroy" the anchor of the North American continent, it shows just how emotional the debate over constitutional issues has become. It also helps define the line between the people who want to get into Louisiana's charter with red pen and those who want to leave well enough alone. At least for now.

Jeremy Alford can be reached at [email protected].