Will Oklahoma call a constitutional convention?

Previous state questions on calling a constitutional convention:

• State Question 146, defeated at the November 2, 1926, general election by a vote of 47,510 to 241,040 (16.5% in favor).
• State Question 197, an initiative petition launched on June 1, 1934, abandoned without being submitted.
• State Question 321, an initiative petition launched on January 16, 1946, abandoned without being submitted.
• State Question 347, defeated at the November 7, 1950, general election by a vote of 159,908 to 347,143 (31.5% in favor).
• State Question 472, defeated at the March 7, 1970, special election by a vote of 58,223 to 187,934 (23.7% in favor).

Voters rejected State Question 660 at the November 8, 1994, general election by a vote of 432,606 to 469,494 (48.0% in favor). This was not a vote to call a constitutional convention, but rather an amendment to Article XXIV, Section 2, which would delete the requirement to hold such a vote every 20 years. Nevertheless, no action was taken at that time to ask the voters if they wished to hold a constitutional convention, although 24 years had already elapsed since the last referendum.

(Searching for the keyword "convention" on the Secretary of State's State Questions database will list the relevant initiatives and referenda and the outcome of each.)

The 1926 and 1950 referenda and the 1934 and 1946 initiative petitions all included specific language regarding the election of convention delegates and the conduct of the convention's business. The 1970 referendum did not spell out the "law providing for such a convention," despite the apparent requirement for such a law to be placed before the voters. Gov. Stitt's proclamation calling for SQ 848 matches the 1970 proposition in that regard. His executive order creates a commission to develop "Proposed legislation necessary or appropriate to implement an affirmative vote, including a proposed contingent enabling act governing the organization and conduct of a convention," but it is unclear by what legal authority that proposed enabling act would be tied to SQ 848. But if the Legislature must pass such a law in order for the voters to have the opportunity to call for a State Constitution, what recourse do the voters have if the Legislature refuses?

Former State Sen. Mark McBride (RINO-Moore) has filed a lawsuit saying that Gov. Stitt has no authority to place the constitutional convention question on a ballot. McBride's suit asks the Oklahoma Supreme Court to enjoin the election from moving forward and to accept original jurisdiction in the matter. (McBride has been a leader in the group that has worked to defeat conservative candidates in Republican legislative primaries.)

If we have a vote on calling a constitutional convention, should we say yes?

As much as I revere the Framers of the US Constitution, the framers of Oklahoma's exceedingly long constitution were possessed of some ideas that don't make for effective and accountable government. They were Southern agrarian populist progressives. They limited and distributed executive authority in order to prevent its abuse, which also made it difficult to use in a coherent way.

University of Michigan law professor John A. Fairlie noted the novel features of the newest state's constitution in the December 1907 issue of the Michigan Law Review:

At the outset, one familiar with the constitution of the older states will be struck by the length of the Oklahoma document. It consists of ninety-four pages, closely printed, containing about 100,000 words, making it the longest of the state constitutions. The size of the constitution is of itself evidence that it contains much more than was considered constitutional matter in earlier days, and further examination shows that it includes a large amount of detail similar to statutory provisions; and this is indeed recognized by provisions authorizing the legislature to alter many sections of the constitution by statute....

During the discussion of the constitution it was argued that these provisions [regarding initiative and referendum] went so far in establishing a direct democratic government that it conflicted with the provisions of the national constitution guaranteeing to every state a "republican" form of government. To meet this objection, another section was added, that the powers of the initiative and referendum "shall not deprive the legislature of the right to repeal any law, propose or pass any measure which may be consistent with the constitution of the state and the Constitution of the United States."...

Fairlie worries that the sheer number of elected offices will strain the abilities of the voters to exercise discernment. While many of the listed offices were either made appointive, consolidated, or eliminated in a series of 1975 state questions (509-514), the problem still exists. Overwhelmed voters look to endorsements from special interest organizations (e.g., OK2A, MOHA, OPE), newspaper editorials, and websites like BatesLine to help them make choices they don't have time to research on their own. The 1975 reforms reduced the number of elected state executive officials from 23 to 8 (not including the three members of the Corporation Commission), but that still seems to be too many to handle. (Emphasis added.)

In the article on the executive department, the most notable feature is the long list of executive officials. This includes the governor, lieutenant-governor, secretary of state, state auditor, attorney general, state treasurer, state examiner and inspector, superintendent of public instruction, commissioner of labor, insurance commissioner, chief inspector of mines, oil and gas, and commissioner of charities and correction. A later article provides for a corporation commission of three elective members. This, it is believed, is a much larger number of elective state officers than in any other state; and it can hardly be possible that many of the voters can exercise any power of discrimination in voting for candidates for so many positions. This numerous list also gives greater permanence to the regime of unorganized administrative officials, and will prevent the legislature from organizing a systematic plan of executive departments, as in the national government.

The same weaknesses and peculiarities noted in 1907 still remain: Too many directly elected offices, executive power is too diffuse to be effective and accountable, too much statutory language in the constitution. As we saw in the recent primary and runoffs, elections for the head of a specific department tends to attract money from special interests that stand to enjoy a concentrated benefit at the diffuse cost of the general populace: Teachers' unions fund Superintendent candidates, insurance companies fund Insurance Commissioner candidates, trial lawyers fund Insurance Commissioner and Commissioner of Labor candidates, bankers fund Treasurer candidates, lawyers fund Attorney General candidates, utility lobbyists and oil and gas interests fund Corporation Commissioner candidates. If all or most of these offices were appointed by the Governor with the advice and consent of the Senate, these forces might counterbalance each other.

There are dangers in a convention: Even though the public would be asked to vote on whatever amendments are proposed, if enough money is behind the proposed changes, they will likely pass, particularly if they appeal to urban interests over rural interests.

I was told that legislative leaders want any constitutional convention to be made up of the current legislators, but this misses the point of a constitutional convention. The Legislature already has the power to deliberate and propose constitutional amendments to the people. Calling a constitutional convention is meant to be a means to bypass a broken system to create a new system, if the people think it's necessary. That means giving the people the power to elect delegates specifically to deliberate about a new constitution. The convention ought to include former governors, like Frank Keating and Kevin Stitt (who will be former by then), who can speak from experience to the frustrations and roadblocks of Oklahoma's divided executive authority. Former down-ticket officials like Auditor Gary Jones and Attorney General John O'Connor would bring a different perspective. We ought to include thoughtful and analytical former legislators; Jason Murphey, Mark Liotta, Mike Reynolds, Nathan Dahm, and Pam Peterson are a few names that come to mind. Someone like Fred Perry or John Wright could speak to county government, but they also remember what it was like to be part of a tiny Republican minority in the State House. Political observers and historians would bring some important perspective, looking beyond the current state of affairs and beyond Oklahoma: Former OU professor Wilfred McClay, now at Hillsdale College; former State Senator Don Rubottom, who went on to spend several years as a staffer in the Florida State House; Steve Byas and Ron McWhirter of the Oklahoma Constitution newspaper; OCPA's Brandon Dutcher; Oklahomans for Life executive director Tony Lauinger; and, if I may be so bold, me.

The problem is that the sort of thoughtful, experienced, and disinterested people we ought to have drafting a state constitution aren't necessarily the sort of people who will want or be able to raise money and knock doors to win an election. You could expect special interests to try to install pliable backslappers who will be happy to attend receptions while relying on lobbyists to tell them how to vote. (Sort of like our legislature.)

An advantage of a constitutional convention over initiative petitions is that there is a chance to debate and refine a proposal before it goes to the voters, rather than giving the voters a simple up-or-down vote on a poorly framed concept or copy-pasta from an out-of-state group who doesn't understand Oklahoma law.

A constitutional convention is better than the piecemeal approach of both single-subject legislative referenda and initiative petitions, because it gives you a chance to look at state government as a system and think about how a change to one component affects a different component.

We need to protect rural interests in any new Constitution. In the 1907 Statehood Census, only five cities had populations greater than 10,000, and they contained only 5.6% of the total population. In 2020, 59% of Oklahoma's population lives in either the Oklahoma City or Tulsa Metropolitan Statistical Areas. Oklahoma County had 3.9% of the 1907 population; in the latest census, it has 20.1% of the state's people. One way to do that would be to emulate the Federal constitution and apportion the Senate based on permanent geography (counties) rather than population. This would have the additional benefit of eliminating gerrymandering from one house of the Legislature. You could also require state questions to pass in a majority of State House districts and a majority of State Senate districts, so a measure would need widespread support not just concentrated backing in order to prevail. We could even consider an Electoral College-style approach to electing a governor.

While this approach to apportionment was ended nationwide by the Warren Court in Reynolds v. Sims (1964) under the Equal Protection clause of the Fourteenth Amendment, the current Supreme Court has been inclined to reverse Warren Court excesses and might be persuadable that protecting the voice of distinctive albeit sparsely populated communities is a rational basis for apportionment.

(The Oklahoma Constitution specifies county-based apportionment approaches for both Senate and House, but it was struck down by a panel of the 10th Circuit Court of Appeals in 1964. More about that another time.)

At some point, we'll go through the Oklahoma Constitution article by article, talk about its origins, and identify what we needs to change.

Image above from this eBay listing.