Opinion: Why is ‘con con’ on the Nov. 8 ballot?

Published: 10/16/2022 7:00:27 AM
Modified: 10/16/2022 7:00:17 AM

J.H. Snider is the editor of The New Hampshire State Constitutional Convention Clearinghouse and is a national expert on the politics of the periodic state constitutional convention referendum.

Once per decade, and next on Nov. 8, New Hampshire’s constitution grants the people the right to call a constitutional convention via a statewide referendum.

New Hampshire’s framers placed this automatic referendum on the ballot to prevent the Legislature from having monopoly power over initiating constitutional amendment. The process they created grants the people three votes. First, whether to call a convention. Second, if called, to elect delegates to the convention. Third, whether to approve the convention’s proposals.

The framers understood that the process of ordinary and higher lawmaking should be different. After all, if they were the same, there would be no point in having a written constitution. Higher lawmaking requires a different process because the legislature has a conflict of interest when initiating, proposing, and ratifying fundamental laws concerning its own powers. Just as foxes shouldn’t be placed in charge of guarding a henhouse, government officials created by a constitution shouldn’t be placed in charge of amending it.

New Hampshire lawyer Eugene Loan explained the function of the referendum in the New Hampshire Bar Journal: “Suffice it to say that one of the reasons that we do not place the fate of the constitution exclusively in the hands of the legislature is that it has a conflict of interest in this area. The legislature’s own powers and structure are themselves defined by the constitution and any amendment which diminishes that body’s authority is not likely to be favored by our elected representatives.”

Each vote was to prevent the foxes from controlling one of the three critical stages of the constitution-making process. The first stage is where the people initiate the process via referendum, the second stage where the people elect a convention separate from the legislature to propose constitutional changes, and the third stage where the people ratify or reject each proposed change.

Convention opponents are correct that bypassing the Legislature in constitution-making costs a premium because a Legislature already exists whereas a convention must be created from scratch. But the framers believed that this additional expense could be an investment, not merely a cost, because of the valuable benefits empowering the people could bring to constitution making.

The framers also believed that a convention needed the same unlimited constitutional proposal power as the Legislature because allowing the Legislature to limit a convention’s proposals would be granting the fox control over the henhouse. In other words, unlimited agenda-setting power for a convention wasn’t a Pandora’s Box, it was the prime benefit of the convention process.

Unlimited agenda-setting power also didn’t mean unaccountable, as the framers granted the people ratification power over any constitutional amendment proposed by either legislature or convention.

The convention process has three natural enemies. The first is incumbent legislators because a convention takes power from them. The second is New Hampshire’s most powerful special interest groups because, by definition, they excel at influencing the Legislature and recognize that a convention could be a Pandora’s Box for their interests. And the third is any group that prefers using the courts rather than the legislature or a convention, to pursue its agenda.

Alas, many secondary interest groups depend on these natural enemies for political support, which includes mutual backscratching by trading convention opposition or neutrality for support of their organization’s core lobbying mission.

What these four bipartisan groups have in common is that they are political insiders who, in certain relatively rare circumstances, have perverse incentives to form a political cartel averse to the people’s interests. William Greider’s book, Who Will Tell The People, describes such bipartisan agreements to avoid public discussion of certain issues. Perhaps the most famous case of entrenched legislators acting averse to public opinion concerns legislative gerrymandering.

Without an organized campaign to call for a convention in New Hampshire, the best strategy for its natural enemies is to keep quiet, as the public will vote no on a referendum item it doesn’t understand and perceives as risky.

New Hampshire has the second oldest constitution in the world yet has had more constitutional conventions (17) than any other state in the U.S. (the average is five). It has held ten during the 20th Century, including its last in 1984.

Its 244-year-old tradition of holding conventions independent of the legislature should be celebrated, not ignored.




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