Pennsylvania’s Constitutional Conundrum

Pennsylvania is experiencing a constitutional conundrum. State legislators, primarily Republicans, have proposed nearly 80 constitutional amendments in the last year, many on politically contentious issues ranging from abortion to voter identification. The allure of these amendments, which don’t need the governor’s signature, among Republicans is instigating growing distress among elected Democrats, left-wing activists, and some in the media.

The governor’s office called several proposed amendments “a naked power grab.”

“They are deliberately trying to dismantle the state constitution,” Carol Kuniholm, executive director of Fair Districts PA told the Pittsburgh Post-Gazette.

Investigative news organization Spotlight PA warned that voters could be “flooded” with “controversial revisions” as Republicans employ an “escalation of the tactic.”

“Something alarming is happening in Harrisburg,” Senate Minority Leader Jay Costa, a Democrat from Pittsburgh, tweeted.

To be enacted, a resolution to amend must pass both houses once in two consecutive two-year sessions before it can be put on the ballot for a final vote by the people.

The number of resolutions passed in at least one session has increased compared with recent history. According to legislative data showing amendment resolutions passed per year, legislators approved only two between 2002 and 2012, compared to 17 since 2013.

That more active pace doesn’t look so unusual if one goes back further in time, however. The decades of 1975 to 1985 and 1988 to 1998 saw a total of 26 and 20 amendment resolutions passed by the legislature, respectively. Thus, the dearth in the early 2000s is the exception, not the rule, over the last half-century.

But the content of the amendments, not the number taken up by legislators, is the problem, Senator Costa says.

“The constitutional amendment process is appropriate for those limited instances where we need to amend the constitution to be able to get the end we’re trying to achieve,” he said in an interview. “For example, the child sex abuse cases. That is where it is an appropriate use of the amendment process because it is necessary, because legislation does not get us to the same end,” referring to a proposed amendment expanding the statute of limitations to file child sex abuse lawsuits.

Costa says Republicans have gone beyond those limited instances.

“There’s a level of frustration by my colleagues on the other side of the aisle in specific subject areas that they feel the need to respond to, and they are simply not able to garner a consensus to pass their measures,” he said. “They typically are very partisan measures.” Using the amendment process to enact such laws is, Costa says, “an end around the checks and balances that we have in our three branches of government.”

“I respectfully disagree,” Rep. Bryan Cutler, a Republican from Lancaster County and Speaker of the Pennsylvania House, says. “I don’t see anything wrong with going to the people. The process of passing an amendment is more onerous than passing a bill, and it is more transparent.”

“If there is substantial disagreement on an important issue” in Harrisburg, he said, “sometimes going to the people is the only way to fix it.”

Cutler also countered Costa’s bipartisanship consensus claim.

“We had 648 bills passed last session, 96 percent of which had bipartisan support, and 65 percent were unanimous,” he said. “I think that blows that argument out of the water.”

Joshua Voss, a partner in the Kleinbard law firm in Philadelphia, agrees with Cutler.

“This is what our democratic process allows, so what’s the problem?” he asked.

He said that he is not aware of any court case or statute limiting the number of amendments or restricting their subject matter, so the current discontent is a matter of opinion, not an issue of constitutional integrity or checks and balances. 

“Checks and balances exist to protect the people from the power of the government, not the other way around,” he said. “What’s more fundamental than the legislature asking the people how they’d like to be governed?”

However one views this constitutional squabble, what is certain is that the process exists, and Republicans are using it. Citizens of Pennsylvania will, consequently, have some important decisions to make in the years ahead. 

Michael Torres is deputy editor of RealClearPennsylvania. Follow him on Twitter at @MindofTorres.