Guy Gordon (00:00.664)
Hello and welcome once again to another edition of the hashtag Facts Matter Podcast, courtesy of the Citizens Research Council of Michigan as we continue to explore a constitutional convention, something that you are going to be asked about when you go to the polls on November 3rd with Prop One. And once again, we welcome an Eric Loofer, president of the Citizens Research Council. Hello again, Eric. This is the last one. We’ve reached the end.

Eric Lupher (00:23.024)
The last one and we just have to race to the finish line to get to November third now.

Guy Gordon (00:28.408)
There you go. Well, so it’s Article twelve, which I I guess ironically is about revising the Constitution, how we go about that. And as you point out so well in the paper, it’s really about balancing the accessibility of the process and also the difficulty of the process.

Eric Lupher (00:47.066)
Yeah, it’s the end goal, I think, to make it achievable. Ultimately, this is the people’s document that defines what they want their government to look like. but we can look now. We started the ability to initiate change way back in nineteen thirteen, so more than a century of watching how this process worked.

Guy Gordon (00:55.832)
Right.

Eric Lupher (01:16.482)
And we can see grassroots efforts, but we can also see special interest playing a role in putting things before the voters. So finding that right mix that people have the ability to change the document to meet their needs, but not a process that is so easy that we end up with

Outside interest coming in and and sometimes organic, that’s a good way to put it, yes.

Guy Gordon (01:45.282)
Right. We want it to be organic, most of these things, right? Yeah. And and and we have seen a prevalence of outsiders coming in to to some degree force the discussion about policy priorities and and you know, some pretty game changing changes and reforms that maybe there wasn’t a lot of passion for until they came in. And I I guess is as you look at this, so whether whether it’s too easy

Or too hard. We’ve seen f what, forty four amendments of this specific constitution since sixty three?

Eric Lupher (02:22.253)
Right. more proposals, but forty four have actually gotten a thumbs up from the voters.

Guy Gordon (02:29.483)
And we do see that those that are of legislative origin have a higher degree of success than those that are citizen initiative.

Eric Lupher (02:38.361)
They do, and I think that really speaks to the idea that the legislative process allows a proposal to be vetted, that you get people from opposing points of view, Republican, Democrat, Progressive, Conservative, big government, small government, urban, rural, part of the process to say this might be move worth moving forward on

But let’s look at it from this angle, let’s frame it this way. There’s a public hearing process, so anybody can come and be part of that to say, you know, here’s my two cents.

Guy Gordon (03:21.549)
Presumably. Not not always.

Eric Lupher (03:23.683)
Well, the process is there. Not not always, but if the process is followed, there’s that opportunity. versus what we see in a typical initiative process where friends and and like-minded people gather in a room and say this is what we want, sometimes put through a legal, you know, test where you have a lawyer weighing in, sometimes not.

And you don’t really get that opposition point of view coming back to to push back and say you haven’t thought about this, these unintended consequences, this type of thing. So maybe the nature of what comes through the legislative process, maybe the ability to address those types of things, for whatever reason, legislatively sponsored proposals have a higher success rate.

Guy Gordon (04:23.319)
So as we look at the question about whether it’s too easy or too hard and we explore what might be the s some of the issues that would be raised in a CONCON, let’s start with legislative proposals. What are some of the requirements that we might see, maybe things that are used in other states, but not Michigan, that would raise the bar a bit? I know some states require not just one legislative approval in one legislative session.

But in successive legislative sessions to basically you’ve got to go through the process twice.

Eric Lupher (05:01.325)
Right. So you want to start with the the legislative right. So

Guy Gordon (05:03.522)
Yeah.

Eric Lupher (05:07.597)
Every state has the ability for the legislature to propose changes to the constitution. Every state requires well, almost every state, I think Delaware just a simple majority will work, but all the other states require an extraordinary majority. And Michigan it’s two thirds of each chamber has to weigh in saying that they want this to move forward.

Some states have a little bit higher threshold, some states a little bit lower, but always there’s a supermajority requirement. So is two thirds the right mix? I think it would be the fundamental question. as you said, some states say, well, that’s fine if you you go through that process, but ultimately

This might be just this legislature thinks it’s a good idea, so they require it to occur in two different legislative sessions. And what we saw by looking at these states, those states that have that multi-session requirement tend to have a little bit lower supermajority requirement in the states where it’s only one and done, a higher supermajority requirement. So

Those are sort of the trade-offs you would look for going forward. Ultimately this is why we, you know, one of the reasons we elect a legislature, they want us we want them to be mindful of the constitution and looking for opportunities to work better. We wouldn’t it anyway anticipate that they a new constitution would take that authority away from them. So it’s really just finding that balance, making sure

items really meritorious of making it to the ballot are getting there.

Guy Gordon (07:05.643)
And then the other side of that coin is if you want to be responsive in the moment to to maybe a technological change or a very dramatic change in in social mores or something like that, it would it kind of keeps you from being responsive in in the moment. It kind of handcuffs you.

Eric Lupher (07:24.641)
It does, yeah. right. And again, we want this document to be evergreen. so we want it to be responsive r to changes occurring in in the current day and is it meeting the needs, but also in doing that, will that be just as applicable fifty years from now?

Guy Gordon (07:35.434)
Exactly.

Guy Gordon (07:54.79)
so some other things that may be considered is in terms of pushing the legislature to action, maybe higher signature requirements or making sure that those signatures come from a geographically broad spectrum.

Eric Lupher (08:11.629)
Right, so now we start thinking about the initiative process, the ability for citizens to gather amongst themselves and say, our government is not working to meet our needs, this process isn’t working. so there’s a number of different states. What we found we did a study little more than a decade ago looking at how it works in Michigan.

Guy Gordon (08:16.609)
Right.

Eric Lupher (08:39.031)
relative to other states. And we found it’s relatively easy in Michigan. Only Oregon and California have easier processes for the people to get a question onto the ballot. So, you know, what is it that makes those other states that allow for the initiative what makes them harder? One is a higher signature requirement. In Michigan we use the number of

Votes cast in the last gubernatorial election is the threshold benchmark. And for constitutional amendments, we say you have to collect signatures equal to or greater than ten percent of the number of votes cast in the last gubernatorial election. other states use how many votes cast in the presidential election for the office of Secretary of State. North Dakota looks at the total

population and says you have to have at least four percent of the total population sign the signatures. So you could do this in a number of ways. and the question is, you know, is 10% the right amount? Moving one step further though, we think it isn’t necessarily that that 10% is a good or bad number. We also allow for the ability to initiate statutes. And that only requires 8% of

Guy Gordon (10:03.414)
Right.

Eric Lupher (10:04.289)
of signatures on eight percent of the total votes cast in that g gubernatorial election, bit tongue tied. so maybe the issue is that the delta between that eight percent and ten percent is so close together that once you start thinking about this and you know you need to go over eight percent because a number of signatures will be disqualified for

any number of legitimate or technical reasons. so if you need to go over it, w why just change the statute when you can change the constitution and embed your your pet issue into perpetuity moving forward.

Guy Gordon (10:47.893)
Right.

And so it becomes really an incentive to clutter the constitution.

Eric Lupher (10:53.451)
It does. We’ve we’ve made the process all roads lead to amending the constitution. I I say that the same time we’re gonna be voting on a statutory initiative on the money out of politics. So it does happen, but with much greater scarcity. And I think my message to a constitutional convention, should one be convened, that’s the issue to focus on, is the difference between

the thresholds for the statutory initiative and statutory constitutional amendment.

Guy Gordon (11:28.885)
And I I do want to go back though to the one issue, which is sometimes you go to different parts of the state and they feel that it’s one part of the state that’s driving the discussion rather than others. And putting a geographic requirement in there saying that, well, y the the pro you need to get a proportion of your signatures from a broad spectrum geographically.

Eric Lupher (11:50.756)
Yes, and we see this in a number of about half the states that allow allow for the initiative have that sort of geographic distribution requirement. they do it based on the counties or the congressional districts or some measure. and the issue as you suggest is while that might you might get a proposal that’s very important to the upper peninsula people in the you know

us trolls beneath the bridge don’t know what that’s about and and really don’t feel strongly about it, or vice versa. Were we focused on southeast Michigan

Eric Lupher (12:32.131)
the coast of Lake Michigan and it doesn’t mean anything to the rest of the state. So finding issues that everybody agrees is of high importance and we need to address. the other way that two different states do it they have the jur indirect initiative. So

Once the voters go through and collect all these petitions and the Board of Canvas or signs off that there’s sufficient number, it has to go to the legislature in Massachusetts and Mississippi for them to decide is this really worthy of amending the Constitution should be put to the voters. So it’s just one more step in the process, kind of a gatekeeper role for the legislature to work through.

And then the other thing we talk about in our paper is the ability to provide some of that public scrutiny or scrutiny and refinement moving forward. As I said, we see a number of times where people of of like mine come together and create a group and draft a proposed constitutional amendment and it

guts out and moves forward but whether the Citizens Research Council or or the opposition or lawyers or sometimes somebody just with fresh eyes looks and says, wait a second, you have misspelling, you have things that are not drafted the way we typically draft things or or whatever issue.

Guy Gordon (14:25.386)
Lack of clarity.

Eric Lupher (14:26.807)
lack of clarity, what did you mean by this? A and so some states have a process where either the attorney general, the opposition group that gets organized, there’s ability to weigh in and and give feedback to say you have provisions in here that are not consistent with other parts of the state constitution.

Guy Gordon (14:30.049)
Right.

Eric Lupher (14:54.809)
Things in here that aren’t consistent with the US Constitution.

Guy Gordon (15:00.397)
So how would this be addressed, Eric? Through a commission of some kind?

Eric Lupher (15:04.416)
yes, probably a a revision commission or or some sort of body that would be able to do it. now clearly anytime you you’ve seen an initiative make its way, there’s an opposition group and they’re gonna do everything they can to put the brakes on this. If they can keep it from making it to the ballot, that’s a lot easier than fighting to keep the vote count below fifty percent.

And you you could see all kind of legal fights on how much power should be in that process. what we see from some of these other states is it really gives the advocacy group a chance to say, I didn’t think about that and let’s go back and fix that or that’s a good point. So it refines the process before it it

actually makes it to the Board of Canvassers in the process of starting to collect petitions as opposed to making it all the way to the ballot and being approved and now we say, Well, what are we gonna do about that? You you left these ambiguities in there and and now we have to fight over these legal issues.

Guy Gordon (16:15.981)
Right.

Guy Gordon (16:19.597)
Th I guess the other thing is is would anybody ask in that process the question of whether it belongs as a constitutional revision in the first place or whether it can be handled in statute?

Eric Lupher (16:30.657)
I again I we see this more as a voluntary sort of a flag raising process than a a legal slam the brakes on that type of thing. But that would be a fair question, right? Couldn’t couldn’t we just initiate a law and and do deal with this issue statutorily going forward? It might be the case and

Guy Gordon (16:41.504)
Okay.

Yeah.

Eric Lupher (16:57.731)
Having somebody to ask that question would definitely be a positive.

Guy Gordon (17:02.369)
And then there’s just the i idea of of general revisions and and that may constitute what w how do you define a revision? How you know what and how broad should it be? Should the definition of revision be refined?

Eric Lupher (17:21.123)
Yeah, we mostly rely on jurisprudence right now to define what could be done through amendment versus what requires a revision. And what we’re talking about, what we’ve been doing this whole podcast, is the idea of revision, of opening the document, looking at it in its in its totality to see how everything fits together. And that jurisprudence has said

You might have amendments that are multi-articles, but they’re all of the same theme. the Headley Amendment in 1978 attempted to put limitations on government and limit the growth of government financially by controlling how much the state finances, state revenues can grow on a year-to-year basis, how much local governments can grow on a year-to-year basis, manage the interaction between state and local.

governments, but they were all of that theme of controlling that, versus we’ve had other provision, other amendments being offered in the past that attempted to deal with the legislative branch and the executive branch and finances and a number of other things. And the courts have said you’re trying to do too much in a single amendment process because you’re trying to broadly amend different articles of the Constitution, that amounts to a rule.

And so we might ask the a constitutional convention to provide that greater clarity within the document instead of relying on jurisprudence. I suspect they would want to look at this 16-year threshold that brings this question back around. fourteen states do this type of thing. Most of them are either at 10 years or at 20 years.

Michigan’s kind of the exception being in between at sixteen years. But having this is my third time through this rotation, I could tell you personally, sixteen years kind of feels like a good cadence for this. not so far, not that twenty years is is terribly longer between them, but you know, for what it’s worth, sixteen years feels good to me.

Guy Gordon (19:41.367)
Well and understanding that Yeah, and I mean understanding that that’s just the mandatory asking of the question, it doesn’t mean that you couldn’t that there couldn’t be a movement to have a constitutional convention in off years.

Eric Lupher (19:54.637)
It it certainly could happen for sure.

Guy Gordon (19:57.478)
the one thing that I I and maybe I I missed it or maybe we did talk about it is under the the heading of raising the bar, right now all it takes is a simple majority at the ballot box to approve a constitutional amendment. do some states use a higher threshold than that, a a supermajority?

Eric Lupher (20:19.193)
There’s a a few states, Florida being an example that they put in a requirement that if there is a a question on finances it requires that supermajority. and I’m blanking right now on

Eric Lupher (20:43.723)
In any case, a few states have done this to say that it really requires a supermajority vote at the ballot, not just the you know, the legislature putting a a question on or the number of signatures, but people weighing in. some states have said we’re gonna measure that majority based on the number of people voting at the on the question.

So w at any election you have drop off people who vote on the presidential election or the governor’s election and maybe those next Senate offices or or l legislature, but by the time they get to county commissioners and and judges, I don’t have an opinion. And certainly we get to the bottom of the ballot where there’s these ballot measures of constitutional amendments or statutory or

city elections on raising a millage, people have long since given up and turned in their ballot. So some states say that majority has to be of all people voting on that day, not just people voting on that question, which really raises the bar in a different way.

Guy Gordon (22:05.451)
All right. Anything else that we have th that I neglected to to cover?

Eric Lupher (22:12.149)
No, I mean w we go on for nine pages I guess on this one. But as we started, it is really the question, as you think about Article twelve, w if we have constitutional convention delegates pulled together and they start thinking about it, it’s really that question of finding a balance. How do we make the people’s document, the constitution

representative of what the people want without making it too easy to change it and amend it and and finding that right balance will be the goal going forward.

Guy Gordon (22:55.051)
All right. Well, that does it as far as the twelve articles that we’re going to be reviewing during our CONCON series. And we invite our listeners and viewers to tap into CRCMish dot org to find the others or wherever you found this podcast to find the other articles one through eleven if you want to go into a deeper dive on that. thanks very much, Eric. exhaustive, comprehensive, and very informative.

Eric Lupher (23:23.747)
Yes, I think again we’ve done this a couple of times. this comes up and the beauty of it is it is really a grounding on what our state constitution does, should do, fails to do, and and it really is evergreen for the years going forward for us in the Citizens Research Council, for the legislature and for considered citizens to have a resource document to understand how our

state constitution works and what might we do if we don’t revise it, what what might we do to amend it to address some of these issues?

Guy Gordon (24:01.569)
Well, and the other part is, I think it certainly underscores the importance of the Citizens Research Council of Michigan because I would challenge anybody else to find any similar overview of the issues of a constitutional convention anywhere else.

Eric Lupher (24:17.305)
For sure. Here’s the reason, a prime reason to keep the Citizens Research Council sustainable and and moving forward. And we hope you will help us with some financial support if you value the series of papers and the series of podcasts that help explain this issue.

Guy Gordon (24:39.863)
Very good. Thank you so much, Eric.

Eric Lupher (24:43.543)
Thank you. It’s been fun.

Guy Gordon (24:47.915)
And that’ll do it for this edition of the Facts Matter Podcast. Until next time, I’m Guy Gordon. Take care.