Guy Gordon (00:01.324)
Hello and welcome to the hashtag facts matter podcast brought to you by the citizen research council of Michigan. I’m Guy Gordon, the thrust that facts should be driving our policies, not politics. And once again, I’m joined by Eric Lufer, president of the citizens research council. As we continue to break down proposal one, you will be asked on November, November 3rd, whether or not we should have a constitutional convention to review and perhaps revise.

our state constitution. Eric, welcome back.

Eric Lupher (00:33.902)
It’s always good to have these opportunities.

Guy Gordon (00:36.824)
So today we’re going to look at past because past can be prologue in this instance, especially as we look at what the issues were in 1961 at the last constitutional convention. And also just based upon the news of the day, what might inform the various revisions or reviews of different articles of our constitution, of which there are 12. And we’re going to be doing this separately and then doing deeper dives on all of it.

When we look at the history of past constitutional conventions, what has driven them? What has been the single most important issue that have caused voters to kind of throw up their hands and say, yeah, it’s time for a redo?

Eric Lupher (01:24.078)
Right, our 1963 Constitution, we call it the 63 Constitution, that’s when it was actually voted on by the people. They got to work in 1961, is the fourth of our state constitutions, first one in 1835 upon statehood. And then very quickly, even though we look back,

maybe some Monday morning quarterbacking, but we look back at that first one and say, you nailed it, right? It was concise, it covered everything it needed to cover. But quickly in 1850, they said, well, we can do better. And they came up with a new document and that survived until 1808. The 1808 document seemed to, 1908, I’m sorry, tongue tied there.

Guy Gordon (02:15.128)
Hold on, what’s it, 1908. There we go.

Eric Lupher (02:22.305)
The people seem to say very quickly into the history of the 1908 constitution that it was a flawed document, but it wasn’t until 1961 that it actually got the support of the people that we needed to do another constitutional convention. And the big issues at the time were the state’s declaration of rights. And you can think back on history, right? The civil rights.

conflicts that were going on nationwide, but were really acute in Detroit and some of our other core cities. It was the legislative branch and how it district, how it functioned, how we were choosing members to those bodies and how it was functioning. And it was our finance and taxation system.

As somebody that’s been doing this work for a long time, I’ve had the chance to go back and look at the 1950s and early 1960s. And you’ll have to believe me, but our finances were a mess back then. was, as it’s always been when the nation gets the cold machine gets the flu. but our, our state finances were such a mess that we were, our hands were tied. The legislative hands were tied.

in trying to adapt the state finances to that changing economic conditions.

Guy Gordon (03:56.214)
Also, if memory serves, there’s a concern about representation too, regarding the legislature that, that the Tri-County area down here in the South and Southeast Michigan had far too much power. And so there was an idea that they wanted to broaden representation, which is no longer an issue, but it was a compelling issue then.

Eric Lupher (04:16.366)
Yeah, it was. So, you know, the legislative branch and how we were choosing the delegates. Unfortunately for today, in our first podcast on this, we talked a little bit about the ability to change and having a document that reflects what’s going on in reality. At the same time, Michigan had called a constitutional convention, different cases were working themselves up through different states.

challenging the idea that we should have legislative districts that reflected the geographic size of the area or different things. ultimately our US Supreme Court said that one man, one vote was an important principle that shouldn’t be violated. But our convention delegates in 1961 and 62 didn’t have the foresight to know that’s where the

U S Supreme Court would land and they came up with a flawed system that was within 20 years just rejected. and we went for a number of years, very gerrymandered because of the lack of a living document and, know, as it relates to that. So, you know, that was an issue then we’ve dealt with it one step or one process into a.

hopefully history that serves us well, that we now have representation that’s better reflects even representation among the people and less gerrymandered going forward.

Guy Gordon (05:59.468)
Right. But in 1961, when they called the last constitutional convention, it’s interesting, at least from my perspective, that they chose article one to be not the executive branch or the legislative branch or judicial. They chose article one, their first priority, to be a declaration of rights. How reflective of that was of the time and the era that we were in.

Eric Lupher (06:25.23)
You know, I don’t have a great answer to that. I think clearly trying to deal with the issues of equal protection were of high importance to many of the delegates, probably not all of them. But at the same time, you’ll find in that article some of the same protections that you find in the US Bill of Rights. So just as fundamentally as a state,

Guy Gordon (06:33.399)
Mm-hmm.

Eric Lupher (06:54.702)
you know, sort of putting down our stakes saying these are fundamental rights that we want to reserve to the people and that the state shouldn’t violate those things might have been as much of a political statement as dealing with those equal protection issues.

Guy Gordon (09:01.816)
Right. Okay. So let’s take a beat here and look at those areas that were, um, past hot button issues in 1961 at that con con and how they may be different. You, I think you said equal protection was really a significant focused on article one, uh, in, in, in 1961, what has shifted since then?

Will we still be focusing as much on equal protection, or will it be more about social issues?

Eric Lupher (09:36.694)
Yeah, the issue back then was really race issues, right? We know that Martin Luther King and just the whole racial divide that…

unfortunately isn’t completely gone, but it is less of an issue now. And I think now, as we think about equal protection, there’ll be, as it relates to gender, sexual identification, LGBT rights, things like that. But we also can look back at the last couple of decades and a lot of the amendments to our constitution have dealt with the declaration of rights as it relates to same sex marriage.

Guy Gordon (10:08.567)
Mm-hmm.

Eric Lupher (10:22.52)
affirmative action, stem cell research and abortion. whether the people feel that those should be undone, whether the people feel that those are sacrosanct now that we’ve put them in the Constitution and they shouldn’t be messed with, it’s just a, I think an expansion of what the view of what should be included in those rights.

but they’re also very hot button issues, some relating to people’s religious identification and some for other reasons.

Guy Gordon (11:04.044)
And we should point out that over the last 63 years, Article 1 has been the third most frequently amended element in our Constitution, which would seem to preface that it will likely be a real center point and spotlighted in whatever con con we might have should the voters choose to do that in November. The second most, or maybe the second busiest article for amendment.

has been article four focusing on michigan’s legislative branch twenty seven attempts to amend it nine were successful can we crystal ball issues in the legislative article that might be hot button term limits is something we hear a lot about

Eric Lupher (11:51.628)
Yeah, know, term limits and you would have said probably.

10 years ago that that was the issue, that the legislature just seemed not to be working very well and our very strict term limits seemed to be the culprit, the hurdle that was keeping them from being very good at what they do. We have since amended the Constitution to expand those term limits and give them more time to be in office and we don’t.

We can do a different podcast on why that’s important. but really what we see those 27 attempts are really efforts to, constrict the powers to limit the legislative branch and the things that can do. And, you know, the, as you said, with the numbers, only nine of those have passed. That means it was not a very, not a good batting average. There’s, the people have attempted to.

restrict those powers. think those, you know, sort of percolate under the surface today and probably a convention might want to revisit many of those proposed constitutional amendments to see if they’re right to be introduced today. Ultimately, you know, we said this in the first podcast and I think it’s true. Our legislature really is a representative

representation of the people and we’re a divided state, know, purple state as they do in the political world, red Republicans and blue Democrats. And we’re afraid that the other half of us that don’t, doesn’t feel a very representative of us will do things that we don’t like. we working to

Eric Lupher (13:50.439)
limit the authority of the legislative branch to have the ability to do things. I think we can also look at some of the more recent recent issues. Just earlier this year, there was a question of of the continuing appropriation, the work projects, they call them, whether the legislature is duty bound to submit all enacted acts to the governor, even though the

There’s a new legislative session. There’s some cleanup issues that the power of, yeah, that one I think is going to fall largely in the finance section. But again, that limits the ability of the legislative branch to make budgetary decisions if their hands are tied and how that money can be used.

Guy Gordon (14:26.412)
Right. Well also the power of the earmark.

Guy Gordon (14:35.212)
Mm-hmm.

Guy Gordon (14:45.376)
All right, you mentioned the finance section. Article nine is finance taxation. It was the busiest area, I guess, not surprisingly, when it comes to people with pocketbook issues. Thirty one attempts to amend the Constitution, article of the Constitution. Eleven were successful. We had, you know, the the shift in property taxes. We’ve had the Headley Amendment.

How busy will that be and what new issues might pop up under that heading?

Eric Lupher (15:19.618)
Wow, what might be new? I think if we look back to what they were

Guy Gordon (15:24.322)
Well, colleges and universities to some extent, and whether or not you raid the K through 12 fund for it, think would be.

Eric Lupher (15:31.663)
Yes, clearly financing of our local governments, of our universities, of our school systems will be high priorities for that. Back in 1961, they were dealing with some of the same issues that we were dealing with today. Earmarking was the big issue. We just mentioned that. Something like 80 cents on every dollar coming into the state was earmarked for a specific purpose.

most of it statutorily, but when times got tough and you needed to reflect, you know, change the budget to reflect your priorities in tough times, but your hands are tied that you can affect 80 % of all that money coming in. It just led to a really bad budgeting and hard to deal with. So the 61 comes convention lessened that to a great deal. And over time we have.

gone back down that road so that today’s legislature has a lot of restrictions on what it can do with the money coming in. They were dealing with graduated income tax questions and we continue to deal with that today. The tax limitations, they had attempted to deal with increasing property taxes with rate limitations. Those proved ineffective so then we introduced tax levies

through the Headley Amendment in 1978, and that proved ineffective. So then we introduce valuation limitations through Proposal A in 1994. And now we find that perhaps all of those limitations in their totality are so constrictive that our local governments maybe aren’t able to do the things they should be doing. So convention might be thinking about

Should we lessen the burden on property taxes and authorize other forms of local government or other forms of taxation for our local governments?

Guy Gordon (17:36.304)
Right. Because we’ve seen that we’ve talked a lot about it in future podcast or past podcasts about the inability of local units of government to fund roads, to care for their own roads.

Eric Lupher (17:47.649)
Right. They’re really beholden to the state on many things, either through state revenue sharing or funding through the courts or funding for roads or funding for one other thing. And now you don’t have local representations in your city council or your township board making decisions. They’re just a pass through to take that state money and use it. So.

Guy Gordon (18:14.146)
Well, there also may be questions about local autonomy when it comes to wind farms, data centers, things like that. We’ve got kind of this collision between ideologies and the issue of local control. How thorny will that be? And will that be ripe for discussion?

Eric Lupher (18:37.42)
Yeah. So, our process through this is to dig into every article of the constitution. And, as we thought about article seven, you know, that’s the, that’s the elephant in the room, the tension between the state legislature and local control, having the ability to meet economic needs.

Whether it’s renewable energy or aggregate mining or data centers or many other things. And it goes beyond that to restrictions on plastic bag use or other things that the legislature has slapped the hands of local governments to say you just can’t do that. But if you open up the document and look at the provision, the granting of home rule, it’s there, right? It’s just the legislature chooses to ignore it. So.

Guy Gordon (19:17.458)
I about that one.

Guy Gordon (19:29.282)
Hmm?

Eric Lupher (19:32.867)
You can certainly strengthen it, but it sort of violates the fundamental principle we think is important to keep the document concise and not verbose in these provisions. The only way to strengthen that home rule provision is really to tell the legislature what home rule provisions they cannot impede on. And then, you know, how are you setting the state up for failure in the future is our chain.

our needs continue to change. We ticked off the top three articles that have been amended. Article seven for local government is one that’s never been amended. We haven’t even tried. The people, whether it’s the local government or the legislature has thought, they sort of nailed that one. But at the same time, the legislature has chosen just to ignore some of the provisions.

Guy Gordon (20:30.55)
Right, and so it falls to the.

Eric Lupher (20:30.562)
what home rule. We think our state decision making is better than your local decision making.

Guy Gordon (20:37.538)
But then it falls to the judicial branch to sort out a lot of those things. The endless fight over aggregate, mining up, for instance, in our area here, Metamora. Regarding the judicial branch, is there anything there that would tend to be spotlighted? The election of Supreme Court justices?

Eric Lupher (20:57.774)
In the 1960s, the process was a mess. We had a whole balkanized court system and there was not clear where to go to file any claims. And if you want to appeal, how do you do that? How does it work its way up? So the document they came up with in 1963, there’s a lot of thumbs up. You got it right. We have one court of…

justice now, and it’s very clear the different levels of the court system. What they didn’t address is now that you have one court system, who’s responsible for paying for it. At the most basic level, the circuit courts, the probate courts, district courts, there’s local responsibility, but at what level and who gets to decide that level is at the judges or is it the county commissions or city councils.

so I think should we call it constitutional convention, that’ll be the primary issue in the judicial section is how do we come up with a system? The pay for the courts that doesn’t put all of the onus on the litigants, through fees or, whatever else and clearly defines the responsibilities of the host government, whether that’s against city or county.

or the state, so you’re just working all of that out.

Guy Gordon (22:31.394)
Well, there may also open the door to efforts at tort reform, maybe placing the burden of paying for that on the plaintiffs rather than defendants. I mean, it could open the door to a lot of issues that folks have had with the plaintiffs bar going forward, and that could get pretty contentious.

Eric Lupher (22:49.87)
Yeah. But probably the other issue that they’ll deal with is judicial selection related to our Supreme Court justices. Right now we elect them ostensibly from an independent, right? They don’t run on a Republican or a Democratic slate, but it’s the parties that are nominating them, which really begs the question, how independent are they? So other states have appointed justices, some other states, there’s a whole

Guy Gordon (23:06.295)
they’re nonpartisan.

Guy Gordon (23:14.433)
Yeah.

Eric Lupher (23:19.63)
mishmash of how the different states choose their Supreme Court justices. We don’t have it right in Michigan, but I don’t know what right looks like.

Guy Gordon (23:31.504)
We’re already over our time, but I do just briefly want to hit on one other issue and that’s educational issues. have been questions about accountability. We vote on the state board. We appoint a state superintendent. I think there are questions about whether or not, you know, I would be hard pressed to name a member of the state school board or to have any idea of what they have done for or against education to improve it. is that going to be an issue also?

minimum funding levels, minimum staffing levels. Could that be part of the discussion?

Eric Lupher (24:06.806)
Yeah, I think the education issue will be a

high issue of attention during a constitutional convention, the issues you mentioned, How much authority should rest with the State Board of Education versus the legislature who ultimately has the power of the purse, how we choose those people through appointed or elected means, the autonomy of our public universities that’s really, Michigan is very different from the other states and not having a single

Department of Higher Education that has some say so over the university system. Our community college system that’s probably not serving us as well as we can. And there’s vast areas of the state that don’t have a community college to send their kids to.

Guy Gordon (25:00.172)
And then we vote for regents and trustees at some state universities, but not at others.

Eric Lupher (25:05.996)
Right. So just bringing some semblance of order to the whole education system.

You know, it’s not serving us well today. I don’t know that it’s the constitutional issues that are holding us back, but we might be able to put it on a better footing by paying close attention to those issues.

Guy Gordon (25:29.802)
Okay, and finally, we discussed this before, but the mayor’s mentioning that the Citizens Research Council is going to be celebrating its 110th anniversary, a pretty big birthday, and a birthday that represents an important service to our community and to Michigan citizens at large, something that we would hope our listeners and viewers would support.

Eric Lupher (25:50.188)
You this whole exercise of digging into the constitution is a great example of the value of the research council over 110 years. People need a place they can come for the trusted facts and you can apply your own political lens to it. Big government, small government, whatever. But without a trusted place to come for the facts, then you’re beholden to the political.

speakers out there trying to sell you their snake oil charm that theirs is the best way. We need an institution to provide the facts and a trusted place that people can come.

Guy Gordon (26:32.596)
Yeah, I think that may be the most frequently asked question in my universe is people say, guy, you were in media for 50 years. You know, what sources do you turn to? for unbiased reporting. said, I don’t know of any, any more. think some specific individuals that do a pretty good job, but the research council is a great place to start, especially with ballot questions like this. And I’ve been using it myself for the better part of 40 years. So Eric, thanks very much.

Next up, we’re going to break down, we’re going to go into the weeds, do a deep dive into Article 1, the Declaration of Your Rights, rights that could be not open to interpretation, but rewriting at a constitutional convention. And we will be discussing that on the next episode of Hashtag Facts Matter. Until then, I’m Guy Gordon. Thanks for joining us.