A Convention is likely to pass and no one knows what will happen next

The United States Senate, AD 1850

“The United States Senate, A.D. 1850” by Peter F. Rothemel (public domain, retrieved via Wikimedia Commons)

It seems incredibly likely that voters will go to the polls on Tuesday and vote for a Constitutional Convention. Anti-Convention forces have portrayed this as a disaster. Pro-Convention forces have portrayed this as a utopian moment. Neither are likely to be right.

It won’t surprise anyone that a Convention will win. There’s no doubt the many Rhode Islanders are alienated by the decisions (or lack thereof) of Rhode Island’s government. A Convention offers a path towards some level of change that could make Rhode Island’s government more responsive. It also offers a path for restrictions on minority rights.

The name of the game in a Convention is uncertainty. Should it pass, the General Assembly sets the rules for how delegates will be elected. We know that the requirements are that 75 delegates must be selected from the 75 districts that elect members of the House of Representatives. Beyond that, the delegates will be elected as the General Assembly sees fit. I figure that since they’ve done very little work on anything involving the Convention, the Assembly will attempt to quickly get an election ready.

This carries its own problems. When delegates are elected is an important issue. Do it in an odd-numbered year (like say, 2015) and we would expect to see voting totals lower than perhaps even the primary – press coverage of all 75 races is unlikely. Less coverage, less turnout, and the lack of a national election to generate interest would probably see delegates elected by a small fraction of voters with low information. This is likely to be compounded by the problem that there may be more than two candidates for each delegate’s slot. The 1985 special election for the 100 delegates (there were then 100 representatives in the RI House) had 558 candidates. That’s 5.58 candidates per seat. Unless the Assembly introduces some sort of runoff voting, that means a winning candidate may only need 21% of the vote.

The final kink in this is that in 1985, delegate elections were nonpartisan. They’re likely to be again. Nonpartisan elections are… problematic. In a partisan election voters attach values to party identities (whether that’s justified or not). In a nonpartisan election, voters have nothing to go on but what candidates tell them — an approach that favors candidates who have the cash to spend on either talking up themselves or talking trash about their opponents.

Which is why spending, by both delegates and non-campaign organizations is going to make a big difference. You have the potential of low information voters voting in races with low media interest, in a situation which tends to favor strong get-out-the-vote operations, and candidates only need small pluralities to win. The high level of uncertainty simply cannot be ignored. And the vulnerability of the Convention to be hijacked by deep-pocketed candidates and deep-pocketed interests is also undeniable.

Whatever delegates do make it to the Convention then get to set their own rules. And it’s unknown what those rules will be. Consider the famous Constitutional Convention in Philadelphia that produced the U.S. Constitution. There’s an almost mythic worship of that event, as though it’s the American equivalent of Moses on Mount Sinai. However, it opened with an invective against democracy, was conducted in secrecy, and the delegates had been called to draft reforms to the Articles of Confederation. Delegates to a Rhode Island Convention could use the common rhetorical strategy of an appeal to the Founders as a way to shut the average citizen out of the Convention entirely. And there would be nothing that could prevent them from doing that.

There’s a strong tendency among Pro-Convention forces to downplay (or more usually, attack) the concerns of minorities (who should be concerned that their rights will be subjected to the whims of the majority). One way has been to suggest that pledges could be made to keep social issues off the table. However, those advocating for the Convention have no way of enforcing this. Even a signed pledge is ineffective; delegates serve for a single purpose. Unlike regular politicians who have to continually win elections, delegates have no need to stand by their promises; after all, they can’t be recalled, and they aren’t going to lose office if they are dishonest. Pledges will be good PR moves for candidates for delegate, but will be completely useless for constraining delegates’ actions.

Likewise, the things that people are suggesting could be considered at a Convention are mostly guesses. The line-item veto (which I personally think is the most over-hyped change), restrictions on abortion, oversight by the Ethics commissions, reversing marriage equality, etc. There’s no way anyone can reliably tell you what will appear. Conservative reformers in Rhode Island are definitely bought into a utopian vision of the Convention. Liberals are split; and the centrist compromisers are generally against it. But just like political polls of elections, all anyone can give you is an educated guess.

All of this means a leap of faith when a Convention is approved. I personally have faith in Rhode Island voters to block outrageous changes and to generally make some sort of changes. But it’s just that, faith. It’s a guess. The Convention is going to be an uncertain process. Anyone who offers you assurances about how it will go and what it will do is either lying, or delusional.

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