Snider, J.H., How to fix Maryland’s D-minus in corruption, Washington Examiner, March 30, 2012
Last week the State Integrity Investigation, led by the Center for Public Integrity, released its political corruption scorecard for the 50 U.S. states. Maryland received a D-, placing it in the bottom fifth of states. Specific grades include F for Legislative Accountability, F for Public Access to Information; D-minus for Lobbying Disclosure, D-minus for Redistricting, and D for Ethics Enforcement.
Unfortunately, the Maryland General Assembly will take minimal or no action to improve these scores. Why fix a system from which one benefits? Why reduce barriers to political competition that might help political opponents?
Anticipating the possibility of such perverse incentives in a legislature, the framers of both the Federal and Maryland constitutions created a mechanism — the constitutional convention — to allow the people to pass democratic reforms without the need for legislative approval.
Unfortunately, the constitutional convention provision in the Federal constitution was inserted at the last minute and is hopelessly vague. The version inserted in Maryland’s Constitution 64 years later (1851) was a considerable improvement. It included a provision that a referendum to convene one be placed periodically on the ballot (currently five times every century) without the need for Assembly approval.
Maryland’s framers knew that incumbent legislators, concerned about preserving their own power, would strongly oppose independent conventions. To eliminate the Assembly’s control, they devised the self-executing periodic referendum on a constitutional convention. Unfortunately, they didn’t anticipate the extent to which future Assemblies would nevertheless be able and willing to twist the framers’ intent and words to maintain control.
On Nov. 2, 2010, a majority (54.4 percent) of Marylanders voted in a statewide referendum to convene a state constitutional convention. But Maryland’s Governor and Assembly members, violating both their oath of office and Maryland’s Constitution, refused to convene one. This is why I am suing the state of Maryland.
This is the third time the Assembly has done this. The first two times, in 1930 and 1950, the primary goal of the Assembly was to avoid legislative reapportionment. The rural members who controlled the Assembly knew that reapportionment would shift power to the fast growing urban areas. Not until the U.S. Supreme Court ruled in 1964 that Maryland was violating the U.S. Constitution in this regard did the Assembly relent and convene a constitutional convention.
Since then, the democratic reform agenda has substantially changed. For example, only after the U.S. Supreme Court fixed the reapportionment problem did the problem of gerrymanders come to the fore.
Maryland’s democratic reform problem is that the institutional mechanism that the framers created to solve legislatively intractable democratic problems, as highlighted by the State Integrity Investigation report, has itself become the subject of political corruption. States with the ballot initiative have a way to get around this problem. But in Maryland, the only option to bypass the Assembly’s monopoly control of ballot propositions is the constitutional convention.
Sometimes a scandal erupts that is so embarrassing that the Assembly is forced to reform itself. But not all democratic problems, such as grotesque gerrymanders, are prone to vivid and timely scandal. Citizens shouldn’t have to wait hundreds of years for the perfect scandal to appear serendipitously. And even when a problem is blessed with something close to a perfect scandal, the resulting reform is often more face-saving than substantive.
Maryland reformers who want to improve Maryland’s score for democratic accountability must first address the root problem: the Assembly’s unwillingness to convene constitutional conventions as specified in Maryland’s Constitution. The so-called “con-con” is not a constitutional cobweb, but a vital part of Maryland’s Constitution. That is why I’m suing Maryland to make sure one occurs.
–J.H. Snider is president of iSolon.org and a fellow at Harvard University’s Edmond J. Safra Center for Ethics. For more information, see MarylandConCon.org.