Law & Principles

Reforming Oklahoma's Constitution

October 1, 2008

Andrew C. Spiropoulos

[This article is adapted from a talk given by Professor Spiropoulos at OCPA on August 28.]

Like most people, particularly those with children, I am constantly surprised by how quickly time passes. For example, I find it hard to believe that this is my 18th year teaching law in Oklahoma and that for most of these nearly two decades, I have been working with OCPA in an effort to change the direction of government in our state.

There are times, though, when I worry that I have worn out my welcome. For example, you know that you have been at a party too long when you find yourself having the same conversation over and over again. I am beginning to have the same feeling when I write or speak on the state constitution. One of the first articles I wrote for OCPA, dating from the beginning of the Keating administration, was a critique of the constitutional and statutory weakness of our executive branch and the pressing need to reform it. I have written on the subject for OCPA at least three more times since then and have spoken or written on the subject for several other groups or publications, and the executive branch remains as weak as it ever has been.

So having failed so far to convince our leaders to undertake constitutional reform of the executive branch, with OCPA's encouragement and assistance I have decided to move on to the rest of the constitution and see if we have better luck taking on the whole problem, rather than just focusing on one (albeit the greatest) flaw.

Two Structural Flaws

We have a long history of failure in revising the constitution of Oklahoma. Most people have known from its very inception that it needed to be revised. Upon signing the proclamation of our statehood, President Theodore Roosevelt commented that our constitution was "not fit for publication." Since then, at least six studies, generally led by independent or bipartisan experts-in 1935, 1947, 1958, 1968, 1990, and the last by the Oklahoma Academy, in which I participated, in 2000-have examined our constitution and found it wanting.

These studies have generally identified two major structural problems. The first, as I have already mentioned, is our weak executive branch. Let me summarize the problem. While the U.S. Constitution lodges executive power in a single executive, enabling that person to move quickly and decisively and, thus, making it easy for the people to know who is responsible for ensuring that government works effectively, our state's constitution unwisely divides the executive power. Our constitution established several constitutional officers, including the attorney general, state treasurer, auditor, insurance commissioner, labor commissioner, and, of course, a separately elected lieutenant governor (making for the real possibility that the lieutenant governor, if the governor is called suddenly out of town, might use the temporary power of the governor's office to advance policies contrary to those of the sitting governor).

But if that isn't bad enough, the practice of our state over our 101 years has made things even worse. Instead of allowing the governor to appoint the heads of the various state agencies, as in the federal government, our agencies are run by executive directors who answer to boards made up largely, but not always exclusively, of gubernatorial appointees who themselves often have lengthy terms. This means that a governor can reach the end of a full term without ever having appointed the majority of the board that runs an agency.

Why is this a problem? Because no one-at least no one who answers to the people-is in charge of our state agencies. When an agency fails to perform, the person who ought to be held responsible, the governor, just throws up his hands and says, "I don't have control of that agency so there's nothing I can do." Consequently, no one has much of an incentive to make government work better and no one is held responsible when the system fails.

I can give you numerous examples, many from my own personal experience in working for the Speaker of the state House of Representatives, showing how our agencies are unaccountable and thus impervious to reform. For example, when we had several high-profile cases, such as the killing of Kelsey Briggs, which suggested the state Department of Human Services was not effectively protecting children, no one held Gov. Brad Henry accountable for the dysfunction in the department. Consequently he did not-and has not-taken any responsibility for fixing the problems in this or any other agency.

The problem with agency accountability was also illustrated by the many times the legislature would reach an agreement with the governor about how an agency should spend its appropriation or do its job, and the agency would simply ignore the elected officials' decisions and continue their dysfunctional ways. The constitution particularly causes this kind of problem in the higher education field. The constitution requires that the state regents be given their annual appropriation in "consolidated form," meaning a lump sum without any direction about how that money must be spent. Both years I worked at the capitol, the legislature and the executive would agree on particular spending priorities, but the regents would simply ignore us and do whatever they wanted. Their defiance has real policy consequences. One of the biggest problems with our system of higher education is that, instead of focusing scarce resources in building a few institutions of real quality, we spread our resources over the far too many institutions we have, leading to universal mediocrity instead of at least a few institutions of excellence.

The second structural flaw of the constitution that most everyone agrees must be remedied is the great amount of detailed, statute-like, often obsolete provisions that clutter the document. Many of these provisions are in the article governing the Corporation Commission (which is a separation-of-powers nightmare in and of itself), such as the provision forbidding railroads from giving out free passes but containing numerous exemptions. And then there's everyone's favorite ridiculous provision, the constitution's setting of the flash point and specific gravity of kerosene oil. What needs to done? At the very least, what was suggested by the 1990 and 2000 reform commissions: amend the constitution to move the detailed provisions of the Corporation Commission article to the statute books and let the legislature begin the job of cleaning up the law through the normal legislative process.

So if we fix both of these serious problems, the ones that have been the top priorities of reformers for a very long time, will we have a good constitution, one that should take us far into the next century? No. These necessary reforms are just the beginning. The constitution has other, nearly as serious, problems that need to be addressed if we are ever to have good government in this state. This brings me to my real mission.

What OCPA has asked me to do is to help begin the process of comprehensive constitutional reform. What we at OCPA hope to do, over the next few years, is study our most questionable constitutional structures and provisions, identify their flaws, and propose solutions. We begin this project knowing that, given our history, constitutional reform is an uphill battle. Part of the problem with advocating constitutional reform is that, even when you can show that our constitution is poorly structured (as we can easily do with our executive branch), many people, even those who care about politics and policy, cannot get very excited about fixing these problems. A concern with structure seems technical, something that is lawyers' work, and not really related to the important things government does.

What I hope to do in this article is to demonstrate that a flawed constitution isn't merely the source of our structural problems. It is also the direct cause of many of our policy problems. In other words, the constitution doesn't just make it more difficult for us to make good policy; it ensures that we will have bad policy.

State Fiscal Policy

I will focus on three areas, the first two of which appear unrelated but are actually inextricably linked. The first area involves one of OCPA's primary concerns and, not coincidentally, the first subject of my research for the new constitutional reform project: state fiscal policy. At first glance, it looks like, at least on fiscal matters, we have a sound constitution. After all, we have one of the strongest tax limitation provisions in the nation, requiring a three-fourths majority of the legislature or a vote of the people to pass any tax increase. We have a relatively prudent appropriations structure, in which the government can only spend 95 percent of the certified estimated revenues of any fiscal year. Revenues (up to a limit based on last year's budget) that surpass the certified figure go into a "rainy day" fund, appropriation from which is ostensibly limited to emergencies. The constitution also limits annual spending increases to 12 percent.

Despite these provisions, however, many are unhappy with both the amount of spending by the legislature and the level of state taxation. It is difficult to deny that the dynamic of the appropriation process is that the legislature will spend the whole 95 percent of "certified" money in the state budget passed at the end of the legislative session, and then will spend the remaining 5 percent and other cash available in a "supplemental" appropriation the next legislative session. And if the "rainy day" fund is so full that more money cannot be put into it, the legislature will spend that extra money, too-we call it the "spillover." (Of course, one can reasonably wonder why it is a good idea for the constitution to prevent the "rainy day" fund from being larger.)

The problem here, in my view, is much bigger than the fact that we are spending too much on government. State government revenues, by their nature, tend to be volatile. Much more so than federal revenues, state revenues tend to vary substantially with the economy, largely because of reliance on the sales tax and, in our particular case, oil and gas revenues. So if policy-makers spend all the money they have in a particular year, they all but ensure a fiscal crisis-i.e., not enough revenue to pay for the government they bought in the boom years-when the economy takes its inevitable turn.

In other words, if policy-makers spend a windfall in revenues-one that is not reflected in real, permanent growth in state personal income-they commit themselves to more government than they can really afford, putting great pressure on themselves to raise taxes (or, more likely, fees) when times get tough. It is this seemingly insatiable desire to spend all the money that has led many people to support an amendment that will place a firmer constitutional limit-no matter how much revenue is available-on how much the legislature can increase spending in a given year. (Oklahoma's ill-fated Taxpayer Bill of Rights, or TABOR, is the most familiar effort, an attempt to limit increases in spending to increases in population and inflation.)

My study so far has convinced me that we really do need to consider an additional structural limitation on the size of the state budget. Perhaps we can place a limit on revenues available for spending, taking into account factors like population, inflation, and growth in personal income. If there is a surplus, the revenues can be placed in an expanded rainy day fund, perhaps with a required tax cut if surpluses continue over multiple years.

Another fiscal issue we should consider addressing is how the state borrows money. The constitution requires that for the state to borrow money in reliance on the full faith and credit of the state for a large bond issue (for higher education, for example), the constitution must be amended. If you don't believe me, go to your nearest library and look at the constitution and you will see previous amendments detailing the money borrowed and where it was to go.

In recent years, however, the state has shown a great interest in borrowing money and no interest in actually following the constitutionally required process. Through the years, legislatures and governors, both Democrat and Republican, have come up with all sorts of ways to get around the constitution and borrow money-including revenue bonds (complicated transactions using shadowy public authorities to get around debt limits) and my personal favorite, "moral obligation" bonds, in which the state says, "I intend to pay you back, and would feel bad if I didn't, but I'm not legally obligated to do so." Whatever your view on the wisdom of the state borrowing money, we probably need a better process for approving public debt than amending the constitution, and we certainly should have one that is obeyed as law.

But while most of us who support the mission of OCPA think that we tax and spend too much, we need to remember there are many people in this state, some of them very influential and not all partisan liberals, who believe that we don't spend enough on government services. These people tell us, not without some justification (our roads are pretty awful), that our government services are poor, often due to underfunding. They also cannot understand how we can possibly believe our taxes are too high when we are such a low-tax state. They prove this by pointing to the latest study by the Tax Foundation or some other organization which demonstrates that we rank in the bottom five in the extent of our state and local government tax burden-which the studies do indeed show. However, many of the same studies also demonstrate that our state taxes are too high. For example, our per capita state tax burden, particularly as a percentage of our state personal income, is more onerous than most of our regional competitors, including Texas, Missouri, and Colorado.

How can this be? The key here is to understand the difference between state and local government taxation. The truth is that while our state taxes (though they have recently been reduced) are too high and impede our competitiveness, our local taxes are unusually low. Why are they so low? Well, in large part, it is because our constitution makes it exceptionally difficult for local governments to raise money. The only real source of revenues for cities, for example, is the sales tax, the most volatile source of revenue. The constitution also rigidly limits how much local government can raise through the property tax. The constitution, for example, limits both the percentage of the value of property that can be assessed for taxation and the amount of tax that can be levied on that assessed property value. These limits make it difficult for school districts to raise money through the property tax. If the schools try to borrow money instead, they find that the constitution strictly limits the amount of bond indebtedness a school district can incur and also requires a three-fifths vote to pass the bond issue, even if the district is eligible to borrow the money.

Now, I realize that many of us like these limits on local government's power to tax and borrow, but I ask you to consider the effect of these limits on state government taxing and spending. When I first began to study the state budget in detail, I was struck by how much state spending-education being perhaps the best example-really ought to be financed by local government (if it should be spent at all).

Empowering Local Government

Thus, the second area of reform we should consider is whether the constitution ought to be revised to give local government more power both to raise its own revenues and to govern itself generally. (We should, for example, consider authorizing, at least with regards to Oklahoma County and Tulsa County, the choice of county home rule.) One can make the case that the decision on how much to tax and the kind and cost of government spending programs ought to be determined by the government closest to the people. If Oklahoma City wants to tax itself to pay for public projects, let it. And if another community does not want or need the amenities larger cities desire, it should be able to reject the additional tax burden. If local governments were given the tools to pay for their own programs, it may very well make it easier to cut state taxes and spending, making us more competitive in the national economy. In other words, there is a direct connection between reforming the constitutional state fiscal structure and the constitutional distribution of power to local government. If you want the state to tax and spend less, you may have to provide local governments, if their people so choose, the authority to raise and borrow more revenue.

Judicial Reform

The third area of reform I would like to discuss also concerns, at least indirectly, an issue OCPA and I have worked on for several years, the need for lawsuit reform. My experience in working on these issues, particularly in helping to craft the workers' compensation reform of 2005, has demonstrated to me that finally enacting a lawsuit reform bill will ultimately do you no good if the judges use their power to gut the provisions-which is exactly what happened with the 2005 reform. We need to make sure that we have a state judiciary that will interpret the law, not make it up for their own purposes.

The road to judicial reform, however, runs directly through the constitution. Much of the problem with the judges, at least on our highest courts, arises from how they are selected. To be specific, we give the organized bar far too much of a role in selecting judges, and the elected representatives of the people too little.

For our two high courts and the civil court of appeals, the governor must choose a candidate from a list of three provided to him by the Judicial Nominating Commission, a 13-person body, of whom six are elected by members of the Oklahoma Bar Association. While it is true that a one-vote majority is held by the non-lawyer members of the committee appointed by the governor, it is highly unlikely, as has been demonstrated in other states, that the non-lawyer members will all vote to reject candidates unanimously supported by the bar's supposedly expert representatives. One non-lawyer vote is all it takes for the bar's candidate to get the nod.

One must also keep in mind that, under the constitution, if the governor refuses to select one of the three candidates submitted by the Commission, he loses his opportunity to choose the judge and the chief justice makes the selection instead. The nominee need not be confirmed by the state Senate or any other body. In other words, the lawyers, not elected officials, effectively control the nomination process. As I began to look into these matters, I was surprised to discover that, other than Kansas, no other state gives the organized bar as much power in selecting its highest judges as Oklahoma.

What's the problem with the bar playing such a large role in selecting judges? When I was a young, naive lawyer, I would have said there's no problem at all. Indeed, I would have embraced the idea, as I have found (and still find) the idea of even nonpartisan judicial elections profoundly unattractive, and the idea of partisan judicial elections deeply disturbing. I believed then (and I still believe it once was true) that the best lawyers by dint of their education, training, and experience can and do put aside their personal interests to serve the common good. It has been my experience since then, however, that the organized bar, while it claims to adhere to the ideals of disinterestedness and service to the common good, in reality operates no differently from any other interest group. The organized bar seeks to serve its own selfish interests.

We can be sure, then, as has happened in Missouri, that a future governor who supports lawsuit reform will face a slate of three nominees, all supported by the bar, who are unrelentingly hostile to lawsuit reform, making them all unacceptable to the governor. If the governor refuses to pick one of these candidates, the chief justice will select one of the bar's favorites. Government by the people, under this all-too-plausible scenario, is thwarted in two ways: first, by the appointment of judges with views opposed to those of the governor elected by the people and, second, by the unjustified judicial evisceration of laws supported by a significant and stable majority of the people.

So what should we do? At the very least, we should consider maintaining or even expanding gubernatorial selection of judges while requiring Senate confirmation of the candidates for (at minimum) our two highest courts. We should also consider providing governors the option of rejecting the entire slate proffered by a judicial nominating commission. Finally, we should consider whether we wish to reduce or eliminate the role of the bar in judicial selection. They play no such formal role in federal appointments, and they have shown themselves more than capable of providing their input to the executive and the legislature. We must, at the end of the day, find a way to appoint the most qualified judges while ensuring that the people, through their elected representatives, are responsible for who ascends to the bench.

An Agenda for Reform

Note that there are a few areas I have not discussed. The most important of these is education. My omission is deliberate. I think our current common-education provisions, and the interpretation of them by the Oklahoma Supreme Court, are sound and should be maintained. We certainly do not want to go down the road of having a constitution that mandates a particular level of spending, as the Oklahoma Education Association is attempting to do. This would make it difficult, if not impossible, for the legislature to fund its priorities in the way it sees fit and, more importantly, to hold the education establishment accountable for their reluctance to reform.

Finally, we need to discuss how to go about making all these changes. As Robert Butkin and I wrote in an op-ed in The Oklahoman on the occasion of the state centennial, the Oklahoma Supreme Court, in two mistaken (in my view) decisions that eviscerated the 1990 reform effort, has made it very difficult to amend the constitution. So to fix these problems by amendment, we must first amend the amendment process to cure the problems caused by the Court.

I realize many people are attracted to the possibility of calling a constitutional convention. Indeed, as state Rep. Gary Banz reminded us this past session, the constitution requires that the people be permitted to vote on whether to have a convention at least once every 20 years, a provision the people, when asked, have voted to keep, and the legislature has, in recent years, studiously ignored.

I wholeheartedly understand the desire to hold a convention. Indeed, scholars in this field have argued that one must carefully distinguish amendment of a constitution from revision of it. At some point, they argue, and I agree, you have changed your constitution so much and so many other changes need to be made that you have a patchwork document that makes little sense and does not work well. You can certainly make a good case that this is our situation.

I would caution, however, that even if we believe that revision, not amendment, is in order, we need not make the assumption that a convention is the only way or the best way to revise the constitution. We could, as has been done in other states, amend the constitution to provide a new method for revising the constitution: a temporary (or even permanent) constitutional revision commission. This commission should be bipartisan and could be appointed by the governor and the two legislative leaders. It could, and probably should, have no members that are current elected officials. It should have independent funding and staff. Most importantly, the amendment establishing the commission must provide that any ballot initiatives based on its recommendations need not meet the technical rules the courts have used to gut previous efforts. This method, unlike a convention, could allow us to revise the constitution in a measured, carefully planned way without inviting the political circus that would accompany a convention.

To conclude, I would leave us with a fact that is surprising, at least to me. While we correctly see Oklahoma as a young state, our constitution is actually, compared to other states, a comparatively old constitution. Fifteen states have written or revised constitutions since 1907, at least three of them multiple times. We are conditioned by our respect for and experience with the federal constitution to think that old constitutions are a good thing. But state constitutions in general, and ours in particular, are different animals. The last thing in the world the framers of our state constitution would have wanted is for us to fail to periodically revise-not just amend-their work. They believed that a constitution should be an expression of the current views of the people and should be an instrument of active governance, not a museum piece. We betray, not revere, their memory when we refuse to follow their example.

OCPA adjunct scholar Andrew Spiropoulos (M.A., J.D., University of Chicago) is professor of law and director of the Center for the Study of State Constitutional Law at Oklahoma City University. From 2005-06, he served as senior counselor to the Speaker of the Oklahoma House of Representatives. He is a former Salvatori Fellow at the Heritage Foundation.