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Al Cross: List of possible constitutional amendments lengthens (includes new taxes); only four allowed


“No man’s life, liberty or property are safe while the legislature is in session.”

That quote, one of many falsely attributed to Mark Twain, apparently originated with Gideon Tucker, a New York lawyer, politician and newspaper editor, in 1866. It’s an exaggeration, but a useful reminder that our nation and its states are republics – in which we, the people, invest in their elected representatives the power to change our daily lives and the very nature of the republic itself.

Sometimes, those changes are so great that we get the final say. When the legislature wants to amend the state constitution, voters’ approval is required. But Kentucky’s 119-year-old constitution is one of the nation’s most difficult to change because only four amendments can be put on a ballot, and only in even-numbered years – and lack of legislative consensus has made such proposals relatively rare in the last two decades.

That’s been mainly due to partisan divisions in the General Assembly. But this year, the fourth in which Republicans have controlled both chambers, could produce some surprises.

Al Cross (Twitter @ruralj) is a professor in the University of Kentucky School of Journalism and Media and director of its Institute for Rural Journalism and Community Issues. His opinions are his own, not UK’s. He was the longest-serving political writer for the Louisville Courier Journal (1989-2004) and national president of the Society of Professional Journalists in 2001-02. He joined the Kentucky Journalism Hall of Fame in 2010.

NKyTribune and KyForward are the anchor home for Al Cross’ column. We offer it to other publications throughout the Commonwealth, with appropriate attribution.

For example, a legislature with GOP supermajorities may offer voters an amendment that could lead to more types of local taxes, and it might not pass a once-passed amendment for crime-victim rights (“Marsy’s Law”) that was struck down for procedural reasons.

The latter amendment has run into more questions from lawyers than it did before, and it faces a lot of competition. It is one of four amendments the Senate has sent the House, and the House is preparing to send perhaps that many to the Senate – maybe even one, filed at the deadline by House Speaker David Osborne, that would allow the speaker and Senate president to call the legislature into special session.

The last time the legislature tried something like that, during its 1990 intraparty war with Democratic Gov. Wallace Wilkinson, the voters rejected it by a margin of nearly 3 to 2. That was the only year that the legislature has offered voters four amendments, and they beat three of them, including a legislative veto of executive regulations.

This year, Senate Republicans rebuked fellow partisan Matt Bevin, who went pardon-happy after he failed to win re-election as governor, by passing an amendment to keep governors from issuing pardons and commuting sentences in the 30 days before a gubernatorial election and the rest of their terms. But the amendment may not pass the House, where Republicans worry that it would look too much like a partisan slap at Democratic Gov. Andy Beshear.

(The Senate is doing plenty of that, the leading example being a bill that would limit the governor’s executive-order power; it would be a law, not a constitutional amendment submitted to the voters.)

Another Senate amendment that seems to be in some difficulty in the House is a measure that Republicans have been trying to pass for decades: moving elections for governor and other statewide constitutional offices to presidential election years, beginning in 2028.

That should help Republicans in a state that has gone increasingly “red” in national elections, but now that they are on the verge of passing it, House Republicans worry that re-coupling legislative and gubernatorial elections could reduce the legislature’s independence from a governor of the ruling legislative party; force House members and half of senators (who serve four-year terms) to give up their seats to run for statewide office; and put so many races on one ballot that it would make it harder for them to raise campaign funds.

The Senate amendment that seems to have the best chance in the House is one to let the legislature establish standards for restoring voting rights to convicted felons. Even before Republicans took the House, many if not most GOP representatives favored legislation to automatically restore felons’ voting rights when they completed their sentences.

The House amendment with the best shot, surprisingly, is one that would let local governments levy whatever taxes and fees the legislature later chooses to allow. (UPDATE: The bill fell 11 votes short of passage Friday because Democrats withheld votes to gain leverage on other issues. Acting Floor Leader Steven Rudy changed his vote to “no” as the roll call ended so he could later make a motion to reconsider the vote.)

With so many amendments competing for four ballot slots, why would the legislature choose to offer voters one that would likely be defeated because it could lead to them paying higher taxes?

Because a campaign is being organized to persuade voters to pass it, says Rep. Michael Meredith of Oakland. He is the prime sponsor of the amendment, which has 53 other sponsors; 60 votes are needed to get an amendment through the 100-member House. In the 38-member Senate, it takes 23.

“This is coming together, and there will be a heck of a campaign before it is all said and done,” Meredith told me. “There’s a group being established.”

The amendment is a priority for cities and counties, which are being squeezed by the state’s pension crisis, but it’s an old idea. Meredith said it was the top recommendation of a task force on local government taxes in 1996 when he was still in grade school. “This is extremely necessary as we move forward to try to modernize the tax code of the state of Kentucky.” He said state and local governments’ heavy reliance on income and payroll taxes hurts the state’s ability to attract high-income jobs.

But doesn’t his measure run against the grain of a party that built and preserved its majorities by being against taxes? “You have to get out there on the very far realms of the conservative side of the party” to find strong opposition, he said. “Your more moderate members of both parties understand the need for this.”

There is also support for a House amendment that would say “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Putting it on the ballot would essentially create a non-binding referendum on abortion, or on the prevailing case law, especially the 1973 Supreme Court decision in Roe v. Wade.

Such social issues can boost voter turnout, but this year’s election seems primed for a big turnout, so there might be more support for a House amendment that would lengthen the terms of circuit court clerks, Commonwealth’s attorneys, county attorneys and district judges. Because of the election schedule, delaying such a change would be impractical. The amendment would also require district judges to have been licensed attorneys for eight years, instead of the current two – an artifact of the 1975 amendment that created the office and reformed the court system.

The final decisions on what amendments make the ballot will be up to legislative leaders, probably after private caucuses of the Republican majorities in each chamber. Such meetings are where big decisions get made in the legislature; it’s too bad the public won’t be in on them. But whatever gets on the ballot, we will have our say Nov. 3.


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