I have questioned the “diversity” on the Alabama Constitutional Reform Commission (see here, here and here) before.  An article in the Tuscaloosa Times, with the headline “Alabama Constitutional Revision Commission doesn’t reflect mandated diversity” raises the same issue today:

According to the resolution, commission membership “shall be inclusive and reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.”

.  .  .The appointees as a group — lawyers, mostly white urban residents, and three women — don’t appear to strictly conform to the resolution’s membership requirement.

Marsh said the diversity language is fairly standard and he had several applicants, including a minority female, whom he appointed.

“I tried to follow the intent of the law,” Marsh said. “I think the intent was to do that, but you can’t maintain that every time.”

Hubbard spokesman Todd Stacey said Speaker Hubbard had “good intentions.” For Sen. Marsh and Speaker Hubbard: “It’s the thought that counts.”

The catch: the resolution used the word “shall.” According to Alabama law (for instance, see Ex Parte Joe Looney, Jr. 797 So.2d 427 Ala. 2001),

The word ‘shall’ has been defined as follows: “ ‘As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always [been given] or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means “must” and is inconsistent with a concept of discretion.’

With only one African-American member out of 16, I doubt any court would find that the diversity mandate has been satisfied. Considering the history of the current Constitution and its racist origins, you would think Hubbard/Marsh would try to avoid even the appearance of impropriety.

But it the make-up of the commission also fails to satisfy the elements of diversity in “gender,” (3 4 out of 16),  “geographic,” (only one north of Birmingham if you count Gov. Brewer), “urban/rural” (only one rural if you count Gov. Brewer again), or “economic.” (no one from the Black Belt.)

Where are the calls for public hearings on appointments of this commission from Republicans as in May?  Where are the inquiries into financial contributions into these appointees? Since Alabama Power has their registered lobbyist on the commission, is it improper to explore how much the company contributed to Hubbard, Marsh, Bentley, and GOP?

Sen. Marsh said he had “several applicants.” Who were these applicants? How were applications submitted? In what manner was the applications solicited? What was the criteria for appointment.  Were interviews even conducted?

Just two months ago, Senator Marsh was so concerned about “process” that he demanded a do-over of the selections by Gov. Bentley of appointees to the Auburn Board of Trustees, Marsh said:

I’m not pleased with the process that got us here, and I’m not alone,” said Marsh, a Republican from Anniston. ‘I think we can do better.’

The problem that I and other senators have is that the process was conducted way too quickly, and it wasn’t as transparent as it could have been,” he said.

Because of a lack of transparency, he threatened to shut the whole the process down in the Senate.

Marsh said his decision to force a do-over was strictly about the process, and that he had no objection to any particular nominees.

“Nothing personal against any of them. In fact, they could all be re-submitted if that is the will of the university,” he said. “But they need to take a more open approach. The consensus for that is strong.”

Senator Marsh, we need a do-over on this Commission as well: a more transparent process, a more open approach, and one which conforms to the requirements of the enabling resolution. We need a process that establishes a commission which is “inclusive and reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.

In April (see here), I blamed the Democrats for failing to act on Constitutional Reform and losing any voice in the revision of the Alabama Constitution.  I wrote:

After years of having majorities sufficient to pass authentic constitutional reform in Alabama, but failing to address the issue at all, Alabama Democrats are to blame thank for whatever emerges as our new constitution. According to this article, the Alabama Republicans, seeing the strategic importance of constitutional reform, are quickly moving to seize control this issue.

The prospects for rational and deeply-considered revisions looked bleak back then.

Representatives and Senators from Prattville, Mobile, Auburn, Daphne, Homewood, and St.Clair County: now that is diversity of Alabama for you? Where is the black belt’s voice? Where is urban Alabama’s representative? For that matter: where is rural Alabama’s influence? These representatives will produce a constitution ideal for their respective constituents: affluent, white suburbia.

We can only hope that the internal backbiting, purity-tests, and power-jockeying within the Republican Party will cause some opening for reason.  Maybe Gov. Bentley, his puny three appointees, and Rep. DeMarco can, at least, be a temporary roadblock against he juggernaut of the super-majority, 11 appointees from the Riley/Hubbard/Marsh/ Bradley Byrne faction of the Party.

Robert Bentley has now made his appointments. These appointments do not exactly bring balance to the Commission for which I  had hoped. While former Governor Albert Brewer has been a long-time champion for constitutional reform, the other two appointments certainly counter-balance the wisdom he might bring to the commission. The remaining two:

  • “Becky Gerritson of Wetumpka . . . is currently President of the Wetumpka Tea Party.”
  • “Vicki Drummond, of Jasper, is an active member of the Alabama Policy Institute and the Heritage Foundation.”

Bentley said in a statement. “Vicki Drummond and Becky Gerritson have a dedicated passion and vision for exploring the need to reform the Alabama constitution.”

Governor, when have these ladies shown this “dedicated passion and vision” for constitutional reform? In what forum? Usually constitutional reform has not been a high priority of many Tea Party groups.

(UPDATE: according to Jennifer Ardis, a spokeswoman for Bentley, this Tea Party President and the API/Heritage Foundation activist have “an appreciation for what government should and should not do in the daily life of everyday Alabamians.”)

But it gets better.

Senator March named his appointees as well.  He named

  • Carolyn McKinstry, a survivor of the Sixteenth Street Baptist Church bombing in 1963;
  • Matthew Lembke, an attorney at Bradley Arant Boult Cummings. A appellate attorney with impressive credentials yet a member of the Federalist Society and typically represents major corporations. For instance, he “defended textile manufacturer in an environmental action alleging tresspass and nuisance claims relating to discharge of textile wastewater into a public lake.  On appeal from a jury verdict in favor of the plaintiffs, the Alabama Supreme Court reversed the judgment in favor of the plaintiffs and rendered judgment in favor of the defendant textile manufacturer.”
  • Jim Pratt, a Birmingham attorney, president of the Alabama State Bar and past president of the Alabama Association for Justice, a group representing trial lawyers.

Speaker Hubbard appointed:

A registered lobbyist? In the words of Keyshawn Johnson: “C’mon Man!”

Does this list look “inclusive and reflect the racial, gender, economic and geographic diversity of Alabama” and the Senate resolution demands?

Members from Rural Alabama? Zero. (Okay: one if you count Governor Albert Brewer being Morgan County.)

African-Americans Members? One out of 16 or (6.25%) while African-American represent 26% of the population in Alabama.

Female Members? Four (25%) while the lady folk represent 51% of the population generally.

White suburbia and corporations? I will let you count.

If this Commission reflects the “diversity” of Alabama, then Alabama is one big white, suburban enclave with as many registered lobbyists as there are African-Americans.

Thanks again, Democratic Majorities of years past.

 

As I pointed out, here, that the current members of the proposed Constitution Reform Commission are exclusively from the affluent, white suburbs like Auburn, St. Clair County, Homewood, Baldwin County, and Prattville.  The Anniston Star editorial board sees history repeating itself :

The commission’s membership should look more like Alabama in all its diversity and less like Montgomery’s political players. As proposed, commission members and their appointees will be almost exclusively Republican. The constitutional rewrite should not be conceived by this era’s fat cats; the commission should represent all of the state’s wide diversity, including race, gender, income level, ideology, region and background.

The document written by 1901’s powerbrokers put us in the mess we are currently in. It is a product of its time and values. Alabama’s powerful were looking to reassert themselves after the Civil War and Reconstruction. As a result, they rigged a system where their power and influence was secured. Alabamians without a seat at the table were cut out.

Let us not rig the system for another century.

James Madison penned this conclusion in Federalist Papers, #51:

This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a centinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.

According to the founders, checks and balances were critically important in any organization and especially civil government. Evidently, the Republican leadership in the Alabama legislature do not exactly agree, even when the other office and check is occupied by someone in their own party.

Republican Speaker Mike Hubbard and Senate Pro Tem Sen. Del Marsh

In another snub toward Republican Governor Robert Bentley, the Republican leadership in the House and Senate has wrested power from and greatly diminished any influence the Governor may have in the rewrite of the state constitution. As I discussed earlier, Senate Pro Tem Del Marsh is pushing through a bill to “reform” the Alabama state constitution. The bill will create a commission with 16 members in include:

  • Republican Sen. Del Marsh and three persons he appoints. (25%)
  • Speaker Mike Hubbard and three persons he appoints. (25%)
  • 4 specified Republican House and Senate Committee Chairmen (all hand-selected by Marsh and Hubbard for their posts) (25%)
  • Lastly, Governor Bentley and his three appointees

Do you see balance there? The Legislative Branch (really two men: Speaker Hubbard and Sen. Marsh) controls 75% of the members of this Constitutional Reform Commission. The Executive, a co-equal branch of government, has only 25%. (Granted: Rep. DeMarco may be a Bentley man.) That, however,  is better than the Judicial branch which has no members, no influence, and no participation in this process at all. (In contradistinction, Florida, which has a commission process in place, fairly and equitably draws its commissioners from across every branch of government.)

The Riley/March/Hubbard/Byrne faction of the Republican Party must be still chapped at the Governor for beating their crony in the primary. This present chop-block follows a long series of other snubs and adverse power-plays.The R/M/H/B faction painted the Bradley Byrne’s race against Gov. Robert Bentley “as a showdown not between two Republicans, but a battle for the heart of the state GOP.”

  • In the primary, the R/M/H/B then undercut Gov. Bentley by rushing “ethics” legislation through a special session before Bentley went into office.
  • After he won, they continued to fight Bentley, implying he was a “RINO.”
  • Then, the R/M/H/B employed a “party power play aimed at providing the Riley-Hubbard-Marsh branch of the party with formidable resources” that will be outside the grasp of the party apparatus aligning with new Governor Bentley.
  • Speaker Hubbard formed his own Speaker’s Commission on Job Creation as a direct competitor to Bentley’s proposed cabinet-level Office of Small Business Creation and Development.
  • Byrne created of his own government watchdog group, Reform Alabama, an outlet to criticize and prod at the Bentley administration for the next 4 years.

Does anyone believe this faction would have granted former Governor Riley only 25%?

Will this now governor stand up for his co-equal power and veto the bill unless he is provided equal power to Marsh and Hubbard? Or will be continue to be run over by the Legislative leadership? Perhaps, Bentley will propose his own Commission proposal through an ally in the House which balances the power.

After years of having majorities sufficient to pass authentic constitutional reform in Alabama, but failing to address the issue at all, Alabama Democrats are to blame thank for whatever emerges as our new constitution. According to this article, the Alabama Republicans, seeing the strategic importance of constitutional reform, are quickly moving to seize control this issue:

The Senate passed a resolution on Tuesday that, if passed by the House of Representatives, would create a commission to begin overhauling large sections of the state’s constitution. The work would not include the section on taxes.

As critically important as this document will be, Democrats have lost for the people of Alabama any real involvement in the process of its creation and drafting.  Bipartisanship could have been an element of reform. If the Democrats had acted, while in power, the creative process could have been truly inclusive. For instance, even if Democrats had chosen a commission similar to Florida’s Constitutional Revision Commission, Democrats and Republicans could have been involved in the drafting process.  (In Florida’s process, the selection of members on the commission arise from a host of all branches and elected officials across government: 37 various members are appointed by the Florida Governor, the Chief Justice of the Supreme Court, the Speaker of the House, and the Senate President.)

Instead, our process will now be pursued with no input from any elected Democrat.

The members of the commission would include the governor and three people he appoints, speaker of the House and three of his appointees, and the Senate president pro tem and three of his appointees. The chairs of the House and Senate committees on the judiciary, and on the constitution and elections would serve as ex-officio members of the commission.

Note: all Republicans. In addition, the proposed Commission not only excludes Democrats but also excludes an entire branch of government from participation: the judiciary. (Could it be because the Chief Justice, the representative of the judiciary, is a Democrat?)

We know this Commission will consist of the following officials:

The commission members will include Gov. Robert Bentley and three of his appointees; Marsh and three appointees; House Speaker Mike Hubbard and three appointees; Sen. Ben Brooks, R-Mobile, co-chairman of the Senate Judiciary Committee; Sen. Bryan Taylor, R-Prattville, chairman of the Senate Constitution, Campaign Finance, Ethics and Elections Committee; Rep. Paul DeMarco, R-Homewood; and Rep. Randy Davis, R-Daphne, chairman of the House Constitution, Campaigns and Elections Committee

Whereas before, a broad spectrum of viewpoints and philosophies could have influenced the content of our new constitution; now, only one narrow worldview will be considered even if what the this article reports is true,

The Senate added a provision to the resolution to say that the commission shall be inclusive and reflect the racial, gender, economic and geographic diversity of Alabama.

Representatives and Senators from Prattville, Mobile, Auburn, Daphne, Homewood, and St.Clair County: now that is diversity of Alabama for you? Where is the black belt’s voice? Where is urban Alabama’s representative? For that matter: where is rural Alabama’s influence? These representatives will produce a constitution ideal for their respective constituents: affluent, white suburbia.

We can only hope that the internal backbiting, purity-tests, and power-jockeying within the Republican Party will cause some opening for reason.  Maybe Gov. Bentley, his puny three appointees, and Rep. DeMarco can, at least, be a temporary roadblock against he juggernaut of the super-majority, 11 appointees from the Riley/Hubbard/Marsh/ Bradley Byrne faction of the Party

As you might tell: I have no confidence in where this all leads. We will get a new constitution, but it will not be reform. As the saying goes: “don’t throw the baby out with the bathwater;” well, I am afraid they will throw out the baby but keep the bathwater. They will want to continue to hoard power in Montgomery. They will not even address the disabling tax provisions built into our constitution. (“Marsh said keeping tax reform off the table was the only way to get things moving.”) Where will they begin “reforming”? Corporations and Banks:

Once established, the commission will start work this year on reviewing proposed changes on Article 12 – Private Corporations, and Article 13 – Banking.

Does the Business Council of Alabama already have model language prepared?  Will their millions in investment in 2010 Republican candidates pay off this soon, and so permanently? Has the banking industry’s lobbyist already been promised passage of their wish-lists.

So thank you to the Democratic legislators, governors, constitutional officeholders, consultants, strategists and leadership that failed to see the importance of this issue and provide leadership over this difficult process.

(Please note: I do not advocate particularly for a Commission form. As I suggested here, I believe we should further empower our locally-elected officials like our county commissions from across the state by including them within the nominating process.)

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