Reform efforts do little to change Alabama constitution
by Tim Lockette
Nov 30, 2013 | 4210 views |  0 comments | 50 50 recommendations | email to a friend | print
Former Gov. Albert Brewer, chair of the Alabama Constitution Reform Commission. Photo: The Associated Press
Former Gov. Albert Brewer, chair of the Alabama Constitution Reform Commission. Photo: The Associated Press
MONTGOMERY — When Alabama's Constitutional Revision Commission ended its last meeting in September, there were uncomfortable smiles all around.

Since 2011, a panel of political all-stars — including a former governor, the state's first openly gay lawmaker and a heroine of the civil rights movement — had pored over every detail of the state's 376,000-word constitution, with a plan to rewrite it.

But when the panel adjourned two years later, in a moot court room at the Cumberland School of Law, not much had changed.

The commission had proposed changes that would take segregationist passages out of the Constitution, but the new wording was similar to an amendment voters had already rejected. There was no clear proposal to give Alabama's counties control over their own affairs. And without that local control, known as home rule, the flood of proposed amendments to the 1901 constitution seemed unlikely to end.

"On the surface, home rule seems non-controversial," former Gov. Albert Brewer, who chaired the commission, said at the time. “But when you get deeper, you see that there's a lot of opposition.”

But two months later, some advocates of constitutional change are saying there's more to the commission's work than meets the eye. Small tweaks to the document — if they pass muster with the Legislature and the voters — could permanently change the way Alabama's government runs.

"I think in 10 years, we'll be able to look back and say, OK, we changed the process," said Sonny Brasfield, director of the Association of County Commissions of Alabama, which advocated home rule.

Failed reforms

Voters see the cracks in the state's constitution every couple of years — when they go to the ballot box and confront a long list of amendments, sometimes a dozen in a single election.

The Alabama Constitution of 1901 doesn't grant much power to the state's 67 counties. As a result, most major changes to county-level policy have to go through the state Legislature, either as law or as amendments.

Historian Wayne Flynt, an advocate of constitutional change, said the constitution's framers wanted it that way.

"It's because the coalition that ran Alabama from the end of Reconstruction consisted of Big Mules and planters," said Flynt, an emeritus professor of history at Auburn University. "The most fundamental thing they had in common was social control of the workforce."

The all-white constitutional convention made no secret of its desire to deny black Alabamians the vote. But the Big Mules — wealthy industrialists of the day — also wanted to shut down the late-1890s Populist movement, which threatened to politically unite poor people, black and white, Flynt said. The framers were determined not to grant any power to northern Alabama counties where that movement was strong, Flynt said.

"The final nail in the coffin was denying home rule," he said.

More than a century later, Alabamians are still amending the constitution for matters as processing of absentee ballots in Calhoun County, or the creation of a historic district in an unincorporated part of Baldwin County. In 2013, the Legislature passed five laws to allow individual counties to give badges to retiring police officers, according to figures from the Association of County Commissions. With nearly 900 amendments, Alabama's constitution is now as thick, and some would say as obsolete, as an urban phone book.

The state's history is strewn with attempts to reform the document. Gov. Thomas Kilby of Anniston called for a rewrite back in the 1920s. More than 20 years later, Gov. Jim Folsom called the Legislature into special session in hopes lawmakers would call a constitutional convention, an effort that failed. There were reform efforts in the 1970s, the 1980s and at the start of the 21st century. Throughout that time, only one piece of the document, the judicial article, got rewritten.

The main roadblock, Flynt said, was the fact that all those proposals had to go through the Legislature.

"Every legislator knows that anything of substance that affects a county goes through him," Flynt said. Why, Flynt asks, would they give up that power?

New effort

In 2011, things looked like they might be different. A new political party was in power in Montgomery for the first time in more than a century. Organizations as diverse as the anti-poverty group Alabama Appleseed and the conservative Alabama Policy Institute had endorsed some form of home rule — though there was still plenty of debate on what that home rule should look like.

The organization with perhaps the biggest direct stake — the Association of County Commissions — asked for a relatively limited form of local control. Under their proposal, counties would be able to run most of their own affairs while the Legislature isn't in session, but their actions would be subject to veto by lawmakers.

The only seeming skeptic at the table was the Alabama Farmers Federation, or ALFA. Its members — rural landowners — were among the biggest opponents of giving county governments more power. Still, ALFA says it was just watching the proceedings.

A modest proposal

The commission first discussed home rule early 2013, but commissioners put off a vote on the issue for months while addressing other parts of the Constitution. When they came back around to the home rule issue in September, hopes for local control had shrunk considerably.

Commission members didn't vote on a specific home-rule proposal, instead voting to send a message to the Legislature urging them to give "particular, specific powers" to counties to manage their own offices. But those powers shouldn't include land regulation, salaries of elected officials, zoning, eminent domain or taxes.

Nancy Ekberg, vice chairwoman of Alabama Citizens for Constitutional Reform, said the proposal was clearly a compromise between ALFA and the Association of County Commissions. Brasfield, of ACCA, wouldn't comment on whether ALFA played a role. ALFA maintains that, then and now, it was just watching to see what happens.

"We're just monitoring the legislation as it goes forth," said Mary Johnson, a spokeswoman for ALFA.

Attempts to reach former Gov. Albert Brewer, who headed the commission, for comment last month were unsuccessful.

Flynt said the commission's home-rule proposal, which depends on the Legislature to draft its own wording on local control, is likely to change nothing.

"It's like asking a prostitute to write a purity pledge for teenagers," he said.

That's not how ACCA's Brasfield sees it. He said the group always knew home rule would be hard to sell, politically. He claims the counties came away with some changes that, if passed, would have a noticeable effect on how the state functions.

The light of day

At present, local laws have to be advertised in newspapers before they're passed — and they have to be passed exactly as advertised, without a single change. If lawmakers can't agree on the law as advertised, they usually have to wait a year and reintroduce the bill in a new session.

The result, Brasfield said, is that lawmakers and local officials work out the wording of bills in relative secrecy and try to pass them through the Legislature as quietly as they can.

"The Legislature passes these bills without knowing what the content is," he said.

The commission proposed a change to the advertising rule, which would give lawmakers the chance to tweak the wording of a local bill after it’s advertised. Brasfield said that would allow real debate on those bills, because legislators would be able to negotiate the particulars without killing the entire bill.

"We hope this will expose this process to the light of day," he said.

Another significant tweak, Brasfield said, is the commission's proposal to make it harder to put a local measure on a statewide ballot.

At present, if the Legislature unanimously votes for an amendment affecting a single county — say, a tax increase to pay for schools — that amendment goes to voters in that county for approval. But if a single lawmaker objects, the matter will go on the ballot for a statewide vote.

Under the commission's proposal, it would take 10 House members or three senators to bump an amendment to a statewide vote.

It sounds like a small change, but Brasfield believes Alabamians would see less-crowded ballots shortly after the change passes.

If it passes, that is.

'We're in this system'

Modest as the commission's proposed changes are, they're nothing if they don't get through the House and Senate — and then get the approval of the voters as an amendment.

So far, voters have proven willing to go along with constitutional reform as long as it doesn't change anything substantial. The commission's first two amendments — rewrites to rules on banking and corporations — passed muster with voters in 2012. But those amendments only cleaned up antiquated wording about railroads and telegraphs.

At the same time, voters for a second time rejected an amendment that would have removed wording that requires the state to set up separate "white" and "colored" schools. Long rejected by federal courts, the racist passages in the constitution were as obsolete as telegraph regulations. But voters couldn't agree about whether to also remove a passage that denies a "right to education." The Constitutional Revision Commission has approved its own version of the amendment, but was unable to sidestep the controversy, approving a proposal that would deny a right to education — the same issue that killed the 2012 amendment.

Ekberg, of the constitutional reform group, said the commission's relatively modest changes to home rule and local laws were still worth campaigning for.

"I have a very positive attitude," she said. "I feel that there are some changes here that are major innovations for the constitution."

Ekberg said she was speaking only for herself — and that many other members of her organization want a full constitutional convention that would truly rewrite the document from scratch.

Flynt doesn't hold out much hope for that. A growing number of business leaders, he said, are beginning to understand that the state's governing document is holding Alabama back economically. But lawmakers, he said, aren't likely to make major changes until the state's sluggish system creates a disaster.

"We're going to be in this system until the economy collapses," he said.

Capitol & statewide correspondent Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.

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