Dems, GOP differ on when constitutional amendment route worth using

TRENTON – The idea of giving voters the opportunity to amend the state Constitution via ballot referendum to enact policies has been floated by both parties this past year.

But there’s hardly bipartisan support on using constitutional amendments because there is disagreement on precisely what type of policy question should go before the voters.

The questions revolve around two big issues affecting New Jerseyans: increasing the minimum wage and allowing same-sex marriage. Democrats want voters to weigh in on the former, while Republicans want voters to decide the latter.

On minimum wage, Democrats (with the exception of 1st District lawmakers Sen. Jeff Van Drew and Assemblyman Matthew Milam), have said it’s time to increase it from $7.25. A bill calls for hiking it to $8.50.

If Gov. Chris Christie doesn’t sign the legislation, and both houses pass another resolution in 2013 by a simple majority calling for a wage hike, the question to boost it to $8.25 will appear on the November ballot.

Senate President Steve Sweeney (D-3) of West Deptford, said it’s a matter of improving the quality of life for thousands of residents. “Working people in this state have the right to earn a wage that does not condemn them to a life of poverty,” he has said in the past.

But Republicans have said amending the state Constitution to ensure wage hikes to keep up with the rate of inflation will harm businesses and does not take into account the “economic realities” of a post-Sandy New Jersey.

Sen. Dawn Addiego, (R-8), of Evesham, has called it “irresponsible and inflexible economic policy.”

Senate Minority Leader Tom Kean (R-21), of Westfield, said it would be very difficult to adjust to changing conditions if such hikes are constitutionally mandated, especially if the economy goes south.

It’s not they are necessarily against increasing the wage, according to Kean. They’d prefer to do it legislatively.

One lawmaker, Sen. Joe Pennacchio, (R-26), of Montville, submitted a bill amendment to increase the wage to $7.50 on Jan. 1, 2013, then to $7.90 on Jan. 1, 2014; and by 60 cents to $8.50 on Jan. 1, 2015. But unlike the Democrats’ bills, Pennacchio’s bill does not include annual inflation adjustments.

Kean has criticized Sweeney’s take-action-or-else tactics, while Sweeney has said if the state had hiked the minimum wage years ago it wouldn’t be in this position now.

But while the Democrats invite voter opinion on minimum wage hikes and Republicans oppose it, the positions switch when it comes to another issue.
Marriage Equality

The other hot button issue for which constitutional amendments have been explored, this time by the Republicans, is on marriage equality, or legalization of same-sex marriages.

Like Gov. Chris Christie, Sen. Christopher “Kip” Bateman, (R-16), Somerville, has suggested letting the voters decide this issue.

And recently, a Democrat, Assemblyman Reed Gusciora, (D-15), of Trenton, supported using that mechanism after encouragement from constituents who pointed out that similar ballot questions on same sex marriage had passed in other states.

Bateman cited a Rutgers-Eagleton poll showing that a majority of voters want to have a say on this issue.

But Sweeney has called a constitutional amendment for marriage equality “a coward’s way out.” He and many other Democrats frame marriage equality as a civil rights issue, and Sweeney has said he will not put a civil rights question up for popular vote.

After Gusciora expressed support for a public question, Sweeney said, “it is the job of elected officials to ensure that everyone is provided equal protection and equal rights under the law. We should not hide from that responsibility…we should embrace it.”

Assembly Majority Leader Lou Greenwald, (D-6), Voorhees, previously has slammed the idea of treating  marriage equality as a public question, saying past votes on such sensitive subjects went against America’s ideals.

“We have heard often today the history of ballot questions on civil rights issues, and how New Jersey in fact rejected giving women the right to vote in 1915 when that question was put on the ballot,” Greenwald said earlier this year.

Amending state constitutions

A recent article in the Penn State Law Review found an increasing reliance on state constitutional amendments to enact public policies. It stated the trend is growing, largely due to inaction by the federal government on major issues, such as the minimum wage and same sex marriage.

In some situations, the state constitutional amendment processes can be more effective than state statutes or state court rulings because of the ongoing resistance from politicians or judges, it said. Both minimum wage and marriage equality have come up before voters in various states. 

For example, on the minimum wage, it took Congress 10 years to take action on raising it. It was raised to $5.15 in 1997. It was not until 2007 that it then raised it to $7.15.

It’s not that advocates weren’t trying. There were 64 efforts made to increase the federal minimum wage during that 10-year period, but all stalled.

‌In the meantime, four states took it upon themselves to increase it through constitutional amendments. Florida voters approved a minimum-wage amendment in 2004. In Nevada, voters approved a wage-hike amendment in 2006. Both states raised the wage to $6.15.

However, two other states, Colorado and Ohio, raised the minimum wage to $6.85. But that’s not all those states did. Like Sweeney’s bill, the amendments in both of those states also required annual inflation-related adjustments to the minimum wage.

“Upon encountering congressional resistance to a federal minimum-wage increase in the early 2000s, supporters turned to the state level, with the hope that passage of state measures would demonstrate their widespread popularity and put more pressure on federal lawmakers to take action,” the law review said.

The paper also pointed out that part of the motivation behind placing such public policy questions on the ballot is that it may help boost turnout of certain individuals who otherwise may not have come out to the polls.

The law review also said that in some cases, constitutional amendments are more ironclad than mere legislation would be, given that members of a governing body could always change their minds.

“In some states…supporters sought to insulate minimum-wage increases from the possibility of future legislative reversal, and they viewed constitutional amendments as more effective than statutes in this regard,” the law review stated.

Frank Askin, a Rutgers Law School-Newark professor, said he would prefer the constitutional amendment process be used sparingly and for more “global” issues, of which same sex marriage would fit the bill.

However, for something like the minimum wage, the legislative route is much more preferable, he said.

Political science professor Ben Dworkin, of Rider University in Lawrence, said because New Jersey lacks California’s initiative and referendum mechanism, it is only through a constitutional amendment process that the voting public can express an opinion on a specific policy.

“It’s clearly part of a repertoire that can be used in the political process,” he said.

While Dworkin said that “the gravity or weight of an issue is not defined anywhere” in the Constitution in deciding what could be placed on the ballot, he added “it shouldn’t be done flippantly.” Dems, GOP differ on when constitutional amendment route worth using