Put environment, elections fate to voters

The Florida Constitution Revision Commission returns to Tallahassee today and Friday for committee agendas featuring some of the best of its members’ proposals — and some of the worst.

At issue is whether changes should be made to let the people better control Florida’s future or let the big lobbies and their political allies continue to rule.

None of the commission’s issues speaks more to this than Proposal 23, which establishes every person’s right “to a clean and healthful environment.” Florida’s most powerful lobbies — Associated Industries, the Chamber of Commerce and others — are frantic to kill it.

Proposal 23 would open the courthouse doors to citizens who believe, often with good reason, that the state isn’t doing enough to protect the environment. That sort of purpose is exactly what a good state constitution is supposed to enable. This is more than a “feel good” amendment, as some have called it. It has real teeth, which is why some fear it so.

The commission’s Judicial Committee pulled some of those teeth last month by adopting an amendment limiting the lawsuit right to “a resident of this state, not including a corporation.” The transparent intent was to exclude the Sierra Club and other public interest organizations. The commissioner who sponsored the amendment is a Holland and Knight lawyer who represents banks, developers and other corporate interests.

Defenders of the status quo point to a section of the Florida Constitution that already extols the environment and to a law enabling citizens to sue. But that law is the problem. It forbids litigation against any project licensed by a government agency that’s in compliance with the provisions of the permit, however inadequate. Plaintiffs can be forced to post bonds to pay the defendant’s legal fees if they lose the case. Even then, they must be able to show that their “substantial interests” are at stake, a catch-22.

To argue against Proposal 23 is to argue that “violations of environmental standards should go unenforced where the violator is lucky enough that no one with a special injury and the money to fund litigation stepped forward,” says Richard Grosso, a Nova Southeastern University environmental law professor, in a letter supporting its passage. “Challengers must typically show special injury to themselves that exceeds that of the general public.”

That’s how the special interests have stacked the cards in their favor and why the people of Florida deserve the opportunity to vote on Proposal 23.

Two excellent proposals awaiting action in other committees aim to empower voters left voteless by Florida’s political primary system.

Proposal 11 would let all voters vote in a party’s primary if the winner will have no November opposition other than write-ins. Proposal 62 would allow the 26 percent of voters unaffiliated with a political party vote in the primary of their choice. These measures are in different committees, and should be merged at some point.

Election supervisors blame Florida’s closed primary system for the historically poor turnout in primary elections, which average only 22.5 of registered voters since 2002, according to a staff report to the commission. That’s bad for Florida because the primaries have more influence on the Legislature than the November general elections, when nearly half the races typically go without two-party competition.

The last revision commission, 20 years ago, addressed this with an amendment to open any primary where the winner will have no opponent on the November ballot. But the Division of Elections and the courts have allowed write-ins to foil this, popping up whenever party leaders or candidates wanted to keep their primaries closed. In 2016, write-ins were responsible for closing 10 primaries for House and Senate seats.

Proposal 11 fixes the loophole. Proposal 62 goes even further on behalf voters who don’t register a party choice. It’s not a wide-open primary like Louisiana’s or California’s, but it is a reasonable improvement and would give more voters a voice.

There are some measures that committees should kill and bury this week “Black Flag dead,” as Congresswoman Carrie Meek used to say.

• Proposal 38 would end the term of a retiring Supreme Court justice or court of appeals judge one day before the governor’s, letting an outgoing chief executive appoint a successor. It’s the incoming governor who should make and take the responsibility for such a critical appointment.

• Proposal 56 would prohibit Florida’s matching fund program, which voters wrote into the Constitution in 1998 to lessen the odds of big money always controlling elections for governor and Cabinet. It matches individual contributions of $250 or less from candidates who agree to specified campaign spending limits.

• Proposal 14 would make the secretary of state an elected Cabinet member — altogether the wrong answer to the mischief that a partisan secretary of state can commit, whether elected or appointed by the governor. Election supervision is the only significant policy-making role in what’s otherwise a record-keeping office. There should be an independent, nonpartisan elections board.

• Proposal 94 would carve 20 percent, presently some $14.3-million a year, out of the tobacco settlement money that’s set aside for prevention, redirecting it to cancer treatment and research. It’s hard to imagine any bigger favor for Big Tobacco. The prevention programs have been one of Florida’s few recent success stories. Cancer research is vital, but nothing could be more pound-foolish than to strip money from prevention. The Department of Health forecasts from $1.9 billion to $21.4 billion in increased health costs to Florida residents and government over a decade from this proposal.

• Proposal 58 would have all judges appointed by the governor — as Supreme Court justices and appeals court judges already are — subject to subsequent merit retention elections. This would be praiseworthy if it also restored the independence of the judicial nominating commissions, which were made into tools of the governor in 2001. But it doesn’t do that, and should not go forward unless and until it does.

The commission’s committees would do well to remember that the more they eventually put on the ballot, the more likely everything will fail. The familiar rule is still a good rule: If it isn’t broken, don’t fix it.

To argue against Proposal 23 is to argue that “violations of environmental standards should go unenforced where the violator is lucky enough that no one with a special injury and the money to fund litigation stepped forward.” Richard Grosso, NSU environmental law professor