Las Vegas Sun

October 20, 2017

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Nevada Constitution in need of repairs?

UNLV law professor points to flaws in legislative process as symptoms of state’s faulty foundation


What: Lecture by UNLV law professor Tuan Samahon

Details: 7:30 this evening at the Barrick Museum Auditorium at UNLV; the event is free.

Article 16

Sec: 2. Convention for revision of constitution: Procedure. If at any time the Legislature by a vote of two thirds of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a Convention to be holden within six months after the passage of such law, and such Convention shall consist of a number of Members not less than that of both branches of the Legislature. In determining what is a majority of the electors voting at such election, reference shall be had to the highest number of votes cast at such election for the candidates for any office or on any question.

Picture this scenario: Nevada’s governor is incompetent and corrupt, failing to lead in a time of crisis while bringing disrepute on the state with his various embarrassments.

What could be done?

If the Legislature is in session, as it is every other year for 120 days, lawmakers could impeach the governor.

But for the other 83 percent of the time, the Legislature would have no recourse.

Under the state constitution, only the governor can call the Legislature into a special session, and it’s unlikely a sitting governor would call a special session for his own impeachment.

That flaw is one of many in Nevada’s constitution that should be remedied with a constitutional convention, according to Tuan Samahon, a UNLV law professor who will present a lecture on the subject tonight on the UNLV campus. Samahon is a conservative intellectual who speaks in well-crafted paragraphs, sounding like a man who just can’t abide bad constitutional law.

Nevada adopted its constitution nearly a century and a half ago and is one of few of states that haven’t opened up the document for major work, Samahon notes. The result is a constitution badly out of date in a state far more complex than it was in the 1860s.

Instead of undertaking a major revision of the constitution, Nevadans have approved constitutional amendments — 130 of them, nearly five times as many as have been made to the U.S. Constitution — often doing the bidding of narrow special interests rather than addressing broader constitutional issues.

A proper constitution should act as the rule book for making rules, in Samahon’s view.

He says Nevadans should look to the foundational ideas of the country’s constitution for clues to fixing our state’s founding document.

To wit: “You can’t make angels out of men,” Samahon said. In other words, people are fallible and will always try to grab more power, he said, echoing the ideas of the “Federalist Papers.”

Indeed, his constitutional ideas flow from those influential essays of 1787 and 1788 that helped to sell the country on the need for a strong central government.

One of their key insights is that “power is a corrupting influence and had to be controlled,” said Phil Bigler, a scholar of James Madison at James Madison University.

But how?

Government should use ambition to check ambition — create a balance of power among coequal branches of government, Samahon said.

At the federal level, a president chooses his cabinet but the Senate confirms the appointees. Congress passes laws, but the president can veto them.

Although the Nevada constitution creates a similar arrangement, our Legislature is too weak to act as coequal branch, Samahon said.

“The separation of powers relies on one branch of government being available to check another,” he said.

But Nevada’s Legislature isn’t available to check the other branches “because they don’t meet enough and can only meet at the whim of the governor.”

Samahon isn’t alone in his thinking. There have been various proposals this session to give lawmakers more authority, including the ability to call themselves into session, and for more oversight of a governor’s appointees.

With the limited power it possesses now, the Legislature has created what Samahon calls “unconstitutional workarounds” to protect some of its prerogatives. So, for instance, the Legislative Commission, which is made up of legislative leaders, meets to approve regulations created by the executive branch.

Samahon gave a very recent and relevant example.

When the subprime mortgage crisis began to unfold, the governor and his staff determined that the state wouldn’t have nearly as much money as originally believed. The governor said he could make necessary cuts to balance the budget without legislative approval.

Samahon said our flawed constitution had created a mess: “Now, we have dueling constitutional missions,” Samahon said. “You must balance the budget. You must fund education. And, the Legislature is supposed to pass the budget.”

Gibbons cut the budget unilaterally, claiming he had authority to do so under state statute. Samahon said he believes that statute is unconstitutional, because the Legislature is supposed to pass the budget, and its passage can’t be revoked by executive fiat.

“He’s changing the law but claiming he can do so by statute. Was the statute constitutional? Probably not,” Samahon said.

Later, state Controller Kim Wallin forced Gibbons to go to the Interim Finance Committee, which is made up of members of the Senate Finance and the Assembly Ways and Means committees, to make the cuts.

“Now you have one-third of the Legislature making law,” Samahon said of the special committee. “For many Nevadans, that’s taxation without representation.”

The courts also have outsized influence compared with the Legislature, Samahon said. The Legislature can impeach a corrupt or incompetent judge only when in session or when called to session by the governor. Legislators are also limited in their ability to overturn bad legal decisions with new laws, constrained again by their part-time status and inability to come into session at their own whim.

Nevada historian Michael Green said he sees merit in the idea of a constitutional update. The constitution was written in the middle of the Civil War — hence, “Battle Born” — based largely on a California constitution that was changed shortly thereafter.

The whole idea was weak government, and as times changed and a stronger government was needed, the governor filled in the vacuum because the Legislature met so rarely.

Green noted that Nevada’s founders didn’t envision a Gaming Control Board or Gaming Commission, so there was no confirmation process for gubernatorial appointments to those bodies.

The process for changing Nevada’s constitution, as in most states, is much easier than that of amending the U.S. Constitution. A ballot initiative that passes twice becomes a constitutional amendment; if the Legislature passes a measure twice and it clears the voters with a majority, that too becomes an amendment.

Samahon isn’t interested in a simple amendment or two. “We need to go in and really work on the plumbing,” he said.

The provision for a constitutional convention, laid out in Article 16, is a bit vague.

At least two-thirds of both houses of the Legislature have to approve the idea and put it to the voters, who then could approve it in the next election. The convention itself would take place within six months and have no fewer than 63 representatives. The Legislature, it seems, would have significant power to set the agenda and the mechanism for choosing representatives.

Samahon thinks the convention should be limited to a few specific articles and subjects. Otherwise, special interest activists, from the religious right to the marijuana left, could overrun the convention. There’s some question as to how and whether you could limit a convention. Samahon’s solution: a constitutional amendment creating a mechanism for a limited convention.

Though it should be limited, the time to do it has come, he said. In 2014 Nevada’s constitution will turn 150. “This is an opportunity for reflection, and to ask, ‘Does the constitution serve us well?’ ”

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