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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: January 15, 1998
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TIME: Commenced at 8:30 a.m.
11 Concluded at 6:30 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO (EXCUSED)
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (EXCUSED - PM SESSION)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT (EXCUSED)
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH (ABSENT - AM SESSION)
7 KEN CONNOR
CHRIS CORR
8 SENATOR ANDER CRENSHAW
VALERIE EVANS (EXCUSED - PM SESSION)
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES (ABSENT - AM SESSION)
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY
13 JOHN F. LOWNDES
STANLEY MARSHALL
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (EXCUSED - PM SESSION)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT (EXCUSED)
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
20 JUDGE GERALD T. WETHERINGTON (EXCUSED)
STEPHEN NEAL ZACK (EXCUSED)
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IRA H. LEESFIELD (EXCUSED)
22 LYRA BLIZZARD LOGAN (EXCUSED)
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1 PROCEEDINGS
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: All unauthorized visitors, please
4 leave the chamber. All commissioners, indicate your
5 presence; all commissioners, indicate your presence.
6 CHAIRMAN DOUGLASS: We need everybody to check in
7 here.
8 SECRETARY BLANTON: Quorum call, quorum call, all
9 commissioners indicate your presence. A quorum present,
10 Mr. Chairman.
11 CHAIRMAN DOUGLASS: If you will come to order,
12 please. Everybody take your seats and come to order,
13 please.
14 Will the commissioners please rise for the opening
15 prayer given this morning by Reverend Penny Hunt, minister
16 assistant at the Unity of Tallahassee Church, Reverend
17 Hunt.
18 REVEREND HUNT: Commissioners, I'd like to take this
19 opportunity to thank you for inviting me here today. We
20 send along words of encouragement and blessing for the
21 important work being done here today.
22 Would you please join me now in the moment of prayer.
23 As we close our eyes and take in a deep breath, blow it
24 out and relax and just for a moment set aside the worries
25 or concerns of the day. Begin appreciating a close
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1 friend, smelling your favorite flower, seeing majestic
2 colors in the sky at sunset.
3 And with this deep sense of gratitude, we pray, sweet
4 heavenly spirit, the creator of all life, we come together
5 now as one body, one mind, one heart. We give thanks in
6 advance that today, through your loving guidance, great
7 work will be accomplished here. As these commissioners
8 for the people function as a winning team, exploring and
9 sharing ideas and opinions, arriving at just and fair
10 conclusions based on a win/win principle, like the sounds
11 of different musical instruments coming together forming a
12 melody of humanity and bringing harmony right now into
13 this room, into Tallahassee and this great state of
14 Florida.
15 This we affirm in the name and nature through the
16 power of the living, loving spirit of truth, abiding
17 within us all. Amen.
18 CHAIRMAN DOUGLASS: Thank you very much, Reverend
19 Hunt.
20 This morning the pledge of allegiance will be led by
21 students from Raa Middle School who are going to act as
22 our pages today. If you would come forward please, those
23 of you in the back of the room, and we will identify you
24 after the pledge. Come stand up front so that you can
25 lead this group in the pledge of allegiance to the flag.
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1 We are very happy to have these students here. They
2 are Ann Moffit, Bry Byrd, Casey Blanton, Crystal Moore,
3 Ashley Davis, Greg Horne, Jane Donaldson, Dominic
4 Esposito, Kiana Ferguson, Mary Wood, Katie Gammon and
5 their advisor is Cathy Corder. If you would lead us in
6 the pledge of allegiance to the flag.
7 (Pledge of allegiance.)
8 CHAIRMAN DOUGLASS: Thank you, young men and women.
9 We are delighted to have you with us and we hope you will
10 be able to join us the full day. The Reverend Hunt said
11 we needed to be like an orchestra and so on. Let's not
12 have anybody off-key today and beating the drum at the
13 wrong time and then we will move along a lot quicker.
14 We are a little shorthanded today. We are going to
15 proceed. I don't know how we can deal with this
16 attendance matter, Commissioner Barkdull. People drift in
17 and out of the room, they don't show up on Monday and
18 Tuesday, they are here and Thursday and Friday and this
19 sort of thing. Is there any way that the Rules Committee
20 could perhaps address some way that we could entice people
21 to be here on these sessions?
22 COMMISSIONER BARKDULL: I'll welcome any suggestions
23 that members can make. It has been a problem. We did not
24 have a legislative committee meeting, I understand,
25 yesterday because there was no quorum present. We
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1 obviously are pretty shorthanded this morning.
2 I just don't think it is fair to the people of
3 Florida and your appointing authorities for people not to
4 be here, but I'm really talking to those that are absent.
5 Most of the ones, as I look around, are here pretty
6 steadily.
7 I don't know, Mr. Chairman. We'll have to keep
8 trying to get them here because surely it is the people's
9 business and they should be.
10 CHAIRMAN DOUGLASS: Well, of course, there are
11 unavoidable things that happen, we all know that, such as
12 Commissioner Sundberg's very unfortunate situation and
13 some others that I'm sure are equally justifiable.
14 But one of the things that is noticed by the Chair is
15 some people come in, stay a few minutes, leave, come back
16 and then we have to take up something that they weren't
17 here to be on. And I don't think we should have to do
18 that. If you are here, you ought to be able to stay in
19 the chamber when we are in session. So I would ask all of
20 you to please cooperate.
21 I know the ones of you that are here are always here.
22 I look around and I see pretty much the same faces and I
23 may be talking on television, I hope, to some of the
24 people that aren't here, and I won't identify them, but I
25 think they can be identified as the ones who are
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1 constantly not here.
2 We now have one very loyal person who is a member who
3 was an alternate, Commissioner Barton. I don't think she
4 has missed anything and we are delighted with that.
5 Commissioner Barkdull, you may proceed, please, as
6 the chairman of the rules.
7 COMMISSIONER BARKDULL: Thank you, Mr. Chairman, and
8 members of the commission. You have on your desk a purple
9 packet. This supplants the orange and the blue and the
10 white that you had been using the previous days this week.
11 You can either retain those for your personal file, if you
12 want to, or discard them. But everything that's on
13 special order today, except some items that may not have
14 been engrossed yet, are in this purple packet.
15 Those that were considered by committees and had
16 amendments and so forth late yesterday may appear on the
17 calendar as if received. And throughout the day, we
18 anticipate that those, engrossing the amendments will take
19 place and there will be a supplement as they come in or as
20 we reach the items on the calendar. If they are not
21 available, of course, we will move to TP them hopefully
22 for just later on in the day.
23 Some announcements. As we indicated yesterday, the
24 Declaration of Rights Committee is scheduled to meet this
25 afternoon at 6:15 in Room 309. The Article V select
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1 committee on costs is scheduled to meet today upon
2 conclusion of today's session and we will have to announce
3 a room. They are also scheduled to meet on Monday,
4 January 26 at 9:00 and the room will be announced. And
5 also, as we previously announced, the Finance and Tax
6 Committee will meet on Tuesday, January 27, in the late
7 afternoon, with the room to be announced.
8 The calendar indicates that lunch will be provided
9 today. That is not correct. You will be on your own for
10 lunch, and that's at the request of some members that
11 desire to eat in other facilities than the lounge because
12 of today being Thursday. They have something that's
13 special they want to find.
14 CHAIRMAN DOUGLASS: Something special on Thursday,
15 that's a new day for me.
16 COMMISSIONER BARKDULL: Well I understand that
17 somebody fries up some pretty good chicken.
18 CHAIRMAN DOUGLASS: Chicken in the cafeteria, okay.
19 COMMISSIONER BARKDULL: I want to remind you again
20 that we have the opportunity to withdraw proposals at the
21 end of the session. The proposed calendar for today is on
22 your desk and I'd make a motion that it be approved and
23 that we proceed with it.
24 CHAIRMAN DOUGLASS: All right. There is a motion
25 that we approve the calendar that has been provided by the
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1 Rules Committee. Without objection, it is adopted.
2 Proceed, Commissioner Barkdull.
3 COMMISSIONER BARKDULL: That concludes the report.
4 We can commence special order.
5 CHAIRMAN DOUGLASS: All right. The first item on the
6 special order today is committee substitute for Proposal
7 170 by Commissioner Mills. I don't know how it was
8 reported out but, Commissioner Mills?
9 COMMISSIONER MILLS: Mr. Chairman, Commissioner
10 Anthony is chairman of the committee out of which this
11 came; he is not here yet. He had an amendment he wanted
12 to ensure that was offered and I'd prefer to defer it
13 until he is here.
14 CHAIRMAN DOUGLASS: I don't think he is going to be
15 here today.
16 COMMISSIONER MILLS: Well --
17 CHAIRMAN DOUGLASS: Have you got the amendment?
18 COMMISSIONER MILLS: No. Mr. Chairman, while I'm up
19 I'd like to say among the great things about this
20 commission has been how many good things and how many
21 major issues we have undertaken this week. I'd like to
22 take this opportunity to compliment you and the members of
23 the commission that have done -- I, as presiding officer,
24 sat through 600 special order calendars, I think, you
25 know.
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1 CHAIRMAN DOUGLASS: Probably more than that.
2 COMMISSIONER MILLS: Probably more than that. And in
3 three days of special order calendars, we have undertaken
4 more weighty issues with fair debate than many of us who
5 were presiding officers for a lot of years have seen. So
6 I think those that are looking at this commission need to
7 respect both the debate and the concern and the ability
8 that you have been able to keep this group together
9 through all that.
10 Having said that, this one is not ready for prime
11 time. And I also will show my bona fides by saying the
12 next one you get to this morning I'm going to withdraw.
13 CHAIRMAN DOUGLASS: Commissioner Mills, you are
14 really moving this special order. That's pretty good.
15 Maybe that's why we are doing so well. I appreciate those
16 comments and I'm sure the commission does as well. And I
17 can respond to that by saying that my job has been made
18 very easy by the quality of the debate. Some of the
19 people here that you have heard and I have heard are just
20 outstanding in their concise presentations.
21 I was teasing Commissioner Smith last night that he
22 is so eloquent and yet short that we are going to assign
23 him -- I don't mean in stature, I mean in length of his
24 speeches -- we are going to assign him as the head of all
25 of our speeches that we make outside the chamber. I think
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1 we would all agree with that.
2 And I also see that our Commissioner Sundberg has
3 returned. And, Commissioner Sundberg, you need to know
4 that everybody connected with the commission has been with
5 you in thought and in prayer and spirit in this very
6 difficult time for you. And we know it was a great
7 sacrifice for you to even be here, and we really
8 appreciate it.
9 And if you have anything you'd like to report on your
10 situation, we would certainly be, like to hear it.
11 (Off-the-record comment.)
12 CHAIRMAN DOUGLASS: Okay. Well we really do
13 appreciate you making the effort. And you need to know
14 that we are all with you and your family.
15 Now, Commissioner Mills, you have moved to
16 temporarily pass Proposal 170. Without objection, it will
17 be temporarily passed.
18 We now will move to Proposal 174 by Commissioner
19 Sundberg. Would you read it, please?
20 READING CLERK: Proposal 174, a proposal to create
21 Article IV, Section 14, Florida Constitution; providing
22 for a public utilities commission established by the
23 Legislature to be an executive agency that exercises
24 quasi-legislative and quasi-judicial powers.
25 CHAIRMAN DOUGLASS: Commissioner Sundberg, we start
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1 you right off upon your return. If you would like to TP
2 it until you get your wits together.
3 COMMISSIONER SUNDBERG: I'm lost.
4 CHAIRMAN DOUGLASS: Okay. Without objection, we will
5 TP this until later in the session this morning, or this
6 afternoon.
7 Proposal 2 is also by Commissioner Sundberg, which
8 you may want to do the same thing with, sir?
9 COMMISSIONER SUNDBERG: Yes.
10 CHAIRMAN DOUGLASS: All right. Proposal 2 is
11 temporarily passed.
12 I think, Commissioner Freidin, that makes you next up
13 with Proposal No. 11. Would you read that, please?
14 READING CLERK: Proposal 11, a proposal to revise
15 Article I, Section 2, Florida Constitution; providing that
16 persons may not be deprived of their rights because of
17 gender.
18 COMMISSIONER FREIDIN: Mr. Chairman, I actually, I
19 hate to do this because I know where, that you are trying
20 to move things along, but I notice that the vice-chair of
21 the Declaration of Rights Committee is not here yet. I
22 know that he wants to be involved in the debate on this
23 issue.
24 Actually, he had made a suggestion to me about a
25 possible amendment that might resolve some of his concerns
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1 and I have given that some thought and wanted to talk to
2 him about it. If you would entertain a motion to TP it
3 only until he gets here and I can chat with him for a
4 minute, I would appreciate it.
5 CHAIRMAN DOUGLASS: If you don't like his amendment,
6 we ought to go ahead.
7 (Laughter.)
8 COMMISSIONER FREIDIN: Well I don't want him to come
9 back at me later.
10 CHAIRMAN DOUGLASS: Without objection, it will be
11 temporarily passed. Okay. Commissioner Freidin, Proposal
12 86, would you read it, please?
13 READING CLERK: Proposal 86, a proposal to create
14 Article I, Section 26, Florida Constitution; guaranteeing
15 equal rights of women and men throughout the state.
16 CHAIRMAN DOUGLASS: Commissioner Freidin.
17 COMMISSIONER FREIDIN: It is really the same subject
18 and I'd also move to TP that.
19 CHAIRMAN DOUGLASS: Without objection, that's TP'd.
20 All right. Proposal 104 by Commissioner Evans. Would you
21 read the proposal, please?
22 READING CLERK: Proposal 104, a proposal to revise
23 Article I, Florida Constitution; adding Section 26 to
24 provide for parents' rights to direct the education of
25 their children and to provide that the State has a
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1 compelling interest in punishing child abuse.
2 CHAIRMAN DOUGLASS: You are recognized -- was this
3 reported out of the committee on Declaration of Rights?
4 How was it reported out, Mr. Chairman?
5 (Off-the-record comment.)
6 CHAIRMAN DOUGLASS: Turn the mike on so I can hear
7 you.
8 COMMISSIONER SMITH: Unfavorably, I think five to
9 four.
10 CHAIRMAN DOUGLASS: All right. You may proceed,
11 Commissioner Evans.
12 COMMISSIONER EVANS: Not all rights are created
13 equal. There are legal rights, fundamental rights and
14 absolute rights, not to mention marry -- entitlements and
15 privileges.
16 Different kinds of rights are afforded different
17 levels of judicial protection. The greatest protection is
18 given to absolute rights but there are very few rights
19 that are absolute. The freedom of belief is one such
20 absolute right, while the right to act in accordance with
21 one's beliefs is only a fundamental right. One may have
22 an absolute right to believe in human sacrifice, but the
23 right to carry out that belief is more limited.
24 Fundamental rights' analysis under American law is
25 applied both to the specific liberties listed in the First
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1 Amendment to the United States Constitution, that is
2 speech, religious conduct, association, press and petition
3 for redress of grievances, and certain other rights which
4 are fundamental to our way of life. These include the
5 right to marry, bear children, and direct the education of
6 one's child.
7 There are rights that are not fundamental, such as
8 the right to own property or engage in business. These
9 rights, unlike the fundamental rights that I just listed,
10 may be regulated by the State so long as the state's
11 regulations are rationally directed toward some legitimate
12 interest. Thus, for example, the State is free to tax
13 some businesses and not others, so long as the State's
14 purpose in doing so is legitimate and rational.
15 Parental rights have been repeatedly mentioned by the
16 United States Supreme Court. The Fourteenth Amendment has
17 been interpreted to protect, as a liberty interest, the
18 very nature of family life. Parental rights have been
19 held to be federal civil rights, superseding any state law
20 to the contrary.
21 The U.S. Supreme Court held in Parm versus J.R. in
22 1979 that so deeply embedded in our traditions is the
23 principle that parents speak for their minor children that
24 the Constitution itself may compel a state to respect it.
25 Thus, for example, in Pierce versus Society of
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1 Sisters in 1925, the Supreme Court struck down laws
2 banning private schools in Oregon, holding that the rights
3 of parents who desire to send their children to school are
4 the very essence of personal liberty and freedom.
5 The parental right to guide one's child is a most
6 substantial part of the liberty and freedom of the parent.
7 The parental rights are fundamental rights -- that
8 parental rights are fundamental rights has been recognized
9 by unbroken history and tradition. In Parm versus J.R. in
10 1979, Chief Justice Warren Burger wrote for the majority,
11 Our jurisprudence historically has reflected western
12 civilization concepts of the family as a unit with broad
13 parental authority over minor children. Our cases have
14 consistently followed that course.
15 Our constitutional system long ago registered any
16 notion that a child is the mere creature of the State and,
17 on the contrary, asserted that parents generally have the
18 right, coupled with the high duty, to recognize and
19 prepare their children for additional obligations.
20 The law's concept of the family rests on a
21 presumption that parents possess what a child lacks in
22 maturity, experience and capacity for judgment required
23 for making life's difficult decisions. More important,
24 historically, it has recognized that natural bonds of
25 affectation lead parents to act in the best interests of
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1 their children.
2 Chief Justice Burger continued, As with so many other
3 legal presumptions, experience and reality may rebut what
4 the law accepts as a starting point. The incident of
5 child neglect and abuse cases attest to this. That some
6 parents may at times be acting against the interests of
7 their children creates a basis for caution but it is
8 hardly a reason to discard wholesale those pages of human
9 experience that teach that parents generally do act in the
10 child's best interest.
11 The status notion that governmental powers should
12 supersede parental authority in all cases because some
13 parents abuse and neglect children is repugnant to
14 American tradition. And again, those are the words of
15 Chief Justice Warren Burger.
16 The Ninth Amendment to the U.S. Constitution provides
17 a solid textual basis for the protection of those rights
18 which reach back to time immemorial. The Ninth Amendment
19 says, The enumeration in the Constitution of certain
20 rights shall not be construed to deny or disparage others
21 retained by the people.
22 And indeed this same language is located in Article
23 I, Section 1, of the Florida Constitution. And I quote
24 that, that section, That enunciation herein of certain
25 rights shall not be construed to deny or impair others
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1 retained by the people.
2 Parental rights are exactly the kind of unenumerated
3 rights which the Ninth Amendment was designed to cover.
4 It is undeniable that parental rights were strongly
5 protected at common law. Blackstone writes that the most
6 universal relation in nature is that between parent and
7 child.
8 The United States Supreme Court in Griswald versus
9 Connecticut in 1965 interpreted the Ninth Amendment to
10 protect the natural order and prerogatives of the family.
11 Thus both history and human nature demonstrate that
12 parental rights are fundamental in the truest sense.
13 Foundational to society itself.
14 The Ninth Amendment incorporates this liberty into
15 the Bill of Rights, applicable to the states through the
16 due process and equal protection clauses of the Fourteenth
17 Amendment. And obviously, applicable to Florida through
18 that way and additionally through our own express
19 provision in Article I, Section 1.
20 Now, if the fact that parental rights are fundamental
21 is so obviously expressed and provided both in federal and
22 Florida law, why then do we need this amendment? It is
23 because state courts at every level and lower federal
24 courts are more and more elevating the power of the state
25 to supersede the wisdom of the parents.
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1 These courts need to be reminded unequivocally that
2 the standard of review for fundamental rights, which they
3 must apply, is the compelling interest test also know as
4 the strict scrutiny standard. That is, the court must
5 require the state to prove that its regulation and
6 infringement of parental rights is essential and that it
7 is the least restrictive means of fulfilling the state's
8 compelling interest.
9 I'll give you a few examples of what happens when
10 other courts ignore the United States Supreme Court.
11 Excuse me a minute. I wasn't quite expecting the eighth
12 on the list to be up first.
13 CHAIRMAN DOUGLASS: The last shall be first.
14 COMMISSIONER EVANS: Right. Okay. In Pennsylvania,
15 1996, on March 19th, 59 sixth graders in Pennsylvania's
16 East Stroudsburg Area School District were forced to strip
17 to their underwear and submit to a full genital
18 examination, including digital penetration. Many of these
19 11-year-old girls objected to the exam and asked
20 permission to call their parents. School officials
21 ridiculed the students, calling them babies, and refusing
22 to allow them to contact their parents. A nurse blockaded
23 the door preventing the girls from leaving. The exam left
24 many of the children devastated and feeling violated.
25 School officials defended their actions by arguing
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1 that they sent notices to the parents; however, the
2 notices never indicated that a gynecological exam would be
3 performed. At least one parent objected in writing to the
4 exam, but her child, who is now experiencing nightmares
5 from the incident, was forced to strip and submit to the
6 examination.
7 CHAIRMAN DOUGLASS: Commissioner, I hate to interrupt
8 you, but I don't believe this is germane to your proposal,
9 unless you can relate it in some way.
10 COMMISSIONER EVANS: I will be relating it.
11 CHAIRMAN DOUGLASS: I think your graphic descriptions
12 probably are not helping your cause here, as it relates to
13 the proposed amendment. I just suggest that, I won't call
14 you out of order, however.
15 COMMISSIONER EVANS: Thank you. The point being is
16 an attitude that is becoming pervasive in our society.
17 And the pediatrician summed up the school's position by
18 saying that even a parent doesn't have a right to say what
19 is appropriate for a physician to do when conducting an
20 exam.
21 In that light, I could give you much more explicit
22 details of things that are going on in the name of sex
23 education and how parents are not allowed and courts do
24 not allow them to have any say-so in what goes on. I
25 won't give those details, in light of that comment, in the
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1 First Circuit case 1995 in Chelmsford, Massachusetts, but
2 these details, which are even worse than the ones that I
3 just said, the Court of Appeals, Federal Court of Appeals
4 held that the parents' rights were not violated because
5 the actions were not sufficiently conscience shocking.
6 And I wish I could give you those details; I do find them
7 shocking. I guess I could read them if the court says
8 they are not though.
9 In 1980, the Supreme Court in Washington, the State
10 Supreme Court, ruled that it was not a violation of
11 constitutional parents' rights to remove a child from the
12 home because she objected to her parents' reasonable
13 rules. The parents had grounded their eighth grade
14 daughter because she wanted to smoke marijuana and sleep
15 with her boyfriend.
16 The Supreme Court found that it was reasonably within
17 the lower court's jurisdiction to remove the girl from her
18 family home. No strict standard was applied. The
19 parents' rights were completely terminated for simply
20 grounding their daughter to stop her from using illegal
21 drugs and engaging in elicit sex.
22 Now another issue that parents are concerned about is
23 directing the education of their children. There are two
24 companion cases in the state of Michigan in 1993. And one
25 of them, the DeJon [phonetic] case, the Michigan Supreme
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1 Court held that parents who home educate their children
2 due to their religious convictions have a fundamental
3 right protected by the First Amendment.
4 However, in the companion case, Bennett, a family
5 challenged the same law that the DeJon family challenged,
6 and the Supreme Court said that they did not have the
7 right to direct the education of their children because
8 they were not Christian. So the strict standard scrutiny
9 applied to the Christian parents but did not apply to the
10 secular parents. In other words, parental rights of
11 religious parents are protected but parental rights of
12 secular parents are not.
13 In another vein, Second Circuit 1996, parents
14 objected on moral grounds to a mandatory community service
15 graduation requirement and the court held that they did
16 not have the fundamental right to direct the education of
17 their children because their moral concerns were purely
18 secular, and not religious in nature.
19 Going to the medical side of the question, we have
20 the highest court in New York ruling in 1972 that a
21 15-year-old boy, Kevin, who had elephant man disease,
22 which caused a large fold of skin to grow over the right
23 side of his face, his mother wanted him to wait until he
24 turned 21 before permitting any surgery. The doctors
25 testified that the surgery was very risky, offered no cure
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1 and said that waiting would decrease, not increase, the
2 risk.
3 Even so, the judge overruled the mother's objections,
4 declared Kevin a neglected child, and ordered the series
5 of operations.
6 Now what about in Florida? Obviously the trend is
7 toward eroding parental rights in the country and we see
8 the same thing in Florida. Our basic liberties are most
9 vulnerable when the government's intentions are most
10 benevolent.
11 The Fourth Amendment, the search and seizure
12 amendment, protects the home.
13 CHAIRMAN DOUGLASS: Commissioner, Barkdull, do you
14 rise?
15 COMMISSIONER BARKDULL: Yes, to ask Commissioner
16 Evans a question.
17 CHAIRMAN DOUGLASS: All right.
18 COMMISSIONER BARKDULL: Commissioner Evans, how much
19 longer do you anticipate this presentation will take?
20 COMMISSIONER EVANS: If you are suggesting that
21 perhaps what I'm saying is not worthy of listening to, we
22 can take the vote right now.
23 COMMISSIONER BARKDULL: That's not what I am
24 suggesting. The reason I am asking, making the inquiry is
25 there are several members on the floor that have indicated
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1 they may make a motion to limit debate and before that was
2 done, I asked them to give me the opportunity to make an
3 inquiry of you of how much longer you expected it to go.
4 COMMISSIONER EVANS: I didn't time myself. I don't
5 know how long other people will take either. I might take
6 five more minutes.
7 COMMISSIONER BARKDULL: All right, thank you.
8 COMMISSIONER EVANS: I will give an explanation. In
9 the Declaration of Rights Committee, there were some
10 people who did not understand all of these standards and I
11 felt it incumbent to explain that since not everyone is an
12 attorney and perhaps since not everyone operates in the
13 realm of constitutional law, I felt it necessary, based on
14 other questions, just to educate along those standards
15 because it is critical to this amendment.
16 And I'm sorry that there are certain people in here
17 who are offended by that.
18 CHAIRMAN DOUGLASS: Commissioner Evans, no one is
19 offended by your proposal or your comments. The issue
20 that was raised by those who raised it is the length of
21 them, because they far exceed what others have used on
22 other subjects. Certainly, I think, if you want to
23 influence people you should try to make it a little more
24 succinct, but we are very happy to listen to everything
25 you have got to say; nobody is offended by what you say.
25
1 I suggested to you that some of the things might be
2 better said someplace other than on the floor, and you
3 honored that. And I think what is being asked is that you
4 try to wind up as succinctly as you could, not anything
5 about what you are saying.
6 COMMISSIONER EVANS: Yes. And I do hope that the
7 commission is equally concerned when we get to some other
8 issues that will take a great deal of time on the other
9 side of the coin.
10 Okay. The Fourth Amendment. Social workers in
11 Florida generally believe that the Fourth Amendment does
12 not apply to them. On the basis of an anonymous tip, and
13 absent exigent circumstances, they can show up at your
14 door, and they do, demanding entrance. If the parent
15 refuses, they will go back, get a police officer, come
16 back and demand entrance.
17 So the parent is now faced with a very difficult
18 choice; you either let them in, and make informal
19 statements to the social worker, raising the risk of
20 subsequent criminal conviction, or you refuse to talk,
21 even when the social worker tells you and threatens to
22 take away the child unless you cooperate. Parents are
23 faced with a Hobson's choice; give up their constitutional
24 rights or the children. And very few insist on their
25 rights.
26
1 They insist that the Fourth Amendment search and
2 seizure laws do not apply to them because they cannot find
3 a judge to issue a search warrant. Senate committee
4 hearings were held recently here in Florida on this issue.
5 One circuit judge said that his circuit provided the duty
6 judges with beepers and telephones so that they would be
7 available at all hours to issue all kinds of search
8 warrants. I suspect that this is true in all circuits.
9 We all heard the poignant accounts of the destruction
10 of families in Florida caused by the unlawful taking of
11 children by the State. We must send a strong message that
12 these unlawful takings must stop. Politically-inspired
13 intrusions into family life must be limited for two
14 reasons. First, Florida's families must be protected from
15 popular passions and passing fads.
16 Outcomes-based education is all the rage in
17 educational circles now. We saw it yesterday in our
18 Education Committee meetings and the Goals 2000
19 presentation.
20 I attended a three-day seminar in Orlando last
21 January called World Class Academy. The Academy in
22 central Florida is dedicated to training 1,000 business
23 people in 1,000 days into the tenets of outcomes-based
24 education. It may be the rage, but it should not override
25 the parents' right to direct the education of their child.
27
1 Especially when so many of the previous educational fads
2 have been discarded in the dust heap of history.
3 Second, families must be protected from those who see
4 the next generation as a means of power. The hand that
5 rocks the cradle rules the world is an accurate statement
6 of politics.
7 Now, medical care in Florida. This amendment will
8 change nothing in Florida regarding medical care for minor
9 children. Currently if doctors believe that a blood
10 transfusion is necessary to save the life of a child, all
11 the doctors have to do is take their case to a judge, they
12 get an immediate hearing that day, they present their
13 evidence that they have a compelling interest in saving
14 the life of this child and that the blood transfusion is
15 the least restrictive means of saving that child's life
16 and they will win on the hearing, the child gets the blood
17 transfusion. So this amendment is adding nothing new to
18 the existing law.
19 Now the concern expressed in the committee of course
20 is what does this amendment do to the T.W. case, parental
21 consent to a minor child's abortion. Now I don't desire,
22 at all, to rehash yesterday. That's why I wanted
23 yesterday's to come before mine. That's not what this
24 amendment is about. The purpose of this amendment is not
25 to give us a second bite at that apple.
28
1 But I did go back and spend a great deal more time in
2 study and reflection and I believe that I have a more
3 definitive answer than I had at the committee meeting.
4 The answer is that that amendment does nothing to the T.W.
5 holding.
6 The relevant facts of that case are as follows:
7 First, the court knew that the privacy clause contained a
8 no express standard of review. The court used history to
9 determine that privacy was a fundamental right, and it
10 applied the compelling interest standard.
11 Secondly, the court stated that it recognized that an
12 individual's interest in preserving the family unit in
13 raising children is fundamental. However, the court chose
14 to apply a lower standard of review stating that the
15 State's interest in protecting minors and in preserving
16 family unity are worthy objectives, but that Florida does
17 not recognize these two interests as being sufficiently
18 compelling to justify a parental consent requirement.
19 Knowing that the people of the state of Florida
20 incorporated the Ninth Amendment into Article I, Section
21 1, of our Constitution, and knowing that because parental
22 rights are federal civil rights thereby superseding any
23 state law to the contrary, the majority still reduced
24 parental rights to worthy objectives.
25 Thirdly, the court knew that the T.W. case should
29
1 have been decided legally on the disability of nonage,
2 including the inability to contract. The dissent pointed
3 this out. The court knew that Section 23 did not remove
4 the disability of nonage.
5 CHAIRMAN DOUGLASS: Commissioner Barkdull.
6 COMMISSIONER BARKDULL: Mr. Chairman, this is the
7 first time I have done this since we have been in the
8 session, but I'm going to do it today. Our rules say ten
9 minutes. The speaker has gone over that. I'm going to
10 call a point of order. She will have five minutes to
11 close on the debate, in addition to the time that's
12 already been used.
13 CHAIRMAN DOUGLASS: The point of order is well taken.
14 You have five minutes to close when we complete the
15 debate. Who wants to be recognized on the proposal?
16 Commissioner Smith.
17 COMMISSIONER SMITH: Mr. Chairman, are we giving each
18 of the members a certain amount of time?
19 CHAIRMAN DOUGLASS: No, the rules say that you get
20 ten minutes to debate. We haven't really enforced that,
21 we haven't really had to, because nobody has done it.
22 COMMISSIONER SMITH: Can I give her my time?
23 CHAIRMAN DOUGLASS: If we are going to get into a
24 hassle on this, proceed. I'll rule the other way, I'll
25 say we won't enforce the rules.
30
1 COMMISSIONER SMITH: No, it's just that I believe
2 that we need to try to continue, as you have been doing,
3 Mr. Chair, fostering the collegiality with regard to these
4 very tough issues. And I think that with regard to about
5 four or five issues yesterday, no one said a word. We
6 said, we have enough information, and we voted. And I
7 think the collegiality of this body is much more important
8 than a strict enforcement of the rules. And I implore you
9 to allow her to speak.
10 CHAIRMAN DOUGLASS: Well I'll certainly not enforce
11 the rules. Everybody be seated. Proceed.
12 COMMISSIONER EVANS: And I do believe it will be less
13 than five, but thank you, Commissioner Smith.
14 Okay. The court knew that Section 23 did not remove
15 the disability of nonage, there is no language that so
16 states. The court knew that the principles of Roe vs.
17 Wade did not remove the disability of nonage and that
18 Section 23 effectively codified Roe vs. Wade. The court
19 knew that absent an enabling statute, a minor does not
20 have the capacity to consent to an abortion because of the
21 common law and long-recognized disability of minors
22 because of nonage.
23 The court knew that Section 743.065 of the Florida
24 Statutes, 1987, provided for certain circumstances whereby
25 an unwed pregnant minor and an unwed minor mother could
31
1 consent to certain medical or surgical care or services,
2 but that the Legislature expressly and intentionally left
3 out abortion decisions. The court knew that the Florida
4 Constitution recognizes the disability of nonage in
5 Article III, Section 11-a-17.
6 And in spite of all this knowledge, the majority
7 decided to remove the disability of nonage judicially.
8 Now, this amendment, as I said, changes none of that
9 because this amendment merely codifies everything that we
10 already have. What will happen, I suspect, if this
11 amendment passes is that nothing will happen as far as the
12 T.W. case is concerned. At least nothing will happen
13 until the very nature of the court is changed, if that
14 happens.
15 Now has that changed? I don't know. You'll have to
16 take a look at the world view of the Supreme Court members
17 as they are now, compared to what they were in the T.W.
18 case. I can't tell you what that might be when the court
19 changes again in another five or ten years.
20 But when you have got the court having no historical
21 or legal basis to support the decision, basically the
22 decision turns on the moral, religious or political
23 beliefs of the court. And that's what I mean by the world
24 view.
25 So I'm not going to stand here and say and predict
32
1 what certain justices might do. I think you can analyze
2 that yourselves. But my position is that all of the
3 information contained in this amendment was 100 percent
4 available to the court in the T.W. case and therefore this
5 amendment will change nothing.
6 So if you are inclined to vote for this amendment but
7 for the possible harm to T.W., I submit that that is not
8 an issue. In the meantime, don't allow further erosion to
9 all other areas of parental rights. And I sincerely
10 appreciate you giving me the time to educate the
11 nonlawyers on the scrutiny standards and the levels of
12 rights. Thank you very much.
13 CHAIRMAN DOUGLASS: Thank you, Commissioner Evans.
14 Commissioner Brochin.
15 COMMISSIONER BROCHIN: I have a question.
16 CHAIRMAN DOUGLASS: Yes. Yield to a question? She
17 yields.
18 COMMISSIONER EVANS: Yes, very gratefully.
19 COMMISSIONER BROCHIN: First of all, I appreciate you
20 bringing to the floor issues that deal with the education
21 of Florida's children. I find that to be one of the most
22 significant areas that we can discuss here. And I
23 appreciate, although not agreeing with, I appreciate very
24 much your comments and presentation.
25 Your proposal, does it confer the fundamental right
33
1 on the parents or on the children?
2 COMMISSIONER EVANS: I'm not sure that I understand
3 your question. The fundamental right is that parents have
4 the right to direct the upbringing of their children.
5 This has been since the parent-child relationship began.
6 COMMISSIONER BROCHIN: So the fundamental right
7 created by your amendment would go to the parents of the
8 children?
9 COMMISSIONER EVANS: I guess the answer is yes. But
10 it is not created by this amendment, it was before this
11 country was created that this right existed. It is
12 putting it into our Constitution expressly what has always
13 been a part of Florida and U.S. law and natural law well
14 before that, that parents have the right. I don't
15 understand how the child could have the right to expect
16 their parents to do it. Is that what you mean?
17 COMMISSIONER BROCHIN: No, it was actually a little
18 bit simpler than that. I wanted to understand whose
19 fundamental right was being conferred here with this
20 amendment.
21 COMMISSIONER EVANS: Parents.
22 COMMISSIONER BROCHIN: And I understand it to be the
23 parents. And you commented that parental rights have been
24 eroded by the state courts and I assume vis-a-vis
25 education. I have found precious little actually reported
34
1 decisions in Florida about education at all. But I wonder
2 do you know of any that the courts in this state have
3 actually eroded any rights vis-a-vis education and
4 parental rights to guide that education?
5 COMMISSIONER EVANS: As far as the courts are
6 concerned I don't know of additional cases that made it up
7 to the appellate level so that you could research that
8 issue. And the hope is that we won't have to be faced
9 with that because we have got this expressed, even though
10 we have had it eroded in other areas.
11 Now I can tell you an example of cases where parents
12 have approached the schools, the schools have turned them
13 down in getting rid of whatever it is that they are
14 disagreeing with, whether it be taking outcomes-based
15 education tests or being forced into special programs that
16 they did not want their children put into.
17 I mean, I can -- being a home school mom, I get calls
18 like this all the time. My name somehow got on the
19 Internet as being a person to call about home school
20 questions. And they call me all the time saying, How can
21 I fight the schools? How can I get my child out of, say,
22 an IDEA program? How can I do this? I didn't know what I
23 was signing, they didn't send me any explanation. They
24 didn't have face-to-face conferences, like the law
25 requires.
35
1 So, you know, there are situations where the State,
2 through the schools, are pulling parents away from their
3 children and parents are objecting. And so the legal
4 recourse needs to be clear or the standard, rather, needs
5 to be clear. This is a standard, not --
6 COMMISSIONER BROCHIN: So the strict scrutiny
7 standard that would be created by the amendment would go
8 to protect the parents' right from interference.
9 COMMISSIONER EVANS: From the State, uh-huh.
10 CHAIRMAN DOUGLASS: Any further debate? Commissioner
11 Connor.
12 COMMISSIONER CONNOR: Mr. Chairman, I rise to support
13 the proposed amendment. Ladies and gentlemen, let me
14 suggest to you that under the Federal Constitution, the
15 United States Supreme Court has recognized the right of
16 parents and guardians to direct the upbringing and
17 education of their children under their control.
18 The staff analysis cites to Myers versus Nebraska and
19 the Pierce versus Society of Sisters. And specifically in
20 the Pierce case, the court there struck down an act which
21 it deemed, and it was an act that had to do with
22 education, which it deemed, and I quote, "to unreasonably
23 interfere with the liberty of parents and guardians to
24 direct the upbringing and education of children under
25 their control."
36
1 And the court went on to make this observation, which
2 I believe that each of you would agree with, I certainly
3 hope so. "The child is not the mere creature of the
4 State. Those who nurture him and direct his destiny have
5 the right, coupled with the high duty, to recognize and
6 prepare him for additional obligations."
7 Now ladies and gentlemen, as popular as that
8 perspective may be, I would submit to you, it is not
9 shared by everyone. And it is not shared by everyone in
10 government.
11 I'll never forget a number of years ago having been
12 appointed by Governor Bob Martinez to serve on the
13 Governor's Constituency for Children. And I'll never
14 forget during our initial orientation session of that
15 body, the new appointees were asked if they would share
16 their perspective about children's issues.
17 I made the observation during my remarks that I felt
18 very strongly that parents were the people who knew their
19 children most and loved them -- who knew their children
20 best and loved them most, and that they really ought to be
21 accorded a presumption by government of good faith and
22 correctness in the rearing of their children.
23 You would have thought that I had brought the house
24 down. Now there was much hue and cry and the statements
25 were made largely by representatives of the Department of
37
1 Health and Rehabilitative Services. Oh, Mr. Connor, you
2 don't understand, most parents aren't really qualified to
3 raise their children, and if we had a cause of action for
4 parental malpractice in this state, the courts would be
5 flooded with lawsuits by children who were suing their
6 parents for malpractice.
7 Now, ladies and gentlemen, that's something that
8 happened. In 1994, I had occasion to participate, along
9 with Senator Crenshaw and others, in a gubernatorial
10 campaign. As I went around the state, I found that the
11 agency most criticized by the people of the state of
12 Florida, in my experience, was the Department of HRS. And
13 the repeated refrain had to do with interference by the
14 HRS with parents in the rearing and upbringing of their
15 children.
16 And I heard, and I guarantee you Senator Crenshaw
17 heard and everybody who participated in that campaign
18 heard, case after case after case where parents lamented
19 the intrusion of government into that relationship, the
20 second-guessing of government by, into that relationship,
21 and the dispossessing of fundamental rights of due process
22 and the right to confront your accuser and all other kinds
23 of problems that were incidental to the way in which the
24 Department of HRS has gone about discharging its
25 responsibilities in the state.
38
1 Your question, Commissioner Brochin, was, Is this a
2 right of parents? Indeed it is a right of parents. And I
3 would submit to you it is a right of parents for the
4 benefit of the children. Children are not creatures of
5 the State. As the court said eloquently, those who
6 nurture him and direct his destiny have the right, coupled
7 with the high duty, to recognize and prepare him for
8 additional obligations.
9 Without a doubt, the State maintains a compelling
10 interest in the investigation, prosecution and punishment
11 of child abuse and neglect. Unquestionably the state has
12 a compelling interest. And this is a classic example
13 where we seek to arrive at a balancing of the interests
14 that are at stake. And it is a very, very delicate
15 balance in that respect.
16 I would submit to you though, ladies and gentlemen,
17 that when we effectively, through government, substitute
18 government as the surrogate of the child, or when we
19 adultify the child, in other words, when we turn children
20 into little adults, we make them vulnerable to all manner
21 of exploitation by big adults.
22 We have no precious -- we have no resource more
23 precious than our children. And I would submit to you
24 that children have no resource more precious than their
25 parents. We are seeing the breakdown of the family, we
39
1 are seeing how that plays out in our society in terms of
2 the breakdown of society; the rise of violence, the
3 breakdown of social norms, a host of problems. The family
4 historically has been the primary mediating institution
5 for the transmission of values and the civilizing of our
6 society.
7 I would suggest to you, for those of you who may have
8 the unexpressed concern about the issue that Commissioner
9 Evans has raised about, what about the impact on T.W.? I
10 would suggest to you that what she said is exactly
11 accurate.
12 But further I would suggest to you that in view of
13 our discussion yesterday in which this body expressly
14 rejected the parent consent proposal that went to the
15 issue of abortion and medical treatment, I would suggest
16 to you that that would seal it for any reviewing court
17 about whether or not this proposal would have the effect
18 of reversing the T.W. decision. You have made it clear,
19 to my chagrin and consternation, that you didn't want that
20 to be the case. That record is abundantly clear.
21 But I do think we would do well, we would do well for
22 parents and we would do well for children, to adopt this
23 very positive amendment and to assure the protection of
24 parents, which indeed I would suggest to you are natural
25 rights, government having been ordained to secure those
40
1 rights, not to confer those rights because what government
2 can give, government can take away.
3 And we have seen increasingly the notion in our
4 society and in this state that children are the creatures
5 of the State, that the professionals know best and parents
6 that have a subordinate role in many respects are just to
7 be tolerated.
8 I urge your passage of this very important amendment.
9 Thank you.
10 CHAIRMAN DOUGLASS: Any further debate? You may
11 close, Commissioner Evans.
12 COMMISSIONER EVANS: I feel that I have closed.
13 Thank you.
14 CHAIRMAN DOUGLASS: Ready to vote? Unlock the
15 machine, take the vote.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: Lock the machine and announce the
18 vote.
19 READING CLERK: Ten yeas and 18 nays, Mr. Chairman.
20 CHAIRMAN DOUGLASS: All right. Commissioner
21 Sundberg, I believe you wanted to be recognized to move to
22 withdraw one of the proposals that's on the special order.
23 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman. I
24 should like to withdraw Proposal No. 174. I understand
25 that the Governor's general counsel, J. Hardin Peterson,
41
1 had an opportunity to address the committee regarding this
2 proposal and it was rejected. And I certainly am not
3 nearly as eloquent as Mr. J. Hardin Peterson. So I'll
4 withdraw it.
5 CHAIRMAN DOUGLASS: Without objection, it is
6 withdrawn.
7 Commissioner Henderson.
8 COMMISSIONER HENDERSON: Mr. Chairman, I want to
9 apologize to Commissioner Sundberg for not zealously
10 coming to the defense of the Governor's general counsel
11 and to you. In fact, I was taken to the woodshed
12 afterwards and was prepared to wholeheartedly support the
13 proposal today, even though I voted against it in
14 committee.
15 COMMISSIONER SUNDBERG: That may make three of us
16 then.
17 CHAIRMAN DOUGLASS: I don't know where the woodshed
18 was, but there have been some occasions you probably
19 should have been there before, Commissioner Henderson.
20 COMMISSIONER EVANS-JONES: I too was on that
21 committee and am prepared to speak for it, if Commissioner
22 Sundberg wants to continue.
23 CHAIRMAN DOUGLASS: Keep going, you are going to get
24 four or five votes.
25 Do you want to withdraw it or you want to take it up?
42
1 We can take it up right now if you would like.
2 COMMISSIONER SUNDBERG: If there are others,
3 obviously, who want to speak to it and vote for it, I will
4 defer to that and not withdraw. As I say, I have nothing
5 to add to J. Hardin's proposal. If there is anyone who
6 would like to add to it, please do. I know we have lots
7 of things to move on this agenda.
8 CHAIRMAN DOUGLASS: Let's go ahead and take this up
9 and dispose of it. If you would just present it and the
10 reason for it, and then others who are involved can
11 present the other reason and then we can proceed with it.
12 Or you can yield to Commissioner Henderson who is prepared
13 to do that.
14 COMMISSIONER SUNDBERG: Do you wish to speak to it,
15 Commissioner?
16 COMMISSIONER HENDERSON: Yes.
17 COMMISSIONER SUNDBERG: Thank you.
18 CHAIRMAN DOUGLASS: Commissioner Henderson, you are
19 recognized.
20 We are on Proposal No. 174, would you read it,
21 please?
22 READING CLERK: Proposal 174, a proposal to create
23 Article IV, Section 14, Florida Constitution; providing
24 for a public utilities commission established by the
25 Legislature to be an executive agency that exercises
43
1 quasi-legislative and quasi-judicial powers.
2 CHAIRMAN DOUGLASS: Now Commissioner Henderson.
3 COMMISSIONER HENDERSON: Thank you, Mr. Chairman, and
4 Commissioner Sundberg. To give this issue a fair hearing,
5 because I think that it is one of those issues if you look
6 back at how the Constitution Revision Commissions of the
7 past have dealt with the Public Service Commission, it has
8 been a big issue so we will give it a couple minutes.
9 There was -- what we now have as the Public Service
10 Commission grew out of the legislatively-created old
11 Railroad Utilities Commission. And at the time of the
12 adoption of the 1968 Constitution, there was an assumption
13 that the PSC was operating as an executive agency. And in
14 fact, when you look at what the PSC does, it basically
15 sets rates. And it is acting in a regulatory capacity and
16 an executive capacity. It is in some respects similar to
17 the Game Commission. It operates -- although the Game
18 Commission operates as an independent constitutional
19 commission.
20 When the 25 department cap came into effect with the
21 '68 Constitution, the issue was whether or not the Public
22 Service Commission was within that or without that. And
23 the way the -- there were a series of decisions from the
24 Supreme Court, they were not directly on point but it
25 really came out in dicta, and indeed I think even in the
44
1 footnote, that indicated that the Public Service
2 Commission was not an executive agency but was in fact an
3 agency of the legislative branch of government. And it
4 was actually backdoored in at that point.
5 I think there was an original discussion by the court
6 that, well, it is not an executive agency therefore it
7 must be something else. And then in a, in dicta in a
8 later opinion, the Supreme Court listed agencies that were
9 subject to the Legislature and included the Public Service
10 Commission as one of those.
11 That's true even though, for instance, the Public
12 Service Commission operates under the rules of procedure
13 of the Administrative Procedures Act, like all other
14 executive agencies.
15 The proposal has come about because of a tension, you
16 might say, between the executive branch and the
17 legislative branch over the appointments to the Public
18 Service Commission. Through a statutory scheme that is
19 very complicated, there is a mix of appointments made by
20 the Legislature and made by the Governor to the PSC.
21 You know, in the past, the Public Service Commission
22 was elected and a subsequent change has now allowed that
23 to be appointed by the Governor. So the proposal in its
24 purest form is probably something that makes sense. I
25 mean, in the scheme of things, the Public Service
45
1 Commission as we see it and we know it is operating as or
2 should operate as an executive agency, but it is not.
3 So that's the -- that is the proposal. I think that
4 a lot of discussion in the committee to give, to tell you
5 about the discussion before the committee was a question
6 of whether or not the system is actually working. And
7 there is a difference of opinion on that. Some people
8 think, well, it is working as a Public Service Commission,
9 people have their day in court, the rates and the system
10 by which they are set appear to be fair.
11 And what has caused the tension is the actual
12 appointment process, making this a little bit political.
13 But that was the discussion of this issue and I'm prepared
14 to say, Mr. Chairman, mea culpa, mea culpa, I should have
15 supported it in the committee.
16 CHAIRMAN DOUGLASS: Commissioner Morsani.
17 COMMISSIONER MORSANI: Well, I'm not sure whether my
18 friend on the left is for or against it, but anyway.
19 CHAIRMAN DOUGLASS: We have that problem with him
20 from time to time.
21 (Laughter.)
22 COMMISSIONER MORSANI: If that's not a
23 fence-straddle, I'm not sure what one is.
24 CHAIRMAN DOUGLASS: One thing we would agree, you are
25 not a fence straddler.
46
1 COMMISSIONER MORSANI: No, I'm afraid you know where
2 I stand.
3 As the vice-chairman of the committee and now that
4 the committee chairman is not here I need to also say why.
5 And I think as we really look at the issue, it has nothing
6 to do with the Public Service Commission, it has to do
7 with personalities.
8 And that it is working, it didn't seem like there was
9 a justification for changing the current system, even
10 though under the way we like to run things we like to have
11 executive authority and they feel like these people are
12 not elected, therefore, elected officials should be making
13 the decisions and not a Public Service Commission that's
14 appointed, and all those things.
15 So I think the committee was right, I do not think we
16 should attempt to change it, and I do not think that it
17 should be part of the Constitution Revision Commission to
18 do at this time. I think the Legislature, in its wisdom,
19 and the Governor, if they, down the road, if they want to
20 handle this matter -- so far they haven't chosen to, I
21 don't think it is a real -- you have got to be careful
22 about this word and I'm probably not going to use the
23 proper words, but I don't think it is paramount to the
24 citizens of this state to have this on our agenda.
25 And I think the committee was right and I would
47
1 encourage you to vote against the proposal, as we did in
2 the committee.
3 CHAIRMAN DOUGLASS: Any further questions?
4 Commissioner Evans-Jones.
5 COMMISSIONER EVANS-JONES: I did vote against it in
6 committee too, and I also had a bill which was voted down
7 which would be for an elected Public Service Commission.
8 And I have decided that that may not be the best way to
9 go.
10 So I do think perhaps we would have more
11 accountability if it were under the executive branch. And
12 I don't know how many people in here know the name of a
13 single Public Service Commissioner; a few, a few. You
14 certainly, yes, you would, Madam President, I mean,
15 Ms. Commissioner.
16 But I think that it is worth thinking about. And we
17 have spent a great deal of time talking and thinking about
18 trying to make someone truly accountable. And if we put
19 it under the executive branch and let the Governor be in
20 charge, it might not be a bad idea.
21 CHAIRMAN DOUGLASS: Commissioner Sundberg.
22 COMMISSIONER SUNDBERG: In favor of the amendment of
23 the proposal. It does -- the current system, because it
24 has -- is deemed to be, and I, you know, larger mea culpa,
25 I'm sure I was a party to some of those decisions that
48
1 said, yes, it's legislative in nature, as opposed to
2 executive. And we tend to perpetuate our mistakes.
3 That's one thing about the judiciary, you know.
4 CHAIRMAN DOUGLASS: But you write them down.
5 COMMISSIONER SUNDBERG: Right, exactly.
6 But it has, in my judgment, it has, the system, and
7 we have some former members -- and I speak not to the
8 personalities of the members of the nominating commission,
9 but that is the process by which the appointments are
10 made. And the Governor is limited in his or her ability
11 to make appointments to the commission by these nominating
12 commissions who operate.
13 There has been significant litigation -- it was
14 significant because I was involved in it -- but over this
15 very issue of to what extent the executive is bound. I
16 think that it makes a lot more sense -- this is not a
17 matter of great philosophical import. It doesn't rise to
18 the dignity of equal rights and due process.
19 But amongst those issues of just trying to fix things
20 that need to be fixed, and I'll urge upon this group at
21 some point in time that we have sort of an omnibus
22 provision that fixes things that need to be fixing, I
23 think this is one of the things that need to be fixed so I
24 join with the good company that has spoken here today, and
25 even J. Hardin Peterson, and urge upon you the passage of
49
1 this amendment. Thank you.
2 CHAIRMAN DOUGLASS: Anybody else? Commissioner
3 Jennings.
4 COMMISSIONER JENNINGS: Commissioner Thompson and I
5 are over here sort of wrestling with this. And
6 Commissioner Langley will remember and Commissioner Mills
7 will remember, I was trying to think back when the elected
8 Public Service Commission went to an appointed. And it
9 was either -- was it '78, Dick? Either '77 or '78.
10 Because I was in the House, so I know.
11 CHAIRMAN DOUGLASS: I think it was '78, I believe.
12 COMMISSIONER JENNINGS: We voted on it about every
13 time we were there.
14 CHAIRMAN DOUGLASS: We voted on it in the '78
15 Revision Commission.
16 COMMISSIONER JENNINGS: Did you?
17 CHAIRMAN DOUGLASS: Yes.
18 COMMISSIONER JENNINGS: And I guess I rise just for
19 points of information, and my legislative colleagues may
20 be able to assist here, because the memory starts to grow
21 dim after awhile.
22 But based on that, we easily could have this process
23 for at least 20 years. So many of you would have known no
24 other process, except some of us who have been here, those
25 of us who have been in Florida for a long time. And I
50
1 remember the debate vividly about the issue of going from
2 elected to appointed. And those of us who feel strongly
3 about citizens' ability to have input were very torn about
4 leaving an elected system, as we continue to be, as we
5 talk about judges, as we talk about the Cabinet and
6 Cabinet positions.
7 And the nominating counsel, or commission, became
8 sort of the halfway point that we weren't moving it
9 entirely -- we were moving it away from the electorate,
10 but we weren't just carte blanche giving it to the
11 executive branch. And maybe that was really just the
12 Legislature trying to rationalize why we were going in
13 this direction, but we weren't ready to just go all the
14 way. So we held on to this nominating commission process.
15 And correct me if I'm wrong. I mean, that's how I
16 remember back to it. It was sort of us saying, okay, here
17 it is, but you only sort of got it halfway.
18 And through the years, that nominating commission has
19 been an interesting animal out there. I served on it,
20 perhaps some of my other legislative colleagues have
21 served on it. I now am in the posture as the president of
22 the Senate, I appoint members to it, as does the Speaker
23 of the House, as we go through this.
24 And Justice Sundberg is correct, that we have even
25 had some legal battles over those nominees, because, in
51
1 fact, as there are vacancies, names are sent forward. And
2 was it last year or the year before, there was some
3 discussion about lumping two incumbents into one grouping
4 and that the Governor could not appoint both of those
5 incumbents because they were in a grouping over here, and
6 there was a challenge to that.
7 So we have sort of wrestled around with the process.
8 And I rise to share this with you, more just a point of
9 information. As I look at this, I'm probably going to
10 vote to retain the system, only because I haven't
11 really -- this is a terrible thing to say in public, I
12 guess, I haven't thought through it all the way to the end
13 to say maybe is this where we need to be. But I wanted to
14 share that information with you as to why this system was
15 developed.
16 If you were one of those, and Senator Crenshaw was
17 probably there too, or maybe he had left at that point --
18 or Commissioner Crenshaw. As we look back over those 20
19 years, it's at least served us with the fact that, with
20 all of the cumbersome nature of it, we have had some
21 excellent, generally excellent Public Service
22 commissioners. And that the Public Service Commission has
23 been able to do its job as far as a regulatory structure
24 for the state of Florida.
25 So I didn't really rise to speak in favor or in
52
1 opposition, I was sort of shaking out my memory.
2 CHAIRMAN DOUGLASS: Institutional knowledge and
3 historical background.
4 COMMISSIONER JENNINGS: And once we go past 20 years,
5 we are getting pretty shaky on the memory, too. Thank
6 you.
7 CHAIRMAN DOUGLASS: Commissioner Jennings, thank you
8 very much. Commissioner Nabors.
9 COMMISSIONER NABORS: I wanted to ask Mr. --
10 Commissioner Sundberg a question.
11 COMMISSIONER SUNDBERG: A friendly question?
12 COMMISSIONER NABORS: Yes, I think it is. It is a
13 question to try to seek real world information.
14 I served on the nominating commission I think for
15 about six years; once I was appointed by the commission,
16 and once I think by the House. And as I recall the case
17 law in this area is that the court has construed it to be
18 a legislative branch primarily because it's involved in
19 the setting of rates and rates is traditionally a
20 legislative function.
21 And so because of that, because it has rate-making
22 power, it was considered a legislative function. And then
23 the controversy arises, since it is a legislative function
24 as to what power the Governor has in terms of
25 appointments.
53
1 If that's factually correct, as I understand what
2 this would do basically would be to allow the Governor to
3 make, or whatever the executive appointing body would be,
4 probably the Governor, to make the appointments unfettered
5 by any interference by the legislative. Is that the
6 intent of that? I'm trying to understand what the
7 ramification would be on the appointment process.
8 COMMISSIONER SUNDBERG: The ramifications are just as
9 you have indicated. I wouldn't style it or refer to it as
10 interference by a commission. But yes, it would lead the
11 executive. And you are right, that's why the court
12 concluded that the PSC is in the legislative branch
13 because traditionally rates have been set by the
14 legislature. I mean, directly.
15 But that's not terribly persuasive because it used to
16 be the Legislature also used to grant, was the only body
17 that could grant divorces some years ago. But the
18 judiciary does that sort of thing now. But what has --
19 the premise is that, yes, you know, the Governor or
20 whatever the executive, the Governor is the appointing
21 person or authority now, simply by statute. Presumably,
22 the Legislature could change that this session, this
23 upcoming session, if they wanted to.
24 But it has been not only cumbersome, but to go
25 back -- and my recollection is the same as Commissioner
54
1 Jennings', that this was sort of a compromise to have this
2 commission intervening in the appointed process because
3 you were going away from a pure elected process. And I
4 certainly am in favor of an appointed process.
5 But the Chairman asked how many people here knew who
6 was on the Public Service Commission. And I would ask the
7 question, how many people know who are on the nominating
8 commission who nominates, apart from Commissioner Jennings
9 who is the font of all knowledge, information, and history
10 on the commission.
11 So, I'm not sure that it accomplished what was
12 intended, that the people have had any great input into
13 the system. And that's certainly more than you wanted to
14 hear.
15 COMMISSIONER NABORS: Could I ask one further
16 question? Would you believe, Mr. Sundberg, based upon my
17 experience of service in the PSC nominating commission for
18 six years, that I think this is an excellent idea?
19 COMMISSIONER SUNDBERG: Deeming that to be a very
20 friendly question, I will respond yes, I did suspect that
21 would be your sentiments, Mr. Nabors.
22 COMMISSIONER NABORS: And would you believe the
23 reason that I feel that way is because I have had the
24 pleasure of serving on nominating commissions in the
25 judicial branch, at the Supreme Court, the trial, and the
55
1 district court level, all of which I found to work very
2 well and to be very effective in terms of narrowing down
3 the candidates for consideration.
4 However, my experience at the PSC nominating
5 commission was exactly the opposite, because, one, so many
6 candidates were sent up that it became a meaningless
7 exercise. And secondly, it was in a -- got to be a
8 contentious process beyond the merits of the candidates
9 that were being placed forward.
10 COMMISSIONER SUNDBERG: And in candor, Mr. Nabors
11 also announces that he was, in his former life, a general
12 counsel to a Governor.
13 CHAIRMAN DOUGLASS: So was I, but that doesn't affect
14 my opinion on this particular matter.
15 All right. Is there any further discussion?
16 I do have a question of you, Commissioner Sundberg,
17 that occurred to me. The court giveth, the court can
18 taketh away. It's my recollection that maybe this idea of
19 it being in the legislative branch came in an advisory
20 opinion.
21 COMMISSIONER SUNDBERG: Which, in fact, as you know,
22 Mr. Chairman, is no opinion of the court at all, it is an
23 opinion of the justices of the court.
24 CHAIRMAN DOUGLASS: My question is, if it were
25 presented to the court again, the issue of separation of
56
1 powers, squarely presented in an adversary position, it is
2 entirely conceivable the court could reach a different
3 result. Is that not true?
4 COMMISSIONER SUNDBERG: Absolutely, and that's the
5 point. They are not even bound -- the advisory opinion
6 has no precedential value.
7 CHAIRMAN DOUGLASS: Is that not also true, the reason
8 that some members of the commission felt that it didn't
9 rise to the level of including it in our revision
10 proposals, because they were still hopeful, those who felt
11 the other way on this, that the court would get a case in
12 which they could make that resolution?
13 COMMISSIONER SUNDBERG: I have no way of knowing if
14 that's what was in their minds or not, Mr. Chairman.
15 CHAIRMAN DOUGLASS: Would you like to close or are we
16 ready to vote?
17 COMMISSIONER SUNDBERG: I have closed.
18 CHAIRMAN DOUGLASS: Unlock the machine.
19 (Vote taken and recorded electronically.)
20 CHAIRMAN DOUGLASS: Announce the vote.
21 READING CLERK: Fifteen yeas and 11 nays,
22 Mr. Chairman.
23 CHAIRMAN DOUGLASS: Well, I guess, Mr. Henderson, if
24 you were ever in the woodshed, you are now out.
25 COMMISSIONER HENDERSON: If you would just report
57
1 that directly to the Governor right now. Thank you.
2 CHAIRMAN DOUGLASS: All right. I would like to, with
3 your permission, if you are ready, Commissioner Freidin --
4 where is Commissioner Freidin?
5 COMMISSIONER FREIDIN: I'm over here.
6 CHAIRMAN DOUGLASS: Are you ready to proceed with
7 Proposal No. 11 or 86? You are not ready?
8 COMMISSIONER FREIDIN: Right.
9 CHAIRMAN DOUGLASS: All right. Commissioner
10 Sundberg, I would presume that you would still need a
11 little time before you got to Proposal No. 2, so I'm going
12 to move to Proposal No. 141 by Commissioner Mathis. Would
13 you read the proposal, please?
14 READING CLERK: Proposal 141, a proposal to revise
15 Article I, Section 16, Florida Constitution; providing
16 that a spouse of a state or county prisoner has a right to
17 conjugal visitation with that prisoner; providing that a
18 person connected by affinity or consanguinity to state or
19 county prisoner has a right of family visitation with that
20 prisoner.
21 CHAIRMAN DOUGLASS: Commissioner Mathis, you are
22 recognized. Do you rise for a purpose, Commissioner
23 Langley?
24 COMMISSIONER LANGLEY: I would like to go to the
25 bathroom.
58
1 CHAIRMAN DOUGLASS: You would like to -- if she will
2 yield.
3 COMMISSIONER MATHIS: No, I will not yield.
4 (Laughter.)
5 CHAIRMAN DOUGLASS: You have to be careful with these
6 older men, Commissioner Mathis. You may proceed.
7 COMMISSIONER MATHIS: Maintaining family values is a
8 goal to this proposal. Allowing for conjugal visitation
9 will allow -- will, I think, help the prison system,
10 because it's been shown that inmates are more likely to
11 have a lower recidivism rate when they are allowed
12 conjugal visitation and inmates are easier to manage when
13 they are allowed conjugal visitation.
14 It's important to note that the largest percentage of
15 inmates that are incarcerated are incarcerated for drug
16 and drug-related violations.
17 I think it's important also to define, what is
18 conjugal visitation. What conjugal visitation does is
19 enable married persons to enjoy being associated with one
20 another, to sympathize together, to confide together, to
21 allow them to create domestic happiness, as well as having
22 intimacies with one another. Strong family ties are so
23 important to the rehabilitative process and have been
24 shown to reduce recidivism and I think are an important
25 goal for our State's Constitution.
59
1 And we have seen that through the public proposals.
2 And I ask that this commission fully consider this
3 proposal.
4 CHAIRMAN DOUGLASS: Thank you, Commissioner Mathis.
5 COMMISSIONER MATHIS: Excuse me, Mr. Chairman, also,
6 I would like to report that it was reported out of
7 committee favorably.
8 CHAIRMAN DOUGLASS: Thank you. That's not on my list
9 as to how this was reported, or I would have announced it.
10 It was favorably reported by the committee on Declaration
11 of Rights. Does anyone else care to speak to this?
12 Commissioner Brochin.
13 COMMISSIONER BROCHIN: Question.
14 CHAIRMAN DOUGLASS: Okay.
15 COMMISSIONER BROCHIN: Commissioner Mathis, can these
16 sort of visits be permitted by law? In other words, does
17 it take a constitutional amendment to permit these sort of
18 visitations?
19 COMMISSIONER MATHIS: We had a request for
20 information from the Department of Corrections, and I must
21 say that I'm not certain of that -- the answer to that
22 particular question. What I am certain of right now is
23 that the Department of Corrections feels like they have
24 the ability to deny visitations for family members, deny
25 conjugal visitations, and also to deny visitations for
60
1 people who might be connected with the inmate by some
2 affinity, strong friendship relationships, fiancee
3 relationships.
4 And in this case, what we are saying here, why we are
5 asking for the constitutional amendment, is to show that
6 we feel like the State has a strong interest in
7 maintaining these family ties for these inmates in
8 allowing for conjugal visitation.
9 COMMISSIONER BROCHIN: One further question. Would
10 this also apply to inmates on death row?
11 COMMISSIONER MATHIS: It's my understanding that this
12 would apply to all inmates.
13 CHAIRMAN DOUGLASS: Commissioner Langley.
14 COMMISSIONER LANGLEY: For a question this time. And
15 as a point of order, Commissioner Mills, the rules
16 chairman and others were in the rest room without
17 permission and I don't think I should be treated any
18 differently. And I don't have a continence problem, as
19 you may, Mr. Chairman, but that's not it at all.
20 CHAIRMAN DOUGLASS: On your motion, I will excuse
21 them, retroactively.
22 COMMISSIONER LANGLEY: Now, if I may, if the sponsor
23 would yield to a serious question. Would this apply to
24 gay relations as well as normal relations?
25 COMMISSIONER MATHIS: It's my understanding that
61
1 conjugal visitation would apply only to married inmates,
2 and that would mean between male and female marriages
3 since --
4 COMMISSIONER LANGLEY: You said in your explanation
5 just now that it would be fiancee as well.
6 COMMISSIONER MATHIS: We are talking about allowing
7 visitation by fiancees, family members, also people who
8 are related by affinity to the inmate, but only allowing
9 conjugal visitation for married inmates.
10 CHAIRMAN DOUGLASS: Thank you. Commissioner Barton.
11 COMMISSIONER BARTON: In the committee, there was
12 somebody from the Department of Corrections who did come
13 and speak to us at one point and raised questions that I
14 think are worth considering, and that is that we may be
15 premature in even discussing this issue, because there's
16 so many questions yet to be asked.
17 One of which was that two thirds, I believe, of our
18 prison population is from South Florida, but two thirds of
19 the prisoners are in North Florida. They would have
20 problems with security, they would have problems with
21 sheer numbers. I have forgotten what the prison
22 population is, but it is a lot. And if everybody was
23 going to have conjugal visits, then we are talking about
24 almost constantly having people come into the prisons for
25 this purpose.
62
1 I would suggest that we don't have enough information
2 to pass this at this time.
3 CHAIRMAN DOUGLASS: Any further questions or
4 discussions?
5 Question, Commissioner Mathis. Was it brought out
6 that this could be accomplished by -- without a
7 constitutional provision and actually be done either by
8 statute or perhaps even by rules and regulations of the
9 prison system?
10 COMMISSIONER MATHIS: One of the limitations that we
11 have faced as a Constitution Revision Commission has been
12 that our focus is strictly the Constitution. While I
13 think there has been some discussion about recommendations
14 that we as a Constitution Revision Commission would make
15 for statutory provisions, nothing like that has been
16 solidified, and I don't think we have provided for that in
17 any of our rules. But if we did, I do think that this
18 proposal would be one that would be -- could be properly
19 dealt with as a statutory provision.
20 And so I would lend the wisdom of this body and ask
21 them as to which they would prefer. But we are limited, I
22 was limited in this proposal as a Constitution revision.
23 CHAIRMAN DOUGLASS: I was also -- was it pointed out
24 in the committee that in the federal prison system,
25 conjugal visits are allowed under regulations by the
63
1 prison authorities? And in some states that's true too,
2 is it not?
3 COMMISSIONER MATHIS: And I respect Commissioner
4 Barton's position, and it was directed at that, it was
5 said that, by the Department of Corrections, that two
6 thirds of the prisoners are from South Florida, while two
7 thirds of the prisoners are housed in North Florida, in my
8 mind, that showed a greater importance for conjugal
9 visitation and allowing for broader visitation. And so,
10 yes, and I must agree with you, the federal prison system
11 does allow this.
12 CHAIRMAN DOUGLASS: All right. Is there any further
13 discussion or questions? If not, we'll proceed to vote.
14 Open the machine.
15 (Vote taken and recorded electronically.)
16 CHAIRMAN DOUGLASS: Lock the machine and record the
17 vote.
18 READING CLERK: Nine yeas and 18 nays, Mr. Chairman.
19 CHAIRMAN DOUGLASS: All right. We'll move to the
20 proposal by Commissioner Mills, No. 171. Would you read
21 it, please? This was disapproved by the committee on
22 Declaration of Rights.
23 READING CLERK: Proposal 171, a proposal to revise
24 Article I, Section 23, Florida Constitution; requiring the
25 State to protect natural persons against nongovernmental
64
1 intrusion for commercial purposes into their lives.
2 CHAIRMAN DOUGLASS: Commissioner Mills, you are
3 popular, everybody is surrounding you there.
4 COMMISSIONER MILLS: They just wanted the microphone.
5 It is my intention to withdraw this. And just a statement
6 for the record, I would ask the commission to allow this
7 to be withdrawn. This was an attempt to follow up on the
8 efforts to draft a provision relating to informational
9 privacy, to protect our citizens against abuses by the
10 private sector.
11 The committee worked very hard on this, and I think
12 it would be a reasonable conclusion to say that to craft
13 language that would be effective, constitutional and
14 practical and put in the Constitution is difficult, if not
15 impossible. Those of you that continue to care about this
16 issue, including myself, will refer the information that
17 we have gathered to the Legislature and continue to work
18 with the industry that I think has been very responsive on
19 this issue. So I would move, Mr. Chairman, that this be
20 withdrawn from further consideration.
21 CHAIRMAN DOUGLASS: All right. There's been a motion
22 that this be withdrawn. Without objection, it is
23 withdrawn.
24 Now, we'll move -- Commissioner Freidin, are you
25 ready yet?
65
1 COMMISSIONER FREIDIN: They are typing up an
2 amendment as we speak.
3 CHAIRMAN DOUGLASS: Okay. We have two. Would you
4 like to take up -- you have two.
5 COMMISSIONER FREIDIN: No, I want to take up No. 11
6 first and then --
7 CHAIRMAN DOUGLASS: We'll do that. Just let me know
8 when you are ready.
9 COMMISSIONER FREIDIN: They are working on it right
10 now.
11 CHAIRMAN DOUGLASS: We are waiting anxiously.
12 COMMISSIONER FREIDIN: I know that. We are working
13 as fast as we can, Mr. Chairman. Thank you.
14 CHAIRMAN DOUGLASS: Great. We will move to Proposal
15 168 by Commissioner Corr. Would you read it, please?
16 READING CLERK: Proposal 168, a proposal to revise
17 Article IV, Section 6, Florida Constitution; providing
18 that an entity purportedly within an executive department,
19 which is not subject to the direct supervision of the
20 agency head is a department.
21 CHAIRMAN DOUGLASS: All right. Commissioner Corr.
22 COMMISSIONER CORR: Thank you, Mr. Chairman. First
23 of all, I want to thank staff for their work on this
24 proposal, especially Deb Kearney. This was an item that
25 came up in our Executive Committee meetings during
66
1 discussions of Cabinet reform.
2 And it's one of those that I think that also meets
3 the criteria Commissioner Sundberg was talking about as
4 one of those items that we need to fix a thing that needs
5 fixing. Maybe this is one of those housekeeping proposals
6 that falls into that same category.
7 CHAIRMAN DOUGLASS: Commissioner Corr, I didn't
8 announce this, but this was approved by the committee on
9 the executive; was it not?
10 COMMISSIONER CORR: Yes, it was. It was approved
11 unanimously. And what it does is it reinforces a
12 provision that was proposed by the '68 Constitution
13 Revision Commission, and later adopted by electors, that
14 was a response to an executive branch at the time that had
15 swelled to about 170 departments. The current
16 Constitution limits the executive branch to 25 departments
17 reporting to the Governor, the Lieutenant Governor, a
18 member of the Cabinet or any agency head that would serve
19 at the pleasure of one of those entities.
20 But over the past 30 years, the number of entities
21 have grown apparently in the executive branch that do not
22 comply with this, at least the intent of the Constitution
23 in this regard. The staff analysis gives an example, the
24 Agency for Health Care Administration, in that case there
25 is an agency head that reports directly to the Governor or
67
1 serves at the pleasure of the Governor, excuse me. And as
2 a result, it would seem that that would mean that it is a
3 department.
4 I have a list, a partial list, of departments
5 currently within the executive branch. It lists 22, and
6 then an additional 5 that are constitutional agencies and
7 another 11 in a partial list that include the Agency for
8 Health Care Administration Agency, the Division of
9 Administrative Hearings, the Florida Commission on Human
10 Relations and it goes on and on.
11 If you look at this partial list, there's about 38
12 total departments in the executive branch today. If you
13 give it the benefit of the doubt and take out the 5
14 constitutional agencies, that would leave 33 at least.
15 And, again, this is a partial list. So this is a
16 housekeeping initiative. I'll entertain questions at this
17 time.
18 CHAIRMAN DOUGLASS: There is an amendment on the
19 table. Would you read the amendment please, amendment by
20 Commissioner Henderson?
21 READING CLERK: By Commissioner Henderson, on Page 1,
22 Line 22, delete the Governor and Cabinet.
23 CHAIRMAN DOUGLASS: Commissioner Henderson, on the
24 amendment.
25 COMMISSIONER HENDERSON: I like the way that sounded.
68
1 Mr. Chairman, before we get -- it is a little different,
2 but it's germane. Before we get into that, if Mr. Nabors
3 had a question of Mr. Corr on the main proposal, which I
4 support, I don't want to detract from that.
5 CHAIRMAN DOUGLASS: All right. You yield to
6 Commissioner Nabors --
7 COMMISSIONER HENDERSON: I do.
8 CHAIRMAN DOUGLASS: -- who wants to direct a question
9 to the sponsor. Commissioner Nabors, is that correct?
10 COMMISSIONER NABORS: I would really like to speak in
11 opposition. It would be hard to frame the comment that I
12 have in terms of a question.
13 CHAIRMAN DOUGLASS: Then we should proceed with the
14 amendment. Commissioner Henderson, would you proceed with
15 your amendment?
16 COMMISSIONER HENDERSON: Thank you, Mr. Chairman. We
17 have had a lot of discussion the last couple days in the
18 Executive Committee about the structure and role of the
19 Cabinet. And it is, as we all know, and the testimony
20 that we have heard through the course of the public
21 hearings, there are some very complex issues there.
22 Clearly, one of the things that we have heard about
23 over and over again was the issue of accountability. So I
24 support the main proposal that Commissioner Corr has
25 brought here, as has been recommended for approval by the
69
1 committee on the executive.
2 You will get later, I don't know if later this week
3 or next time, a different proposal from the Executive
4 Committee which goes to the heart of the changes in the
5 Governor and Cabinet system. One of the things that I
6 think we thought we did, or I would say we certainly
7 wanted to do, and it's not addressed by the main proposal,
8 is the issue of eliminating the Governor and Cabinet as a
9 department head of certain departments. We heard earlier,
10 heard in the course of testimony that there was a
11 significant study of the Cabinet system. I see that
12 Commissioner Evans-Jones and Marshall served on part of
13 this.
14 They made a series of reports or recommendations
15 concerning ways to improve the accountability of the
16 Governor and Cabinet system. One of the first
17 recommendations was that the Governor and Cabinet be
18 eliminated as the department head of individual
19 departments. And if I can read just read this one
20 paragraph, Mr. Chairman, in the recommendation of this
21 report:
22 "The head of each department should be a secretary,
23 appointed by and serving at the pleasure of the Governor,
24 subject to Senate confirmation. Departments reporting to
25 the Governor and Cabinet are problematic for several
70
1 reasons; they consume the Governor's and Cabinet's time on
2 administrative details, they lack a single, identifiable
3 advocate for their function, they are not directly
4 accountable to a single individual. The department should
5 be headed by a Secretary who serves at the pleasure of the
6 Governor and subject to Senate confirmation."
7 CHAIRMAN DOUGLASS: Okay. You heard the amendment.
8 Discussion now or debate on the amendment? Commissioner
9 Mills.
10 COMMISSIONER MILLS: Commissioner Henderson, yield
11 for question?
12 COMMISSIONER HENDERSON: Yes.
13 COMMISSIONER MILLS: How many agencies does this
14 affect?
15 COMMISSIONER HENDERSON: At this point, three.
16 COMMISSIONER MILLS: And which are those?
17 COMMISSIONER HENDERSON: The Department of Revenue,
18 the Department of Law Enforcement, Department of Highway
19 Safety and Motor Vehicles.
20 COMMISSIONER MILLS: Thank you.
21 CHAIRMAN DOUGLASS: Any further debate on the
22 amendment? Commissioner Corr, on the amendment.
23 COMMISSIONER CORR: In favor of the amendment.
24 CHAIRMAN DOUGLASS: In favor of the amendment?
25 COMMISSIONER CORR: Yes, sir. This is a good
71
1 amendment, it makes these agencies, these departments more
2 accountable. I wish I had thought of it. I speak in
3 favor of it.
4 CHAIRMAN DOUGLASS: Okay. Are you ready to vote?
5 All in favor of the amendment say aye; opposed?
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: The amendment is adopted. Now,
8 Commissioner Barkdull.
9 COMMISSIONER BARKDULL: Question of Commissioner
10 Corr.
11 CHAIRMAN DOUGLASS: He yields.
12 COMMISSIONER BARKDULL: Commissioner Corr, if this
13 proposal is adopted, then this will require, because of
14 the 25 limitation, the Legislature to address where they
15 will place, as I understand it, three separate agencies at
16 this point?
17 COMMISSIONER CORR: At least three.
18 COMMISSIONER BARKDULL: At least three, and if they
19 can find some others.
20 COMMISSIONER CORR: That's right.
21 COMMISSIONER BARKDULL: Do you contemplate anything
22 in the schedule to this proposal that would address how
23 those agencies that do not at this time report directly to
24 a department head, how they would be handled in the
25 transition period?
72
1 COMMISSIONER CORR: No, sir, what -- this is
2 attempting to reinforce that existing requirement of 30
3 years ago that was passed by electors, the good business
4 requirement. And rather than to get into the nitty-gritty
5 of where those agencies will end up, we are going to leave
6 that up to the Legislature.
7 COMMISSIONER BARKDULL: Well, would you believe me,
8 sir, that if there is no such provision for transition and
9 the Legislature should do nothing, we have got a lot of
10 litigation sitting there and some very important agencies
11 that would be involved?
12 COMMISSIONER CORR: I understand.
13 CHAIRMAN DOUGLASS: I have a question. If we should
14 adopt the provision or a similar provision to those that
15 have been reported out of the committee on Cabinet reform,
16 would this have any affect on that? It would be just a
17 limited number of agencies that could be under that group,
18 as I read that committee proposal. Commissioner Barkdull.
19 COMMISSIONER BARKDULL: I'm on the committee that is
20 reporting out the Cabinet proposal and I don't think this
21 would have an impact on that.
22 CHAIRMAN DOUGLASS: We can proceed then. And you
23 rise to speak against it, right, Commissioner Nabors?
24 COMMISSIONER NABORS: Mr. Chairman, I'm not
25 necessarily against the concept, but there is some
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1 unintended results that we need to talk about and it goes
2 to some of what Commissioner Barkdull said. I discussed
3 it briefly with Commissioner Corr.
4 This isn't the most exciting issue you are going to
5 hear, but this is very important. So if I can make sure I
6 have everybody's attention, in addition to -- there are
7 several entities that are placed within a department but
8 aren't under the direct supervision, as this language
9 indicates.
10 For example, last session, the Florida Housing and
11 Finance Agency, which is an agency that issues low and
12 moderate income, affordable housing under the Constitution
13 was created as a separate corporation, really to recognize
14 its entrepreneurial nature. It is placed within the
15 Department of Community Affairs, but it's not under the
16 direct supervision of the Secretary. It has a very
17 detailed process for doing a work plan, to make sure that
18 the public interest is served. So it's not really a
19 department in that sense, but it's placed under the
20 Department of Community Affairs.
21 I believe another example would be the Florida
22 Insurance Corporation, which was created to deal with
23 insolvent insurers and maybe even the hurricane
24 catastrophe fund. So the problem we have is these
25 entities would be, their status would be placed in
74
1 jeopardy, even if we pass the proposal, as to whether or
2 not, you know, they survive without further legislative
3 authorization.
4 It would be my view that what we ought to do, if we
5 want to do this, is we ought to make sure that we are not
6 affecting constitutionally any of those in existence on
7 the effective date of the amendment. The Legislature
8 always has the right to come back and change those, if it
9 wants to. But if you pass this as it is, as the Housing
10 and Finance Agency, which is selling bonds all the time
11 for affordable housing around the state, the market is
12 going to wonder what the status of those bonds are going
13 to be because just the fact that there is a proposal
14 that's passed would put those in jeopardy.
15 So it would seem to me we need to be careful. And I
16 applaud the idea of trying to depress the creation of
17 additional government. The Legislature has the ability,
18 for all of those listed under Mr. Corr's amendment
19 currently, to change its method of supervision currently
20 and put it under direct supervision, if it's not.
21 But what I'm saying is is that anything that we do
22 doesn't take away that power. We ought to be sure that we
23 have a provision in here, before it passes and receives a
24 favorable vote here, that indicates that we are not trying
25 to constitutionally undo any that are in existence today.
75
1 It goes to what Mr. Barkdull was saying.
2 It doesn't affect what we are trying to do here, but
3 it preserves the status of those which have had debate
4 through the legislative process. The Housing Finance
5 Agency Corporation was done just last session, as a matter
6 of great debate. So we don't want to do anything because
7 it's not, quote, under the, quote, direct supervision of
8 the Secretary of Community Affairs, that we do anything to
9 jeopardize its ability to provide affordable housing in
10 this state.
11 So what I would suggest is what I would like to do is
12 to finish debate, TP that, let me come up with some
13 language, working with Mr. Corr, that we could put in
14 there, that we are not jeopardizing those that are in
15 existence.
16 CHAIRMAN DOUGLASS: Are you suggesting that at
17 conclusion of the debate, you want to draft a schedule?
18 COMMISSIONER NABORS: Well, I think, eventually style
19 and drafting will decide that, but I think we can put some
20 language in here that it doesn't have retroactive effect
21 constitutionally. And ultimately we can deal with that in
22 style and drafting.
23 But what we don't want to do is have a majority vote
24 on this floor with something that raises the question of
25 the long-term authority of these agencies that are issuing
76
1 debt for protection of insurance and affordable housing.
2 CHAIRMAN DOUGLASS: Commissioner Corr.
3 COMMISSIONER CORR: Thank you, Mr. Chairman. I would
4 agree with the direction. I'm not sure, though, that this
5 proposal requires that kind of -- that kind of assurance.
6 I think it's already -- that the proposal already
7 addresses that. Rather than temporarily passing it, maybe
8 we could approve it now and style and drafting could deal
9 with that issue.
10 CHAIRMAN DOUGLASS: Well, that could raise another
11 issue. Style and drafting can't alter any of these, they
12 can only improve the language and maybe raise some points
13 that we would have to come back on. Am I right on that,
14 Commissioner Barkdull?
15 COMMISSIONER BARKDULL: Yes, sir. May I make a
16 suggestion to Commissioner Corr?
17 CHAIRMAN DOUGLASS: Commissioner Barkdull.
18 COMMISSIONER BARKDULL: I would suggest to you, sir,
19 that I would like to vote for this because I was a strong
20 proponent of the 25 departments and I think there ought to
21 by a direct line to the chief executive through that. And
22 I would like to support it, but in the present form I
23 cannot support it unless there's -- and I would suggest a
24 schedule provision that indicates what's going to happen
25 to those agencies that would be impacted by this until
77
1 such time as the Legislature, by law, did something.
2 Even if you fixed a sunset for those items that might
3 force the Legislature to do it, that's fine with me, but I
4 think Commissioner Nabors has raised a very good point.
5 You are going to put a number of agencies, and we don't
6 seem to know the number, but there's obviously a handful
7 anyway, very important agencies, their status would be in
8 serious consideration. And I think it would be a problem.
9 CHAIRMAN DOUGLASS: Commissioner Henderson, you have
10 been standing for awhile. You are recognized.
11 COMMISSIONER HENDERSON: I was trying to draft that
12 amendment with the schedule. I don't think it will take
13 us too long to do it. And I would suggest to my
14 colleague, Mr. Corr, who is winning this issue, if we TP
15 this for a few minutes, see if we can draft some schedule
16 language, and we'll bring it back to the floor.
17 CHAIRMAN DOUGLASS: Is that agreeable? All right.
18 We'll TP it until you have the amendment ready. And then
19 we'll come back to it after the next proposal, which is by
20 Commissioner Freidin. It's Proposal No. 11, which was
21 approved by the committee on Declaration of Rights. Would
22 you read it, please?
23 READING CLERK: Proposal 11, a proposal to revise
24 Article I, Section 22, Florida Constitution; providing
25 that persons may not be deprived of their rights because
78
1 of gender.
2 CHAIRMAN DOUGLASS: Commissioner Freidin, you are
3 recognized to explain the proposal and there's an
4 amendment on the table which we can take up after you
5 explain the proposal.
6 COMMISSIONER FREIDIN: Commissioners, it's time that
7 the state of Florida explicitly recognizes in its
8 Constitution the rights of women in our state.
9 Historically women have enjoyed an inferior social and
10 political position. It's time that we recognized that
11 that has begun to change and needs to continue to change.
12 You know, it wasn't that long ago that women in our
13 state and in our country didn't have the right to vote.
14 And it wasn't that long ago that women in our state did
15 not have the right to equal pay, did not have the right to
16 own property, did not have many other rights that men have
17 always enjoyed.
18 If you read the Constitution of the state of Florida,
19 there is no express mention of the rights of any of the
20 rights of women in our state. The rights of men have
21 traditionally derived from our Constitution, but the only
22 rights of women that are expressly stated in our state are
23 those that are stated in the statutes.
24 Seventeen other states have seen fit to put equal
25 rights amendments in their Constitutions. The
79
1 Constitution Revision Commission 20 years ago thought that
2 it was a good idea, but because of -- for whatever
3 reasons, the voters didn't. But I think we have come a
4 long way in the 20 years and I cannot imagine that there's
5 really any controversy about assuring today that men and
6 women have equal rights in our state.
7 Women in our state have come a tremendous distance in
8 the last 20 years, but we are not there yet. Women are
9 still earning 72 cents for every dollar that men earn.
10 Women are not adequately represented in leadership
11 positions, both private and public entities. Women are
12 not found in adequate numbers in upper management of
13 corporations, in boardrooms, in law firm partnerships, et
14 cetera. And there is a proliferation of sexual
15 harassment, domestic violence against women. And other
16 inappropriate conduct towards women.
17 It is time for us to take a position to make a clear
18 statement that women and men are equal in our state.
19 There is some legislation that protects women in our
20 state, but that legislation is not sufficient, it is not
21 secure. We don't know that it won't be changed some day.
22 Equality for women is a constitutional concept whose time
23 has come, it's time for us to recognize the need for this
24 state to protect and cultivate equality for men and women,
25 and to require equal obligations and responsibilities to
80
1 all of our citizens.
2 Now, the original proposal, which is in your book,
3 simply adds the word "gender" into Article I, Section 2,
4 to the last sentence of Article I, Section 2, of the
5 Constitution. Having had discussion with many of our
6 members this morning, I have personally concluded and
7 would offer an amendment that the better way to achieve
8 the goal here, which is a clear statement in our
9 Constitution of equality for women, is to insert, after
10 the word "persons" in the first sentence the words "female
11 and male alike." And with the amendment -- has it been
12 handed out?
13 CHAIRMAN DOUGLASS: The amendment is on the table and
14 you may now offer it.
15 COMMISSIONER FREIDIN: I would offer that amendment
16 and urge that you pass it.
17 CHAIRMAN DOUGLASS: Read the amendment.
18 READING CLERK: By Commissioner Freidin, on Page 1,
19 Line 13, after "persons," insert "female and male alike,"
20 and on Page 1, Line 21, delete "gender."
21 CHAIRMAN DOUGLASS: As I understand that,
22 Commissioner Freidin, what you have done is taken the word
23 "gender" totally out of it and moved it back up in the
24 front where you say all natural persons, men and women
25 alike.
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1 COMMISSIONER FREIDIN: That's correct.
2 CHAIRMAN DOUGLASS: That is to clarify the fact that
3 all natural persons are men and women alike.
4 COMMISSIONER FREIDIN: Female and male alike.
5 CHAIRMAN DOUGLASS: Correct, female and male alike.
6 I stand corrected. Commissioner Langley. Commissioner
7 Langley rises for a question, Commissioner Freidin yields.
8 COMMISSIONER LANGLEY: Commissioner Freidin, pardon
9 my lack of knowledge, but is not a female a natural person
10 today?
11 COMMISSIONER FREIDIN: As far as I know, yes.
12 COMMISSIONER LANGLEY: As far as you know. You are a
13 lawyer, you don't hide behind that I'm-not-a-lawyer-but
14 preface that people use.
15 COMMISSIONER FREIDIN: I think so.
16 COMMISSIONER LANGLEY: Is not a woman a natural
17 person today?
18 COMMISSIONER FREIDIN: Yes.
19 COMMISSIONER LANGLEY: You know, then the suspicion
20 arises, why do we need this language?
21 COMMISSIONER FREIDIN: It is a matter of emphasis and
22 it is a matter of an explicit recognition of equality.
23 Traditionally, if we did not have the historical
24 basis for male supremacy in our society, we probably
25 wouldn't have to be dealing with this today. If women had
82
1 always been allowed to vote, had always been allowed to
2 make decisions for themselves, had always been allowed to
3 own property, that would be a -- it would be unnecessary.
4 But under the circumstances where women have not had
5 equal opportunities to employment, women have not been
6 able to have equal pay, women initially were considered
7 property of their husbands or their families, we have got
8 a long history of oppression of women. And it's time that
9 there be an explicit recognition that women are equal to
10 men.
11 COMMISSIONER LANGLEY: This is under the Article I
12 Declaration of Rights basic rights. Can you tell me
13 today, Commissioner Freidin, today what basic right is a
14 female in the state of Florida being deprived of, today?
15 History is history.
16 COMMISSIONER FREIDIN: You know, that is a good
17 question, because I have -- this is something that I've
18 been working on probably since I learned that I had been
19 appointed to this commission. I have talked to many
20 people and asked, is there -- is there any specific right
21 that has not been granted to women as a matter of law?
22 And the answer that I've gotten back is -- well, I
23 haven't been able to get anybody to answer the question,
24 which leads me to conclude that in the last 20 years there
25 have been numerous statutes that have been passed, society
83
1 has changed, practices have changed, but that doesn't mean
2 that we are there yet.
3 And while there are statutory grants of equality,
4 there is no explicit constitutional grant of equality.
5 This is as important -- this is important as a clear
6 statement of public policy. When my daughter reads the
7 Florida Constitution, I want her to understand that she
8 has equal rights to the boys in her class, and that she,
9 when she is a woman, will have equal rights to the men
10 that she lives with.
11 COMMISSIONER LANGLEY: Mr. Chairman, two other
12 questions. Again, Commissioner Freidin, being an
13 attorney, tell me now, if an issue were before the court,
14 how you would argue this proposed amendment any more than
15 you would argue the all natural persons current language.
16 COMMISSIONER FREIDIN: I can't answer that without
17 knowing what the issue is.
18 COMMISSIONER LANGLEY: And secondly, and maybe I like
19 what you are doing because we certainly then could read
20 into this that there will be no other minority business
21 enterprise provisions where women are presidents of
22 companies that are trying to be involved in state and
23 local contracts. Because I now -- you are explicitly
24 saying that I have the same right to that minority
25 business contract as the female does. Is that the intent
84
1 of the proposal?
2 COMMISSIONER FREIDIN: I don't know anything about
3 that issue.
4 COMMISSIONER LANGLEY: Well, isn't that a logical
5 conclusion that you are saying then that all of these
6 set-asides for female controlled and owned businesses will
7 become unconstitutional because as a man, if you are equal
8 to me, then I'm certainly equal to you in that regard; is
9 that not a logical conclusion?
10 COMMISSIONER FREIDIN: This establishes equality.
11 COMMISSIONER LANGLEY: We have been looking for it
12 for years.
13 COMMISSIONER FREIDIN: Right, we certainly have.
14 CHAIRMAN DOUGLASS: Further discussion? Commissioner
15 Sundberg.
16 COMMISSIONER SUNDBERG: Commissioner Freidin, a
17 question. Would you yield?
18 COMMISSIONER FREIDIN: Yes, sir.
19 COMMISSIONER SUNDBERG: In fact, if it was determined
20 that any minority, whether it be women, were not in fact
21 at this point in time, did not occupy equal status,
22 certainly it would not make unconstitutional any
23 set-asides or any other legislative attempts to bring
24 women or any other minority to an equal position, would
25 it?
85
1 COMMISSIONER FREIDIN: I don't think this impacts
2 that at all.
3 CHAIRMAN DOUGLASS: Any further discussion?
4 Commissioner Riley, do you rise to speak for it?
5 COMMISSIONER RILEY: I do. What a surprise.
6 CHAIRMAN DOUGLASS: No, ma'am.
7 COMMISSIONER RILEY: When I, oh, so many years ago,
8 bought with my husband our first house, the contract said
9 James B. Riley, et ux. Now, this was in the mid-'60s.
10 And of course I'm not a lawyer, nor was I then. And there
11 was a great chuckle around the room about oxes and uxes
12 and so forth. And then I understood quite well exactly
13 what it meant. So I think we have come a long way since
14 then.
15 I have, for many years, worked very hard at women's
16 rights issues. I have marched up this street in favor of
17 the ERA. I would like emotionally to see the ERA in here.
18 And so -- I'm willing to say that that's not going to
19 happen. Emotionally then I would like to see the term
20 "gender" in here, and yet I understand the fears and the
21 disagreements with adding that term in the last sentence
22 of Section 2 of Article I of our Constitution. But I'm
23 willing even to forego that.
24 But I think it's time that we recognize specifically
25 the women in this state. And we look around at the women
86
1 that are in this room, of which we are still yet a
2 minority, but there is not one of us that have not been
3 the first to have done something, or the first to have
4 been on that board, or the first to have been president of
5 that organization, as a woman. There's not one of us that
6 hasn't been in that position, so we are getting there.
7 We look around the room at the pictures and we see
8 one woman and one whose picture will be up there, and we
9 realize still the inequality of what time and history has
10 brought us. But it's time, Commissioners, that we
11 recognize the women in this state.
12 And I would remind us, as we voted for national
13 origins to be added, that what was said then is that this
14 identifies those who should be protected from
15 discrimination. And I would suggest that we can do
16 certainly no less for the women in this state. It's time
17 that we recognize them, and it is time that we put the
18 emphasis and put exactly what we were talking about in
19 that category, that we add female along with male in this
20 part of the Constitution. And I hope we will vote for it.
21 CHAIRMAN DOUGLASS: Further discussion. Commissioner
22 Connor.
23 COMMISSIONER CONNOR: Mr. Chairman, I would like to
24 make some remarks, and then make an inquiry of the
25 sponsor, if I may.
87
1 CHAIRMAN DOUGLASS: You have the floor.
2 COMMISSIONER CONNOR: Mr. Chairman, I support equal
3 rights for women. And I believe that they are natural
4 persons entitled to equality of the law, and are on an
5 equal footing with, men and should be on an equal footing
6 with men in terms of their rights in the Constitution and
7 in terms of the natural rights that we have been endowed
8 with by our creator.
9 I had grave concerns about the original proposal,
10 because, as we all know, we must read language in the
11 context of the document, in the context of court
12 decisions, and in the context of our times. The concern
13 that I had and I had shared with the sponsor of this
14 proposal and with Commissioner Riley was that raised by
15 the Hawaii Supreme Court in the case of Bear vs Luan.
16 In that case, the court held that where the term
17 sex -- in this case, as originally proposed, it was
18 gender -- was included along the list of classifications
19 which could not be discriminated against, that when that
20 amendment, that explicit amendment to the State
21 Constitution was interpreted in light of the equal
22 protection clause of the Federal Constitution, the effect
23 was to create a presumption that the statute that limited
24 marriage in Hawaii to heterosexual marriages was
25 unconstitutional under the Federal Constitution, and under
88
1 the State Constitution.
2 So my concern has been, that as we dealt with the
3 so-called gender issue in the context in which it was
4 originally introduced, and in the context in which the
5 original proposal was introduced, that we would likely
6 pave the way for the legalization and authorization of
7 same sex marriages in this state, particularly in light of
8 Article I, Section 23, the explicit privacy clause that we
9 have. And if I were counseling someone in this regard and
10 they were to ask me, what would that likely yield, I would
11 say, we may very well pave the way in that regard.
12 It has been my desire and my intention to divorce the
13 issue of same sex marriages from gender equality. I think
14 that the sponsor agrees and I believe Commissioner Riley
15 agrees that those two are very different issues. Am I
16 correct in that understanding?
17 COMMISSIONER FREIDIN: You are.
18 COMMISSIONER CONNOR: Do you affirm that likewise,
19 Commissioner Riley?
20 COMMISSIONER RILEY: (Nods affirmatively.)
21 COMMISSIONER CONNOR: So what I am suggesting is that
22 inasmuch as when one introduces into the last sentence of
23 that provision of the Constitution a new classification,
24 which then yields a heightened scrutiny and which then
25 yields a standard by which laws are evaluated on whether
89
1 or not there is a compelling interest and whether or not
2 they have been narrowly tailored to accomplish that
3 interest, the sponsor agreed that inasmuch as that was not
4 her intent, not to even create an issue about the
5 legalization of same sex marriages, the question arose
6 about how can we affirm our commitment for equal rights to
7 women without opening the door to these unintended
8 consequences. We have talked about that and we have had
9 no small amount of discussion and debate about that.
10 I believe that the term "all" is all-inclusive.
11 Indeed, one might implicitly read this language under
12 Article I, Section 2, as -- where it says, all natural
13 persons are equal before the law, it could easily be read,
14 all natural persons, male and female, young and old, rich
15 or poor, black or white. I understand the dynamic tension
16 that exists within our society and I understand and am
17 sympathetic to women who feel that they have been
18 discriminated against inappropriately and improperly
19 through state action. And I'm opposed to that.
20 Inasmuch as the sponsor acknowledges that this
21 proposal shall not and is not in any way intended to
22 create a right of same sex marriages and inasmuch as there
23 is no change in this amendment, the amendment under
24 consideration, to the last sentence of Article I, Section
25 22 -- excuse me, Section 2, which reads, no person shall
90
1 be deprived of any right because of race, religion or
2 physical handicap, it is my view that this simply -- that
3 the proposal simply amplifies that "all" includes all of
4 us, female and male alike.
5 And that there is no danger, and there is no intent
6 by the explicit observation of the head of the -- what's
7 your group, the Florida --
8 (Off-the-record comment.)
9 COMMISSIONER CONNOR: -- the Florida Commission on
10 the Status of Women, and the sponsor of this proposal.
11 And so I will vote in support of the amendment and
12 encourage others to do so. I believe that we should
13 affirm the equality of men and women in our society. And
14 I believe that we should take up the issue, to the extent
15 it's going to come up at all, of same sex marriages and
16 sexual orientation as a separate and distinct issue.
17 And I believe -- and I welcome hearing from other
18 members on their issue about the intent, because it is my
19 belief and my understanding of this body that this body
20 deems those to be separate issues which ought to rise or
21 fall separately on their own merit.
22 CHAIRMAN DOUGLASS: All right. It's my understanding
23 that the sponsor and also the people who spoke for this
24 have assured the commission that that concern of yours is
25 not a concern in this amendment. And unless somebody
91
1 objects, we are going to put that on the record for future
2 posterity.
3 COMMISSIONER CONNOR: That's important to me and I
4 think that's important to the separate considerations of
5 these very important issues.
6 CHAIRMAN DOUGLASS: Are you offering that as a
7 separate proposal?
8 COMMISSIONER CONNOR: No, sir, I'm not. I'm offering
9 and it's my understanding that the court -- excuse me,
10 that the Chair has affirmed the intent of this body that
11 those are separate and distinct issues.
12 CHAIRMAN DOUGLASS: They are not embodied in this
13 particular proposal?
14 COMMISSIONER CONNOR: Yes, sir.
15 CHAIRMAN DOUGLASS: Thank you, then. We are on the
16 proposal. Commissioner Mills was up first, Commissioner
17 Langley. Commissioner Mills, you can go.
18 COMMISSIONER MILLS: Mr. Chairman, would Commissioner
19 Freidin yield for a question?
20 CHAIRMAN DOUGLASS: Yes.
21 COMMISSIONER MILLS: I just want to clarify for the
22 record and --
23 CHAIRMAN DOUGLASS: Wait a minute, we haven't adopted
24 the amendment. All in favor of the amendment, please say
25 aye; opposed?
92
1 (Verbal vote taken.)
2 CHAIRMAN DOUGLASS: The amendment is adopted. Now we
3 are on the proposal as amended.
4 COMMISSIONER MILLS: First, I think Mr. Connor is
5 right in his interpretation, he has developed his record.
6 The other issue that I wanted to clarify with
7 Commissioner Freidin is it seems to me part of your intent
8 by defining more explicitly natural persons to include
9 female and male is some recognition of historical unequal
10 treatment of females in a society.
11 COMMISSIONER FREIDIN: That's very correct.
12 COMMISSIONER MILLS: And it isn't your intention, is
13 it, to try to declare unconstitutional any continuing
14 remedial actions to remedy unequal treatment as it would
15 currently exist? In other words, if discrimination
16 currently exists, it isn't your intention to do away with
17 programs that are intended to eliminate that
18 discrimination.
19 COMMISSIONER FREIDIN: I thank you for clarifying
20 that. That is absolutely not my intention.
21 CHAIRMAN DOUGLASS: Okay. Anybody else want to know
22 what is not the intention? Commissioner Langley.
23 COMMISSIONER LANGLEY: I just want to speak against
24 the proposal.
25 CHAIRMAN DOUGLASS: This might get right to the
93
1 subject.
2 COMMISSIONER LANGLEY: It might, yes. First, let me
3 tell you an interesting little political story of my own.
4 When I first ran for the House of Representatives in 1972,
5 soon-to-be Senator Glisson had been in the Legislature.
6 And we had a dinner by the Women's Business and
7 Professional Group. And we were all invited to this
8 dinner to speak to them. And on our plate was a little
9 commitment form that said, if elected, I will support the
10 ERA amendment. And I at that time had never heard of it.
11 And relying on my veteran representative, then Jim
12 Glisson, I said, Jimmy, what is that? Oh, that ain't
13 nothing, he said. It passed -- and it did -- it passed
14 the House last year 116 to nothing, but the Senate never
15 took it up, it ain't nothing, go on and sign it. Those
16 were his words. Boy, was that easy.
17 The next ensuing years in the Legislature were some
18 of the most emotional, hard-fought, tear-jerking,
19 threatening things you have ever seen about the Equal
20 Rights Amendment. And I think the Legislature either by
21 inaction or positive negative action killed it five or six
22 times in that period of time.
23 And I was put in the position of having to explain to
24 the BPO, whatever it was, the Business and Professional
25 Women, why I didn't support ERA. And one was that I never
94
1 knew it was fraught with so many problems as were raised
2 by the people over the ensuing years.
3 Now, you-all are trying to establish legislative
4 intent, Mr. Connor, and then Mr. Mills was afraid that
5 something might have been established so he tried to undo
6 that with his question to Ms. Freidin. News item: We are
7 not the Legislature, we are not the Legislature. We are
8 not passing a law. It does not make one iota of
9 difference what we intend to do because 2 million people
10 or 2« million people are going to vote on this law, and we
11 don't know what they think it says.
12 I.e., the Florida Lottery. How many people voted for
13 the Lottery because it is going to be used to enhance
14 education? Almost everybody, that's how it was sold. Was
15 it? Well, some of it was; some of it wasn't. What was
16 the intent? It doesn't make a bit of difference on this
17 kind of a proposal.
18 And, again, the other argument that we are going to
19 hear more and more as time draws to our conclusion, is if
20 this doesn't do anything, i.e., I'm sorry, I'm so
21 ignorant, I thought women were natural people. Sometimes,
22 not too normal, but I thought they were natural. If they
23 are by law natural and we are not doing anything, does it
24 meet the top five considerations? Is this the kind of
25 thing we want to occupy on the ballot as the top five that
95
1 we are that concerned with if it does nothing?
2 You know, what is it, Shakespeare, I suggest the lady
3 protests too much. Something -- you know, it either does
4 something and it's wrong or it doesn't do anything and we
5 shouldn't consider it anyway. So anyway, with those
6 concerns, I don't intend to support it. Thank you.
7 CHAIRMAN DOUGLASS: All right. Any further
8 discussion or debate? If not, you can close, if you would
9 like, Commissioner Freidin.
10 COMMISSIONER FREIDIN: I think every person that's
11 risen to speak in favor of this has said it's time. And I
12 think it is time. I think that there are some times when
13 it's just as important to say something and I think this
14 is one of them. And I urge you to vote yes.
15 CHAIRMAN DOUGLASS: All right. You ready to vote?
16 Unlock the machine.
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Lock the machine and record the
19 vote.
20 READING CLERK: Twenty-five yeas and 4 nays,
21 Mr. Chairman.
22 CHAIRMAN DOUGLASS: It is adopted. We'll now go to
23 Proposal No. 2. Commissioner Sundberg, we are going to
24 revert down back to the top of the special order to
25 Proposal No. 2 by you. I understand that you are prepared
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1 to go forward with that.
2 COMMISSIONER SUNDBERG: Yes, Mr. Chairman, thank you.
3 CHAIRMAN DOUGLASS: Just a moment. Commissioner
4 Freidin, did you want to withdraw?
5 COMMISSIONER FREIDIN: I was rising to withdraw
6 Proposal No. 86.
7 CHAIRMAN DOUGLASS: Without objection, Proposal 86 is
8 withdrawn. I think you take the position that you covered
9 that in the previous one.
10 COMMISSIONER FREIDIN: We covered that.
11 CHAIRMAN DOUGLASS: We'll now go to Proposal 174 by
12 Commissioner Sundberg, which was disapproved -- no, excuse
13 me, it was approved by the committee on Declaration of
14 Rights. Would you read it? Proposal No. 2.
15 READING CLERK: Proposal 2, a proposal to revise
16 Article I, Section 2, Florida Constitution; providing for
17 citizens to enjoy equal opportunity to employment,
18 housing, public accommodations, public education, and
19 other benefits and authorizing governmental agencies to
20 take actions to remedy the effects of past discrimination
21 in certain areas.
22 CHAIRMAN DOUGLASS: All right. If everybody will
23 give your attention please, we are going to have the
24 presentation of this by Commissioner Sundberg. Proposal
25 No. 2, you have heard it read. Commissioner Sundberg, you
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1 have the floor, sir.
2 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
3 This is a singularly propitious time for this proposal to
4 come before this body, immediately after the discussion we
5 have just had with respect to the rights of women.
6 Just -- this proposal was, I think, submitted as a public
7 or a -- I moved it as a public proposal by the NAACP. But
8 it obviously has much greater reach than simply to deal
9 with past discrimination against African-Americans.
10 I suggest to you that this proposal does nothing more
11 than make express that which we, in the previous debate
12 just held, was determined to be the intent of the language
13 with respect to Commissioner Freidin's proposal. And that
14 is simply that that language was not intended in any way
15 to eliminate or make unlawful programs currently in place
16 or which may come to pass which are intended to remedy the
17 effects of past discrimination, whether it be against
18 women, and women have been discriminated against. They
19 are not on a parity today, they are becoming so.
20 But all this provision does is permit agencies of
21 government, it doesn't say they shall, but says they may
22 enact programs and take actions necessary to remedy the
23 present effects of past discrimination, in housing,
24 employment, public accommodations, public education,
25 purchase of goods and services, and the expenditure of
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1 public funds.
2 So there's nothing very revolutionary or
3 extraordinary about this language. It simply makes that
4 express, which we all agreed, I think, in the earlier
5 debate, should be, if it is not, should be the state of
6 the law. You know, when this subject matter -- and so
7 this is not aspirational, just like I don't perceive
8 Commissioner Freidin's proposal to be aspirational. I
9 think it will be operative.
10 And if there are concerns that were raised by
11 Mr. Langley, in other words, does this mean that you can't
12 have affirmative action programs to aid women in reaching
13 a state of equality, this says expressly, no, you -- it
14 will not affect those programs. One hears constantly
15 affirmative action, why affirmative action, I never did
16 anything to discriminate against an African-American, I
17 never did anything to discriminate against women, I never
18 did anything to discriminate against an Hispanic, I never
19 did anything to discriminate against an Asian. And why
20 me?
21 Well, it is because of this historical basis upon
22 which groups and minorities have been oppressed, they have
23 been deprived of their fair share of the largess that this
24 state has in such great abundance. And it is just as
25 those of us who do not make up minority groups have had
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1 the legacy of the benefits of history, there are those
2 minorities who have had the disadvantage, the legacy of
3 the disadvantage of history. And it's quite proper for us
4 to support programs that will set that right. And as of
5 this day, it has not been set right and this proposal is
6 intended to set things right.
7 I suggest to you that we need this proposal. A
8 representative candidate from central Florida, who is now
9 a member of Congress, appeared before us in Fort Myers and
10 urged upon us a proposal that talked about equality. But
11 it is clear that the intent of that proposal was to
12 eliminate any programs leading to affirmative action in
13 favor of any disadvantaged class or group within the
14 state. I mean, he is proposing it. He has proposed it
15 nationally. There are those out there who wish to
16 eliminate programs that are in place now.
17 And we are just better than that in Florida. And I
18 want us to express it in our Constitution.
19 (Off-the-record comment.)
20 COMMISSIONER SUNDBERG: I'm sorry, no, I have not
21 seen the amendment by Mr. Langley.
22 (Commissioner Thompson assumes the chair.)
23 COMMISSIONER THOMPSON: Commissioner Langley, do you
24 wish to be recognized on your amendment now?
25 COMMISSIONER LANGLEY: Yes, sir, if Mr. Chairman and
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1 everybody has it.
2 CHAIRMAN DOUGLASS: Read Commissioner Langley's
3 amendment.
4 READING CLERK: By Commissioner Langley, on Page 1,
5 Line 28, after the word "citizenship" delete all of Lines
6 28, 29, 30, 31 and on Page 2, delete all of Lines 1, 2, 3,
7 and 4.
8 CHAIRMAN DOUGLASS: Commissioner Langley is
9 recognized to explain the amendment.
10 COMMISSIONER LANGLEY: Thank you, Mr. Chairman.
11 Fellow Commissioners, basically what that says is it
12 leaves the language in that Commissioner Sundberg has
13 offered as far as equality of opportunity to employment,
14 housing, accommodations, et cetera. It strikes out that
15 part of the proposal which would put into our Constitution
16 affirmative action.
17 You know, we overuse level playing field. Everybody
18 thinks that's a fair proposition. I think that's a fair
19 proposition. I would admit in the past that playing field
20 has not always been level, that the good ol' boy operation
21 in cities and counties and the state Legislature resulted
22 in some very unfair discrimination not only to blacks, not
23 only to women, not only to Hispanics but frankly in a lot
24 of cases, poor people, black, white, yellow or red that
25 were discriminated against, without any racial
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1 consideration.
2 The reason you can't fairly do this, in my opinion,
3 government, which this applies to, be they the community
4 colleges or the state or the counties or the city, there
5 is a limited amount of resources available. We call it
6 the pie theory. And if you are going to entitle someone
7 to a larger piece of that pie, then unfortunately, someone
8 else's piece of that pie is going to be smaller.
9 You cannot reward -- out of a limited pot, you can't
10 reward one participant without punishing another
11 participant. Commissioner Sundberg, I never owned a
12 slave. And I look through my family tree, my poor ol'
13 folks were sharecroppers in South Georgia. They were
14 probably not treated as well as some of the slaves, but
15 that's immaterial. Why are you going to punish me today
16 for what they did?
17 And if you read that language, Commissioner Sundberg,
18 I think you may well have opened the door for reparation,
19 not just for future rights but for past reparation to
20 anyone who might feel that they have been discriminated
21 against in that area.
22 Most of you I know either required or out of pure
23 amusement have read George Orwell's Animal Farm, you know,
24 and it was a revolution of the animals against the farmer.
25 And the whole theory of that and the banter was, all
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1 animals are created equally and that was all good until
2 they took over the farm and then they decided, if you
3 recall in a later chapter, all animals are created
4 equally, but some animals are more equal than other
5 animals.
6 We have been through the all animals are created
7 equally. We paid with blood in the streets to prove that
8 all animals are created equally. But now we want to go to
9 step two and say, but some animals are more equal than
10 other animals.
11 Affirmative action is unfair. It is not only unfair
12 to the people who get deprived of the opportunity to bid
13 fairly, it is unfair to the people who get it because it
14 gives them a false sense of accomplishment that they
15 haven't really earned.
16 I'd like to tell you two real life examples. One is,
17 I represent a pipe manufacturer in Central Florida. We
18 were bidding on a job in Orlando, actually the county,
19 Orange County, for doing the pipe for a project on the
20 road extension. We bid $468,000. Our nearest competitor,
21 a company from Texas who has a Florida plant, bid
22 $486,000.
23 A lady in Orlando who didn't own a piece of pipe, who
24 never owned a piece of pipe, took the Texas bid and pasted
25 her letterhead over it, you can still even see the outline
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1 of the Texas company under her pasted-on letterhead and
2 won the bid because she was a minority contractor.
3 Our competitor supplied the pipe, our competitor did
4 everything as if they had won the bid at $486,000 but they
5 got the bid, they paid her some fee to get it for her, by
6 using her minority status, and Orange County went on with
7 that.
8 That isn't fair. That isn't fair to my client, that
9 isn't fair to Orange County taxpayers. But that happened
10 and that was a real life example.
11 I had another one. When I was in the Legislature I
12 finally got part of Highway 50 west of Clermont on the DOT
13 list to get constructed. The first section of it was a
14 $5.5 million contract, a company from North Carolina won
15 the contract, but they didn't meet the minority set-aside
16 in it. So as a last minute deal, they reached out to a
17 friend of mine in Leesburg whose grandmother was an
18 American Indian, he was a multimillion dollar contractor,
19 but he had this small corporation that qualified as a
20 minority because his grandmother was an American Indian.
21 And I saw the correspondence from the North Carolina
22 company to him, Dear, I won't mention his name, please
23 find enclosed the plans for project so-and-so. Please
24 tell us how much of this you will do for 10 percent. How
25 is that for a good use of public money? Just tell us how
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1 much of this project you will take on for $550,000.
2 That is not right and that is not fair. We do not --
3 I would like someone to tell me what this is going to cost
4 the state, if indeed it opens reparation and I do indeed
5 think it does if you read it carefully.
6 To remedy the effects of past discrimination, the
7 only way to really remedy it is start paying people that
8 got deprived. So we really need to look at this
9 carefully. You are all familiar when put to the people of
10 California that Prop 209 passed and it is being enforced
11 and probably would pass in the state of Florida if it were
12 on the ballot.
13 But again, it is not right, it is not fair, it is not
14 necessary, and we sure don't want this in our
15 Constitution.
16 COMMISSIONER SUNDBERG: Mr. Chairman, for a response.
17 COMMISSIONER THOMPSON: Yes, Commissioner Sundberg.
18 Is this a question you want to respond to?
19 COMMISSIONER SUNDBERG: It was sort of a rhetorical
20 question that was put.
21 Commissioner Langley, I suggest to you that this
22 cannot be the basis for reparations. The word in Line 31
23 says that agencies of government, college and university
24 may take actions, it doesn't require anyone to take an
25 action. So that I suggest it could not form the basis for
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1 reparations.
2 You give us some anecdotal evidence and just like
3 with any governmental programs, there are abuses. That
4 doesn't mean the program is bad, it means we should try to
5 eliminate and control the abuses.
6 You say to me it is not fair because when someone
7 gets some share of the pie, someone else loses their share
8 of the pie. And boy is that right. And so what we want
9 to do, I assume, to remedy that is let's just keep the
10 shares of the pie the way they are right now, that's the
11 legacy that we're talking about here. And all we are
12 doing is saying to the extent that it is necessary to
13 address past discrimination, past unfairness, that we have
14 got to redistribute some pieces of this pie.
15 Yes, that's what this would do and that's what ought
16 to be done. Because there is no question that some of us
17 have had a much larger piece of this pie for a long time
18 and the only way we are going to get the pie distributed
19 in some sort of fair fashion amongst all of us who are
20 citizens of this state is in fact to redistribute it.
21 I will respond with an anecdotal event, or an -- not
22 an event, but a situation. I am singularly proud to be
23 associated with Florida State University because it has
24 had a policy, it has had a policy to encourage diversity
25 at that university. And everyone there supports it.
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1 And it has led, it seems to me, to a more proper
2 distribution of those resources and assets in a state
3 university system. And I don't see anybody who -- I have
4 seen many, many people, many, many people who have been
5 greatly advantaged by it, I don't see all of those people
6 who have been disadvantaged by it.
7 So I suggest to you, no, this is not going to call
8 for reparations. It says that agencies of governments and
9 universities may take action to cure the effects of past
10 discrimination. It doesn't require anybody to do
11 anything, it doesn't provide a cause of action or a right
12 in anyone to cause any sort of reparations.
13 (Chairman Douglass resumes the chair.)
14 CHAIRMAN DOUGLASS: Any further discussion?
15 Commissioner Connor.
16 COMMISSIONER CONNOR: Mr. Chairman, if I may, I'm
17 going to vote against the amendment and I'm going to vote
18 against the proposal and I'd like to tell you why.
19 In a very real sense if I may recharacterize what
20 Commissioner Sundberg has said in effect is this little
21 old bill just is a technical amendment to the
22 Constitution, it doesn't really do anything. It has
23 profoundly far-reaching implications.
24 Now by the way, I might add, that I didn't with
25 respect to affirmative action, I didn't note in our
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1 Legislative Committee when in effect the position had been
2 positive by Republicans that they needed a period of
3 affirmative action for the Legislature to redistrict to
4 amend old prejudices and discriminations in the past
5 before we went to an independent reapportionment
6 condition, I didn't sense any amenability to that concept
7 by the sponsor of this proposal. But my concern is far
8 greater than that and let me share it with you.
9 When we talk about employment, housing, I think there
10 are tremendous First Amendment implications that flow out
11 of this proposal. One of the benefits of citizenship that
12 we enjoy in this state and in this country is the right to
13 worship in accordance with the dictates of our conscience.
14 I'm a Baptist, I worship in the tradition of the Baptist
15 Church.
16 Many of my friends are Catholics and they worship in
17 the tradition of the Catholic Church. And in the
18 tradition of the Catholic Church, because of their
19 particular theological convictions, only males are
20 qualified to be priests.
21 There are some denominations whose theological
22 scruples would prevent them from hiring a homosexual to
23 work in their denomination because they believe that
24 conduct to be morally abhorrent and a sin. There are
25 people with religious convictions who in renting out a
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1 room in their house would not want to rent it to a
2 homosexual couple or to a homosexual because of their own
3 personal, religious and moral scruples.
4 This proposal may be one of the broadest, most
5 far-reaching, most intrusive proposals to hit the floor of
6 this body as we discuss it. The implications are
7 enormous. They are extraordinary. Without regard to
8 dealing with the affirmative action issue, which in my
9 estimation the affirmative action matter ought to be dealt
10 with on a legislative basis.
11 I was opposed to the proposal that would say no
12 affirmative action would be included in the Constitution;
13 I'm opposed to the proposal that says we can have
14 affirmative action in the Constitution. That ought to be
15 a legislative issue that people address, in my judgment,
16 through the legislative process.
17 But the implications of Commissioner Sundberg's
18 proposal are absolutely staggering. They will turn upside
19 down in every arena of this state the convictions of many,
20 many people which are rooted on moral and theological
21 grounds. This goes way beyond state action, way, way
22 beyond state action.
23 It will produce a hue and cry, Commissioner Sundberg,
24 the likes of which you ain't heard yet. It will engender
25 profound opposition that will have a tainting effect and a
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1 debilitating effect on other proposals within our
2 Constitution.
3 I will say this, as you all know, I am not one who is
4 averse to controversy and I believe that we ought to do
5 what's right and not what is politic and what is popular.
6 There are some of you who have expressed with regard to
7 issues that I was particularly supportive of, such as the
8 right to life and parental consent and opposed to partial
9 birth abortion, oh, my goodness, this whole agenda that we
10 put forth is going to be torpedoed because of these
11 controversial issues.
12 Well, I'm just saying, you might want to heed your
13 own counsel or at least take it into account as you
14 evaluate it because the implications of these proposals,
15 even as amended, I would submit to you are staggering and
16 we should not change the Constitution in this regard.
17 CHAIRMAN DOUGLASS: Further debate? Commissioner
18 Mathis. Commissioner Langley, you can rise for a
19 question, you have already debated. Let's let
20 Commissioner Mathis speak first and then I'll call on you.
21 Commissioner Mathis, you have the floor.
22 COMMISSIONER MATHIS: There is a principle known as
23 alchemy that says that the more you participate, the
24 larger the pie. I believe in that. I think that if we in
25 Florida open up participation to all Floridians, and seek
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1 to remedy those past acts that we have taken not just to
2 discourage participation but to shut out whole groups of
3 people, that we in Florida will be better.
4 And Commissioner Langley has shared some anecdotal
5 evidence of some misuses of minority women business
6 programs. But I'll tell you, I have devoted my law
7 practice to assisting minority and women businesses to
8 grow. Because I believe that the economic viability of
9 the African-American community is directly connected to
10 our ability to grow and develop minority businesses.
11 I have got two examples. One, I had a client,
12 started out with four people; two women and a receptionist
13 and a secretarial assistant. They were electrical
14 contractors. In three years, because of minority business
15 programs, they grew to employing over 40 people and
16 providing direct services to a number of local government
17 entities.
18 I have also got a client who had an eighth grade
19 education who started out in a service business providing
20 skycap services, personal. He now employs over 200 people
21 throughout this state. He got a lot of his start through
22 these minority and women business programs.
23 Commissioner Langley, while you cite abuses, I cite
24 successes in the things that we want to encourage as a
25 state.
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1 Less than 3 percent of all governmental contracts go
2 to set-aside programs. We are not talking about
3 disenfranchising and taking contracts broadly away from
4 nonminority, nonwomen contractors with our state. But
5 what we are saying as a policy of this state is that
6 agencies may take action to remedy past discrimination. I
7 think there is no more laudable purpose than for us to
8 encourage this type of activity.
9 And I fully support this proposal.
10 CHAIRMAN DOUGLASS: Commissioner, I'm going to
11 recognize Commissioner Planas. He has informed me that he
12 has an emergency situation that requires him to leave and
13 that his accountant, who happens to also be a member of
14 this body, has to go with him or he might not get back.
15 So, Commissioner Planas, I recognize you.
16 COMMISSIONER PLANAS: I thank you very much,
17 Mr. Chairman. I rise here for two or three items in here
18 before I leave and I hope I have your indulgence because I
19 have to leave for some very important business matters
20 they just called me on.
21 I like this proposal but -- I like this proposal, but
22 I'm also worried as Commissioner Langley is. I am afraid
23 that it is going to create a tremendous amount of burden
24 that is unnecessary in the courts and it is going to be
25 creating a tremendous amount of problems. But I will live
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1 with the language, I just want to say that.
2 I also rise in here because I have to leave and I
3 wanted to spend as much time in here because I have
4 something that I wanted to support and before leaving I'd
5 like to very much support that. I am hoping that you will
6 consider very much the Chairman Douglass Proposal 16 for
7 public financing. I do believe in this.
8 So, Mr. Chairman, thank you very much. I'll see you
9 next week.
10 CHAIRMAN DOUGLASS: Thank you. And, Mr. Argiz, you
11 are going to accompany him as I understand it.
12 COMMISSIONER ARGIZ: Yes, I am, Mr. Chairman. I
13 don't know if it is the proper time, but I did want to
14 have a, move a motion to reconsider. Would it --
15 CHAIRMAN DOUGLASS: You can move it, yes.
16 COMMISSIONER ARGIZ: Okay. Having voted on the
17 prevailing side yesterday, I move to reconsider the vote
18 by which Proposal 107 failed.
19 CHAIRMAN DOUGLASS: Proposal 107 was the proposal
20 that dealt with parental consent; is that it?
21 COMMISSIONER ARGIZ: Yes.
22 CHAIRMAN DOUGLASS: There has been a motion to
23 reconsider Proposal 107. You voted with the prevailing
24 side; did you not?
25 COMMISSIONER ARGIZ: Yes.
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1 CHAIRMAN DOUGLASS: We will take it up right now.
2 COMMISSIONER LANGLEY: No, sir. That is
3 automatically put off to the next meeting of the
4 commission.
5 CHAIRMAN DOUGLASS: He is not going to be here.
6 COMMISSIONER LANGLEY: Well he doesn't want it now.
7 CHAIRMAN DOUGLASS: They tell you you don't want it
8 now; is that true?
9 COMMISSIONER LANGLEY: He just wanted it for the
10 record as I understand it.
11 COMMISSIONER ARGIZ: I don't want it now.
12 CHAIRMAN DOUGLASS: Thank you, Commissioner Langley.
13 COMMISSIONER RUNDLE: Mr. Chairman, point of order.
14 Do we vote on the motion for reconsideration?
15 CHAIRMAN DOUGLASS: We will vote on it tomorrow,
16 tomorrow morning. Or it will be on special order tomorrow
17 morning; is that right, Commissioner Barkdull? Matters on
18 reconsideration?
19 COMMISSIONER BARKDULL: Yes, sir, it will come up in
20 the regular order of business.
21 CHAIRMAN DOUGLASS: Regular order of business, I
22 should say.
23 We will be back to the proposal that is under
24 discussion at the moment, which is Proposal No. 2 by
25 Commissioner Sundberg. Any further discussion on that by
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1 anybody that has not already discussed? And you had a
2 question, do you still have it, Commissioner Langley? And
3 who is the question directed to?
4 COMMISSIONER LANGLEY: Well it was to Commissioner
5 Sundberg, but Ms. Mathis would be the same subject matter,
6 Commissioner Sundberg.
7 CHAIRMAN DOUGLASS: Commissioner Mathis has the floor
8 and yields to Commissioner Sundberg and you may question
9 him.
10 COMMISSIONER SUNDBERG: I'm content to have
11 Commissioner Mathis. Do you wish to respond or wish me to
12 respond?
13 (Off-the-record comment.)
14 CHAIRMAN DOUGLASS: I'll tell you what we'll do, if
15 you don't like his answer, you can get up and answer it.
16 COMMISSIONER LANGLEY: Mr. Commissioner, I'm amazed
17 that people don't like you to bring up real life
18 situations to argue a proposal because, as they say, when
19 the rubber hits the road, that's what really happens. A
20 lot of things that you sit here and talk about, you talk
21 about, but when a law is in effect and you can show living
22 examples of what has happened, that's real. You can call
23 them anecdotal if you want.
24 But I would like to ask Commissioner Sundberg. These
25 glowing stories, Ms. Mathis' client that grew from four
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1 ladies in an electrical firm to employing 40 and the other
2 people, that's all well and good, but who are we to punish
3 the legitimate lower bidder who didn't get that job? And
4 for all we know, he may now be in bankruptcy. Who knows?
5 We don't care, we just want the minority business
6 enterprise to have the job.
7 That is what's unfair about it. We don't talk about,
8 we don't see -- you say Florida State University. You
9 don't see the kid that didn't get in law school, you don't
10 see him, he is not there, although he is more qualified
11 than some that did. You don't see any dissent because he
12 is not there. And the contractors who don't get the jobs,
13 they are not there. We don't know what happens to them
14 and frankly, we don't care, evidently. But that's got to
15 be considered.
16 And you can talk about enlarging that pie all you
17 want to, but, folks, that pie that we are talking about in
18 this amendment is public tax dollars. And if you are
19 going to enlarge it, you are going to enlarge it at
20 taxpayers' expense. And it is not -- what it is is
21 indirect welfare. It is creating and giving welfare to
22 somebody because you are using my tax money to reward a
23 noncompetitive bidder. And that's not a level playing
24 field.
25 COMMISSIONER SUNDBERG: I perceive that as being a
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1 rhetorical question. But I'd like to yield, if I may,
2 Mr. Chairman, to Commissioner Anthony who would like to
3 respond to that.
4 COMMISSIONER ANTHONY: Mr. Chairman.
5 CHAIRMAN DOUGLASS: I'm sorry, I was --
6 COMMISSIONER SUNDBERG: May I yield to Commissioner
7 Anthony to respond to Commissioner Langley's rhetorical
8 question?
9 CHAIRMAN DOUGLASS: Yes, indeed. Commissioner
10 Anthony.
11 COMMISSIONER ANTHONY: It is rhetorical and I'm just
12 going to give a response that's very direct.
13 First of all, I think there is an assumption by your
14 statement that one is not equally qualified because they
15 were accepted into law school over an applicant that was
16 not a minority. That's not true always. That does not
17 make, make an assumption. And I think that's part of what
18 this discussion is about, Commissioner Langley, that you
19 make an assumption that the Minority and Women's Business
20 Enterprise Corporation is not as qualified as the other
21 company, and that they only received the contract because,
22 or the opportunity, because they were minority.
23 And I think that that's part --
24 COMMISSIONER LANGLEY: That's not true.
25 COMMISSIONER ANTHONY: Well most of your statements,
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1 I will tell you, most of your statements, even the extreme
2 statement of saying and equivocating these programs to
3 welfare programs, really alludes to you making a grave
4 assumption that the student who is considered minority,
5 whatever minority that may be, is not as qualified.
6 And we can go on and on with examples, but I will
7 tell you that we are not fighting in fact past
8 discrimination with this proposal. We are in fact
9 fighting discrimination that exists today in the state of
10 Florida. We are in fact, as we dealt with education, we
11 talked about aspirational statements that Commissioner
12 Mills proposed.
13 When I talk to African-Americans and other minorities
14 throughout this nation and talk to them about Atlanta,
15 talk to them about Los Angeles and other places, there is
16 a feeling in Atlanta, Georgia that people of all cultures
17 are welcome. And there is a feeling by business practices
18 and opportunistic public policy that this is a feeling
19 that they want to call home.
20 Many of our policies in our Constitution and public
21 policy practices do not give that feeling. And I think
22 that that's what this is, as we noted in the educational
23 proposal.
24 But very specifically, the assumption that they are
25 not as qualified is not a good assumption and I will tell
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1 you that the minority and women business enterprise
2 programs that are in place right now in this state are
3 majority viable programs. And we can't say that a few bad
4 apples, as there are bad lawyers, as there are bad
5 doctors, as there are bad teachers, but that does not mean
6 the entire profession is a bad profession.
7 I can give you examples of major majority
8 construction companies that are late on government
9 contracts, they were late on the Orange County courthouse,
10 they were late on the Palm Beach County courthouse, they
11 were late in Polk County, which I don't know, has it even
12 opened yet? But do we say that, let's change the whole
13 culture of our state because the majority contractors did
14 bad work? Should we change our whole program? I say not,
15 Commissioner Langley.
16 And I think that we should work on our assumptions
17 that we have made about some of these efforts.
18 CHAIRMAN DOUGLASS: Commissioner Mills.
19 COMMISSIONER MILLS: Mr. Chairman, will Commissioner
20 Sundberg yield for a question?
21 CHAIRMAN DOUGLASS: I'm sure he will.
22 COMMISSIONER SUNDBERG: I will, sir.
23 COMMISSIONER MILLS: In looking at this and
24 considering what effect this has on the current law, and
25 the evolution of, frankly, the whole affirmative action
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1 area, not all affirmative action programs to me make
2 perfect sense. There have been a lot of problems with
3 various affirmative action programs.
4 The language as I understand you have which says, to
5 remedy the present effects of past discrimination, as I
6 understand it, that is the United States Supreme Court's
7 interpretation of the equal protection clause, which is to
8 say under certain limited circumstances, programs which
9 could be described as affirmative action are appropriate
10 and constitutional, not all programs to deal with or
11 respond to all past historical effects of discrimination.
12 So that actually it only deals with current,
13 provable, existing remedial discrimination.
14 COMMISSIONER SUNDBERG: That's absolutely correct.
15 The United States Supreme Court, arguably, said that you
16 may utilize actions and programs (A) to, in an educational
17 setting to promote diversity amongst the student body.
18 There have been several courts, United States Courts of
19 Appeals, who have said that that is a violation of equal
20 protection.
21 But the courts have consistently held that if there
22 is demonstrable present effects of past discrimination,
23 that it is constitutionally permissible to employ state
24 action to remedy those present effects of past
25 discrimination. So the answer is yes, sir.
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1 CHAIRMAN DOUGLASS: All right. Any further --
2 Commissioner Smith.
3 COMMISSIONER SMITH: Thank you, Mr. Chairman. Today
4 when I woke up, I was a little apprehensive, knowing that
5 that discussion would come up because every time it comes
6 up, as Commissioner Connor points out, if it gets on the
7 ballot there is in fact a hue and cry.
8 And I read my Daily Word this morning, which some of
9 you probably read. And the first paragraph of the Daily
10 Word today says, How often do I hold back when attempting
11 to accomplish a goal or a dream because I question whether
12 I am smart enough, brave enough or prepared enough?
13 Not only is this a propitious occasion to have this
14 civil discussion on an issue people obviously disagree on,
15 but it is also important because today is the 69th
16 birthday of Dr. Martin Luther King, Jr. When a disabled
17 student stands up for accessible public accommodations,
18 she stands up for us all. When a Jewish man stands up
19 against the desecration of a synagogue, he stands up for
20 us all. When a Cuban woman stands up against
21 totalitarianism, she stands up for us all.
22 When a woman stands up to try to crack the glass
23 ceiling that's been documented in corporate America, and I
24 would suggest if they did a study would document it's even
25 in government, she stands up for us all. When an
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1 African-American stands up to fight against housing
2 discrimination and discrimination in educational
3 opportunities, discrimination as outlined in this
4 amendment, he stands up for us all.
5 I am one, Commissioner Langley, who agrees with you
6 that oftentimes some of these esoteric discussions don't
7 take into account real life situations. And I know for a
8 fact that some of the real life horrors that you have
9 talked about have happened, they have happened where you
10 are, they have happened where I am. But they haven't just
11 happened with regard to minority businesses. We have seen
12 indictments of majority businesses which go beyond just
13 incompetence or taking advantage of a situation, but also
14 go to the fundamental integrity of the process.
15 And, Commissioner Langley, you are right that
16 Proposition 209 did pass in California. We have never in
17 Florida striven to follow California as a government, as a
18 state, as a people. I am sure you would have pointed out,
19 had you had more time, that the, that proposal in Houston
20 failed more recently.
21 And, yes, I am an example of the rubber meeting the
22 road. My mother almost died on the way to the hospital
23 because in Miami in 1947 there was only one hospital where
24 black babies could be born, and we lived far away from it.
25 I went to an all black elementary school, all black
122
1 high school and applied to the University of Florida. And
2 my application was sent back because I couldn't attend the
3 University of Florida. So fortunately we had Florida
4 A & M University that welcomed me with open arms.
5 While I can't speak for the Governor, I would imagine
6 that one of the reasons I'm here is not because I'm the
7 most qualified person to be here. There are a lot of
8 white people much smarter than me who could have been
9 here, but I'm sure that the Governor said, while he might
10 not be the brightest lamp, you know, out there, he may
11 have something to contribute and I would like to have him
12 and the people you represent participate too.
13 Affirmative action should not be about unqualified
14 people. And where it is being done that way, you and me
15 must work together to wipe that out. It should not be
16 against quotas. Black folks would be the first, well
17 along with Jews, to oppose quotas because quotas used to
18 mean zero, that's a whole number, none. Then in the '60s
19 and '70s, it was one when we started seeing the issue of
20 tokenism.
21 And while I am concerned with you, please understand
22 that people conveniently use those who have been left out
23 as guinea pigs and scapegoats for arguments to maintain
24 the status quo.
25 In the Hopwood case in Texas where a white person won
123
1 the lawsuit because they were denied the right to
2 admission, would you believe, as you have taught me to
3 say, that 100 white students in that class had lower LSAT
4 scores and grades than Hopwood, but the Hopwood lawyers
5 said that the black student took her place, not the 100
6 white students.
7 Affirmative action should not be about giving
8 advantages. We know who have had the advantages since
9 this country has been in place. What we are saying is
10 where the rubber meets the road, let's not go back in
11 ancient history. I read all the Florida Constitutions,
12 which I'm sure you have done. And I was appalled to see
13 some of the things in our Constitution.
14 Let's talk about what's happening today. Let's talk
15 about jobs in Texaco, where the executives were sitting
16 around the table saying, we are going to keep all the
17 black jelly beans at the bottom of the jar. Do you think
18 Texaco is the only corporate, Fortune 1,000 saying that,
19 or that have this thought? Or was that the only one
20 because a secretary taped it and spilled the beans? Do
21 you think it is only large companies or just small
22 companies?
23 Just two weeks ago in Miami, after all the problems
24 we had, nine correctional officers, six blacks, three
25 whites, went to a Denny's and the manager told them they
124
1 wouldn't serve them because they didn't look right
2 together. This is just two weeks ago.
3 So what they did, they went outside and they called,
4 because he said the oven broke and we can't serve anybody.
5 So they went outside and they called. Are You open for
6 business? Yes. So they said, Well, maybe he had a bad
7 day. So they went back again; the place is full. They
8 said, We just ran out of food. You-all don't look right
9 together. That was two weeks ago. So in terms of public
10 accommodations, I'm sure a lot of people would think,
11 Well, that's no problem anymore.
12 I purchased a house February 1st, 1996. And when my
13 neighbors found out who was really moving in the
14 neighborhood, they tried to get together and undercut and
15 buy the house from under me, February 1st, 1996. There
16 are only six houses on the block, it is a cul-de-sac.
17 From that date to this date not one neighbor not only has
18 not spoken to me, they have not even done like this,
19 (Indicating), nodded. Only six houses; I have five other
20 neighbors. Not one. I haven't done anything to them.
21 Nothing.
22 This is a problem. And where there is a problem I
23 know you are prepared to work for a solution. I'm sure
24 you are just thinking -- you say, Well, I just don't think
25 this is the solution. And what I say is, if not this,
125
1 what? If not now, when?
2 I submit to you, as I close, that we should not
3 sanction quotas. Quotas are unfair for everybody. We
4 should not sanction unqualified businesses or individuals
5 getting opportunities. But I can assure you that
6 affirmative action has been in effect from the beginning
7 of time.
8 Affirmative action has been in effect where the sons
9 of alumni get admitted to school, where the contributors'
10 to colleges sons and daughters get into school. And I can
11 assure you that with regard to many of those advantages,
12 those who never, who are a first generation -- the first
13 black law student went to the University of Florida in
14 1962. So we are just first generation, so we are not
15 benefiting from those special privileges of being the son
16 of alumnus and being a son of someone who built a
17 building.
18 And all we are saying is that today in 1998, that it
19 should be an expression of the moral consciousness of the
20 people of the state of Florida that we try to allow
21 government to remedy the present effects of discrimination
22 by opening opportunities; opportunities to serve with us
23 on the Constitution Revision Commission, opportunities to
24 go into law school.
25 If there are 100 slots, all we are saying is all 100
126
1 slots shouldn't go to black people, all 100 slots
2 shouldn't go to white people, it should go to 100
3 qualified people diverse across the board. No unqualified
4 white should get in, no unqualified woman should get in,
5 no unqualified Hispanic should get in, no unqualified
6 anybody should get in.
7 And I think that that is what we are trying to do. I
8 think that this proposal does it. And I think, as you
9 know, Commissioner Connor, when Virgil Hawkins tried to
10 enter into the University of Florida law school, and the
11 U.S. Supreme Court ordered that Florida let him in, the
12 court said, I'm sorry, U.S. Supreme Court, we can't do
13 that because there will be a hue and cry. And there will
14 be so much disruption on this campus that nobody will be
15 educated. And so they refused to do it.
16 And after refusing to do it, the case was taken from
17 the Florida courts and then put into the federal courts.
18 And so you might be right, you have a better sense of the
19 politics than I did. There may be a hue and cry. And if
20 that's the basis for defeating it, I'm prepared to live
21 with that.
22 CHAIRMAN DOUGLASS: You have a question?
23 COMMISSIONER CONNOR: I do.
24 CHAIRMAN DOUGLASS: To Commissioner Smith, who has
25 the floor.
127
1 COMMISSIONER CONNOR: Yes.
2 CHAIRMAN DOUGLASS: Do you yield?
3 COMMISSIONER SMITH: Yes, Mr. Chairman, I just want
4 to sit for a moment, but I'll stand.
5 CHAIRMAN DOUGLASS: That's fine.
6 COMMISSIONER CONNOR: Commissioner Smith, my frank
7 hope was that we could have a discussion about affirmative
8 action, independent of it being burdened by other issues.
9 Now the question -- I have two questions of you.
10 Number one, what groups, if any, besides ethnic minorities
11 and women do you see embraced by this proposal, number
12 one? And number two, would you be comfortable with the
13 proposal, minus the first sentence?
14 PIn other words, would you -- you have asked about
15 what alternatives there are and how you can solve
16 problems, et cetera. And I look forward to having a -- my
17 hope is to have a debate that is narrowly tailored to deal
18 with the affirmative action issue that doesn't create
19 First Amendment issues, freedom of association issues,
20 religious expression issues, et cetera.
21 And so my question is what is your understanding of
22 the intent here? What is your intent? And can we narrow
23 the scope of this proposal in a way that you are
24 comfortable with so that we don't burden it with some of
25 these other issues?
128
1 COMMISSIONER SMITH: Thank you for the question,
2 Mr. Connor. First of all, I am not the proponent of this
3 proposal; however, in the spirit of the way we have worked
4 together before, I would be personally agreeable to try to
5 tailor. I want you to know that my comments outside the
6 area of affirmative action was just trying to respond to
7 questions that were raised and points that are made
8 concerning anecdotal, and I don't say that in a negative
9 way, I'm just saying examples.
10 So it is my understanding and was my intention of
11 backing this proposal that it protects minorities and
12 women. That was --
13 COMMISSIONER CONNOR: I think there is great benefit
14 to having a discussion about that. But frankly, the
15 language that we are dealing with, in my estimation, is so
16 broad I'm greatly concerned about it. And so if I may
17 inquire of the sponsor of the underlying proposal, if
18 that's in order, what his intent is in that regard
19 because, frankly, I'm wondering if we can have a
20 discussion that narrows the issue to address these very
21 worthy issues of debate.
22 CHAIRMAN DOUGLASS: Let me see if we all understand
23 your question, maybe I didn't understand it. You are
24 asking him does this go beyond protecting --
25 COMMISSIONER CONNOR: Ethnic minorities and women.
129
1 CHAIRMAN DOUGLASS: They are now, as I understand it,
2 I think you agree that these are protected classes
3 currently.
4 COMMISSIONER CONNOR: Yes, sir. Race and religion
5 are identified as protected classes.
6 CHAIRMAN DOUGLASS: Are you worried about any
7 specific group?
8 COMMISSIONER CONNOR: My inquiry and my concern has
9 to go with the issues I raised at the beginning. How are
10 religious groups affected with respect to employment
11 because employment is one of the things you talk about,
12 people who may engage in behaviors that they find
13 offensive and that would otherwise disqualify them for
14 employment in their religious sect.
15 Housing too, for the person who rents out a room in
16 their house and has scruples about whether or not somebody
17 is going to be engaging in heterosexual -- we have heard
18 this in Miami. I know H.T. Smith has heard this over and
19 over and over with respect to that.
20 And so is the intent here to simply deal with past
21 discriminatory effects on racial minorities and women, or
22 is it broader than that? And if it is, I would just like
23 to know it. And if it isn't, my question is, is there a
24 way we can narrow the scope of this proposal to focus on
25 the issues of concern?
130
1 CHAIRMAN DOUGLASS: Commissioner Sundberg.
2 COMMISSIONER SUNDBERG: Commissioner Connor, there is
3 no intent on the part of the proponent to expand what are
4 now recognized by law as protected classes. And I think
5 you have described them. So that's not the intent.
6 I would suggest to you that it is important, for many
7 of the reasons that we have heard expressed by others,
8 particularly Commissioner Langley, that that language be
9 in there because it is a preface to the second sentence.
10 And what it says is, what we are striving for is equal
11 opportunity, equal opportunity. And that's why it's in
12 there.
13 And frankly, I really -- I think I now perceive what
14 your concern is. I don't think this language embodies
15 that, and moreover, moreover, in terms of your assertion
16 that there are wide ranging First Amendment
17 implications --
18 COMMISSIONER CONNOR: Freedom of association and
19 freedom of religion are the specific areas.
20 COMMISSIONER SUNDBERG: But we know that if there are
21 First Amendment implications, that First Amendment of the
22 United States Constitution will simply trump this if you
23 have such concerns.
24 COMMISSIONER CONNOR: I do have concerns, continuing
25 the question, and I will --
131
1 CHAIRMAN DOUGLASS: Go ahead.
2 COMMISSIONER CONNOR: My concern has to do,
3 Justice -- Commissioner Sundberg, with the effect that the
4 Florida Supreme Court has accorded amendments to the
5 Florida Constitution, recognizing that even where language
6 tracked existing federal law, the presumptions were, as
7 indulged in by the court, that the State meant something
8 broader, greater, stronger, et cetera.
9 So I don't know whether or not there's language that
10 is suitable to you. And this may be something we want to
11 consider. This is the first time I've seen the proposal.
12 It may benefit from a TP to discuss this. But I don't
13 know if, for example, and I would be interested in knowing
14 your sentiments and Mr. Langley's sentiments that if
15 these -- if the language concerning citizens were further
16 modified by these protected classes, regardless of race,
17 religion or physical handicap, so that we begin to develop
18 some comfort about how tailored the proposals are.
19 Now, you are the sponsor, you are the sponsor of the
20 amendment, I'm just expressing what my concerns are. And,
21 frankly, you know, I've followed -- you know, I've read a
22 lot of different publications by a lot of different
23 organizations, their concerns about issues that relate to
24 employment, housing, et cetera, which go beyond race,
25 religion and physical handicap. And I'm well aware of the
132
1 intensity of these issues out there in the marketplace.
2 Again, hue and cry, listen, I was here in 1988 and
3 '89, when we had the special session on abortion. I am
4 accustomed to hue and cry. You should see the hate mail
5 that I have and have saved. Okay, I'm going to do what I
6 think is right, you are going to do what you think is
7 right, that's appropriate. But my concern is that are we
8 using a meat ax approach when a scalpel would better suit
9 the purpose and narrowly define the issues more carefully.
10 Now if you are not amenable to that, so be it. We'll
11 just take our vote and live with our decision.
12 CHAIRMAN DOUGLASS: Commissioner Sundberg, in
13 response to the question.
14 COMMISSIONER SUNDBERG: My response to the question
15 is I am the easiest guy in the world to get along with.
16 If you've got some language that, you know, you believe
17 will address -- well, some people think I'm easy to get
18 along with.
19 CHAIRMAN DOUGLASS: We are not going to take a vote
20 on that, go ahead.
21 (Laughter.)
22 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
23 You know, I'm open to that kind of language. I tell
24 you, in as good a faith as I'm capable of doing, without
25 trying to circumscribe or, you know, the proper function
133
1 of any court in its interpretation of the Constitution,
2 and I know you want to make a record, and I'm perfectly
3 willing to have you do that. All I can tell you is, in
4 the best of good faith, that there's no intent on the part
5 of this proponent of this proposal to expand the protected
6 classes beyond those traditional protected classes.
7 COMMISSIONER CONNOR: If I may follow further. As
8 the Commissioner is aware, particularly by virtue of his
9 previous distinguished judicial experience, that where the
10 language is plain on its face, the court doesn't look
11 beyond that to intent.
12 So what I'm saying is this language is very, very
13 broad, Commissioner Sundberg, it is very broad. And I
14 would suggest to you, however laudable your goal may be,
15 that you are going to wind up, based on this language,
16 booking opposition that you do not want and that is not
17 necessary for you to book because of this language.
18 (Off-the-record comment.)
19 COMMISSIONER CONNOR: I am trying, you know,
20 candidly, I am.
21 CHAIRMAN DOUGLASS: I think you have left the
22 question there for a moment.
23 COMMISSIONER CONNOR: So, my question is, would you
24 agree, based on your prior judicial experience, that where
25 the language is plain and unambiguous on its face, that
134
1 the court would not look to the subjective intent of this
2 body on that issue?
3 COMMISSIONER SUNDBERG: To be frank with you, and in
4 all candor, I've never seen any language that was
5 absolutely plain and unambiguous on its face. That
6 often -- and I'm not being facetious, Commissioner Connor.
7 We know oftentimes that that's a phase that's often result
8 oriented. But, you know, I didn't think I'd get much
9 opposition from you on that.
10 But frankly, that doesn't mean I'm unwilling to
11 attempt to narrow this. I don't see that this language,
12 however, is as broad, certainly no broader than all
13 natural persons.
14 CHAIRMAN DOUGLASS: Commissioner, before we go
15 further, I want to see if we can't cut to the chase a
16 little bit with a question here, Commissioner Sundberg, if
17 you would stay up.
18 COMMISSIONER SUNDBERG: Yes, sir.
19 CHAIRMAN DOUGLASS: I think what we are dancing
20 around here a little bit is the hot button issue of
21 whether or not this will afford gay rights or the
22 protection of homosexuals from these various activities.
23 As I understand what you said, this is the question, it
24 would not because they are not now protected classes; is
25 that correct?
135
1 COMMISSIONER SUNDBERG: That is absolutely correct.
2 Now, it doesn't mean that they may not at some time in the
3 future.
4 CHAIRMAN DOUGLASS: Commissioner Mills.
5 COMMISSIONER MILLS: Mr. Chairman, Mr. Smith and I
6 have been talking a little bit about the language here.
7 And I ask Commissioner Sundberg to consider this. I mean,
8 it's fascinating to be creating constitutional language
9 within 30 seconds.
10 CHAIRMAN DOUGLASS: Probably just as good as 30 days.
11 Go ahead.
12 COMMISSIONER MILLS: It may well be. It would seem
13 to me that a way to limit the impact to protected classes,
14 which are enumerated in the last sentence, would be to
15 strike the first new sentence, simply put the conjunctive
16 after handicap and say, and the state, its agencies, et
17 cetera. In other words, if you identify these protected
18 classes and then you identify what the state is authorized
19 to do related to it.
20 COMMISSIONER SUNDBERG: That is absolutely acceptable
21 to me. Is that acceptable to you, Mr. Smith?
22 COMMISSIONER SMITH: Yes, sir.
23 CHAIRMAN DOUGLASS: Somebody prepare the amendment.
24 We will take -- we are not going to take a lunch recess
25 until 12:30, Commissioner -- beg your pardon?
136
1 COMMISSIONER BARKDULL: Point of order.
2 CHAIRMAN DOUGLASS: Yes.
3 COMMISSIONER BARKDULL: Aren't we on the amendment?
4 CHAIRMAN DOUGLASS: We are, but they have got another
5 amendment. We might as well take a --
6 COMMISSIONER BARKDULL: Well, is this an amendment to
7 the amendment or an amendment to the proposal?
8 CHAIRMAN DOUGLASS: What is the amendment? Read it
9 again. Is it your amendment language?
10 COMMISSIONER LANGLEY: Mr. Chairman, to properly
11 proceed, if this is what the sponsor wants to do, I will
12 temporarily withdraw my amendment that's pending, he can
13 offer the striking amendment and I will re-offer it.
14 CHAIRMAN DOUGLASS: Without objection, it is
15 temporarily withdrawn. And we are going to take a short,
16 five-minute recess, don't leave the chamber. And we are
17 going to gavel right back as soon as they come up with a
18 statement. We are in recess, five minutes, stay in the
19 chamber.
20 (Brief recess.)
21 SECRETARY BLANTON: Commissioners, indicate your
22 presence, please. All commissioners indicate your
23 presence.
24 CHAIRMAN DOUGLASS: All right. Everybody indicate
25 your presence.
137
1 (Quorum taken and recorded electronically.)
2 SECRETARY BLANTON: Quorum present, Mr. Chairman.
3 CHAIRMAN DOUGLASS: All right. Commissioner Mills.
4 Would everybody please take their seats? We are going to
5 break for lunch at 12:30, or as soon as we finish this
6 item. Commissioner Mills has the floor. Ask the people
7 behind you to -- Commissioner Sundberg --
8 COMMISSIONER SUNDBERG: I'm sorry, Mr. Chairman.
9 CHAIRMAN DOUGLASS: -- we are trying to get underway.
10 COMMISSIONER SUNDBERG: I understand. And,
11 Mr. Chairman --
12 CHAIRMAN DOUGLASS: Commissioner Mills has the floor.
13 COMMISSIONER MILLS: Mr. Chairman, I think we have
14 made some progress. Let me, if I may, perhaps just read
15 this sentence.
16 CHAIRMAN DOUGLASS: Certainly. It's being offered as
17 an amendment?
18 COMMISSIONER MILLS: It will be offered as an
19 amendment, if it is -- I think we are getting close to a
20 consensus on this, though I can't really represent that
21 yet. I mean, this is 30 seconds' worth of constitutional
22 drafting, although -- on Page 1, Line 25, after the
23 period, insert, this would basically then take out the
24 first sentence.
25 CHAIRMAN DOUGLASS: Delete the first sentence?
138
1 COMMISSIONER MILLS: Starting at, "all citizens."
2 So, before "all citizens" this comes in and "all citizens"
3 will not be in.
4 "The state, its agencies, political subdivisions,
5 municipalities, counties, public colleges and
6 universities, community colleges, school districts,
7 special districts, authorities and other government
8 instrumentalities may take actions necessary to remedy the
9 present effects of past discrimination against any
10 individual on the basis of race, religion, physical
11 handicap or whether an individual is a male or female in
12 the areas of housing, employment, public accommodations,
13 public education, the purchase of goods and services and
14 the expenditure of public funds."
15 CHAIRMAN DOUGLASS: Then you are deleting -- it
16 doesn't say on mine.
17 COMMISSIONER SUNDBERG: Mr. Chairman, it deletes the
18 sentence commencing on Line 25 with "all citizens" and it
19 will delete, "all citizens shall enjoy equal opportunity
20 to employment, housing, public accommodations, public
21 education and other benefits of citizenship." It deletes
22 that.
23 CHAIRMAN DOUGLASS: That will be deleted, that
24 sentence.
25 COMMISSIONER SUNDBERG: Right, right.
139
1 CHAIRMAN DOUGLASS: This amendment that's been handed
2 me that's on the table does not delete that, although it
3 intends to.
4 COMMISSIONER SUNDBERG: Right.
5 CHAIRMAN DOUGLASS: It just says, on Page 1, Line 25,
6 after the period, insert.
7 COMMISSIONER SUNDBERG: Right.
8 CHAIRMAN DOUGLASS: And then it should say -- first
9 it should say, delete, on Line 25, beginning at the
10 period, delete, and then outline what you deleted or the
11 lines you have deleted and substitute the following,
12 insert the following. Has everybody got a copy of it, of
13 the amendment? Do you see what I'm saying, it doesn't
14 delete what you are deleting. Can you do that?
15 I think all you have to say is delete, beginning at
16 the period, delete that, the next sentence, appearing on
17 Lines 26, 27, through the period on 28, and then insert
18 this. Is that your amendment?
19 (Off-the-record comment.)
20 COMMISSIONER MILLS: That just means that everything
21 after that is deleted and we will --
22 CHAIRMAN DOUGLASS: And you move that amendment,
23 which is --
24 COMMISSIONER MILLS: Now, Mr. Chairman, there were
25 two words changed in the original printing.
140
1 CHAIRMAN DOUGLASS: Yes. That is after the word
2 "handicap," right? Where the period is?
3 COMMISSIONER MILLS: Yes. There is -- the amendment
4 that I just placed up there --
5 CHAIRMAN DOUGLASS: And we'll have him read it, or
6 her read it. Commissioner Langley.
7 COMMISSIONER LANGLEY: As a point of order,
8 Mr. Chairman, there is no motion before the Chair right
9 now. And I would move that we temporarily pass this and
10 work out some of this language. It is not that easy, and
11 what they propose doesn't solve a lot of the problems that
12 were solved by eliminating the first sentence. And, you
13 know, we don't want something like -- I wouldn't think we
14 want something like this going out as a product, this
15 hastily done. And I would move that we temporarily pass
16 it to another day.
17 CHAIRMAN DOUGLASS: Well, I don't think we need to
18 move it to another day.
19 COMMISSIONER SUNDBERG: Mr. Chairman, a point -- as
20 the proponent, may I move to temporarily pass this issue
21 to give us an opportunity, all in good faith, to do a
22 little more craftsmanship on this?
23 CHAIRMAN DOUGLASS: All right.
24 COMMISSIONER SUNDBERG: I would like to bring it back
25 tomorrow. I'd like to TP it to a time certain, if I may.
141
1 CHAIRMAN DOUGLASS: If you would like to do this, we
2 can extend the lunch hour until -- you-all don't want to
3 eat, I guess.
4 COMMISSIONER SUNDBERG: Well, I think we may need as
5 much as an overnight.
6 CHAIRMAN DOUGLASS: All right. Well there is a
7 motion then to TP it, with a time certain being first on
8 the order tomorrow morning. Commissioner Barkdull?
9 COMMISSIONER BARKDULL: Why not the first item to
10 come up at the next regular daily business?
11 COMMISSIONER SUNDBERG: Exactly, exactly.
12 CHAIRMAN DOUGLASS: The first item that comes up at
13 the next daily session. Without objection, we will do
14 that. It was done. Commissioner Langley.
15 COMMISSIONER LANGLEY: Mr. Chairman, it was my
16 motion, but you just kind of took it away from me.
17 CHAIRMAN DOUGLASS: Well, we passed it.
18 COMMISSIONER LANGLEY: You didn't pass what I wanted,
19 but you passed a motion out of order by Mr. Sundberg to do
20 something else. But anyway, I don't know how many people
21 are going to be here tomorrow, but this is a very
22 important issue.
23 CHAIRMAN DOUGLASS: That's why Commissioner Barkdull
24 changed it to the next session. Because if there's not a
25 quorum, obviously we wouldn't have a session tomorrow.
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1 COMMISSIONER LANGLEY: But what if there is in fact
2 19? I mean, that's not very representative.
3 CHAIRMAN DOUGLASS: I'll bet you are here.
4 COMMISSIONER LANGLEY: I'll bet I'm not.
5 CHAIRMAN DOUGLASS: Well, you were not here Monday
6 and Tuesday. I thought maybe you would be here Friday.
7 COMMISSIONER LANGLEY: We don't want to start talking
8 about people's performance, Mr. Chairman.
9 CHAIRMAN DOUGLASS: That is not performance, sir.
10 You are performing extremely well. And also, Commissioner
11 Smith said he was not the shining light, the Governor
12 didn't appoint him, the Governor appointed him because he
13 was the brightest shining light.
14 Commissioner Sundberg.
15 COMMISSIONER SUNDBERG: I don't wish -- I wish
16 Commissioner Langley would share with me his problem. If
17 I'm out of order, I don't wish to proceed out of order,
18 Commissioner.
19 COMMISSIONER LANGLEY: Oh, you mean the procedure
20 problem? We don't pay any attention to those things in
21 here anyway. I'm not upset about that.
22 COMMISSIONER SUNDBERG: Nobody pays any attention to
23 me so it makes it all even.
24 COMMISSIONER LANGLEY: The language, for instance,
25 that's in there now, and I know it's well meant, but the
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1 language doesn't cover, for instance, the housing problem.
2 Male or female, that means that I cannot advertise for a
3 male roommate for my son or my daughter can't advertise
4 for a female roommate because that's discrimination.
5 She's got to have a roommate.
6 COMMISSIONER SUNDBERG: Well, I'm prepared to debate
7 that with you. Because, see, you are suggesting that this
8 language creates a right and all it does is permit public
9 agencies to take some actions. But that's better left to
10 the debate. And I would hope that we'll have your input,
11 you know, as we go forward and try to work on this
12 language. And that's why I'm perfectly willing to
13 temporarily pass it because I don't think -- you know,
14 it's not the kind of exquisite language that we want.
15 CHAIRMAN DOUGLASS: As it stands now, it's been
16 temporarily passed to the first item on the special order
17 of business at the next meeting of the commission. Is
18 that correct, Commissioner Barkdull?
19 COMMISSIONER BARKDULL: That's what I understood the
20 motion was that passed.
21 CHAIRMAN DOUGLASS: It passed without objection.
22 Therefore, we'll proceed then to -- let's go to lunch and
23 come back at 1:10 -- 1:15, if you would move to adjourn or
24 recess.
25 COMMISSIONER BARKDULL: 1:15?
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1 CHAIRMAN DOUGLASS: 1:15.
2 Commissioner -- before you go, hold it just a minute.
3 Commissioner Mills has a question.
4 COMMISSIONER MILLS: I'm sorry, Mr. Chairman, but the
5 Article V committee, I have some problems with attendance.
6 So just for those that are on it, I would like to cancel
7 the meeting today and we'll do the Article V meeting as
8 you have scheduled it next time, on Monday, when the rules
9 chairman --
10 CHAIRMAN DOUGLASS: Are you going to be able to
11 conclude your work at the next meeting and have it for
12 action?
13 COMMISSIONER MILLS: What in fact has occurred is it
14 appears Justice Sundberg -- Commissioner Sundberg has had
15 a number of meetings, we have been working with staff.
16 And I think we may be in a position when we come back to
17 provide something that's almost a consensus Article V
18 proposal.
19 CHAIRMAN DOUGLASS: The reason I ask that is because
20 we need to get to that as quickly as we can.
21 COMMISSIONER SUNDBERG: Mr. Chairman, I think there
22 is literally just one issue open, one substantive issue
23 that they are trying to come -- I don't care how they come
24 out on it, and I've said either way they come out, then we
25 go. Is that a fair statement, Mr. Chairman?
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1 COMMISSIONER MILLS: Yes.
2 HEARING OFFICER: Fair enough. And then you are
3 going to reschedule that meeting and that will be Monday,
4 the 26th.
5 COMMISSIONER MILLS: Yes.
6 CHAIRMAN DOUGLASS: Okay. We stand in recess.
7 (Lunch recess taken from 12:15 p.m. to 1:15 p.m.)
8 (Quorum taken and recorded electronically.)
9 SECRETARY BLANTON: All commissioners indicate your
10 presence. All commissioners indicate your presence.
11 CHAIRMAN DOUGLASS: All right. We're going to get
12 started here in a few minutes. If everybody would get in
13 their seats. Commissioner Barkdull -- do we have a
14 quorum?
15 SECRETARY BLANTON: Quorum present, Mr. Chairman.
16 CHAIRMAN DOUGLASS: I have been informed that we have
17 24 members that have indicated they will be here tomorrow,
18 which is a sufficient number to meet tomorrow if we need
19 to. I was told that was the case. So you might want to
20 consider that later in the day.
21 COMMISSIONER BARKDULL: Mr. Chairman and members of
22 the commission, the executive director and I are talking
23 about that right now. We're going to watch how the
24 calendar goes this afternoon and we'll probably have an
25 announcement to make later on.
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1 CHAIRMAN DOUGLASS: All right. I'm waiting on
2 Commissioner Jennings who is on the way. If you have
3 something you want to bring up, other than a proposal.
4 COMMISSIONER BARKDULL: Actually, Mr. Chair, the
5 director just handed me a slip that if Commissioner
6 Jennings and Commissioner Hawkes are here, we will have
7 had an indication that there will be 27 here tomorrow.
8 CHAIRMAN DOUGLASS: They are both here, but they are
9 not in here.
10 COMMISSIONER BARKDULL: I suggest we revert to
11 special order and proceed and we will make further
12 announcements as the afternoon goes on.
13 CHAIRMAN DOUGLASS: That's fine. One of the reasons
14 I was waiting on Commissioner Jennings, the next order is
15 Proposal 16, of which I'm a sponsor along with
16 Commissioner Connor and I thought I would leave the Chair
17 and she was going to be in the Chair while I was
18 presenting Proposal 16.
19 (Off-the-record comment.)
20 CHAIRMAN DOUGLASS: I don't think I can risk that,
21 you haven't been here long enough. You need more
22 training. I understand you have a new name for -- someone
23 does for telling the secretary when they are going to the
24 back. She'll discuss that with you later, she said.
25 Commissioner Jennings, I'd like for you to take --
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1 turn her loose, Commissioner Mills, and let her come up
2 here.
3 (Laughter.)
4 (Commissioner Jennings assumes the Chair.)
5 COMMISSIONER JENNINGS: The secretary is overjoyed.
6 It has nothing to do with the chairman, Mr. Chairman.
7 (Laughter.)
8 COMMISSIONER JENNINGS: It's just that she's so used
9 to turning around and seeing my face, that's it.
10 Proposal No. 16, read the proposal.
11 READING CLERK: Committee substitute for Proposal 16
12 by the committee on Ethics and Elections and Commissioner
13 Douglass; a proposal to create Article VII, Section 7 -- a
14 proposal to create Article VI, Section 7, Florida
15 Constitution, and Article XII, Section 23, Florida
16 Constitution; providing for public financing of campaigns
17 for elected statewide office and for spending limits.
18 COMMISSIONER JENNINGS: Commissioner Douglass, you
19 are recognized.
20 CHAIRMAN DOUGLASS: Commissioner Connor and I
21 sponsored this before the committee yesterday and the
22 committee approved it by a vote I believe of five or six
23 to one, I can't remember. It was five to one.
24 This is the result of having worked on this for some
25 time, along with some of the interested people. And what
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1 it does, if you will read the committee substitute that's
2 before you, it provides -- it's a policy of the State to
3 provide for statewide elections in which all qualified
4 candidates may effectively compete without the
5 disproportionate influence of special interests.
6 A method of public financing for campaigns for
7 statewide office shall be established by law. Spending
8 limits shall be established for such campaigns for
9 candidates who use public funds in their campaigns. The
10 Legislature shall provide sufficient funding for this
11 provision.
12 And the second half, part of this that's before you
13 is a schedule which in effect says campaign limits and
14 funding of campaigns for elective statewide offices may be
15 implemented by existing general law relating to campaign
16 spending limits and funding of campaigns for elective
17 statewide office, or by law that is equally or more
18 protective of effective competition and therefore provides
19 greater access to the ballot for all.
20 I think if there is one thing that bothers all of us,
21 whether we're in the general public or serving in the
22 Legislature or in any other type of elective office,
23 whether it be on any level is the terrible, terrible job
24 of raising funds and getting funds to run an election.
25 And it's become such a thing in our process that it
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1 actually forces candidates, instead of going about perhaps
2 discussing the issues, they have to spend their time
3 raising money.
4 And it's become viewed by the public generally, and
5 probably properly so, that one of the major things that
6 people who are in office have to do and want to do is to
7 raise funds so they can be reelected. The major things
8 that special interest groups want to do is put enough
9 funds into any individual campaign so that they have
10 favorable access to the elected official. And in some
11 instances the public believes that they actually control
12 their vote on certain issues.
13 And I think from day to day we all see examples of
14 the effect of money on campaigns and as it works on our
15 legislative bodies. It's not just this legislative body,
16 but any, including county commission, city commissions,
17 and they are all subject to the same problem.
18 And it's not that people who are in these offices
19 want to be beholden to special interests, it's not that
20 they are, but it's that their job becomes, in effect, from
21 the public viewpoint, somewhat demeaned by the general
22 public feeling that this is some forum of the people with
23 large money, whether they be labor unions or whether they
24 be large corporate interests or whatever, that they
25 actually control the actions on critical issues of various
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1 people that are elected to public office.
2 Now I don't want to be misunderstood. I don't
3 believe that's true with most of the people that I know
4 that serve in all of these public offices. Most people
5 are generally motivated to do what they feel is best for
6 the state or for their constituency, as the case may be.
7 There are those we all know that aren't and we see those
8 too. But that alone is not sufficient reason to adopt
9 this proposal.
10 I think the best example of why we need to do this
11 would be illustrated by the election of the comptroller in
12 the last election. By virtue of having public financing
13 available and agreeing to accept limits on his
14 expenditures, the General became comptroller by defeating
15 an incumbent who had an unlimited supply, financial
16 supply, to run his campaign. Now, without public funding
17 we would never probably have heard further of General
18 Milligan. We would probably put him in the category of
19 some lieutenant governors we can't remember who they were.
20 But in any event, we now know that by virtue of this
21 law being in effect we have one of the best public
22 servants that we've had in Florida. And he is totally
23 independent in his thinking and in his actions. And as
24 comptroller that is extremely important because he not
25 only controls the banking interests but he also is the
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1 watchdog of the treasury and how the money is spent.
2 I use him as an example instead of Governor Chiles
3 because there is a little bit of difference there.
4 Governor Chiles had 32 years of public service, including
5 service in the United States Senate for 18 years and the
6 state Senate and state Legislature. And he was well
7 known. And the financial needs of a candidate such as him
8 were not nearly so much as someone like General Milligan
9 who wanted to come forward and serve after a distinguished
10 career in the U.S. Marine Corps.
11 The Governor limited his campaign contributions to
12 $100 per person in each cycle, and he had done that
13 before. But in this particular election, because he
14 elected to take public financing when the opponent did
15 not, under the existing law, and raised over a certain
16 amount, then the playing field was leveled by the public
17 funds kicking in and it discouraged the raising of
18 $50 million like occurred in California, but it did result
19 in, when it did go over the cap amount, that he kept up
20 with his $100 matchings as it went along.
21 And therefore he was able to compete and to
22 ultimately win the election. And I don't think without
23 public financing that Governor Chiles would have been
24 elected. Now I recognize there are people that would like
25 that to have been the result. A large number of people
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1 voted for the other candidate, but I submit to you that it
2 was the will of the people and he has served honorably as
3 Governor. And I'm sure that his opponent would have, too.
4 I don't mean to imply otherwise.
5 But in any event, what it shows is a clean
6 election -- and by clean and I mean financially clean
7 election -- can occur with public financing available. It
8 could occur without it, but the likelihood in many
9 instances of it not so occurring would be very difficult.
10 So Commissioner Connor, who also has some personal
11 experience which I'm sure he will tell you about, will --
12 supported this. And we very urgently feel that it should
13 be put into the Constitution to ensure clean elections and
14 elections that are as free as possible from being bought
15 by large amounts of money from outside the state or
16 anywhere else. And, therefore, we commend this committee
17 substitute as a reasonable way to do that, leaving to the
18 Legislature the ability to offer it but not below its
19 current standard.
20 And we believe that the public will join, like with
21 the League of Women Voters, Common Cause, several other
22 public interest groups in passing this, if we put it on
23 the ballot. And, therefore, without me saying anything
24 further, I would yield to any questions and then I would
25 certainly yield to Commissioner Connor, who is a
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1 co-introducer, when I complete.
2 COMMISSIONER JENNINGS: Questions of the sponsor?
3 Commissioner Kogan.
4 COMMISSIONER KOGAN: Question. Commissioner
5 Douglass, does this amendment apply to Supreme Court
6 justices running in a statewide merit retention election
7 where there is organized, announced opposition?
8 CHAIRMAN DOUGLASS: No, it does not.
9 COMMISSIONER JENNINGS: Further questions?
10 Commissioner Corr.
11 COMMISSIONER CORR: Thank you. Commissioner
12 Douglass, does this -- I'm confused. Does this mean if
13 I'm a candidate for statewide office and I accept public
14 financial support, that I then also agree not to receive
15 contributions from any other source?
16 CHAIRMAN DOUGLASS: No, what it means is you accept a
17 cap on the amount of money that you can receive and spend.
18 COMMISSIONER CORR: And then the cap is set by the
19 Legislature?
20 CHAIRMAN DOUGLASS: Yes.
21 COMMISSIONER CORR: Will that be a cap on individual
22 contributions or a cap on total spending?
23 CHAIRMAN DOUGLASS: No, the cap on individual
24 contributions comes by law at the present time. And some
25 caps are not constitutional.
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1 One of the ways that I wanted to apply some money to
2 election purposes was, as you suggested in one of your
3 proposals, which was to say if out-of-state contributions
4 are corporate or business entities or nonbusiness entity
5 contributions were made, that a percentage of that would
6 have to go into a fund, which would then be in a trust
7 fund. And, therefore, you could finance public financing
8 even in elections other than statewide that way.
9 We concluded, unfortunately, that there is a U.S.
10 Supreme Court decision that says that would be
11 unconstitutional and therefore we tried to draft
12 something, and I think we have, that would meet
13 constitutional muster. I believe there is another
14 proposal, however, by one of the commissioners that has
15 not been heard yet which addresses the issue of campaign
16 contribution limits. That is not involved in this
17 proposal.
18 COMMISSIONER CORR: May I continue? And I think,
19 like you said, Commissioner Douglass, everybody on this
20 floor has the motivation to try to, quote, clean up the
21 election process. And one of the things you said at the
22 introduction of this was that this would provide for clean
23 elections.
24 CHAIRMAN DOUGLASS: Cleaner.
25 COMMISSIONER CORR: Cleaner. So I can still have a
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1 portion of -- if the other kind of money is dirty, I can
2 still have dirty money along with my clean money.
3 CHAIRMAN DOUGLASS: I'm kind of like this, as a
4 lawyer I've had clients that paid me that I thought the
5 money was clean and I sure hope it was, but I didn't
6 inquire too closely in some instances. And I'm sure that
7 in Disney, the people that go through there, they don't
8 imply whether or not the money is clean, or not. And
9 money is money.
10 So I don't know that there is any way that you can
11 keep the world's biggest crook from contributing to a
12 campaign. What you can do is make it so the world's
13 biggest cook can't buy the election, which is what this
14 attempts to do. So from that standpoint, cleanliness is
15 about as good as we can get it. If you find a way to
16 define clean money, as such, I would be the first one to
17 go along with that.
18 COMMISSIONER CORR: That helps. The last question is
19 in the staff analysis it talks about the 1994 elections.
20 And I think of the some 11 or so odd million dollars that
21 was spent in the public finance system, almost 9 million
22 was taken from general revenues. I guess because there
23 was a trust fund set up they couldn't handle the demands
24 required at the time.
25 CHAIRMAN DOUGLASS: Correct.
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1 COMMISSIONER CORR: One of the concerns I had, and
2 I'll just maybe speak to it a little bit, is just the
3 public policy kind of where are we headed? If we're
4 funding elections with tax money that could be going to
5 criminal justice, schools, whatever else those great
6 causes may be, to spend some $9 million for elections, and
7 obviously that number would just go up under this
8 proposal, how do you respond to that? Is that worth the
9 price of a cleaner election?
10 CHAIRMAN DOUGLASS: I would answer that two ways.
11 The amount of public funds that are expended are related
12 directly to the amount that the nonconforming candidate
13 raises. And if he raises millions and millions and
14 millions, it would be more money coming out of the public
15 financing for those that are opposing him in the campaign.
16 So it's going to be different every time, to say that it
17 would be that amount.
18 $9 million, however, as it relates to this particular
19 matter, part of that money that was spent was raised from
20 assessments on qualifying fees. My understanding was
21 about one third of the money that was spent came from that
22 source. I don't know if that's exactly correct, that's
23 what I was told. And the rest came from what would be
24 general revenue.
25 We had a proposal originally that Commissioner Connor
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1 and I were considering that would have made it a dedicated
2 tax on cigarettes, liquor, gambling and all those good
3 things, sin tax, and fund it with that. We concluded that
4 that was better left to the Legislature to determine how
5 to raise that money.
6 But $9 million, as it relates to children, for
7 example, as it relates to many other things that we do in
8 state government, and I don't want to minimize it, but
9 it's not a great amount to get cleaner elections.
10 COMMISSIONER CORR: And I'll wrap up. The staff
11 analysis says that 11.6 and change was distributed to
12 qualifying candidates in '94, about 8.5 million was
13 transferred from the general fund to supplant the only
14 2.8 million that had come from the trust fund.
15 So I guess there are a lot of good things about this
16 proposal, but I'm concerned about where the money comes
17 from. Obviously if there is a trust fund, I think it
18 would be interesting to set up a trust fund that penalizes
19 or taxes the contributions from the so-called dirty money
20 people.
21 CHAIRMAN DOUGLASS: We sure wanted to do that, but
22 you can't do that.
23 COMMISSIONER CORR: And you can't do that. So I
24 guess the concern is financing elections out of the
25 general revenue fund. Maybe some other commissioners can
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1 address that as well.
2 CHAIRMAN DOUGLASS: I guess I would respond to that
3 by saying that public policy wouldn't mind us spending 8
4 or $9 million out of the general revenue fund of 42
5 billion to, every four years, get cleaner elections. It's
6 a very, very small amount to pay for the integrity of
7 government and the view of the public on government, which
8 is at one of its lower points in history.
9 And I would also recognize that when times are as
10 prosperous as they are, it is very difficult to deal with
11 these issues that relate to any kind of argument that
12 money is coming out of somewhere else that ought to go
13 somewhere else. That argument is available, as I'm sure
14 those who serve in the Legislature know, on everything
15 they do in the appropriations bill.
16 For example, if they appropriate $11 million to a
17 stadium in one county, which, you know, could happen,
18 that's not nearly as statewide effective as something that
19 would try to help with clean money or cleaner elections.
20 Clean money is the wrong word. Again, I say nobody can
21 define clean or dirty money. It's money.
22 Any other questions?
23 COMMISSIONER JENNINGS: Commissioner Evans-Jones.
24 COMMISSIONER EVANS-JONES: Let me see if I'm
25 understanding this. Proposal 16 requires you to take the
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1 public funds whether you want to or not?
2 CHAIRMAN DOUGLASS: No, ma'am. You have to elect to
3 go under the cap. If both -- say all candidates, it
4 doesn't apply to two candidates. If there is a small
5 party candidate in there, he can qualify too for some form
6 of it. You have to raise your own money, too. It doesn't
7 just give you a free ride.
8 What I'm saying is when it kicks in really is when
9 one candidate does not accept the cap or doesn't stay
10 under it. If both of them stay under it, then it would
11 not result in any great expenditures in the fund.
12 COMMISSIONER EVANS-JONES: I have a further question.
13 If I chose not to take the money and my opponent chose to
14 take the money and stay on the cap, then am I still
15 limited in the amount of money that I can spend when I
16 don't take any public funding?
17 CHAIRMAN DOUGLASS: No. You're limited, if you agree
18 to the cap, to raise and spend up to that amount, whatever
19 the cap may be. That's set by law now. Forget the
20 amount. What is it? Does anybody know?
21 (Off-the-record comment.)
22 CHAIRMAN DOUGLASS: 5.5 million. If I elect in
23 running for governor to agree not to spend or raise more
24 than 5.5 million, then I'm under the public financing law.
25 If my opponent says, I'm not going to be held to that
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1 5.5 million, I can raise 50 million, then it does kick in
2 and the person who agreed to stay under the cap is
3 protected by leveling the field when they go above the
4 cap.
5 COMMISSIONER EVANS-JONES: They get the additional
6 money from the public funds, correct?
7 CHAIRMAN DOUGLASS: I'm going to let Commissioner
8 Connor answer that when he gets up. I'm not sure I know
9 the exact answer is the reason I'm not answering.
10 COMMISSIONER EVANS-JONES: And let me ask you another
11 question then. This now would apply to state senators and
12 state representatives?
13 CHAIRMAN DOUGLASS: No.
14 COMMISSIONER EVANS-JONES: What am I reading?
15 CHAIRMAN DOUGLASS: We had to sort of revise that in
16 our committee substitute.
17 COMMISSIONER EVANS-JONES: Oh, okay.
18 CHAIRMAN DOUGLASS: It only applies to candidates for
19 statewide office.
20 COMMISSIONER EVANS-JONES: I was confused by --
21 CHAIRMAN DOUGLASS: I really would like to have done
22 it, but as a practical matter, I don't think that
23 extensive of public financing would be practical. I
24 think -- however, I would urge the Legislature to enact,
25 which they could after this is done, something that would
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1 apply to other elections. But I think we can leave that
2 to them. And a lot of this is left to them, too.
3 Commissioner Brochin, you had a question.
4 COMMISSIONER JENNINGS: The Chair will recognize the
5 Commissioners.
6 CHAIRMAN DOUGLASS: We're changing our procedure
7 again.
8 (Laughter.)
9 COMMISSIONER JENNINGS: We're timing you, too.
10 Commissioner Brochin.
11 COMMISSIONER BROCHIN: I've been told not to speak
12 until the Chair recognizes me.
13 Commissioner Douglass, can you articulate -- as I
14 understand your explanation, you are explaining to us what
15 is the current law in Florida now for public financing.
16 I'd like to hear why we need to place this in the
17 Constitution.
18 CHAIRMAN DOUGLASS: For two reasons; to ensure that
19 it continues is the main reason, number one. So that it
20 cannot be removed by legislative act alone. And that's
21 the major reason. There's great danger of this occurring,
22 not necessarily with those we have now, but at some later
23 time it could well be that there would be the ability to
24 emasculate this or repeal it altogether by someone that
25 had millions and millions of dollars being in control.
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1 If it's in the Constitution, the only way it could be
2 changed would be by a vote of the people and that would
3 be, I think, very difficult to obtain. And it would be
4 not very cost effective if you had to spend $50 million in
5 order to be able to spend $50 million.
6 So I think basically the reason it needs to be in the
7 Constitution is to ensure its permanency, number one, and
8 to ensure that the minimum requirements are as they are
9 today.
10 COMMISSIONER JENNINGS: Commissioner Langley, further
11 questions?
12 COMMISSIONER LANGLEY: Yes, if I may ask Commissioner
13 Douglass. Wasn't this public financing a creature of the
14 Legislature to start with?
15 CHAIRMAN DOUGLASS: Certainly was.
16 COMMISSIONER LANGLEY: And it wasn't an initiative,
17 it was a creation of the Legislature --
18 CHAIRMAN DOUGLASS: Absolutely --
19 COMMISSIONER LANGLEY: -- to the people.
20 CHAIRMAN DOUGLASS: -- the initiative would already
21 be in the Constitution.
22 COMMISSIONER LANGLEY: And in 1996, the Legislature
23 could have re-funded it. They could have funded it again.
24 CHAIRMAN DOUGLASS: It is funded.
25 COMMISSIONER LANGLEY: The trust fund?
163
1 CHAIRMAN DOUGLASS: The trust fund isn't, but the
2 election law is funded, the court so held. I realize some
3 people may want to argue that but --
4 COMMISSIONER LANGLEY: It's on appeal.
5 CHAIRMAN DOUGLASS: -- well, it may be on appeal, but
6 it's pretty open and shut.
7 COMMISSIONER LANGLEY: That's not the point,
8 Commissioner Douglass. The point of trying to raise this
9 is the Legislature created it and the Legislature could
10 have continued to breathe life in it if they, being the
11 people most responsible to the citizens of this state,
12 thought that was the right thing to do; is that not right?
13 CHAIRMAN DOUGLASS: Commissioner Langley, I'll answer
14 you by saying, one, they didn't think it was the right
15 thing to do because they did not repeal the public
16 financing law. The allowing to sunset of the trust fund
17 does not repeal the law. The law itself is a continuing
18 appropriation which the court has held in many cases and
19 already held in this case, and we will probably have that
20 as the result.
21 COMMISSIONER LANGLEY: That issue that you just
22 argued is on appeal right now, understand.
23 CHAIRMAN DOUGLASS: I didn't argue it. I just stated
24 that's where it was.
25 COMMISSIONER LANGLEY: Okay, well, anyway. That
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1 issue is on appeal right now. What I wonder is aren't we
2 really trespassing into the Legislature's grounds again?
3 It's there for them to consider, they created it, they
4 could cure it. And, by the way, even if this were to
5 pass, it's not going to be effective for the 1998
6 elections, right? It would not be effective --
7 CHAIRMAN DOUGLASS: It wouldn't have to be because
8 the law currently is effective. And it is effective for
9 the '98 elections and it will continue to be.
10 And I'm answering your question, I'm not up here to
11 argue with you, but I will if you choose. But what I'm
12 saying is that the only way that we can ensure to the
13 public and the public can be ensured that there will be
14 public financing to have a level playing field is to put
15 this into the Constitution because, you know, people like
16 to think of these things in terms of the moment, not in
17 terms of the permanent. And when we put it in there, it
18 becomes something that will stay in there, in all
19 probability, because the people want it.
20 And they don't have to adopt it if they don't want
21 it. We have had that argument many times. But I think
22 what we're trying to do is to prevent any political party,
23 whether it be Democrat or Republican, to happen to get
24 control of everything, like the Democrats used to have it,
25 and turn around and make it possible and probable for
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1 large money to control our statewide elections.
2 Now, I am not saying that either party would do that
3 that's now in existence, the way it's controlled. And no
4 candidate here do I wish to even involve in the
5 discussion. But I'm telling you that it's much safer in
6 this area. And I think the public does not trust the
7 Legislature enough to continue -- well if they do, then
8 they can respond to your argument and vote this down.
9 COMMISSIONER LANGLEY: So your answer to my question
10 about whether or not the Legislature could have re-funded
11 it is yes?
12 CHAIRMAN DOUGLASS: My answer to your question is the
13 Legislature did re-fund it.
14 COMMISSIONER LANGLEY: Well in fact, they didn't fund
15 the trust fund.
16 CHAIRMAN DOUGLASS: The trust fund is no longer in
17 existence.
18 COMMISSIONER LANGLEY: That's right, it expired.
19 CHAIRMAN DOUGLASS: They could not re-fund the trust
20 fund because it sunsetted under the Constitution. The
21 Legislature did not sunset it, it was done by the
22 Constitution.
23 COMMISSIONER LANGLEY: And that reads, unless it is
24 reenacted.
25 CHAIRMAN DOUGLASS: It could have been reenacted,
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1 certainly.
2 COMMISSIONER LANGLEY: Thank you.
3 COMMISSIONER JENNINGS: For edification of the group,
4 the Legislature did not reenact it.
5 CHAIRMAN DOUGLASS: That's exactly right, and it
6 sunsetted, under the Constitution.
7 COMMISSIONER JENNINGS: Under the constitutional
8 provision that makes us reenact all trust funds on a
9 periodic basis.
10 CHAIRMAN DOUGLASS: Right. And that is a sunset,
11 right? I mean, what we call a sunset anyway.
12 COMMISSIONER JENNINGS: Commissioner Connor, are you
13 ready at this point to speak? I know perhaps you are
14 going to include this in your talk, but since you and
15 Commissioner Crenshaw have actively participated in this,
16 maybe for the body if you weren't going to you could sort
17 of explain how it works. That would probably help us all.
18 COMMISSIONER CONNOR: Thank you, Madam Chair.
19 Mr. Brochin, if may respond directly to your
20 question, Why should this be in the Constitution? Article
21 I, Section 1, of the section reads as follows: "All
22 political power is inherent in the people."
23 The purpose, ladies and gentlemen, of this proposal
24 is to restore public confidence in the electoral process.
25 The people feel, and I believe in many respects they are
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1 justified, in believing that the government and the
2 political power no longer reposes in the people, but
3 rather reposes in the special interests.
4 The political reality of the day, very frankly,
5 ladies and gentlemen, is that special interests typically
6 invest in political campaigns as a cost of doing business,
7 looking for a return on their investment, if they ride the
8 right horse. And all too often that return comes from the
9 public treasury. Now that's the reality of life. We see
10 that occur on a regular basis in the state of Florida.
11 Now you can look a lot of the so-called special
12 interest representatives in the eye and they will look at
13 you with a straight face and say, Look, all we're buying
14 is access, we're not buying influence. Ladies and
15 gentlemen, I ask you, since when should we in Florida have
16 to pay to access our public officials? On the face of it,
17 I would suggest to you that that bespeaks a very
18 significant problem. Does that mean if you don't pay for
19 access you don't get it?
20 I will guarantee you there are lots of folks who
21 don't contribute to political campaigns who would say, the
22 answer to that question is yes. We don't have access, but
23 the big ticket check writers do. And the purpose here is
24 to help restore public confidence in the electoral process
25 and to ensure that political power remains and really is
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1 inherent in the people.
2 And this is a vehicle in the Constitution to insure
3 that Article I, Section 1, is more than mere boilerplate.
4 And so I view it as an important part of this
5 Constitution. We are in danger because of this
6 I'm-only-buying-access-not-influence, I would submit to
7 you, of turning state government into a banana republic.
8 I can't tell you how many times I have seen citizen
9 lobbyists up for Dade Day or Broward Day or up for one
10 group or another who have their particular day in the
11 Legislature. They come up in blue jeans and T-shirts,
12 have "Broward" written on the shirt, have on a straw hat
13 and they are pumped up and looking forward to
14 participating in the process.
15 They push that button, they get off on the fourth
16 floor, they see that hoard of lobbyists in three-piece
17 suits and spiked heels and whatnot, they look out on that
18 group, their eyes pop out, they are totally intimidated
19 and they say, We can't play in this ball game, no way, no
20 way.
21 Now I'm going to tell you, that happens every day in
22 state government at every level of state government. And
23 if you think to the contrary, you are just being naive and
24 you are not willing to confront the reality of the way
25 this system is working. The effect of that has been an
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1 increasing erosion of public confidence in the electoral
2 process.
3 Let me tell you three ways in which that's reflected.
4 One, it's reflected in turnout rate. People don't believe
5 they can make a difference. So what, I can't make any
6 difference. Number two, it's reflected in the increasing
7 number of petition initiatives that are being filed in the
8 state. They think state government is being unresponsive
9 to the need and the will of the people and so they say,
10 Golly, we're just going to have to claim the fruits of
11 Article I, Section 1, political powers are inherent in the
12 people, and we're going to have to do an end run.
13 And where has the impetus come from to raise the bar,
14 to raise the threshold from citizen initiatives to make it
15 a supermajority, not a majority requirement? Special
16 interests. Why, the only thing the Florida Bar and
17 Florida Academy of Trial Lawyers and the Florida Medical
18 Association have been able to get together on is, oh, my
19 goodness, let's not really give life to all political
20 power is inherent in the people because our picnic may
21 soon be over.
22 Why did the Libertarian Party have come to this body
23 to say, Please, please level the playing field, let's
24 provide for ballot access? Because they couldn't make a
25 dent. I mean, when was the last time you read about some
170
1 big time Libertarian PAC giving money to anybody? Hey,
2 I'm telling you, this is the reality of life as we know
3 it.
4 Term limits; why did the voters cry for term -- why
5 did they affirm Eight Is Enough overwhelmingly? Because
6 they are looking for people who will represent the
7 people's interest and they are tired of the inordinate and
8 disproportionate influence of the special interests in
9 government. Let's give life to the meaning of the words
10 "all political power is inherent in the people" and not
11 treat it as mere empty and vacuous words.
12 Now not many folks heard about my candidacy for
13 governor in 1994.
14 (Laughter.)
15 And -- but I will tell you this: I could not have
16 launched a campaign, I could not have maintained a
17 campaign, I couldn't have participated in a campaign
18 without the benefit of public financing. And in the
19 beginning, I was the only Republican candidate who
20 affirmed that he was going to participate in public
21 financing.
22 And I was running against some very well-qualified
23 and very well-respected folks, three of whom decided that
24 that wasn't such a bad idea after all, even though the
25 chairman of our party decried public financing. At first
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1 I thought I was in it by myself. But, you know, people
2 follow my leadership and they decided, you know, we
3 probably ought to participate in this thing.
4 And, ladies and gentlemen, I wasn't under any
5 illusion about my starting position in the gate. But I
6 will tell you that I had a relationship with a grassroots
7 movement of people all over who felt disenfranchised and
8 unresponded to by government. And having the opportunity
9 to participate in this way with public financing made that
10 candidacy possible.
11 And I can tell you from that experience in terms of
12 the cost to me in business and personally that unless you
13 are well-financed by special interests or unless you have
14 great wealth, you can forget about running successfully
15 for statewide office without the benefit of this kind of
16 problem, unless you're already an incumbent with
17 well-established name recognition and already in
18 government.
19 Now, even after doing that, I wound up having to file
20 suit in order to compel the secretary of state's office to
21 release the funds that I was entitled to under the law.
22 And then again after winning that suit in the court -- I'm
23 a firm believer there is a place for courts, popular
24 opinions to the contrary notwithstanding.
25 (Laughter.)
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1 And my colleagues in the race patted me on the back
2 and congratulated me for my leadership in preserving the
3 access to the public funds that had been passed by the
4 Legislature.
5 Ladies and gentlemen, I never found any difficulty in
6 Republican arenas where I was campaigning and explaining
7 my position on public financing. I took the position very
8 simply. I said, Folks, when it comes to accepting public
9 funding to promote the public interest as opposed to
10 taking special interest money to promote the interest,
11 I'll support the public interest every day. And there
12 wasn't a problem with that, I'll just tell you.
13 You may think this is a partisan issue; it is not a
14 bipartisan issue. That's why I'm proud to join Chairman
15 Douglass in sponsoring this proposal because this is good
16 for the people of Florida, this helps ensure that
17 political power remains inherent in the people, and it's
18 designed to ensure that government is responsive to all of
19 the people, not just a privileged few who have the
20 financial capacity to bankroll campaigns. Thank you.
21 COMMISSIONER JENNINGS: Thank you. Commissioner
22 Barkdull, for what purpose?
23 COMMISSIONER BARKDULL: To ask a question of
24 Commissioner Connor.
25 COMMISSIONER JENNINGS: You're recognized.
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1 COMMISSIONER BARKDULL: Commissioner Connor, I
2 noticed in the last sentence of Section 7 that you
3 proposed, it says, the Legislature shall provide
4 sufficient funding for this provision. Do you follow
5 where I am?
6 COMMISSIONER CONNOR: Yes, sir.
7 COMMISSIONER BARKDULL: How would that be enforced if
8 the Legislature determined not to do that?
9 COMMISSIONER CONNOR: Usually enforcement comes about
10 through filing suit and resorting to judicial review.
11 COMMISSIONER BARKDULL: Well, I ask this question, I
12 plan to support this proposal, but if this language means
13 what you just said, and I hope it does, this may help
14 Commissioner Mills and his select committee on how to get
15 the money for Article V.
16 COMMISSIONER CONNOR: You know that I am a firm
17 believer in keeping issues separate so we can go up or
18 down on the merits of the narrow issue before us and not
19 clouding or burdening one issue with another.
20 COMMISSIONER BARKDULL: But I would think the same
21 language in several places in the Constitution would
22 certainly get the same construction.
23 COMMISSIONER CONNOR: You ought to advocate that in
24 your committee.
25 COMMISSIONER JENNINGS: Commissioner Langley.
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1 COMMISSIONER LANGLEY: Question of Commissioner
2 Connor or Commissioner Douglass. I'm a little bit
3 confused. If you were the candidate who had elected to
4 receive public funds and the other candidate, incumbent
5 perhaps, chose not to because he had great money-raising
6 capacity, and you had done your limits and he went to
7 $15 million, where does that other $10 million come from?
8 COMMISSIONER CONNOR: That's a good question. And
9 the way it worked is that it came from the public
10 treasury. Here is the way it worked --
11 COMMISSIONER LANGLEY: So there is no limit.
12 COMMISSIONER CONNOR: -- as I understand it, and I'm
13 subject to being corrected. The way it worked was this --
14 and I would have changed the order, Commissioner
15 Evans-Jones, from the way in which Chairman Douglass
16 mentioned it. Rather than saying if you accept the cap
17 you can get the public financing, the way I perceived it
18 was if you agree to accept public financing, then you also
19 agree to a spending limit.
20 The purpose, again, here has been to level the
21 playing field and if your opponent -- and then your
22 opponent has the opportunity to limit his or her spending
23 as well. In other words, if the limit were $5.5 million
24 and your opponent said, I'm going to limit my campaign to
25 $5.5 million, then you are both under that limit.
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1 But if your opponent had a huge war chest capacity
2 and could raise however many millions of dollars he or she
3 could raise, then the effect of that was that the spending
4 limits were off and that you could continue to receive
5 public funding up to the level of what was spent. That's
6 my understanding of it.
7 Now, so in response to Commissioner Corr but
8 amplifying on his question, is that a good use of public
9 funds? I would submit to you that it is for this reason:
10 That through the public financing and empowerment it gives
11 to ordinary people, and the ability to enable them to
12 respond to ordinary people, I dare say that when we come
13 down to the budgetary priorities and the spending patterns
14 of the state, that you're going to see a change in the way
15 we spend our money in this state.
16 Why, you know, you might see more money spent on
17 education. You might see more money spent on health care.
18 You might see more money spent in areas where there are
19 not the same kinds of constituents as you see married up
20 to a lot of money. Children may occupy a more prominent
21 role in the state budget. There are just a lot of good
22 things I would submit to you that may happen and are
23 likely to happen when and if political power really is
24 found to be inherent with the people.
25 So you can look at this in one very narrow sense as a
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1 trade-off. You'll say, Well, if we spend $9 million over
2 here on elections, there will be $9 million taken away
3 from some other -- on the face of it that sounds good, as
4 if it was a zero sum gain. But I would submit to you, the
5 reality of it will be you'll see a reallocation of the way
6 in which public officials spend the people's money in
7 order to accomplish the priorities that are deemed to be
8 important to the people.
9 COMMISSIONER JENNINGS: Further questions?
10 Commissioner Morsani.
11 COMMISSIONER MORSANI: I would like to ask the two
12 presenters, everyone has made a rather major point out of
13 all political power is inherent in the people. Then could
14 we assume that you would modify your proposal to state
15 that there would be no PAC money received by any of these
16 candidates?
17 COMMISSIONER CONNOR: I will respond directly to
18 that. Commissioner Morsani, in the campaign --
19 COMMISSIONER MORSANI: I'm reading the first line.
20 Read me the first line, please.
21 COMMISSIONER CONNOR: In the campaign I was involved
22 in, I was the only candidate who took public funds that
23 said, because I'm taking public funds, I'm not going to
24 take money from PACs or lobbyists, either one. That was a
25 voluntary-imposed limit, I wasn't required to do that.
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1 Some who took public money also took money from lobbyists
2 and PACs.
3 Now, I would suggest this: There may well be federal
4 constitutional problems that arise from providing that in
5 the state Constitution because the United States Supreme
6 Court has in effect said that you can't prevent people
7 from giving money because that's a form of expression.
8 But, but, people can agree not to take money from PACs or
9 lobbyists or whomever.
10 And I dare say that the Legislature, as part of its
11 implementing legislation for these proposals, could say
12 that those who elect to participate in the public campaign
13 financing as a condition precedent to enjoying the
14 benefits of that money must be willing to forbear to take
15 this other money.
16 So I think that is very -- I would encourage the
17 Legislature -- Madam Chairman, I would encourage you
18 today, as it relates to public campaign financing, to
19 affirm and adopt that kind of requirement. So I think
20 that can be done legislatively. I don't think you can
21 necessarily put that into the state Constitution. Sort of
22 like a contract, if you will. I think people can
23 voluntarily agree to do it.
24 COMMISSIONER MORSANI: The reason I asked the
25 question, if you're going to create this vehicle, I
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1 actually endorse it. But, I -- going back for just a
2 moment. I was an advocate who tried hard not to get PACs
3 in this country and the federal government in 1970,
4 whatever year we finally got that accomplished, if they
5 had refused to allow -- to take PACs away from labor
6 unions and otherwise, we wouldn't have PACs today.
7 And I think they have eroded our system both on a
8 state and national scene. But you gentlemen and ladies
9 who are of the legal profession here, you don't think that
10 this -- if you are going to ask for this, which I would
11 endorse, but are we out of line by saying you can't limit,
12 you can't do away with PACs under the same provision?
13 Which comes first, the chicken or the egg?
14 COMMISSIONER CONNOR: You can't do away with PACs in
15 the state Constitution as I perceive the existing
16 constitutional landscape. But what you can do,
17 Commissioner Morsani, in an effort to re-empower the
18 people, is say, Now, if you want to participate in this
19 program it comes with certain strings. Hey, you don't
20 have to participate in this program, but if you do and if
21 you take the money as a condition thereof, then you're
22 going to have to limit your contributions because we're
23 trying to accomplish this particular purpose.
24 COMMISSIONER MORSANI: But the Legislature can, the
25 Legislature can take that action.
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1 COMMISSIONER CONNOR: In my estimation it can.
2 COMMMISSIONER JENNINGS: Commissioner Morsani, just
3 as an aside, we actually did debate this last year in the
4 Legislature, at least in the Senate, the issue of campaign
5 contributions from Political Action Committees and from
6 natural persons only and from organizations in our fairly
7 comprehensive statutory change to the election laws. And
8 at that point we did not find that we had a potential for
9 a problem, statutorily.
10 COMMISSIONER MORSANI: Didn't have potential?
11 COMMISSIONER JENNINGS: Did not. We didn't pass it,
12 but it was offered as an amendment and discussed.
13 Commissioner Barkdull.
14 COMMISSIONER BARKDULL: Would Commissioner Connor
15 rise and walk me through the way this works? As I
16 understand what you have said, there is a cap of
17 $5.5 million in a gubernatorial race --
18 COMMISSIONER CONNOR: Yes, sir.
19 COMMISSIONER BARKDULL: -- public financing. If you
20 agree to take public financing and your opponent doesn't,
21 we will just assume you have got one opponent for the
22 moment, as I understand it, the candidate that agrees to
23 take public financing would have to raise $2.75 million
24 that would be matched by 2.75 million to get the
25 5.5 million.
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1 COMMISSIONER CONNOR: I can't tell you that it is a
2 one-to-one match; there is a ratio of match. In other
3 words, you do have to -- for every private dollar that's
4 given, there is -- under the current law, after you raise
5 a certain threshold of money, thereafter a match takes
6 place on a proportional basis, on a one-to-one basis. So
7 it doesn't work out to be one-to-one from first dollar.
8 COMMISSIONER BARKDULL: But it is some kind of a
9 match.
10 COMMISSIONER CONNOR: Yes, sir.
11 COMMISSIONER BARKDULL: Now you reach the cap of
12 5.5 million.
13 COMMISSIONER CONNOR: Yes, sir.
14 COMMISSIONER BARKDULL: Your opponent doesn't go but
15 5 or 5.3 million or 5.5, and everything stays level.
16 COMMISSIONER CONNOR: Yes, sir.
17 COMMISSIONER BARKDULL: Now your opponent goes to
18 20 million, let's make it 20,500,000 so we are only
19 talking about an additional --
20 COMMISSIONER CONNOR: You can continue to get the
21 match.
22 COMMISSIONER BARKDULL: It is a match?
23 COMMISSIONER CONNOR: Yes, sir.
24 COMMISSIONER BARKDULL: So the candidate that agreed
25 to accept public financing has to raise some funds --
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1 COMMISSIONER CONNOR: Oh, yes, sir.
2 COMMISSIONER BARKDULL: -- to continue the match.
3 COMMISSIONER CONNOR: Yes, sir. And one of the
4 reasons for the threshold requirement, as I perceive it,
5 is that the candidate has to demonstrate that they have
6 got some --
7 COMMISSIONER BARKDULL: Some viability.
8 COMMISSIONER CONNOR: -- out in the arena.
9 COMMISSIONER BARKDULL: Now carrying that just a step
10 further, and I think this goes into what Commissioner
11 Langley was headed for, let's suppose you have got
12 somebody that's well-heeled, and under the Supreme Court
13 of the United States cases they have got a right to spend
14 their own money.
15 COMMISSIONER CONNOR: Yes, sir.
16 COMMISSIONER BARKDULL: And they say, Well, I'm going
17 to spend 50 million, now we are way above the cap. But if
18 the candidate that's agreed to take public financing can
19 continue to raise funds, he gets a match --
20 COMMISSIONER CONNOR: Yes, sir.
21 COMMISSIONER BARKDULL: -- up to that limit. And he
22 will have to raise probably one-for-one almost above that.
23 COMMISSIONER CONNOR: Sure, and we could take it to
24 150 million. I mean, we can take it up to however high
25 one wants to take it, hypothetically, but of course there
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1 are some realities that take place that --
2 COMMISSIONER BARKDULL: But the point is that what
3 the cap is is an economic cap by how much the opponent
4 that doesn't take the public financing is willing to
5 raise, or can raise.
6 COMMISSIONER CONNOR: The cap is lifted if your
7 opponent does not agree to limit their spending.
8 Now one of the advantages of that is that public
9 pressure can be brought to bear in the political arena.
10 Say, look, let's stay within the spending limit. If the
11 public is concerned that the public money that be spent in
12 a campaign and involves more than the cap, they can call
13 on the other side not to spend their money inordinately.
14 Now, frankly, one of the benefits of the cap on spending,
15 I think, is it promotes an efficient use of funds in a
16 campaign, number one.
17 Number two, in a campaign when you talk about
18 promoting the efficient use of funds then it promotes the
19 maximum contact with the people. Why? Because you are
20 trying to get the votes. So I think spending limits, you
21 know, which is part of a public financing campaign that
22 has a spending cap, benefits people in a lot of different
23 ways.
24 Because I'll tell you, what the people want is
25 contact with these folks on the stump, they want to have
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1 access to them, they want to be able to talk. If you can
2 just buy all the TV time that you can get, you know, you
3 don't ever have to have any real contact with the people.
4 And so I think this is a good proposal and welcome
5 any improvements to it.
6 COMMISSIONER BARKDULL: Would you believe me, sir,
7 that I would expect that you found out that a political
8 campaign was about the most inefficient organization you
9 ever got associated with?
10 COMMISSIONER CONNOR: Yes, sir.
11 COMMMISSIONER JENNINGS: Commissioner Brochin.
12 COMMISSIONER BROCHIN: I'd like to add a little
13 clarity because I'm not sure it is exactly right. The cap
14 is 5.5 million today because it has been adjusted for an
15 inflation of 5 million from the 1994 campaign.
16 COMMMISSIONER JENNINGS: And will continue.
17 COMMISSIONER BROCHIN: And will continue. The
18 statute allows increases for each campaign so it goes up.
19 It is a one-for-one dollar match. Once the 5.5 is
20 exceeded, the participating candidate need not raise any
21 other dollar, it is one-for-one. However -- matching the
22 nonparticipating candidate's expenditure.
23 So, for example, if the nonparticipating candidate
24 spends $7.5 million, the public fund would fund the
25 difference between 7.5 and 5.5, or $2 million,
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1 straightforward, without the participating candidate
2 raising any funds.
3 However, there is a cap that it is not to exceed
4 twice the amount of the cap for $11 million. So if the
5 cap is at 5.5, that one-for-one dollar participation match
6 goes up, up to $11 million. So if that nonparticipating
7 candidate spent $15 million, the participating candidate
8 would not get a match beyond $11 million. However, that's
9 just the statutory provision. That's what the statutory
10 scheme provides for.
11 And also, Commissioner Morsani, in part of the PAC,
12 the public financing money that people participate in,
13 does exclude PAC money to this extent: Funds that are
14 matched for public dollars are only matched if an
15 individual contributes to the campaign and it only matches
16 up to $250 of that. So if a PAC gives money to the
17 participating candidate, the participating candidate
18 doesn't get a dollar match from the PAC contribution or
19 the corporate contribution or labor organization.
20 The participating candidate only gets a dollar match
21 if he went out or she went out and got a dollar from an
22 individual, and only up to $250. Indeed, federal law
23 prohibits corporate contributions and contributions from
24 labor organizations and contributions from trade
25 associations. And last time I looked, I think there is a
185
1 proposal out there that would so limit those contributions
2 on the state level as well.
3 COMMMISSIONER JENNINGS: Commissioner Corr, and isn't
4 that proposal yours? Do you have a proposal to limit --
5 COMMISSIONER CORR: There were a few of them
6 actually, that's right. And I'll try to be brief because
7 I know we are needing to move along. But, Commissioner
8 Connor, also pardon my frustration because this is
9 something that I've been very concerned about. I think
10 Commissioner Morsani touched on something very insightful.
11 I brought proposals to the floor here that restrict
12 contributions from anybody that could not vote for the
13 candidate, and there were a lot of red lights when that
14 came up. I brought another proposal that said only
15 contributions could be made by natural persons, and the
16 lights were red when that one came up. Another proposal
17 eliminated PACs, and the lights were very red when that
18 came up.
19 There was another one that actually had a lot of red
20 lights and laughter because after all those failed I said,
21 Well, the only thing we can do I guess is make sure the
22 disclosure is as apparent to the voters as possible. We
23 said, Let's just make all the contributions disclosed
24 right on the ballot and that was I think laughed at quite
25 a bit and it moved on.
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1 But I am feeling some frustration here that in
2 working with Common Cause and working with the Women's
3 League of Voters and others that have concerns here that
4 there seems to be no way, no way to fix this, no way to
5 fix the problem of special interests, et cetera, that are
6 controlling our elections. I agree with the Eight Is
7 Enough example. That's the reason we have Eight Is Enough
8 today. It is the only solution that the voters could go
9 for.
10 But I think what we are hearing with this public
11 financing solution is not really answering all those
12 questions. What could happen, as Mr. Morsani pointed out,
13 is now we had a candidate that's receiving, quote, the
14 dirty money, the money from the PACs and lobbyists and
15 whoever else, and they're receiving money from taxpayers.
16 And the point you made, Commissioner Connor, about
17 getting better, more grassroots-focussed individuals
18 elected to office as a result of that, I'd love to believe
19 that. But I think what's happening is basically what you
20 are getting is not only someone who is agreeing to take
21 any money from anybody that could give it to them, but
22 they are also being the opportunist and taking the public
23 financing as well.
24 And so what we are having is somebody who finds their
25 way into office, and then I bet four years later they are
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1 going to be having a campaign account that's filled with
2 the word PAC after it.
3 The first time you run for office against an
4 incumbent, you hate PACs and you go to every campaign
5 meeting and you go to every public meeting and you talk
6 about how they are the scourge of the earth. Then when
7 you finally get elected, if you do by accident, if you are
8 one of the small percentage of people that knocks off one
9 of those incumbents, all of a sudden you kind of forget
10 that. And then they keep you in office from there on out.
11 So I'm not sure that I buy that.
12 I think Commissioner Morsani brought up a good
13 opportunity. What you are trying to do with this proposal
14 is encourage better behavior in the election. So why
15 don't we also encourage those candidates to not accept
16 that money from the Political Action Committee, the
17 lobbyist, whoever else it would be? Maybe we could look
18 at an amendment that would encourage them to do that as
19 well.
20 COMMISSIONER CONNOR: May I respond?
21 COMMMISSIONER JENNINGS: Please.
22 COMMISSIONER CONNOR: And I would earnestly seek the
23 advice of my colleague, the Chairman. I make this
24 observation, if I correctly understood Commissioner
25 Morsani's point, it was oriented to whether or not we
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1 could do away with PACs, we can't. Now I believe that we
2 can fairly establish a regime for public financing that
3 provides, if it is the will of the body and the will of
4 the people, that if you take public monies that you would
5 have to agree to forbear to take other monies.
6 I think you might, I think you conceivably could do
7 that in the state Constitution and pass constitutional
8 muster, federal constitutional muster. I'm not sure it is
9 the most prudent way to go, frankly, because I'm not sure
10 that the implementation of the public financing law is not
11 best left to the Legislature.
12 What the Chairman's proposal provides here is that
13 absent the Legislature taking another tack, the existing
14 legislative framework will apply. But as a matter of
15 public policy, I think it is meritorious to say if you
16 take public money to promote the public interest, then we
17 are going to ask you to agree to limit the contributions
18 from other interests. That may -- if it is the sense of
19 the body that that needed to be included, I would be open
20 to it; I'm not sure where my colleague stands.
21 But, frankly, I think from a prudent standpoint, we
22 have a better chance of passing this proposal, I think, by
23 leaving those kinds of details to the Legislature.
24 COMMMISSIONER JENNINGS: Commissioner Barkdull.
25 COMMISSIONER BARKDULL: I'd like to interrupt the
189
1 proceeding just to make an announcement. Many of you
2 asked about tomorrow. We polled the floor, 27 people have
3 said they would be here. We will have a calendar, we will
4 meet tomorrow, we will adjourn by 1:00.
5 COMMMISSIONER JENNINGS: Thank you for that.
6 Commissioner Corr.
7 COMMISSIONER CORR: I want to respond to Commissioner
8 Connor. I would just kind of echo that and say I'd like
9 to see if we can take a few minutes and look at that as an
10 amendment because I think your language here, right here,
11 as bold as it could possibly be that says what we are
12 trying to do in the Constitution is take out the
13 disproportionate influence of special interests. Well, if
14 that's what we are trying to do, we ought to at least try
15 and encourage, that encouragement in the Constitution
16 along with this.
17 I understand how it can be done by the Legislature,
18 this whole thing can be done by the Legislature. So --
19 and I'd like to see if we can take a minute and work
20 something out on that.
21 COMMMISSIONER JENNINGS: Commissioner Douglass.
22 CHAIRMAN DOUGLASS: I don't think that we should do
23 that with this proposal. I think there is a proposal
24 that's going to come before the body that deals with the
25 subject you are concerned with.
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1 I do think, if I'm correct, and Commissioner Brochin
2 probably knows more about this law than any of us, that
3 you are still limited insofar as your public financing
4 participation to $250 for matching money, no matter
5 whether it comes from PACs or individuals or others; is
6 that correct?
7 COMMISSIONER BROCHIN: No, I think to match it has to
8 be $250 from an individual.
9 CHAIRMAN DOUGLASS: So the PACs do not trigger any,
10 except what they give to your opponent if he doesn't elect
11 to stay within the cap.
12 COMMISSIONER BROCHIN: They don't trigger matching
13 funds.
14 CHAIRMAN DOUGLASS: Correct.
15 COMMISSIONER BROCHIN: You can still receive PAC
16 money under the $5.5 million cap. Cap is one thing,
17 that's how much you can spend. The other issue is how
18 much is going to be publicly financed. And it can only be
19 financed up to the amount the individual gives, which
20 means it encourages individuals to give and not PACs.
21 CHAIRMAN DOUGLASS: And what happens is if I raise
22 5.5 million and I have elected to go under public
23 financing, no matter where I have raised it I can't spend
24 over that if I have elected to go under public financing.
25 COMMISSIONER BROCHIN: Right.
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1 CHAIRMAN DOUGLASS: So it would be a deterrent to
2 that. And I think -- we all agree that this is a problem
3 in our government. We also all agree that to put this in
4 the Constitution, I think those that have dealt with it,
5 to try to couple it with this type of proposal would not
6 be appropriate because we would be raising a
7 constitutional question on the whole statute that might
8 now exist even, and also certainly a constitutional
9 question on this proposal, federal constitutional
10 question.
11 And I think if we are really serious about starting
12 this program in this fashion, to try to get clean
13 elections, that we should adopt this proposal and move
14 forward in the other areas. You can only do so much at
15 one time and this is what we all believe is the way to go,
16 including the League of Women Voters and Common Cause and
17 others.
18 COMMMISSIONER JENNINGS: Mr. Chairman, Commissioner,
19 aren't I correct that we could take up a proposal by
20 Commissioner Corr at some later date that would deal with
21 this and style and drafting could at some point put them
22 together, if in fact they both passed?
23 CHAIRMAN DOUGLASS: That is correct, we could do
24 that.
25 COMMMISSIONER JENNINGS: We already jumped over that
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1 one, I knew it was on there. Commissioner Evans-Jones.
2 COMMISSIONER EVANS-JONES: I have a question. Do you
3 think that the public has been generally better informed
4 since we have been having television debates between say
5 the gubernatorial candidates? Do you think that has been
6 helpful?
7 CHAIRMAN DOUGLASS: I'm not an expert on that at all.
8 I think the gubernatorial debates certainly do afford a
9 focal point for supporters.
10 And what really happens in a lot of these things, as
11 all of you who have been in politics know, these events
12 are as important for your supporters to get them enthused
13 and out working as it is for the actual result of the
14 debate. And I think to some extent we may put an
15 overemphasis on the debate. What it does is stir up
16 interest in the election and maybe get more people to
17 vote.
18 But if my candidate scores, then I'm going out the
19 next morning and say, Hey, my guy beat your guy and here
20 is why he did. So from that standpoint, I would have to
21 say, sure, the debates have a great function here and they
22 are generally in the control of the candidates. They
23 don't have to do it, and some of them don't.
24 COMMISSIONER EVANS-JONES: Well, further questioning,
25 I'm just trying to get straight in my own mind. I know
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1 that we can't require the television companies to sponsor
2 debates. But to me, that is impartial, the candidates who
3 are running for statewide office are given an opportunity
4 to present their views to the general public in a fair
5 manner.
6 And I would feel much more comfortable having public
7 funds designated for something like that where there would
8 be equity for all candidates. And I would be better
9 informed as a person who wants to vote.
10 CHAIRMAN DOUGLASS: I agree with what you are saying.
11 I think, however, that the overall thrust of any statewide
12 election, how well you do is tied directly to the amount
13 of money that you spend on advertising on television and
14 in hiring people that know how to shape these things to
15 spin whatever it is you are trying to sell.
16 And I think that that's true. I think the debates
17 that we are talking about, there will not be many, but
18 they will be even-focused in those ads, in many instances,
19 and are. So I think if you wanted to have the public pay
20 the television stations to run the debates, that that's a
21 matter that would be left to the Legislature.
22 We can't -- unfortunately, the press is owned by
23 large, or the media I should say, by large corporations
24 and they're concerned with the bottom line. And therefore
25 they look forward with great anticipation to get all these
194
1 funds we are talking about for advertising. And in order
2 to at least in some way return to the public some of their
3 investment, they have debates when the candidates will do
4 it.
5 But debates haven't always been anything other than
6 perhaps places where the newspeople on the TV can run
7 clips of them and keep it going. But they are fun and
8 they are good and they do illuminate differences in the
9 candidates.
10 For example, in the last election, and I don't want
11 to give too many examples but I have a very good friend in
12 Texas who is a George Bush man, raised big money and a big
13 Republican, but we are real close friends and have been.
14 And he calls and we talk a lot.
15 And he called me one night after the debate that the
16 Governor and the candidate that he opposed debated and he
17 said, I watched your man on debate and he is going to win.
18 And I said, Well, now as an old Texan, how can you tell
19 that? He said, Well, he said, I watched this and he said,
20 Your man got back all those good all Texas-type crackers
21 or enough of them that he is going to eke out the victory.
22 I know he was losing them.
23 But he said, My man didn't quite get that vote and
24 hold it and the debate is going to make a difference.
25 Well I don't know whether he was right or not. It turned
195
1 out that -- and we don't know why anybody wins an
2 election. Everybody has a claim on it, but the candidate
3 wins it or loses it. We like to say we won it or
4 so-and-so won it, but the candidate in the end, all things
5 being equal, the candidate is the one, the sacrifices he
6 makes and the position he takes.
7 But what I'm really saying is every illumination we
8 get, as long as it's fair and equal, like these debates,
9 are what we are trying to do so the public can made an
10 intelligent decision.
11 COMMISSIONER EVANS-JONES: So the Legislature, if
12 they wanted to, could put some public funds into these
13 kind of debate situations for all the candidates and maybe
14 some of us would feel more comfortable that that was money
15 well spent, fairly spent and a real education for the
16 general public.
17 CHAIRMAN DOUGLASS: They could do that, you know. I
18 don't know that, how I would stand on it if I was in the
19 Legislature, but obviously they could do that.
20 COMMMISSIONER JENNINGS: Well, Commissioner Douglass,
21 the Legislature, and Commissioner Evans-Jones will
22 remember, the Legislature does substantial funding to
23 public television, of which there are a number of stations
24 that probably cover the entire state of Florida at this
25 point with their coverage areas. It is an interesting
196
1 idea.
2 CHAIRMAN DOUGLASS: Right not at the present time the
3 state of Florida is funding the television that we are
4 receiving.
5 COMMMISSIONER JENNINGS: Through the Florida Channel,
6 absolutely.
7 CHAIRMAN DOUGLASS: That is exactly correct. So we
8 are giving the public an insight, those that are able to
9 watch the cable channels, public access and so on and the
10 public channels that carry it to what we are saying here
11 today. So that is to be commended.
12 COMMMISSIONER JENNINGS: I wonder if that comment
13 about getting those crackers back came about the time that
14 the he-coon walked at dawn.
15 CHAIRMAN DOUGLASS: Well, the he-coon did walk.
16 COMMISSIONER JENNINGS: During that debate, as I
17 recall.
18 CHAIRMAN DOUGLASS: That's right. The Governor and
19 me and a few people from North Florida knew what he was
20 talking about.
21 COMMMISSIONER JENNINGS: And some of us had not a
22 clue.
23 CHAIRMAN DOUGLASS: Right. And I'm not sure that I
24 didn't have to go back and remember it.
25 COMMMISSIONER JENNINGS: Further questions?
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1 Commissioner Corr.
2 COMMISSIONER CORR: Last time I sat down for the last
3 time, but I think Commissioner Evans-Jones brought up a
4 brilliant idea. And, again, it is not something that has
5 to be done in the Constitution, just like none of this has
6 to be done in the Constitution.
7 I just want to ask one more time, why can't we take
8 five minutes and try to improve this? Earlier on today we
9 took five minutes for a couple of proposals to try to
10 improve them. I don't understand why we can't look at
11 that for a few minutes.
12 CHAIRMAN DOUGLASS: You can look at it all you want
13 to. I think all of us that support this, at least that
14 sponsored it, believe in its present form it should be
15 passed. And, you know, that's just the way we operate.
16 We don't take a five-minute recess every time somebody is
17 against something and wants to change it. We just get the
18 amendments and act on them, I believe.
19 COMMISSIONER CORR: I'm trying to look for a way to
20 support it.
21 CHAIRMAN DOUGLASS: Well, you know, if you don't like
22 it like it is, I can't convince you that it is the best
23 thing going, nor can Commissioner Connor either.
24 COMMMISSIONER JENNINGS: Commissioner Corr, I'm sorry
25 I didn't sense that a little bit earlier because we have
198
1 probably talked a good five minutes since then. We
2 probably could have done it in the meantime, if anybody
3 would like to talk some more.
4 COMMISSIONER CORR: They ruled it out of order at
5 this point.
6 COMMISSIONER JENNINGS: Commissioner Thompson.
7 COMMISSIONER THOMPSON: He has got time to make up an
8 amendment, but I'm going to be against it if it is the way
9 he has been talking, and I'm for the measure as it now is,
10 but I'll be glad to give him some time.
11 I think the idea that Commissioner Evans-Jones is
12 raising is an excellent idea and that is if you opt into
13 this system somehow there is required that you spend some
14 of the money on some kind of a public debate. I think it
15 will take more than a few minutes to deliberate and to
16 fashion that kind of an amendment because I don't know
17 what you would do with the other people in the race that
18 didn't have anything to do with that fund, and were not
19 willing to take advantage of this opportunity. So I think
20 that's going to be a problem.
21 I think also Commissioner Morsani's point is one that
22 would muddy the water a little bit. I'm altogether in
23 favor of the measure as it is, but I don't want to say
24 that -- I don't want to say, listen, I don't want to say
25 that PAC money is dirty.
199
1 Goodness gracious, farmers get together out there and
2 they can't come to Tallahassee in the spring, by the way,
3 because they are working. And so they have to get their
4 money together and hire somebody to represent them. So I
5 don't think necessarily lobbyists are dirty either. And
6 then in order to contribute to campaigns, they may not
7 have much in their pockets and may not even know how to do
8 without being organized to some extent.
9 So I think what Commissioner Connor has said is that
10 is a different issue and ought to be taken up separately.
11 And what you are saying is why don't you amend this to
12 require that if you participate you can't take PAC money.
13 I'm against that, you are for it. I don't think we ought
14 to get it bogged down in here.
15 Let me back up just a minute as a proponent of this
16 and say that I guess back in '86 I had, as Speaker of the
17 House, I had two or three turkeys. All Speakers have
18 them. All presiding officers --
19 COMMMISSIONER JENNINGS: Those are legislative
20 issues, not two-legged birds.
21 COMMISSIONER THOMPSON: That's right.
22 COMMMISSIONER JENNINGS: Okay.
23 COMMISSIONER THOMPSON: They say that all presiding
24 officers have them in both chambers. I don't know about
25 that.
200
1 COMMMISSIONER JENNINGS: That was in the old days.
2 COMMISSIONER THOMPSON: That was in the old days,
3 before we got religion.
4 But before we got religion, Speakers and Presidents
5 were supposed to have turkeys and so everybody kept
6 telling me that. So finally I tried to pick me out a few.
7 Some of them got civic enters worked up and named after
8 them and highways and all that kind of stuff.
9 And so I decided that campaign reform would be one of
10 mine, in addition to the small business and minority
11 business administration commission. And I think the other
12 thing was a pretty huge undertaking. I think we spent
13 $80,000 over in Quincy to get a little branch campus going
14 for TCC so that some of our unwed mothers who couldn't
15 afford the transportation over here could get into college
16 and start a curriculum that would help them in life.
17 I think all of those things were pretty modest and I
18 really think this is pretty modest. I think the
19 expenditure of 9 or $10 million in a $42 billion budget is
20 relatively modest. And I for one as a taxpayer don't mind
21 some of mine being spent to get the word out and to get
22 the right kind of candidate before us.
23 And what I perceived at that time, and I was coming
24 out of elected office and never intended to try to go
25 back, but what I perceived is that especially in Florida
201
1 today, because it is so big, I mean this is a huge state.
2 You know, I live, my district was the only one in the
3 House of Representatives that bordered two neighboring
4 states. So I always kept up with some of our neighbors
5 and I realized how small they really are.
6 We talked about a unicameral Legislature and what the
7 difference was in Nebraska and this huge state that every
8 now and then just accommodates 150-, 200,000 new people in
9 sometimes a matter of a few months. I was in Colorado
10 over the holidays and they had 70-something thousand new
11 people last year. And I said, Boy, that's a big deal;
12 isn't it? They are bursting at the seams out there. We
13 get about 300,000 a year in a slack year.
14 And so what I'm saying is we have a very complex and
15 expensive state to campaign in. And the problem that
16 occurs is people who are incumbents, and not necessarily
17 incumbents for the office that they are seeking, but
18 incumbents in the Legislature have a great advantage in
19 going out there amongst the special interests and they are
20 driven to do that because of the expense of the
21 campaigning, they have to go out there and get that money.
22 It is not dirty, it is not tainted, they are
23 well-intentioned. And let me tell you something, we have
24 been lucky. We have been lucky. We are not going to be
25 as lucky as we have been indefinitely. We are going to
202
1 start having some problems because of the concerns of
2 Mr. Corr, the concerns of Ms. Evans-Jones, the concerns of
3 the Chairman, the concerns of Mr. Connor because of the
4 way money is working its way into our system.
5 The business community does not like it. Let me tell
6 you, I have been in the Legislature and I have been in the
7 business community. Nobody likes it. But if everybody is
8 doing it, you almost have to do it, if it is legal.
9 So what I decided was that we would try to fashion,
10 and this took our staff and the rest of us that were
11 involved two years to work up. And it is not perfect, as
12 Mr. Langley has pointed out and others, it is not perfect
13 at this point. I think it can get better. I think if
14 there is a constitutional mandate to do something about
15 it, it will get better.
16 But I don't think, unless we do something like this,
17 that it will. What it does is it says, Okay, you go out
18 and you become a creditable candidate. You have got to
19 raise a certain amount of money to trigger the threshold
20 so that you will start getting some of this public money,
21 but when you begin to do that, then you become a viable
22 candidate.
23 And, you know, nobody can point any more directly, no
24 matter what party you are in, you have got to respect
25 General Milligan. You have got to respect how he got
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1 there. And it was because -- we are going to get better
2 candidates, we are going to get better opportunities for
3 candidates and we are going to get real people.
4 You know, I have said this a time or two, but let me
5 emphasize it. Those of us that have served in the
6 Legislature, in the judicial branch and other places, we
7 are not trying to hog this show. We want to listen to
8 Mr. Morsani; it is very important to me to hear from
9 Ms. Riley. It is very important for me to hear from those
10 of you who haven't been so educated in state government
11 and the ways thereof as to what you think. And your
12 objectivity is very, very important to all of us.
13 And many times you'll see us kind of sitting back and
14 waiting and waiting and waiting. And on more than one
15 occasion I have seen you ask us what we think, and on more
16 than one occasion we have asked you the same thing, how do
17 you feel about this?
18 It is very important I think to get candidates that
19 don't just come from other political offices, especially
20 state political offices. That's what shakes up the
21 system, that's what makes us all think, that's what makes
22 us think in here, if you will think about it.
23 Mr. Connor made the point yesterday that we are
24 debating things that never got to the floor of either
25 house of the Legislature and how good that is. And I
204
1 think that has been good for us and it's good for the
2 state and I hope the people are paying attention.
3 And I think if we will do something like this where
4 we really set in motion, for the long haul, campaign
5 financing, requiring that candidate to carry the ball and
6 to be a creditable candidate and to have support but at
7 the same time kick in our public assistance, then the
8 public will hear real debates and they will hear issues
9 debated and talked about and discussed and positions taken
10 that we haven't seen historically.
11 And so for those reasons, I recommend this proposal
12 to you.
13 COMMMISSIONER JENNINGS: Thank you, Commissioner
14 Thompson. Commissioner Brochin, and then we do have an
15 amendment before us, or we will have.
16 COMMISSIONER BROCHIN: I'd like to speak in favor of
17 the proposal. Money in campaigns is a fact and it is
18 actually not a bad fact, it is a fact. And money is
19 necessary to run campaigns, that's what allows candidates
20 to get their messages out.
21 Another fact is that the more money a candidate
22 raises, the more likely he or she is to get elected. And
23 another fact is that when he or she gets elected,
24 immediately thereafter they have to add up and see who
25 gave them the money and pay them back somehow.
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1 What public financing does is the third prong of
2 that. It doesn't take care of the first and it doesn't
3 take care of the second, but it does begin to take care of
4 the third prong. And that means when the candidate is
5 ultimately elected and he or she looks at the monies that
6 they have received, they will look to see that a large
7 portion of those monies came from the public and
8 hopefully, and I think will be true, that candidate will
9 then be beholden to the public because they are the ones
10 that financed their campaign and put them in office.
11 It allows people to act more freely and in the
12 benefit of the interest of all the people. I look at the
13 8, 10, $12 million as an investment. Because if you spend
14 that kind of money for your candidates, when they get to
15 office, I think it will be true that they will be better
16 positioned to govern and govern more efficiently for the
17 state in the public's interest, and therefore allow
18 people -- that 10 or 11 will be recaptured ultimately when
19 they are in office.
20 Now all these intricacies and somewhat problematic
21 issues, including, Commissioner Corr, your amendment,
22 really stem from two things. And one is the First
23 Amendment to the United States Constitution, and second is
24 a case in the United States Supreme Court called Buckley
25 versus Villajo.
206
1 And what happens was when Watergate occurred there
2 was a whole rash of efforts to have public financing put
3 in place. And the United States Supreme Court put certain
4 rules and limitations upon what can be done because
5 spending money, unlimited as it may be in campaigns, is a
6 First Amendment freedom of speech and freedom of
7 association.
8 So the method that has been crafted through the long
9 and torturous statutory history is compatible with the
10 First Amendment and is compatible with Buckley versus
11 Villajo. It is not perfect and it does not eliminate
12 special interests.
13 But what it does begin to do is it begins to get
14 candidates who will be beholden to the public once they
15 are elected. And that is a very critical aspect of this.
16 And for that reason, I think it is a very good idea. The
17 only issue I struggled with is whether it belongs in the
18 Constitution and I have come to conclude that indeed it
19 does because it is too fundamental to us to allow a
20 Legislature to erode it. And currently the Legislature
21 has attempted to erode it. And it should not be.
22 And the people I think are ready to say that we will
23 spend the $10 million a year to ensure that our candidates
24 listen to us once we are elected. So I think it is a good
25 idea and I think it deserves constitutional protection.
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1 COMMMISSIONER JENNINGS: Commissioner Corr, are you
2 ready to take up your amendment?
3 COMMISSIONER CORR: Thank you, Madam Chair.
4 COMMMISSIONER JENNINGS: Madam Reading Clerk, read
5 the amendment.
6 READING CLERK: On Page 1, Line 21, insert after
7 "campaign," candidates who accept public campaign
8 financing shall forbear accepting contributions from
9 nonnatural persons, including Political Action Committees.
10 COMMMISSIONER JENNINGS: Commissioner Corr.
11 COMMISSIONER CORR: Thank you.
12 COMMMISSIONER JENNINGS: Commissioner Barkdull.
13 COMMISSIONER BARKDULL: I have an amendment to the
14 amendment on the desk.
15 COMMISSIONER JENNINGS: Do we have an amendment to
16 the amendment?
17 COMMISSIONER BARKDULL: Maybe it hasn't been printed
18 yet.
19 COMMMISSIONER JENNINGS: Commissioner Thompson
20 suggests that, Commissioner Corr, why don't you read and
21 explain your amendment so everybody knows what it will,
22 what the effect of Commissioner Barkdull's may be when he
23 offers it.
24 COMMISSIONER CORR: Thank you.
25 COMMMISSIONER JENNINGS: And we will kill time for
208
1 the copy machine.
2 COMMISSIONER CORR: Great, thank you. I think the
3 commission understands now, we have spent a lot of time on
4 this, what this amendment would do. And what I'm trying
5 to do is get at the line in the original proposal that
6 says that we as a state in our Constitution think that we
7 ought to have campaigns, and feel strongly enough about it
8 to put it in the Constitution, that without the
9 disproportionate influence of special interests; we all
10 want that.
11 So what this amendment would do is strengthen that by
12 giving another requirement for the acceptance of public
13 financing dollars, basically a criteria on those
14 candidates to forbear accepting contributions from
15 nonnatural persons or PACs. So if you agree that you want
16 the election cleaner, this amendment will do that. It
17 still provides the funding, the public funding that is
18 needed, or based on the proponents of this original
19 measure.
20 But in response to the other point on this about the
21 constitutionality of it, I'm not a lawyer, Commissioner
22 Brochin, so I'm on thin ice here, but I would say that
23 this does not come into the Buckley versus Villajo
24 decision. And, again, I'm on thin ice here, but I have
25 heard Buckley v. Villajo in the Ethics and Elections
209
1 Committee 100 times in the last few months.
2 But what this does is it asks the candidate to elect
3 not to receive contributions from PACs or nonnatural
4 persons. So it is not restricting them from receiving
5 them, it is asking them to elect to do that in order to
6 qualify for public financing. So I don't see how that
7 would fly in the face of Buckley v. Villajo or the United
8 States Constitution.
9 COMMMISSIONER JENNINGS: Commissioner Barkdull, we
10 have the amendment to the amendment on the desk.
11 COMMISSIONER BARKDULL: Yes, ma'am.
12 COMMISSIONER JENNINGS: Let's read the amendment to
13 the amendment.
14 READING CLERK: On Page 1, Line 20, delete "including
15 Political Action Committees."
16 COMMMISSIONER JENNINGS: Commissioner Barkdull.
17 COMMISSIONER BARKDULL: It speaks for itself. I
18 don't think the reference to Political Action Committees
19 should be in the Constitution.
20 COMMMISSIONER JENNINGS: So the effect of your
21 amendment would be, should it be adopted, that
22 Commissioner Corr's amendment would merely say that a
23 person who takes public financing could not accept any
24 contributions from other than a person.
25 COMMISSIONER BARKDULL: Natural person.
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1 COMMMISSIONER JENNINGS: So a live person.
2 COMMISSIONER BARKDULL: Correct, we hope.
3 COMMMISSIONER JENNINGS: We don't do that in Florida,
4 except maybe in South Florida. So consequently a
5 corporation could not give a contribution, a labor union,
6 a Political Action Committee, just you or I. Okay,
7 Commissioner Corr to speak on the amendment.
8 COMMISSIONER CORR: Clarifying question, Commissioner
9 Barkdull. Is it common opinion that PACs are not
10 nonnatural persons?
11 COMMISSIONER BARKDULL: They are certainly not
12 natural persons.
13 COMMISSIONER CORR: Because somewhere in my limited
14 memory I recall some argument that PACs are a pack of
15 nonnatural persons so therefore -- is that, I mean, I'm
16 sorry, natural persons so --
17 COMMISSIONER BARKDULL: I just think the language
18 doesn't belong in there, in the Constitution because if
19 you exclude PACs, they will come with a different kind of
20 name. And what you are attempting to do is to not have
21 contributions from persons other than natural persons.
22 COMMISSIONER CORR: Other than individuals, correct.
23 COMMMISSIONER JENNINGS: For purposes of information,
24 are committees of continuous existence considered
25 Political Action Committees?
211
1 COMMISSIONER BARKDULL: I don't know what's
2 considered a Political Action Committee. There are a lot
3 of different things that may come under that umbrella.
4 COMMISSIONER JENNINGS: Because we have a number that
5 are organized as a committee of continuous existence.
6 Commissioner Brochin, you are sort of nodding your head
7 and you seem to be our resident expert.
8 COMMISSIONER BROCHIN: I don't know about that, but
9 that's the definition in the statute is committees of --
10 COMMMISSIONER JENNINGS: Continuous existence, not
11 necessarily Political Action --
12 COMMISSIONER BROCHIN: Right, that's a subset.
13 COMMMISSIONER JENNINGS: So that was the technical
14 error? Oh, we may have another technical error. Why
15 don't you-all just talk awhile, that's what we do.
16 COMMISSIONER EVANS-JONES: Let me kill a little time
17 here. Commissioner Barkdull, have you ever known of
18 Political Action Committees who have really not used the
19 Political Action Committee money, but would go to various
20 individuals within that organization and say, You give me
21 money and you give me money and you give me money,
22 personally, and it is legal that way? But has that not
23 been done before or many times?
24 COMMISSIONER BARKDULL: Commissioner Evans-Jones, if
25 you tell me that, I would have to believe it. But I've
212
1 been in the judiciary and they are out of politics.
2 COMMISSIONER EVANS-JONES: Oh, of course. I forgot,
3 Commissioner. But I do think that there are always ways
4 to get around these kinds of things. And some people are
5 going to do it anyway, whether it is called a Political
6 Action Committee or whether they go and get these various
7 people to give individual contributions.
8 And I guess that's why I still feel more comfortable
9 spending money where all candidates could benefit, you
10 know, perhaps on television, something like that, that
11 seems a logical way for all candidates to be treated
12 fairly.
13 COMMMISSIONER JENNINGS: Commissioner Mills.
14 COMMISSIONER MILLS: Madam Chairman, again, I think
15 approving the amendment to the amendment doesn't really
16 affect Commissioner Corr's purpose very much. So at the
17 appropriate time I would like to be recognized to speak
18 against Commissioner Corr's amendment. I think --
19 COMMMISSIONER JENNINGS: Let's get us in the right
20 posture. Further discussion on the amendment to the
21 amendment? Then seeing none, do you want to try this by
22 voice vote? Commissioner Barkdull, do we allow voice
23 votes in our rules? Okay, let's try it by voice vote and
24 see if we can do this.
25 All those in favor of Commissioner Barkdull's
213
1 amendment to the amendment say aye; opposed?
2 (Verbal vote taken.)
3 COMMMISSIONER JENNINGS: You are as bad as the
4 Legislature. Based on what I heard, which was about two
5 to one, the amendment to the amendment is adopted.
6 Now we are on the amendment as amended. Commissioner
7 Mills, you are recognized to speak in opposition.
8 COMMISSIONER MILLS: Madam Chairman, I basically
9 support this as a potential concept. Campaign financing,
10 I believe, is such a good idea at this time and so needed
11 for these purposes, I have no question in my mind but that
12 the introduction of this amendment will reduce its use,
13 substantially.
14 Because of the potential complexity, because of the
15 very questions you are asking, could a PAC provide in-kind
16 contributions? Would contributions from PAC members
17 violate this? There is a degree of complexity that this
18 adds that I would find would probably prevent some people
19 who would otherwise seek public funding from doing it.
20 Commissioner Connor voluntarily did it, I suppose
21 others would do it. I don't know what General Milligan
22 did or others. I think that the concept though is people
23 can run for office who are not millionaires and who are
24 not beholden to special interests for their entire
25 existence. And it is such a good concept to me.
214
1 And Commissioner Thompson who was really a pioneer on
2 this, I was going to comment, Commissioner Thompson as a
3 Speaker, if you heard his three turkeys, he was a very
4 inexpensive Speaker.
5 COMMMISSIONER JENNINGS: That means he was cheap?
6 COMMISSIONER MILLS: Oh, he has always been cheap
7 anyway, but he was inexpensive as well.
8 (Laughter.)
9 COMMISSIONER MILLS: It seems to me that we ought to
10 proceed with the proposal as proposed without this
11 well-intentioned but probably good idea, additional
12 provision which I believe would reduce its utilization.
13 And Florida being, as we are, complex, big, and
14 occasionally willing to step out front and do something
15 like this, we need this to be used. We need the number of
16 campaigns that we can point to successfully and we need
17 people to have used this financing process to get elected.
18 And my concern is, unless someone could dispel that, that
19 by adding this provision, it makes using public financing
20 cumbersome in the early phases of utilization of public
21 finance for candidates.
22 And I think we accomplish our purpose with the base
23 provision. The base provision says you can only match
24 that money, and those people involved in politics would
25 realize what that means. The money would be sought from
215
1 private individuals. And as I understand it, that's how
2 it works now. We have to have private individuals to get
3 that matching money.
4 So the good money then is individuals. And the bad
5 money, which doesn't count, is PACs. That's good. I
6 mean, that's a good result. But if you totally exclude, I
7 fear that you are going to reduce the number of people who
8 will take advantage of this. And unless we have people
9 taking advantage of this, then the whole concept may die
10 on the vine.
11 So I would encourage you for that reason to vote
12 against I think a well-intentioned amendment, one -- a
13 piece of policy which may happen and I certainly would
14 hope people voluntarily would do what Commissioner Connor
15 did.
16 COMMMISSIONER JENNINGS: Thank you, Commissioner
17 Mills. Further on the amendment before I recognize
18 Commissioner Corr to close? Commissioner Corr.
19 And, Madam Reading Clerk or Secretary, do we have a
20 technical change to it or did we just scratch it out and
21 make it right?
22 SECRETARY BLANTON: Our technical problem was that it
23 was to the wrong line so we got it.
24 COMMISSIONER CORR: Will Commissioner Connor yield to
25 a question and then I will close briefly?
216
1 COMMMISSIONER JENNINGS: I'm sure he will.
2 COMMISSIONER CORR: Commissioner Connor, you did what
3 the amendment is intending to do, you elected to do this
4 in 1994, which I think was a tremendous thing. Was that
5 complex?
6 COMMISSIONER CONNOR: No.
7 COMMISSIONER CORR: Was there a lot of complexity
8 associated with that?
9 COMMISSIONER CONNOR: No, it was a voluntary
10 decision, which within my limited sphere was
11 well-received, as far as that goes.
12 COMMISSIONER CORR: Okay. I would say there is not a
13 whole lot of complexity associated with this, as
14 Commissioner Mills suggests. I understand the point, but
15 I just don't think this is that complicated.
16 It is as simple as this: What we are doing as
17 taxpayers is allowing our good, hard-earned tax money to
18 be used to finance elections, potentially to a candidate
19 that we don't even support. And in a very small measure
20 for allowing the candidate to accept that public
21 financing, we are asking to, quote, what we are reading
22 here in the current proposal, to do that -- to run his
23 election without the disproportionate influence of special
24 interests.
25 So I think this isn't a complex issue. It is as
217
1 simple as this, if you believe that you want campaigns run
2 without the disproportionate influence of special
3 interests, and you agree that this public financing will
4 do this, then you want to vote yes on this amendment. If
5 you would like to keep things the way they are, have
6 disproportionate influence of special interests, including
7 public financing of campaigns, then vote no for the
8 amendment. But I think you'll want to vote yes.
9 COMMMISSIONER JENNINGS: On the amendment as amended,
10 all those in favor say aye; opposed?
11 (Verbal vote taken.)
12 COMMMISSIONER JENNINGS: The amendment is not
13 adopted.
14 (Off-the-record comment.)
15 COMMISSIONER JENNINGS: Sure, open the machine and
16 indicate your vote. And the Chairman reminds me the
17 Chairman is not supposed to vote. You get to vote, but I
18 don't get to, unless it is a tie.
19 Oh, what a common sight. They open the doors and
20 Commissioner Crenshaw is just charging down the rotunda.
21 (Laughter.)
22 COMMMISSIONER JENNINGS: This is on the amendment as
23 amended. Commissioner Connor, are you ready to -- well it
24 wasn't helping. I was watching and it wasn't helping. I
25 thought maybe it was helping.
218
1 Lock the machine and announce the vote.
2 READING CLERK: Eleven yeas, 14 nays, Madam Chairman.
3 COMMISSIONER JENNINGS: And so the amendment fails.
4 I have a great ear, lots of practice.
5 We're on the proposal, the committee substitute for
6 Proposal No. 16 as offered by Commissioner Douglass.
7 Commissioner Douglass, anything further?
8 CHAIRMAN DOUGLASS: No, I think almost everything has
9 been said. I would say that this is an important step for
10 us to take in assuring the people that we want to improve
11 our elective process and the participation of citizens in
12 elections.
13 And I recognize, as we all do, that there is no
14 perfect solution. This is a start. And I do believe that
15 once this becomes a part of the Constitution that you will
16 find the Legislature will strengthen it and probably
17 expand it even to other elective areas. But you can't
18 take it all at once. And this will be a tremendous
19 improvement in our basic document, which I believe will
20 receive widespread support. And I urge you to vote for
21 it.
22 COMMISSIONER JENNINGS: Commissioner Douglass moves
23 adoption of committee substitute for Proposal No. 16.
24 Open the machine and indicate your vote.
25 (Vote taken and recorded electronically.)
219
1 COMMISSIONER JENNINGS: Has everyone voted? Okay.
2 Lock the machine and announce the vote.
3 READING CLERK: Twenty yeas, 6 nays, Madam Chairman.
4 COMMISSIONER JENNINGS: The proposal is adopted.
5 Commissioner Douglass, are you ready to come back?
6 (Chairman Douglass resumes the chair.)
7 CHAIRMAN DOUGLASS: I did that so she wouldn't have
8 to vote. All right. The next item on the special order,
9 if I can find it -- did we take up Proposal No. 168,
10 Commissioner Corr? Did we TP it until later in this
11 meeting?
12 (Off-the-record comment.)
13 CHAIRMAN DOUGLASS: You're ready to go on it? Okay,
14 then we will hear Proposal No. 168 by Commissioner Corr,
15 which was approved by the committee on the executive and
16 consideration was deferred. So we will hear you on it
17 after he reads it, or she reads it -- excuse me, she reads
18 it.
19 READING CLERK: Proposal 168, a proposal to revise
20 Article IV, Section 6, Florida Constitution; providing
21 that an entity purpose purportedly within an executive
22 department which is not subject to the direct supervision
23 of the agency head is a department.
24 COMMISSIONER CORR: Thank you. This is the proposal
25 we heard this morning, reinforcing the 25 department limit
220
1 in the executive branch. Commissioner Nabors has the
2 proposal and I would like him to handle that at this time.
3 He is prepared to do that.
4 CHAIRMAN DOUGLASS: There was an amendment adopted
5 earlier to this, I believe, Commissioner Corr.
6 COMMISSIONER CORR: There was an amendment adopted?
7 CHAIRMAN DOUGLASS: Yes, Commission Henderson had an
8 amendment which had a change in it to say the Governor and
9 Cabinet, I believe; isn't that correct?
10 COMMISSIONER HENDERSON: That's been adopted.
11 CHAIRMAN DOUGLASS: That's correct. That's what I
12 was saying, that --
13 COMMISSIONER HENDERSON: I'm sorry.
14 CHAIRMAN DOUGLASS: -- that that's been adopted and
15 is part of the proposal at this time. I just wanted to
16 make that clear. You may proceed.
17 COMMISSIONER NABORS: Mr. Chairman and commission
18 members, this amendment deals with the technical matter of
19 scheduling on the issue of departments that may be in
20 violation of this and what happens to them during the
21 process.
22 It basically has two languages. The language that's
23 on the first page from Lines 15 through 19 recognizes the
24 Housing Finance Agency and makes a decision that the
25 factor of direct supervision would not affect the status
221
1 of that entity since it is constitutionally authorized to
2 issue bonds prior to July the 1st, 1999.
3 The scheduling provisions on the second page
4 basically preserve the existing status of those who would
5 not be in compliance until the Legislature has an
6 opportunity to act on July the 1st, 1999.
7 CHAIRMAN DOUGLASS: Anyone want to be heard? Is
8 everybody listening to this or are we --
9 (Off-the-record comment.)
10 CHAIRMAN DOUGLASS: The amendment that was adopted
11 was number one -- has been adopted. The amendment he's
12 moving would be number two. Since we don't have it, we're
13 a little bit at a loss. Everybody has got it but the
14 secretary.
15 (Off-the-record comment.)
16 CHAIRMAN DOUGLASS: It may be, but they tell me it's
17 not. It's beginning to seem like 5:00; isn't it,
18 Commissioner Henderson? Do you want an amendment to the
19 amendment to the amendment?
20 COMMISSIONER HENDERSON: No, sir.
21 CHAIRMAN DOUGLASS: We can get into that again. We
22 have Commissioner Nabors over here, you over there and me
23 here.
24 COMMISSIONER HENDERSON: This is deja vu all over
25 again.
222
1 CHAIRMAN DOUGLASS: Absolutely.
2 COMMISSIONER HENDERSON: That's right.
3 CHAIRMAN DOUGLASS: Let's keep our sense of humor.
4 COMMISSIONER HENDERSON: I've got mine.
5 CHAIRMAN DOUGLASS: I'd like to have the pending
6 amendment that's being offered by Commissioner Nabors
7 read. Actually it's moved by Commissioners Corr,
8 Henderson and Nabors move the following amendment. I'm
9 going to let you and Commissioner Nabors sit next to each
10 other. (Pause.)
11 We're waiting for them to decide if this amendment
12 they handed us is the one they want us to consider.
13 (Pause.) Are we ready to read the amendment by
14 Commissioner Nabors? Please read it.
15 READING CLERK: By Commissioner Nabors, on Page 1,
16 Line 26, through Page 2, Line 4, delete those lines and
17 insert lengthy amendment.
18 COMMISSIONER NABORS: Mr. Chairman, everybody has the
19 amendment. It's a two-page amendment which has some new
20 language on the first page on Lines 15 through 19 and then
21 a new Section 23 on the second page. It's really an
22 amendment by Commissioner Corr, Commissioner Henderson and
23 myself.
24 And it simply does, in the first page, is recognize
25 the existence of the housing -- Florida Housing Finance
223
1 Corporation and provides that even though it would fail
2 the test, in the sense there is no direct supervision,
3 that it would remain its current status because it has the
4 constitutional authority to issue bonds prior to July 1st,
5 1999, for all the reasons we talked about earlier.
6 It then adds Section 23 on the scheduling for all the
7 others that don't have this peculiar characteristic. It
8 places them in a position for reenactment by the
9 Legislature or expiration on July the 1st, 1999.
10 CHAIRMAN DOUGLASS: Anybody want to speak on the
11 amendment? Ready to vote? On the amendment, all in favor
12 of the amendment say aye; opposed, no.
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: The amendment is adopted. Now
15 we're on the proposal as amended. Who wants to be
16 recognized on it? Commissioner Corr, your proposal.
17 COMMISSIONER CORR: I can go ahead and close if there
18 are no questions, if we're ready. Is that where we are?
19 CHAIRMAN DOUGLASS: You have now adopted the
20 amendment, you are on the proposal. Do you want to
21 explain the proposal again and why we should do it?
22 COMMISSIONER CORR: Okay. Thank you. Again, this
23 proposal would reinforce the 25 department limit in the
24 executive branch. What we've done now with this amendment
25 is ensure that among -- that when this is adopted by the
224
1 electorate that any of the departments that may fall under
2 this new more strict requirement don't all of a sudden
3 have to go out of business the next day. They are able to
4 continue until the Legislature takes action and places
5 where they see fit.
6 And that makes the most sense in respect to the
7 Housing Finance Authority, since it may affect the bond
8 market. Commissioner Nabors talked about that.
9 And so I think that we're ready to vote. Sorry, I
10 wasn't following. So I guess that's where we are. Let's
11 just vote on it.
12 CHAIRMAN DOUGLASS: Somebody else may want to speak
13 on this. Does anybody want to speak on this? If not, are
14 you prepared to vote? Unlock the machine. Does everybody
15 know what this is?
16 (Off-the-record comment.)
17 COMMISSIONER LANGLEY: I understand that and it's
18 been very eloquent and long-bearing, but how are we going
19 to explain it to Joe Lunch Bucket when it gets on the
20 ballot?
21 CHAIRMAN DOUGLASS: Gosh, I wish you had gotten up
22 before we started voting.
23 Has everybody voted that wants to vote? I wonder if
24 we've got a quorum.
25 SECRETARY BLANTON: We don't have a quorum.
225
1 CHAIRMAN DOUGLASS: We don't have a quorum. Lock the
2 machine and clear the machine. Clear the machine and
3 we'll take a quorum call.
4 SECRETARY BLANTON: Quorum call, quorum call. All
5 commissioners indicate your presence. All commissioners
6 indicate your presence.
7 (Quorum taken and recorded electronically.)
8 SECRETARY BLANTON: Quorum present, Mr. Chairman.
9 CHAIRMAN DOUGLASS: Before we go forward, somebody
10 obviously -- Commissioner Langley, you had questions about
11 this and I think we shouldn't vote on this until people
12 know what we're voting on. Not only you, Commissioner
13 Langley, there were quite a few other people not even in
14 the chamber.
15 So I would like to hear somebody on this explain,
16 one, what it is, if you're for it; and if you're against
17 it, that also.
18 Did you rise to address the proposal as amended,
19 Commissioner Riley?
20 COMMISSIONER RILEY: I would like to ask a basic
21 question of the maker of the proposal.
22 CHAIRMAN DOUGLASS: All right. He yields for a
23 question.
24 COMMISSIONER RILEY: Since Josephina Lunch Bucket
25 voted against it because I'm not sure what the question is
226
1 here. My question is fairly basic. Is this going to make
2 it better?
3 CHAIRMAN DOUGLASS: Commissioner Henderson probably
4 can explain it to you.
5 COMMISSIONER RILEY: Well I'll ask anybody who can
6 answer the question. I understand that it's necessary in
7 the Constitution because the departments are limited --
8 the agencies are limited within the Constitution,
9 departments. Is this expanding government? Is it making
10 it better? Is it necessary? Is it going to do nothing
11 more than put different names on people's doors? And
12 those are my questions.
13 CHAIRMAN DOUGLASS: Those are very good questions. I
14 see Commissioner Langley has some answers for you on
15 those. Go ahead, Commissioner Corr.
16 COMMISSIONER CORR: Thank you, Commissioner Lunch
17 Bucket. Here's what I would do if I was trying to explain
18 it to voters, which probably wouldn't work, based on the
19 recent votings when I try to promote these things.
20 What I would do is I would claim that this is a good
21 government proposal. In 1968, the CRC passed an
22 amendment, a proposal that was adopted by electors because
23 the executive branch had grown to about 170 departments.
24 So the amendment was adopted by electors to reduce it to
25 25. A big reorganization took place and at that point the
227
1 executive branch was reorganized to be 25 departments.
2 Since that time, over the last 30 years, the
3 department has grown again. And basically what the
4 department does is rather than just use the word
5 "department" to classify any of those entities, it may be
6 called a commission or an agency or whatnot. And so we
7 have kind of gotten around the original intent to keep the
8 executive branch intact.
9 So what I would do if I was touting this to the
10 electorate is this is just a good government proposal.
11 It's keeping size of government in check, like it was
12 originally sold 30 years ago. It passed 30 years ago so I
13 think it could pass again today.
14 CHAIRMAN DOUGLASS: Commissioner Mills?
15 COMMISSIONER MILLS: Will the gentleman yield for a
16 question?
17 CHAIRMAN DOUGLASS: He yields.
18 COMMISSIONER MILLS: My understanding of this is it
19 could be characterized as streamlining.
20 COMMISSIONER CORR: Right.
21 COMMISSIONER MILLS: And it actually makes this
22 provision do what it purports to do, because by removing
23 "unless otherwise provided herein" you say, if you read
24 this provision, it means what it says. And if you want to
25 expand beyond that, you can. It actually puts teeth in
228
1 the provision and it limits and streamlines government
2 would be the way I would describe it.
3 COMMISSIONER CORR: Perfect. I think you're helping
4 me.
5 CHAIRMAN DOUGLASS: Now Commissioner Langley.
6 COMMISSIONER LANGLEY: Just a clarification. That
7 language is not removed.
8 (Off-the-record comment.)
9 COMMISSIONER LANGLEY: It's replaced.
10 CHAIRMAN DOUGLASS: Commissioner Nabors?
11 COMMISSIONER NABORS: Let me also take a crack at
12 this from a technical standpoint. The current
13 Constitution limits the number of executive departments to
14 25. There is a court case which is talked about in the
15 notes that basically dealt with the Agency for Health Care
16 Administration, okay. That basically said a new
17 department was not created because it was placed in an
18 existing department even though there was no direct
19 supervision by that department head, okay.
20 So what this is intended to do is to overcome that
21 case to say that even a placement within an existing
22 department, if there is no direct supervision, constitutes
23 a department. So you couldn't subvert the 25 department
24 limitation.
25 Now the reason for the -- the other amendments had to
229
1 do with we didn't want to inadvertently create any concern
2 about the Florida Housing Finance Corporation because it's
3 a unique entity, it's an independent agency.
4 CHAIRMAN DOUGLASS: Commissioner Mills.
5 COMMISSIONER MILLS: Commissioner Nabors, so continue
6 to help me with this. It then keeps agencies from falsely
7 creating what are in fact agencies -- I mean, in other
8 words is that the purpose --
9 COMMISSIONER NABORS: It limits the power of the
10 Legislature to subvert the 25 amendment by creating an
11 entity, placing it in a department with no direct
12 supervisory control of the head of that department.
13 COMMISSIONER MILLS: In other words, it is possible
14 to subvert the will of this provision of the Constitution
15 without this language.
16 CHAIRMAN DOUGLASS: Commissioner Sundberg, maybe you
17 can help me and others out here to tell us what we're
18 talking about.
19 COMMISSIONER SUNDBERG: Well, Mr. Chairman, you of
20 all people should know what we're talking about here. We
21 were on the opposite sides of it, and he won. But we may
22 have the last say here.
23 CHAIRMAN DOUGLASS: That's true. I have already won
24 so it's okay now.
25 COMMISSIONER SUNDBERG: You have to go back to the
230
1 government reorganization back when Dick Pedigrew was
2 active in this Legislature. And it reorganized state
3 government and said there will not be more than 25
4 executive departments. There has been created a number of
5 entities that have ostensibly been placed within a
6 department but called an agency, commission, what have
7 you.
8 For example, and this affects some significant
9 agencies. The Division of Administrative Hearings, which
10 conducts all hearings, you know, when designated within
11 state government, is an agency within -- I have forgotten
12 what department it's in. But it is expressly, it is
13 expressly exempted from any control by the head of that
14 department. So that the Director of the Division of
15 Administrative Hearings answers only to the chief
16 executive.
17 The Agency for Health Care Administration was lodged
18 as an agency within the Department of Professional
19 Regulation. But the director was expressly exempted from
20 any supervision or control or budgetary provisions. So
21 somebody suggested, Hey, this looks just like a
22 department. And if it is a department, a lot of things
23 follow from that. For example, the head of it has to be
24 confirmed by the Senate.
25 And now you really know what we're talking about.
231
1 Because the Agency for Health Care Administration was the
2 agency charged with administering the Medicaid Act, which
3 had some notoriety in connection with the tobacco
4 litigation. In any event, this issue was raised in the
5 Supreme Court, and with all due respect to the Supreme
6 Court --
7 CHAIRMAN DOUGLASS: That's not a very good respect.
8 COMMISSIONER SUNDBERG: It's the most I can muster,
9 on this issue, please, Mr. Chief Justice.
10 (Off-the-record comment.)
11 (Laughter.)
12 COMMISSIONER SUNDBERG: That's called biting the hand
13 that feeds you.
14 CHAIRMAN DOUGLASS: Commissioner Sundberg, you don't
15 have to explain all your court losses to us.
16 COMMISSIONER SUNDBERG: We don't have time for that.
17 Therein lies the problem, I suggest to you, that
18 seeks, that is sought to be addressed here. And this is
19 not my proposal.
20 The Supreme Court agreed with those other forces and
21 said, no, that isn't really unconstitutional, it's not
22 really a department. But I suggest that it did not give
23 us any principal basis upon which to determine what was a
24 department and what wasn't a department.
25 And, hence, under the state of the law as it now
232
1 exists, the Legislature pretty much has free hands to
2 create as many of these entities -- giving them -- you
3 know, it's the old duck thing; walks like, quacks like,
4 that sounds like a department. Now, in any event, that's
5 what this seeks to address.
6 CHAIRMAN DOUGLASS: Commissioner Sundberg.
7 COMMISSIONER SUNDBERG: Yes.
8 CHAIRMAN DOUGLASS: I don't want to intervene too
9 much, but my view of that opinion is the court did not
10 pass on the ultimate question; they held it was not
11 material to the determination in that case. And it was a
12 4-3 decision also. And, you know, I was on the winning
13 side and we -- you know, we count our chips and all that.
14 And you're on the losing side and you're crying, deal.
15 It's turned to deal, right? And that's what you're
16 telling everybody. You want to correct it even though
17 they don't deal with it.
18 COMMISSIONER SUNDBERG: This really is not my
19 proposal, but I was asked to try to explain it. So I
20 thought I would give you a little anecdotal information,
21 too.
22 CHAIRMAN DOUGLASS: Okay. Let's deal. Commissioner
23 Langley.
24 COMMISSIONER LANGLEY: I'm really torn because I
25 really want to see Commissioner Corr pass something today.
233
1 CHAIRMAN DOUGLASS: We could always do it and then do
2 it on reconsideration.
3 COMMISSIONER LANGLEY: What concerns me here in being
4 a technocrat is "any entity." Now somebody who knows the
5 administrative department, they have, for instance, in the
6 Department of Agriculture have such things as the
7 Pesticide Advisory Council. It doesn't answer to the
8 agriculture commissioner, it only reports to the
9 Legislature. Now, question, is that an entity? I don't
10 know.
11 Mr. Corr, that's putting you on the spot, but I just
12 wonder really what we're creating here, if anybody knows
13 the answer to that. We have all kind of commissions that
14 are appointed within these departments that recommend back
15 to the Legislature what the Legislature should do on
16 things. I hate to muddy the water and I voted for it the
17 first round, Commissioner Corr, and I'll vote for it again
18 if you want me to. I just would like to know what we're
19 doing.
20 CHAIRMAN DOUGLASS: I sense overwhelming support.
21 Commissioner Sundberg.
22 COMMISSIONER SUNDBERG: I think -- and that is part
23 of the problem, Commissioner Langley. But I think all of
24 this is related to exercising an executive function of
25 state government. I'm not sure of all of these
234
1 commissions and whether or not they do. But that question
2 remains unanswered.
3 Now, I'm not sure this changes that. But the
4 Legislature will have to deal with it and it simply says
5 to the Legislature, if it's going to exercise an executive
6 function of government, it must be truly answerable to the
7 head of one of the 25 departments. And, for example, I
8 don't know how the Legislature would deal with the
9 situation they have presently.
10 I know there are at least three, you know, three
11 entities that clearly I think would be declared to be
12 departments under this language; DOAH, AHCA, and I think
13 it's the retirement board, is that it? That
14 immediately -- and whether the Legislature would
15 necessarily say, well, they are -- they go by the boards
16 or they now have to start answering or they may pick and
17 choose some others if they say, We don't want them to be
18 departments. This doesn't answer all the questions.
19 CHAIRMAN DOUGLASS: All right. Has anybody got
20 anything further on this? All right. Prepare to vote.
21 Unlock the machine.
22 (Vote taken and recorded electronically.)
23 (Laughter.)
24 CHAIRMAN DOUGLASS: Commissioners Riley and Smith
25 move to reconsider.
235
1 COMMISSIONER RILEY: No, just one comment to
2 Commissioner Nabors, since he wrote this amendment. I'd
3 sure like a hand in some of the writing of these
4 amendments. As a layperson and a nonlawyer, I find some
5 of the words a little confusing, to say the least.
6 CHAIRMAN DOUGLASS: Lock it and announce the vote.
7 READING CLERK: Twenty-five yeas, zero nays,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: All right. Proposal 76 by
10 Commissioner Sundberg. Would you read it, please?
11 READING CLERK: Proposal 76, a proposal to create
12 Article VI, Section 7, Florida Constitution; prohibiting a
13 business entity or labor organization from making any
14 contribution for the purpose of influencing an election
15 held to fill a public office in the state; prohibiting a
16 candidate or other person from knowingly effecting any
17 such unlawful contribution; prohibiting an officer or
18 director of a business entity or labor organization from
19 consenting to any such unlawful contribution; providing
20 that the establishment of an independent committee does
21 not constitute an unlawful activity; specifying that the
22 provision of certain indirect support services does not
23 constitute an unlawful entity.
24 CHAIRMAN DOUGLASS: All right. Commissioner
25 Sundberg.
236
1 COMMISSIONER SUNDBERG: Mr. Chairman, briefly, this
2 provides that it will be unlawful for corporations or
3 labor organizations to contribute in campaigns for
4 election to public office. It doesn't affect issue
5 campaigns. It does not affect PACs. It does not affect
6 PACs because in my judgment the United States Supreme
7 Court has held that it is unconstitutional to prohibit
8 organizations made up of individuals from making
9 contributions.
10 But by the same token, the Supreme Court has found
11 constitutional legislation that prohibits corporations and
12 labor organizations from making contributions to political
13 campaigns for political office. In fact, 15 states in
14 this country today have such legislation.
15 Commissioner Thompson tells us that everybody is
16 doing it, when he talks about businesses making political
17 contributions. He says everybody is doing it so
18 businesses have to do it. So long as it is illegal, they
19 are all going to do it. Commissioner Connor tells us that
20 political power reposes in the special interests.
21 Hence, I say to you, for all the reasons that have
22 been expressed by Chairman, sometime-Commissioner
23 Douglass, by Commissioner Corr, by Commissioner Thompson,
24 by Commissioner Connor and all the others who spoke about
25 the evils, and we talked about it as dirty money -- and I
237
1 frankly do believe, I do believe, to paraphrase, that in
2 the political landscape, money does corrupt. And lots of
3 money corrupts absolutely.
4 This is one way and it's, you know, it's not a very
5 ambitious proposal. It's short and to the point. And for
6 all the reasons that have been expressed as to why we want
7 individuals to feel like they have a stake in this
8 government in the state of Florida, this would say only
9 individuals and political organizations, or rather
10 political committees made up of individuals, only, can
11 make contributions. And it will be illegal for these
12 other entities to make them. I urge your support for the
13 proposal.
14 CHAIRMAN DOUGLASS: Commissioner Riley.
15 COMMISSIONER RILEY: A question if I may.
16 CHAIRMAN DOUGLASS: Incidentally, I didn't announce
17 that this was disapproved by the committee on Ethics and
18 Elections. And the chairman isn't here at the moment. I
19 forgot to announce that.
20 Commissioner Riley, you have the floor.
21 COMMISSIONER RILEY: My question concerns the phrase,
22 "for the purpose of influencing." What's the proof of
23 influencing other than just giving and funding? How is
24 this going to be carried out?
25 COMMISSIONER SUNDBERG: How could you indirectly?
238
1 COMMISSIONER RILEY: How can you prove that someone
2 is doing something to influence, as opposed to what I
3 understand towards the end of it is where you are
4 addressing the PACs? I mean, what other purpose is there
5 and how do you prove that, is my question.
6 COMMISSIONER SUNDBERG: How do you prove it? Like
7 you would prove it in any other instance. If we're
8 talking about -- and, I'm sorry, perhaps I don't
9 understand your question.
10 COMMISSIONER RILEY: How are you going to -- what
11 meaning is this if it has no consequence and how can you
12 prove consequence if you can't prove that the purpose of
13 this was to influence? If my business pays the telephone
14 bill for a candidate, how are we not trying to influence?
15 We may not be just donating to a campaign. See what I'm
16 saying?
17 COMMISSIONER SUNDBERG: I see what you're saying.
18 You're talking about in-kind contributions?
19 CHAIRMAN DOUGLASS: Let me see if I can help you
20 answer a question, maybe you don't understand it. She
21 wants to know why the language is in there, where you say
22 it's prohibiting a business entity from making any
23 contributions, she wants to know what you say the purpose
24 of influencing is is what's bothering her. And I don't
25 know how to answer that, but you do as the sponsor. Is
239
1 that your question?
2 COMMISSIONER RILEY: I'm wondering why you're putting
3 it in there, if it's superfluous.
4 COMMISSIONER SUNDBERG: Yeah, I think you do have to
5 have that purpose.
6 COMMISSIONER RILEY: How are you going to prove it?
7 COMMISSIONER SUNDBERG: Just like you prove intent, I
8 guess. Would you like to respond?
9 COMMISSIONER RUNDLE: No, I was going to ask a
10 question in a slightly different way. What if someone
11 says, I never do business with that office, I have no
12 contact with that particular candidate and, believe me,
13 I'm doing it because it's good government, I don't want
14 anything, I don't have business with them, I have no
15 conflicts, so therefore I'm not doing it for the purpose
16 of influencing them. Is that contribution then exempt?
17 COMMISSIONER SUNDBERG: No, it is not to influence
18 the candidate, but to influence the outcome of an
19 election.
20 COMMISSIONER RUNDLE: It seems like you're almost
21 adding an additional burden. Why not just make it
22 strictly that you can't do it?
23 CHAIRMAN DOUGLASS: I think that's what he's trying
24 to do and what he's saying is he believes the language
25 does that by saying, in effect, the only reason you give a
240
1 campaign contribution in an election is to influence the
2 election. And therefore he was trying to say that in a
3 manner which would be clear, I think so.
4 COMMISSIONER SUNDBERG: And, frankly, those are
5 almost words of art. That's the way the courts have
6 spoken, in terms of -- and other statutes. But you
7 must -- in other words, you are making those contributions
8 to influence the outcome of an election.
9 CHAIRMAN DOUGLASS: In shorthand, aren't you just
10 saying that means the same thing as a campaign
11 contribution?
12 COMMISSIONER SUNDBERG: Absolutely.
13 COMMISSIONER RUNDLE: May I ask two further questions
14 if you would, while I'm up? One kind of goes to the
15 in-kind contribution. When you refer to indirect support,
16 and I'm thinking of, for instance, a CPA firm wants to
17 donate the services of one of their accountants to act as
18 say the treasurer of the campaign. Would you consider
19 that to be in violation of this section?
20 COMMISSIONER SUNDBERG: Frankly I have not thought
21 about it. If that individual is acting simply in his or
22 her individual capacity and is contributing the time, I
23 don't know, that's a tough question.
24 COMMISSIONER RUNDLE: And when you say --
25 COMMISSIONER SUNDBERG: Just like when you're
241
1 trying -- I don't think there is anything that prevents,
2 when you talk about PACs, individuals from making those
3 individual contributions.
4 COMMISSIONER RUNDLE: The CPA firm would argue that
5 it's our firm's contribution to the campaign, that we're
6 going to assign this person to be the treasurer and maybe
7 have these support staff file the papers, do the
8 accounting. I'm just trying to understand indirect
9 support.
10 COMMISSIONER SUNDBERG: And my response would be if I
11 had to rule on it, my ruling would be the individual,
12 because I don't think you can -- I don't think you can
13 constitutionally proscribe an individual from individually
14 being involved in a campaign. If that person happens to
15 be an accountant, that's a very good person to have as
16 your campaign treasurer. But that way it is the
17 individual who is individually participating. But that
18 doesn't mean the accounting firm ought to, at its cost, be
19 performing functions related to the campaign financing.
20 COMMISSIONER RUNDLE: Do you envision that this
21 section would also apply to partnerships, P.A.s, law
22 firms?
23 COMMISSIONER SUNDBERG: No.
24 COMMISSIONER RUNDLE: It says business entity,
25 business entities. And in my mind it would.
242
1 COMMISSIONER SUNDBERG: I stand corrected. I think
2 you're right, I'm sorry.
3 CHAIRMAN DOUGLASS: Commissioner Langley.
4 COMMISSIONER LANGLEY: Who's presently proposing
5 this?
6 CHAIRMAN DOUGLASS: Commissioner Sundberg.
7 COMMISSIONER LANGLEY: Commissioner Sundberg, is
8 there anyplace else in the Constitution that sets out a
9 crime like this that it shall be unlawful? Does that
10 mean, is that a civil, criminal, felony, misdemeanor?
11 What is the infraction? I've never seen a law setting,
12 creating a crime without the punishment, is that to be in
13 there also? Is it a first, second or third degree felony?
14 CHAIRMAN DOUGLASS: It's capital.
15 COMMISSIONER SUNDBERG: I think that will have to be
16 fleshed out by the Legislature.
17 COMMISSIONER LANGLEY: Shouldn't it read, the
18 Legislature shall, and do that rather than -- I don't know
19 of anywhere else in the Constitution where we create a
20 crime. It's an entitlement and restrictive as opposed to
21 creating a crime. And I don't know if you can answer
22 that.
23 COMMISSIONER SUNDBERG: I think you're right; I think
24 you're right.
25 COMMISSIONER LANGLEY: And, secondly, back to that
243
1 good old adage, a level playing field. Harris Corporation
2 down in Brevard County under this could not make a
3 contribution to the candidate of their choice. But the
4 Electrical Workers' Union that works for Harris
5 Corporation, 1500 of them could make individual
6 contributions and that's fine.
7 COMMISSIONER SUNDBERG: And the employees and
8 executives of Harris Corporation could make them, too.
9 COMMISSIONER LANGLEY: Not quite as numerous.
10 COMMISSIONER SUNDBERG: They are one and the same.
11 Oh, you're talking about the entire labor union as opposed
12 to only those employed by Harris? Well, true. But by the
13 same token, other, presumably through the Chamber of
14 Commerce and other organizations in which Harris is a
15 member, they can encourage individuals to make
16 contributions, just as the labor union can.
17 CHAIRMAN DOUGLASS: Commissioner Riley.
18 COMMISSIONER RILEY: Question. Since the Chamber of
19 Commerce is incorporated, since the Republican party of
20 the state is incorporated as is the Democratic party and a
21 whole variety of other political and/or 501(c)(3)
22 corporations. Since they are incorporated, would they be
23 allowed or would they be included in the business as
24 you're talking about here?
25 COMMISSIONER SUNDBERG: I don't think so. They are
244
1 not a business entity. Their purpose is not to conduct a
2 business.
3 COMMISSIONER RILEY: Even though they are
4 incorporated?
5 COMMISSIONER SUNDBERG: Sure. There are a lot of
6 eleemosynary organizations that are incorporated.
7 CHAIRMAN DOUGLASS: Some unintentional. Commissioner
8 Morsani.
9 COMMISSIONER MORSANI: Commissioner Sundberg, I'm
10 obviously for campaign reform --
11 COMMISSIONER SUNDBERG: Good.
12 COMMISSIONER MORSANI: -- but it doesn't seem like
13 this -- we're not going in the right direction, I don't
14 think. But in the -- as an example, and you legal folks
15 here can tell me, I see that as piercing the veil along
16 the lines that Ms. Rundle said, Commissioner Rundle.
17 If I, who may be an activist in a party and I support
18 Commissioner Sundberg for political office and I take away
19 from my business and I own the business, and the reason
20 I'm able to be an activist for his campaign or her
21 campaign and I can make speeches in their behalf, I dare
22 say that someone would possibly challenge me that really
23 my business was the contributor there and not I because I
24 was on the business' payroll and therefore I was acting as
25 a spokesman for my company vis-a-vis my personal
245
1 involvement. You don't think that's, that is correct?
2 COMMISSIONER SUNDBERG: You can postulate, you know,
3 all sorts of situations like that. No, I don't see that
4 as any significant problem. It happens lots where
5 employees of governmental agencies take leaves of absence,
6 they also do it on their own time and support political
7 activities that would be inappropriate for them to do as a
8 member of their agency.
9 I mean those things happen. And I see you're
10 becoming more initiated in the ways of the law. You're
11 piercing corporate veils here.
12 COMMISSIONER MORSANI: I had that challenge a few
13 times. So far I've prevailed, but I might not sometime.
14 I'm very concerned about it. In fact, as an example, the
15 CPA firm. I think that's an excellent one of major
16 concern because if you select a CPA firm to be your
17 campaign treasurer, which is a logical person to do it,
18 now suddenly that firm is making a contribution because
19 that person is employed by that firm.
20 COMMISSIONER SUNDBERG: You just said, if you select
21 that firm to be your campaign treasurer, you would be
22 precluded from doing that. You would not be precluded, I
23 believe -- because that would be an in-kind contribution.
24 I do not think that an individual accountant in that firm
25 is precluded, however, from individually being your
246
1 campaign chairman or your campaign treasurer, I mean.
2 COMMISSIONER MORSANI: I wouldn't want to be on the
3 other side of that contest.
4 CHAIRMAN DOUGLASS: All right. Do we have anybody
5 else? Commissioner Rundle, you rise.
6 COMMISSIONER RUNDLE: I feel like I'm wasting time.
7 I'm trying to think of scenarios of how this really plays
8 out, having been through a couple of elections myself.
9 And I feel bad because I keep thinking of other ways
10 in which this may or may not apply. And I don't want to
11 bore everybody with different sorts of hypotheticals, but
12 I guess I just don't find the language is tight enough or
13 easily understood. I don't know that the voters will.
14 I'm confused with many parts of it. So I'm going to vote
15 against it.
16 CHAIRMAN DOUGLASS: Commissioner Thompson?
17 COMISSIONER THOMPSON: Well I would like to say a
18 word or two against it. And I'm in favor of campaign
19 reform, as we've just been talking about. I know that
20 Mr. Corr and -- Commissioners Sundberg and Corr are very
21 interested in it.
22 And if I thought this would do anything, I would vote
23 for it. But it looks to me like it does a couple of
24 things. It prohibits, if I understand it correctly -- and
25 I guess we all have got a right to be a little confused
247
1 now because we get the proposal in our jackets and then we
2 get the proposed amendments and we read through them and
3 we hear the debate and we do get a little confused, I
4 certainly do.
5 But the way I understand it, it prohibits
6 contributions into an individual's campaign from a
7 corporation or a labor organization. And if that's the
8 case, but it doesn't prohibit contributions from PACs, and
9 we talked about that a little earlier and I expressed my
10 opinion on that, which differs from quite a few of you.
11 But on this, on corporations, you know, they have got
12 that with the federal government, I'm sure, everybody
13 knows that, that prohibition from giving a check to your
14 Congressman or Congressperson through your corporation or
15 your law firm or whatever. And all they do is, you know,
16 just run around and get individual contributions and it
17 just doesn't amount to anything.
18 It would be -- I mean, the same person many times is
19 going to sit there who is the primary owner of the
20 corporation who's going to write a check from an
21 individual account rather than from the corporate account.
22 If it's a bigger corporation and not a little mom and pop,
23 then they get some of their executives or they get some of
24 the vendors to write the checks. So I think that is not
25 really the problem.
248
1 I think in Florida, legislatively, we have dealt with
2 what I perceived to have been a potential problem there by
3 having two things. Number one is the disclosure laws.
4 You have got to disclose who gave and who got. And that,
5 I think, is very helpful and takes care of half the
6 problem. The other half is taken care of just by the
7 limits. You know, you've got a $500 per candidate per
8 election cycle limit.
9 So with those two things, I personally think that
10 it's wrong to single out anybody and really say that you
11 can't make a contribution. And since I was quoted a
12 little earlier I want to be sure that I clarify that in
13 this particular situation, I mean, I think that the law is
14 sufficient and I think if we do this it really won't
15 amount to anything. And, therefore, I don't think it
16 rises to the level for us to propose it to the public.
17 Thank you.
18 CHAIRMAN DOUGLASS: Any other opponents?
19 Commissioner Sundberg to close.
20 COMMISSIONER SUNDBERG: Yes, sir. Commissioner
21 Thompson, I hope I didn't -- I certainly didn't intend to
22 misquote you. What I understood you to be saying is that
23 businesses didn't like to have to make these
24 contributions, but since all their competitors were doing
25 it, they felt it necessary to do it. And that so long as
249
1 it was not illegal, they felt obliged to do it.
2 So I would suggest to you, if that's what you did
3 say, that it will have the effect of saying to the
4 businessman, just like when I was a judge, nobody came to
5 me for political contributions and I loved it.
6 So that if the business says, Golly, I'd really love
7 to help you out there, Mr. Candidate, but I cannot because
8 I'm precluded by law from doing so. It seems to me, you
9 know, we had significant debate on the issue of public
10 financing. And during the course of that debate everybody
11 seemed to be foursquare in favor of saying, it is a far
12 better thing if we get these contributions out of the
13 process so that special interests cannot drive these
14 elections.
15 This is a way to do it. It's done in the federal
16 government. So there is nothing -- 15 states do it. Will
17 it be a panacea? No. But I think it's another step,
18 together with the proposal we're going to put on the
19 ballot for public funding, to help put the political power
20 back in the people. Thank you.
21 CHAIRMAN DOUGLASS: Commissioner Kogan, you were
22 chairman of the committee that disapproved this. Do you
23 recall the discussion on it? Nobody told us about the
24 committee action.
25 COMMISSIONER KOGAN: We disapproved it. But in all
250
1 fairness, Commissioner Sundberg was not present at the
2 time to explain what he's been explaining here.
3 CHAIRMAN DOUGLASS: So what was the rationale of the
4 committee in disapproving it; do you recall? That he
5 wasn't there?
6 COMMISSIONER KOGAN: No, no, no, no. Unless
7 Commissioner Freidin remembers exactly what it was or
8 Commissioner Corr remembers what it was -- but in any
9 event, I don't remember. You know, we have reached the
10 point of the day, Mr. Chairman, where I think all of us
11 are starting to blank out a little bit mentally on this
12 whole thing. But I do know it was not approved, but he
13 wasn't there. So his usual persuasive -- but Commissioner
14 Freidin may remember exactly why.
15 CHAIRMAN DOUGLASS: If there's no extensive
16 discussion, there's no need.
17 COMMISSIONER KOGAN: We did have, you know, people
18 that spoke for and against it.
19 CHAIRMAN DOUGLASS: Okay. You have the same
20 recollection he did.
21 COMMISSIONER FREIDIN: I remember.
22 CHAIRMAN DOUGLASS: Would you tell us what the
23 committee's --
24 COMMISSIONER FREIDIN: My recollection, and anybody
25 else that was there, please correct me if I'm wrong, was
251
1 that there was discussion of bundling. And the fact that
2 restricting corporate contributions really doesn't have a
3 lot of effect because you just go then to the corporate
4 officers and employees and get contributions from them and
5 they get delivered all in one envelope and it's
6 essentially the same thing. That's my recollection of the
7 discussion.
8 CHAIRMAN DOUGLASS: Which is the same question you
9 had, was it not, in a different context, that it would
10 bundle in the labor unions.
11 COMMISSIONER LANGLEY: Mr. Chairman, I want to
12 correct some misinformation.
13 CHAIRMAN DOUGLASS: Certainly.
14 COMMISSIONER LANGLEY: When I talked about the
15 criminal penalties, Commissioner Connor and I -- pardon?
16 There are two actually, we found another one.
17 In the right to bear arms it specifies the penalty.
18 It says, second degree misdemeanor, 60 days, $500. And
19 also in the gill net violations, the crime is created but
20 the penalty is also created in there. So I think if
21 you're going to make a crime, don't you have to put the
22 penalty with it?
23 COMMISSIONER SUNDBERG: You do it by reference to the
24 penalty statute, you're absolutely right. Style and
25 drafting can do that.
252
1 CHAIRMAN DOUGLASS: Assuming they can find the
2 statute. Are we ready to vote? All right. We move for
3 passage of the proposal, would you unlock the machine?
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Has everybody voted?
6 READING CLERK: Six yeas, 18 nays, Mr. Chairman.
7 CHAIRMAN DOUGLASS: All right. The next proposal
8 is -- Commissioner Kogan?
9 COMMISSIONER KOGAN: Mr. Chairman, before getting to
10 the next proposal, I don't know whether or not this is a
11 point of personal privilege or what it's called, but I've
12 been speaking to a number of the members of the
13 commission. And quite frankly, they have expressed to me
14 the point that they are mentally fatigued. If it's in
15 order, I would like to move at this time for us to adjourn
16 until tomorrow morning, because I don't know how
17 productive we're going to be from this moment on.
18 CHAIRMAN DOUGLASS: Motion to adjourn. I'll tell you
19 what, I'll entertain that motion if you make it, but it
20 seems to me that we might take about a 10-minute recess
21 and come back and try to do a couple more proposals. It
22 might refresh you to have social discourse with your
23 member friends and get a Coke. Let's try that, if that's
24 agreeable to everybody.
25 Commissioner Barkdull.
253
1 COMMISSIONER BARKDULL: Recess until 4:15.
2 CHAIRMAN DOUGLASS: Without objection, we'll recess
3 to 4:15. We'll keep it secure in here, please.
4 (Recess taken from 4:00 p.m. to 4:15 p.m.)
5 SECRETARY BLANTON: Quorum call, quorum call. All
6 commissioners indicate your presence, all commissioners
7 indicate your presence.
8 Quorum present, Mr. Chairman.
9 CHAIRMAN DOUGLASS: All come to order please. Nobody
10 is in their seats. Yes, they are, one or two. All right,
11 Proposal No. 186 by Commissioner Thompson.
12 COMMISSIONER THOMPSON: Mr. Chairman, what I want to
13 do is just defer consideration of this one until the next
14 time that we get together, not tomorrow, but a week, two
15 weeks from now or whatever.
16 CHAIRMAN DOUGLASS: You want to defer it to the next
17 meeting of the commission, its weekly session.
18 COMMISSIONER THOMPSON: Yes. I have had several of
19 the lay members of the commission tell me that it was
20 simple and they understood it so I need to see if I can
21 come up with a complicated amendment.
22 CHAIRMAN DOUGLASS: Could you consult with
23 Commissioners Henderson and Nabors?
24 COMMISSIONER THOMPSON: I plan to do so.
25 (Laughter.)
254
1 CHAIRMAN DOUGLASS: And then you can get Mr. Corr to
2 straighten us out, right, Commissioner Corr? All right.
3 We have got several of these initiative things on
4 here. What I would propose to do, with the permission of
5 the body, is to --
6 COMMISSIONER BARKDULL: Mr. Chairman.
7 CHAIRMAN DOUGLASS: Yes.
8 COMMISSIONER BARKDULL: Inquiry of the Chair. What
9 happened to 135?
10 CHAIRMAN DOUGLASS: It's already been done, hasn't
11 it?
12 COMMISSIONER HENDERSON: We removed it from
13 consideration pending working with the committee on F and
14 T and in deference to Senator Scott and Mr. Mills. It
15 should not have been on the agenda today. So it should
16 be --
17 COMMISSIONER BARKDULL: Temporarily passed.
18 COMMISSIONER HENDERSON: Actually it should be off of
19 the special order calendar until we get all that worked
20 out. That was what the unanimous consent request was
21 yesterday.
22 CHAIRMAN DOUGLASS: I remembered we did something on
23 this. So it has been removed from the special order and
24 improperly appears on the special order.
25 COMMISSIONER HENDERSON: It should be on the
255
1 calendar, and not the special order calendar.
2 CHAIRMAN DOUGLASS: Okay. We will correct that
3 without motion. What I was fixing to say, there is -- I
4 think I forgot to say we discussed that at the recess and
5 that that was the case.
6 Several of these, I believe there is seven separate
7 things that relate to initiatives, statutory or
8 constitutional initiatives. What I would like to do with
9 the, without objection is create a select committee to
10 come back and give us either a substitute or substitutes
11 so that we could debate and act on the principles involved
12 in a more orderly fashion. And without objection I will
13 do that and we will not bring these up until the next
14 weekly meeting.
15 Commissioner Henderson.
16 COMMISSIONER HENDERSON: Mr. Chairman, I'm thinking
17 about whether to object and I certainly don't want to.
18 CHAIRMAN DOUGLASS: You can.
19 COMMISSIONER HENDERSON: But I think it just, I
20 wanted the rest of the body -- the chairman of our
21 committee is not here right now. But I certainly wanted
22 the rest of the commissioners to know that each of these
23 seven proposals was given consideration by the committee
24 on general provisions, and the recommendation is that none
25 of them, is that none of them reported favorably.
256
1 And so I think I hear what your decision or what you
2 are attempting to do is a way to get these issues
3 collected together to come before us and not to take it
4 away from the committee and give it to another committee
5 to come forward with a favorable recommendation. Is that
6 what you are proposing?
7 CHAIRMAN DOUGLASS: My proposal is to ensure that the
8 public has the benefit of an orderly debate on the exact
9 issues that have been brought up in public hearings and
10 are raised by these items. We have not operated as a
11 committee-run commission. And the fact that a committee
12 disapproves something has not been considered anything
13 other than reporting it to the commission.
14 Since also we are even very short on members here
15 today, now, this afternoon, I think this issue has been
16 brought up everywhere we have gone and every editorial
17 board I have talked to. And to not give it a fair debate,
18 as we have some other matters that didn't have committee
19 support, would be a disservice to the commission and to
20 the general public.
21 It is not that I am for it or against it, but I think
22 to brush it, which is what this might be appeared to be,
23 to take it up this late and it would be better to have it
24 presented on the two or three major issues that are
25 involved so that it could be orderly debated.
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1 And I think that was my purpose in doing this, not
2 just to create another committee. But what I understood
3 from my conversation with you and Commissioner Mills,
4 there wasn't any point in sending it back to your
5 committee because you didn't like any of it. But I want
6 the rest of the commission to have the benefit of some
7 debate on this.
8 Commissioner Mills.
9 COMMISSIONER MILLS: Mr. Chairman, I think perhaps to
10 endorse your proposal, I, in fact, had a proposal on
11 statutory initiatives. There are proposals, there are a
12 number of proposals here on constitutional initiative
13 reforms. If what you are suggesting is to try to get
14 those folks together so that you can have a proposal on
15 each of those options that we can vote up or down, I think
16 that makes some sense. I personally have been --
17 CHAIRMAN DOUGLASS: Each of those options or some
18 combination maybe, whatever would be a way to reach the
19 issues on the floor for an orderly debate is what I'm
20 looking for. And we will try to do that, if that's
21 agreeable.
22 COMMISSIONER MILLS: Since mine is next up, that's
23 fine with me. Having that referred to a group that would
24 combine that with other issues is fine.
25 CHAIRMAN DOUGLASS: All right. We'll do that and
258
1 we'll take it up or put it on the special order for the
2 next meeting in this month. That then moves us to a
3 proposal by Commissioner Corr, No. 118, which was approved
4 by the committee on education. Would you read it please?
5 (Pause.)
6 CHAIRMAN DOUGLASS: Have you read it?
7 READING CLERK: Proposal 118, a proposal to revise
8 Article X, Section 15, Florida Constitution; providing
9 that lotteries may be operated by the state for the sole
10 purpose of raising proceeds to enhance funding for public
11 education programs; providing that proceeds be
12 appropriated directly to school advisory councils for the
13 sole purpose of enhancing school programs.
14 CHAIRMAN DOUGLASS: Now Commissioner Corr.
15 COMMISSIONER CORR: Mr. Chairman, I yield to
16 Commissioner Nabors.
17 COMMISSIONER NABORS: Commissioner Jennings isn't
18 here. Yesterday in the Education Committee, we had
19 compelling testimony dealing with lotteries. And the
20 sense was is we have -- this and the next two proposals
21 all deal with lotteries -- that we were going to attempt
22 to get together along with the proposal Commissioner
23 Sundberg has and try to resolve these. I talked to the
24 rules chairman about the idea of not trying to put this on
25 the special order until we have that opportunity.
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1 The other difficulty we have is that all of these
2 have an economic impact which we are trying to resolve
3 depending on how the money is dedicated. And we really
4 are not in a position to consider these yet and it would
5 not be helpful to try to consider them one at a time.
6 So what we really would like to do is, however the
7 rules chairman wants it to go, is either TP these until
8 the next meeting or I'd like to not have them on the
9 calendar until we can get back with the rules chairman and
10 say we have resolved these issues.
11 CHAIRMAN DOUGLASS: Commissioner Barkdull --
12 Commissioner Riley.
13 COMMISSIONER RILEY: If I may speak for the Education
14 Committee.
15 CHAIRMAN DOUGLASS: Yes, that's right, you are vice
16 chairman, I keep forgetting that.
17 COMMISSIONER RILEY: That's okay, Mr. Chairman. We
18 did, in fact, do what you are talking about doing with the
19 initiative and try to pull everything together. However,
20 we weren't able to meet with Commissioner Sundberg yet and
21 so I would concur with Mr. Nabors. I don't think it will
22 take us a good deal of time to at least see where they all
23 stand within the idea of the Lottery funds because we are
24 all on the same page. We are just not quite sure how we
25 are going to read the paragraphs.
260
1 CHAIRMAN DOUGLASS: Are we going to TP them for a
2 time, to a time certain, or not?
3 COMMISSIONER NABORS: Can we get with the rules
4 chairman as soon as we have resolved it?
5 CHAIRMAN DOUGLASS: Well the rules chairman is in
6 conference at the moment. Commissioner Barkdull.
7 COMMISSIONER BARKDULL: Yes, sir.
8 CHAIRMAN DOUGLASS: The people connected with the
9 Education Committee, they have approved two of these --
10 one of these and made a committee substitute and
11 disapproved one relating to the Lottery funds being used
12 for education, basically. And they want to get with you
13 to r-ecalendar these, and they don't know when.
14 So you weren't listening to the discussion. What
15 they said was that they hadn't had an opportunity to
16 resolve which one they wanted to support.
17 COMMISSIONER BARKDULL: Well we have got people
18 scheduled to be here now, we have got to have things to
19 work on. I suggest to them that between now and tomorrow
20 they try to get their act together.
21 CHAIRMAN DOUGLASS: All right. So he says between
22 now and tomorrow.
23 COMMISSIONER NABORS: May I speak to it?
24 CHAIRMAN DOUGLASS: Certainly you can speak to it.
25 COMMISSIONER NABORS: You and I discussed this prior,
261
1 the fact that these are not going to be ready, they can't
2 be ready by tomorrow. They have not only resolved the use
3 of the Lottery funds, but also there is a funding
4 implication as well. It is really not going to facilitate
5 any of our time to try to deal with this tomorrow. This
6 is an important issue and I think we would be in a
7 position to deal with it perhaps at the next meeting in
8 February.
9 But it is not possible. It is not just a question of
10 looking at language here and there, there is some
11 philosophical things, not only dealing with use but also
12 how you are going to pay for the ramifications on the
13 state budget.
14 CHAIRMAN DOUGLASS: I have a motion to temporarily
15 pass these three. I'll take them one at a time.
16 Temporarily pass Proposal 118 by Commissioner Corr,
17 Commissioner Corr moves to temporarily pass it. Without
18 objection it is.
19 Proposal 54 by Commissioner Zack, he isn't here;
20 without objection, it is temporarily passed. Committee
21 substitute for Proposals 138 and 89 by the committee on
22 education and Commissioners Nabors and Riley who move to
23 temporarily pass it. Without objection, it is temporarily
24 passed. It will be re-calendared by the Rules Committee.
25 The next item is -- you have got an objection?
262
1 COMMISSIONER BARKDULL: No, sir.
2 CHAIRMAN DOUGLASS: Okay. We will go to the next
3 item which is Proposal 181 by Commissioner -- I didn't
4 mean to sound like, you have got one, I'll come down there
5 and get you.
6 But I have an inquiry from Commissioner Rundle that
7 came through the secretary since I didn't see you standing
8 up. You are recognized.
9 COMMISSIONER RUNDLE: We are doing calendar
10 housekeeping.
11 CHAIRMAN DOUGLASS: Indeed.
12 COMMISSIONER RUNDLE: It occurred to me what we need
13 to do, Mr. Zack is not here, but he made a motion to
14 reconsider Proposal 1, we need to adopt that motion so it
15 can be deferred.
16 CHAIRMAN DOUGLASS: Okay. Everyone in favor of the
17 motion that Mr. Zack would make if he was here, say aye;
18 opposed?
19 (Verbal vote taken.)
20 CHAIRMAN DOUGLASS: It is done. Now we go to, defer
21 consideration without objection of the proposal.
22 Proposal 181 by Commissioner Brochin. Please read
23 it. This is one now you are going to listen to. This is
24 one we should pay close attention to, Commissioner Kogan,
25 and wake up. Not you, the rest of us.
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1 COMMISSIONER KOGAN: All right.
2 READING CLERK: Proposal 181, a proposal to revise
3 Article IX, Section 1, Florida Constitution; providing
4 public rights to and state duties to provide complete and
5 adequate public education.
6 CHAIRMAN DOUGLASS: Commissioner Brochin.
7 COMMISSIONER BROCHIN: Okay. This is a proposal that
8 actually really supplements what we have already done as a
9 commission. If you recall, we have explicitly put into
10 the Constitution a definition for adequacy and what that
11 means. And I believe that passed 23 to 1 by this
12 commission. This, as written, is not in sync with that so
13 it needs some drafting consistency to supplement
14 Commissioner Mills' proposal.
15 But essentially, if you will look at the analysis,
16 you will see that in the state of Florida we have an
17 extraordinarily long list of fundamental rights. They
18 range from the right to enjoy life and liberty to pursue
19 happiness, to even assemble peacefully, the right to bear
20 arms, searches and seizures, have habeas corpus, pretrial
21 release, presentment of crimes and other sundry basic and
22 fundamental rights.
23 What this proposal does is take education, which has
24 its own article in our Constitution, and simply declares
25 it to be a fundamental right. The idea is not mine, it
264
1 comes out of our own Constitution. It comes out of our
2 Constitution from 1868. And although I didn't use the
3 exact language, I used language fairly close.
4 And what the 1868 Constitution says is that it is the
5 paramount duty of the State to ensure that children, and
6 they use the word children, have a right to an education
7 without distinction or preference. And this is modeled
8 after that. It was a good idea in 1868 and it is even a
9 better idea in 1998.
10 As I mentioned to this commission when we discussed
11 the adequacy provision, I have had an opportunity to
12 review all of the state Constitutions that deal with the
13 subjects of education. And many of those states talk
14 about education as a fundamental right. Many of those
15 states go on for sentences and paragraphs about the
16 fundamental need to education and how education paves the
17 way to democracy and freedom in their state and lays out
18 in fairly lofty goals the right of children to have an
19 education in their state.
20 And when you read those various proposals and those
21 various constitutional provisions in the states, you come
22 away empty in that the state of Florida does not approach
23 some statement to our people about the right of an
24 education. And I think the time has come for us to take
25 that right and make sure that the children of our state
265
1 have it.
2 Now I want to point out clearly and for purposes of
3 intent that as the education of our children in the state
4 move in various directions, whether it be charter schools,
5 private schools, public schools, and whatever preference
6 you have as to how our children are educated, this
7 amendment does not address that.
8 What this amendment does is says as we move off in
9 those directions, and some very exciting directions and
10 very challenging directions, this amendment is going to
11 ensure that everybody moves together, that every child is
12 ensured an education; the poor, the black, the whites, the
13 Asians, the Hispanics. Everybody will be ensured of this
14 fundamental right, no matter what direction this state
15 takes.
16 So it is for that purpose I have proposed it and it
17 is for that purpose that I hope we will adopt it.
18 CHAIRMAN DOUGLASS: All right.
19 COMMISSIONER SUNDBERG: Mr. Chairman, for a question.
20 CHAIRMAN DOUGLASS: Yes, Commissioner Sundberg.
21 COMMISSIONER SUNDBERG: Commissioner Brochin, to make
22 it consistent, need we do anything but put "adequate" back
23 in and strike "ample"? You struck "adequate" and inserted
24 "ample".
25 COMMISSIONER BROCHIN: Well --
266
1 COMMISSIONER SUNDBERG: That's not a rhetorical
2 question.
3 COMMISSIONER BROCHIN: No, the answer to the question
4 is, yes, that's certainly the first thing we need to do
5 because ample is no longer necessary since we have defined
6 adequate. But it also says that such education is
7 complete and adequate and I need to go back and put it in
8 in light of the amendment that was passed.
9 COMMISSIONER SUNDBERG: Okay.
10 COMMISSIONER BROCHIN: There is some wording that
11 just needs to be done, but this intent is to raise it to a
12 fundamental right.
13 CHAIRMAN DOUGLASS: Commissioner Riley.
14 COMMISSIONER RILEY: I would agree with that. And if
15 Commissioner Brochin is agreeable, I'll put together an
16 amendment that will put "adequate provision" back in and
17 take "ample" out because in fact what we passed yesterday
18 speaks specifically to adequate provision and then defines
19 it.
20 CHAIRMAN DOUGLASS: I have a question. What this
21 would mean then is your proposal would then become the
22 part that says each resident of this state has a
23 fundamental right to a public education during the primary
24 and secondary years of study, and it is the paramount duty
25 of the state to ensure that such education is complete and
267
1 adequate? Or are you stopping at the period after study?
2 Is that --
3 COMMISSIONER BROCHIN: No, I mean, what we need to do
4 is that word "ample" certainly needs to be changed to
5 "adequate." But the further suggestion that I would have
6 in drafting at least is I wouldn't say -- I wouldn't stop
7 a sentence, end a sentence with "adequate" and start the
8 next sentence with "adequate. I think it needs to be
9 rewritten in light of the fact --
10 CHAIRMAN DOUGLASS: Of what we have already adopted.
11 COMMISSIONER BROCHIN: Right. I just think it needs
12 a little bit of consistency to it that I think style and
13 drafting could very well handle.
14 CHAIRMAN DOUGLASS: But isn't the only thing you are
15 adding here the fundamental right becoming a part of the
16 Constitution, assuming that you adopted the other
17 resolution, I mean, proposal?
18 COMMISSIONER BROCHIN: That it is a fundamental
19 right, and that it is the duty of the State to ensure that
20 the education is adequate. And therefore adequate is then
21 defined. And the word "ensure" is intentionally made
22 because it doesn't mean the State necessarily has to
23 provide that education, it means that the State has to
24 ensure that that education is adequate.
25 CHAIRMAN DOUGLASS: All right. The reason I am
268
1 saying that is I think we could probably get a sense by
2 voting on whether or not people want to put the
3 fundamental right, which we dealt with before at other
4 times, into the Constitution.
5 And is that why you rise, Commissioner Langley?
6 Commissioner Langley is recognized.
7 COMMISSIONER LANGLEY: Mr. Chairman, I don't know how
8 many folks are familiar with football, but the absolute
9 worst position to play in football is noseguard. Every
10 play, you get hit. I don't care if it is going left,
11 right or center, you get hit on every play. And in the Xs
12 and Os, you are the first O that they put the X on.
13 That's the way I feel today in here, that I am the
14 noseguard for the people of Florida.
15 I don't know how many of you are familiar with
16 Costello versus State of Florida. That was a prisoner
17 over in Raiford who sued the State of Florida said, I
18 don't get adequate medical attention. And so our
19 jurisdiction of the Florida prisons were turned over to a
20 federal judge in Jacksonville. Bear in mind a lot of
21 things needed to be corrected, but that little escapade
22 cost the State somewhere between 3 and $500 million.
23 Now we are going to sit here in our little
24 mini-Legislature, this commission, and we are going to
25 say, if you will look at the staff analysis, this proposal
269
1 would shift final authority for determining the adequacy
2 of public school systems from the Legislature to the
3 judicial system, the judicial system which we are in the
4 process here of making totally appointed.
5 So the people now have no voice, they can't elect the
6 judges and their elected people can't make any decisions
7 and here is the blank check, Mr. Federal Judge or
8 Mr. State Supreme Court, Mr. Kogan, if you are capable of
9 doing this, here is a blank check, just write it. And the
10 Legislature, by court order, would have to go raise the
11 funds to pay that check, to cover that check.
12 And it would be a bunch of experts that say, You
13 know, Lake County is only spending $6300 per year per
14 student, we need for them to spend $10,000 per year per
15 student. So you, Lake County, raise ad valorem taxes to
16 get that money. Is that what you want to do? I mean, you
17 know, there are limits, there is no inexhaustible supply
18 of taxpayer funds. And we can't just hand a blank check
19 to a court system and say, have adequate education for the
20 state of Florida.
21 Trust your elected people, that's all we can do.
22 CHAIRMAN DOUGLASS: Now the safety man, Commissioner
23 Mills.
24 COMMISSIONER MILLS: Mr. Chairman, I first want to
25 say explicitly I don't think Commissioner Langley looks
270
1 like he has been playing noseguard that long.
2 First of all, the comment on the staff report, I want
3 to address that because I actually had a conversation on
4 this with a couple people. I think the staff report is
5 wrong.
6 I think the staff report that says it shifts the
7 education system to the courts is just an incorrect
8 interpretation. And this relates to our conversation the
9 other day, which was the court in the adequacy case, four
10 of the members of the court said they were willing to
11 address and define the issue of adequacy. So if one is
12 concerned about whether this might go to court, it might
13 go to court now; this doesn't change that.
14 We removed from the definition of adequacy financial,
15 the financial term. By inserting this, there is no
16 additional financial consequence as I read this. By
17 determining this as a fundamental right, I think actually
18 some of the statements of our court have indicated
19 education might be close to being a fundamental right
20 already.
21 And then the comparison of the rights of prisoners to
22 litigate and the rights of students to litigate their
23 well-being only makes me think, having been on the
24 receiving end of the Legislature when the Costello bill
25 came in, yes, it irritated me to sit around and think that
271
1 a prisoner was able to constitutionally define an adequate
2 living space.
3 The only thing that makes me more angry than that is
4 a student doesn't have the right to constitutionally
5 define their living space. We have more protection for
6 the way we treat a prisoner than the way we treat a
7 student. This would help change that.
8 CHAIRMAN DOUGLASS: Commissioner Lowndes?
9 COMMISSIONER LOWNDES: I'd like to ask a question of
10 the proponent.
11 CHAIRMAN DOUGLASS: Commissioner Brochin?
12 COMMISSIONER LOWNDES: Mr. Brochin -- Commissioner
13 Brochin, does this apply to children?
14 COMMISSIONER BROCHIN: Yes.
15 COMMISSIONER LOWNDES: How do we know that from the
16 language?
17 COMMISSIONER BROCHIN: Oh, I'm sorry it does not,
18 yes. No, it applies to every resident but it is limited
19 to a primary and secondary education. So it is only -- it
20 doesn't go beyond the secondary education.
21 COMMISSIONER LOWNDES: So if someone was 40 years old
22 and didn't have a primary and secondary education, the
23 State would be required to give them one?
24 COMMISSIONER BROCHIN: They would have access to a
25 public education, yes.
272
1 CHAIRMAN DOUGLASS: Commissioner Rundle. You are
2 next, Commissioner Morsani.
3 COMMISSIONER RUNDLE: I'm sort of piggybacking on
4 that issue of who is entitled to it. By the way, I really
5 applaud this kind of concept and I think it is really
6 needed in the state of Florida and I would support it
7 fully.
8 But I do have a question about the definition of
9 "resident" and maybe it is due to my heritage that makes
10 me a little sensitive about it, and I think of the
11 experience in California where they said illegal
12 residents, children were not entitled to public education.
13 What do you consider the word "resident" to mean? Or have
14 you thought that through?
15 COMMISSIONER BROCHIN: I have thought it through and
16 I took it from other constitutional provisions to have
17 some consistency as "residents" is used in the
18 Constitution as a whole. I'm not sure, to be frank,
19 whether it would apply to illegal residents. I don't know
20 the answer to that question.
21 CHAIRMAN DOUGLASS: Commissioner Morsani?
22 COMMISSIONER MORSANI: I guess my questions are being
23 somewhat redundant of what's already been asked,
24 Commissioner Brochin, but I have a serious problem with
25 fundamental rights. And the other questions that
273
1 Mr. Lowndes and Ms. Rundle raised.
2 You know, at one time I was teaching people in this
3 state and I would be interested -- it would be interesting
4 to know today how many people under 40 or under 50 can't
5 read or write but decide they need an education whether
6 they are 40. That's unfortunate, but it is real.
7 I think with this type of -- as we talked about the
8 economic side and the revenues necessary -- I really, as
9 much as we want everyone to have a good education, do we
10 want to bend over backwards for them? I see that that
11 opens up all kinds of areas of litigation for a large
12 percentage of people that are dissatisfied with what their
13 children are getting in school.
14 If we had the best school system in the United States
15 for all of our youngsters we might not have quite the same
16 concerns. However, we have been told that we don't have
17 the number one school system in the United States, just
18 based upon what we know from K through 12.
19 And what this would open up, I think it is Pandora's
20 box that we would open up, as much as I want all of our
21 children to have a fine education and our public to have a
22 fine education. But I think when we use the terms
23 "fundamental rights," we are opening Pandora's box beyond
24 all of our, we just can't even comprehend the problems
25 that would be upon our state. As much as I want to
274
1 endorse education and work for education, I just can't
2 support this proposal and I just don't know how to address
3 your concerns and your issues.
4 But I don't think this is the right vehicle for what
5 we are attempting to accomplish.
6 CHAIRMAN DOUGLASS: Commissioner Freidin?
7 COMMISSIONER FREIDIN: As we leave the 20th century
8 and move into the 21st century, there is an increasing
9 deficit in the education that we are providing our
10 children. It has gotten worse and worse and worse over
11 the last decade. And for whatever reason, I am not a
12 student of legislative politics, I have no idea what goes
13 on here when we are not here in terms of education.
14 I don't know what all the exigencies are and I don't
15 know what all the concerns are other than generally I know
16 that there is always a crunch on money. But for whatever
17 reason, education has not been given the priority that it
18 should be given. As we go into the 21st century, we have
19 to change our priorities. There has to be a clear
20 statement of what we believe is really important.
21 And this, folks, is as important as it gets. I think
22 that the need for good, solid, strong education is going
23 to be much greater as technology changes, industry
24 changes, and the things people do in order to get by in
25 the world are going to become much more dependent on
275
1 having a good education.
2 This is truly a proposal for an amendment for the
3 future. And without it, our state is in deep trouble and
4 I -- I'm simply, without dealing with it at this moment
5 and without really addressing the issues that some of you
6 raise which are I think valid issues in terms of whether
7 it applies to a child and the exact language and wherever
8 we put in the word "adequate" and all that, but without
9 dealing with those issues, I would speak very strongly in
10 favor of this commission offering to the public to put
11 this into the Constitution.
12 CHAIRMAN DOUGLASS: Commissioner Riley?
13 COMMISSIONER RILEY: I have an amendment that I'd
14 like to present which will clarify this sentence with what
15 we passed yesterday in terms of adequate provision. And
16 it should be on everyone's desk which is to take out
17 "ample" and to put back in "adequate."
18 CHAIRMAN DOUGLASS: All right. The amendment is on
19 the desk by Commissioner Riley. Would you read the
20 amendment, please?
21 READING CLERK: By Commissioner Riley on Page 1, Line
22 17, delete the words "ample," "adequate," (sic) and insert
23 "adequate."
24 CHAIRMAN DOUGLASS: All right. Commissioner Riley.
25 Any discussion?
276
1 COMMISSIONER RILEY: Well just to remind the members
2 that 23 out of 24 of us yesterday adopted a proposal
3 defining adequate provision. I think this brings that in
4 line with that. And when the time comes after this, I
5 would like to speak towards the entire amendment.
6 CHAIRMAN DOUGLASS: If we adopt your amendment what
7 will be --
8 COMMISSIONER RILEY: If this is adopted, it will, in
9 fact, bring into alignment what we already passed
10 yesterday because it is a little confusing if yesterday we
11 passed -- in quotes it says "adequate provision" and
12 defines it and yet adequate provision as it is changed
13 here, is not here.
14 CHAIRMAN DOUGLASS: So my question is this, which I
15 want everybody to -- if your amendment is adopted, we will
16 be voting on whether or not we approve going to the people
17 on this fundamental education to fundamental right for
18 everybody secondary and whatever it says. That will be
19 the issue that we will wind up voting on after your
20 amendment?
21 COMMISSIONER RILEY: Correct. Yes. What my
22 amendment does --
23 CHAIRMAN DOUGLASS: So it goes much further than our
24 amendment yesterday -- our proposal yesterday?
25 COMMISSIONER RILEY: Not my amendment.
277
1 CHAIRMAN DOUGLASS: No, no, no. But I mean after
2 your amendment is adopted it's an entirely different
3 thing.
4 COMMISSIONER RILEY: Yes.
5 CHAIRMAN DOUGLASS: In other words, we are going to
6 the fundamental right issue if we adopt your amendment?
7 COMMISSIONER RILEY: I think you are clarifying
8 adequate provision as it has already been accepted as a
9 proposal --
10 CHAIRMAN DOUGLASS: That's your amendment.
11 COMMISSIONER RILEY: -- if you take my amendment.
12 CHAIRMAN DOUGLASS: Okay. All that favor of the
13 amendment say aye. Opposed like sign.
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: It is carried. Now, Commissioner
16 Brochin, you heard what I said and I want to do this
17 because I want to be sure we are all on the same page. As
18 I understand it, what is different about this from what we
19 have already agreed to is that it goes to the issue of
20 whether or not education is a fundamental right for
21 everybody in these areas that are defined in your
22 proposal; is that the issue that we have before us?
23 COMMISSIONER BROCHIN: That is the issue we have
24 before us although I think Commissioner Lowndes is going
25 to offer an amendment to limit that fundamental right to
278
1 children.
2 CHAIRMAN DOUGLASS: Okay. But we are dealing with
3 fundamental right instead of adequate at this point?
4 COMMISSIONER BROCHIN: Right.
5 CHAIRMAN DOUGLASS: Now, you may proceed.
6 COMMISSIONER BROCHIN: Well, I'm going to proceed to
7 respond a little bit to Commissioner Morsani's comments
8 while Commissioner Lowndes is preparing that amendment.
9 I want to put this in a constitutional context
10 because we are really trying to look at the constitutional
11 aspect of it. And I think that statement in the analysis
12 that this proposal somehow shifts responsibility from one
13 branch of government to the other is absolutely incorrect.
14 Constitutionally speaking, at least from what I have
15 read, there is four categories that you can have in your
16 Constitution when you talk about education and it deals
17 with various levels of constitutional scrutiny, if you
18 will, in terms of education.
19 And I want to review them with you. Category 1 means
20 a system of free public schools will be provided. That's
21 Category 1. That's the lowest category and that's the
22 category that Florida is in, the lowest. Category 2
23 imposes a minimum standard of quality that the State must
24 provide.
25 Category 3 requires a, quote, stronger and more
279
1 specific education mandate and purpose in its preamble.
2 Category 4 imposes a maximum duty on the State to provide
3 an education.
4 What this does, it takes Florida out of the depth of
5 a Category 1 and raises it to a Category 4. What it does
6 is tell the people of this state, when they get a chance
7 to vote on this, that we want to raise the constitutional
8 level that in our document we want education to go from
9 the lowest level that it is afforded, constitutional
10 protection, and bring it to the highest.
11 And it is not the judiciary's responsibility and it's
12 not just the legislative's responsibility, and it's not
13 just the executive branch's responsibility. It is going
14 to be the entire three branches of government's
15 responsibility to meet that mandate and meet that
16 statement of policy that will say that education imposes a
17 maximum duty on the State to provide for its children.
18 And so there may be shifting among the three branches
19 to ensure this paramount duty, but it doesn't shift it to
20 the judges to decide how much money. In fact, that first
21 decision in terms of how much to spend and where lies with
22 the Legislature. It would be their duty and
23 responsibility in following the constitutional mandate to
24 provide the maximum duty on them to provide this high
25 quality education. And I think the time has come for us
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1 to raise it to that level.
2 I hesitated to go forward today with this because I
3 really wanted to bring to bear here a comparison of other
4 states. You know, one of the questions we always ask
5 ourselves in considering any constitutional proposals is
6 what other states do. And the reason we do that is not
7 because we necessarily want to follow them, but we want to
8 get a sense of where we are, where do we stand with our 49
9 other brethren states out there in terms of our values and
10 in terms of the things that we want to promote. And
11 today, we stand at the bottom. And I hope this is going
12 to make us stand up with most of the other states in
13 declaring this a fundamental duty.
14 So there is a constitutional context that I want to
15 put in this because that's what we are trying to establish
16 with this.
17 CHAIRMAN DOUGLASS: Commissioner Morsani?
18 COMMISSIONER MORSANI: Well, I really appreciate your
19 explanation and I don't disagree with the intent, but I
20 have, you know, I'm sorry that I am controversial at times
21 on legal issues, but I've been there and you take one
22 word, ladies and gentlemen, and you-all as attorneys you
23 change the damn context whenever you go to court.
24 (Laughter.)
25 That's what you do, doggone it, that's what happens.
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1 And that scares the hell out of me. Now that's the reason
2 I have a problem with fundamental rights. I love your
3 fourth idea. And I can endorse that. But I can't endorse
4 it when I might be in court tomorrow morning after they
5 pass this to go over the fundamental rights because we
6 didn't do something and that scares me and I don't know
7 how to get over that, Commissioner, because I want to get
8 over it. I agree with you, but it just scares the heck
9 out of me.
10 CHAIRMAN DOUGLASS: Twenty years ago, Commissioner
11 Morsani, I might have said, you know, you shouldn't have
12 used those words. But now that's prime-time words on
13 television so it's okay.
14 All right. Commissioner Riley?
15 COMMISSIONER RILEY: Commissioners, I'd like to speak
16 strongly in favor of this. I am hardly in favor of taking
17 an education that is in Category 1 and moving it to the
18 top and promising to the children of our state that they
19 get the adequate provision and the education that we
20 passed on yesterday.
21 I think we need to look at our history and remember
22 what Commissioner Brochin said which is in 1868 we looked
23 at the State as a place that could and should provide a
24 paramount education and that was the duty of the State to
25 put it out there for the children of this state.
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1 How can we bring these children into the world and
2 not promise them that we will teach them and that the
3 State will provide the opportunity for them to learn and
4 to grow and to go well prepared out into the world? And
5 we don't do that. We have, all of us, children who go off
6 to other states to school perhaps, I know I do.
7 My children all went to public school in the state of
8 Florida. And I am lucky that they got excellent teachers.
9 But they were not as prepared when they went off to the
10 universities in other states as some of their students in
11 the same classes because of the education that they got.
12 And I think we can do better.
13 Commissioner Marshall yesterday presented us with
14 some figures over the last 20, 25 years of our educational
15 system in the state of Florida and it was appalling that
16 the figures have gotten worse. The year when the 50
17 states, the graduation rate in the state of Florida,
18 Florida was literally at the bottom. It was the bottom.
19 There was no state that was worse than the state of
20 Florida.
21 And we have to do better for our children. I see
22 nothing wrong with promising to our children a fundamental
23 right that we will educate them. I would be proud to have
24 a Constitution that raises our educational promise to our
25 children higher than it is now and higher than it is in
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1 other states. And I encourage you to support the children
2 and their education and their future and I think we do
3 that with this proposal.
4 CHAIRMAN DOUGLASS: Commissioner Marshall?
5 COMMISSIONER MARSHALL: Thank you, Mr. Chairman.
6 Much of the debate that I have heard in the last 15
7 minutes or so seems to be centered on the need to improve
8 an inadequate school system. Acknowledgement that we have
9 a not very good school system in Florida and that we ought
10 to take extraordinary steps to improve it. Is there any
11 doubt in anybody's mind about that among these
12 commissioners? I mean, I think we all acknowledge that.
13 And I'm inclined to say at the risk of sounding impatient,
14 let's go on to something else. Of course we have a poor
15 school system and of course we must do something to
16 improve it.
17 There are moments when I wish I were a lawyer,
18 Mr. Chairman, and this body. Not often, you understand,
19 but occasionally, because I would like to have a legal
20 mind to do such things as interpret the meaning of
21 fundamental right. So my question first is, can anybody
22 answer this, is there a definition that I as a legislator,
23 if I were one, might apply to the term "fundamental
24 right"? I am not sure there is. Or if there is, if you
25 have explained what it is, I have missed it.
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1 So if there is no precise definition of fundamental
2 right then I assume it must go to the courts and that's
3 the part of this proposal that really frightens me. I
4 understand the balance of powers and I think the courts
5 have an important role to play in education as they do
6 throughout our society but there's been some egregious
7 examples of court involvement in running schools and
8 taking over the decision-making in school systems, they
9 are downright frightening. And the most egregious is the
10 one in Kansas City.
11 And if you haven't read about that one -- I suspect
12 many of you have -- it's a case where a federal judge, a
13 judge in a federal court, took over the school system and
14 told them, told the authorities the number of dollars they
15 would have to spend to achieve what he perceived to be an
16 appropriate goal for an adequate school system and they
17 spent those dollars and I won't now spell out the tragic
18 history of that account but it wasn't a happy story.
19 I don't think we want to do any more than we must do
20 to have the courts involved in education. Now maybe this
21 will do this, Commissioner Brochin, I don't know. But
22 unless somebody can tell me what I as a legislator would
23 do when I see that my responsibility is to ensure the
24 children of Florida a fundamental right, you know, my
25 response is to that is that I've been a legislator for
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1 several years and I'm conscientious and intelligent about
2 educational matters, you bet I'm going to guarantee our
3 students a fundamental right as I have been doing all
4 these years unless you can tell me some definition of
5 fundamental right that I have not met.
6 And if that means -- if providing that definition
7 means going to the courts, then I'm opposed. And unless
8 somebody can answer that question to my satisfaction, I'm
9 opposed to this proposal. Thank you.
10 CHAIRMAN DOUGLASS: Commissioner Barkdull?
11 COMMISSIONER BARKDULL: Commissioner Marshall, would
12 you yield for a question?
13 COMMISSIONER MARSHALL: Yes, sir.
14 COMMISSIONER BARKDULL: Would you believe me, sir,
15 that I picked up Forbes Magazine Tuesday night and saw
16 where three states had got their educational systems into
17 the courts, now they have taken over to run them?
18 COMMISSIONER MARSHALL: I would believe that,
19 unhappily, sir.
20 CHAIRMAN DOUGLASS: Commissioner Langley?
21 COMMISSIONER LANGLEY: Unlike Commissioner Marshall,
22 sometimes I wish I wasn't a lawyer because then I wouldn't
23 see all of the depths and confusion of some of these
24 amendments. But basically, and I think the consensus of
25 the other lawyers here with whom I have spoken, a
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1 fundamental right is one that the State must show a
2 compelling state interest before it can be denied you.
3 Okay. You have the right of free speech, you don't have
4 the right to yell "fire" in a crowded theater. There must
5 be some compelling state interest. I don't think that
6 finances is a compelling state interest.
7 And how these, I fail to agree with these proponents
8 who say this would not end up in court. Again, you have
9 to let the rubber hit the road. The rubber hits the road
10 because Commissioner Riley doesn't feel that her child in
11 the second grade is getting adequate teaching, they are
12 not bringing home any homework, there's a bunch of
13 confusion at school and, you know, she just doesn't feel
14 like that child has been adequately provided for. What
15 does she do? First she goes to the school board and they
16 say, Well, that's too bad, we don't have the money to do
17 it. So then she files a lawsuit, it is the only way.
18 Then she files a lawsuit and she tells the court,
19 federal or state or whatever, and says, My child has a
20 fundamental right to this education. Look what was just
21 passed in 1998. And she is not getting that.
22 Then the court would take testimony, Well what is --
23 and we try to define adequate, the court would have to
24 define that, we tried that yesterday by inserting a very
25 clearly understood definition, high quality. Now, what
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1 does high quality mean? I don't know. Maybe you do. We
2 all have our ideas about what high quality is but nobody
3 really knows and so then the court would take expert
4 testimony from all of the Ph.Ds and what have you all
5 around the world and decide what high quality education
6 is.
7 And if that child needs a $20 an hour tutor three
8 days a week, two hours a day, that's what she gets. And
9 if the county can't afford that, then the court says, You
10 assess whatever taxes are necessary to fund that. That's
11 how it happens.
12 CHAIRMAN DOUGLASS: Commissioner Riley rises for a
13 question.
14 COMMISSIONER RILEY: I would like to ask a question
15 of Commissioner Langley. Can you tell me then, since what
16 we have is what we are going by and this is not going to
17 land us in the courts, what adequate provision is since it
18 is not defined in the Constitution? And, thank God, I
19 don't have a second grader anymore. But cannot, given
20 that, any parent try to go through and decide on their own
21 what adequate is and if they don't like the definition
22 take it to the courts now?
23 COMMISSIONER LANGLEY: If I'm not mistaken, that was
24 the whole point of the adequacy suit where 30-some
25 counties sued the State and said, You are not adequately
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1 funding our public school system. And the court basically
2 said, Well, that's really legislative and it's up to them
3 to provide that and, you know, this is not at this time a
4 level of a fundamental right that we are going to
5 interfere with, basically.
6 The answer to me, you know, we have a -- we are doing
7 all we can to reform the election process and I go along
8 with a lot of it. I have been on both sides of this
9 issue. But that's where the answer is. By golly, if the
10 Legislature isn't funding it right, vote for
11 Representatives and Senators who will. That's what it is
12 all about. They say right now in all the polls education
13 is the number one concern of the people of Florida. By
14 golly, make them commit. What are you going to do? Are
15 you going to put more money in education, Prospective
16 Senator, or are you not? But that's our answer.
17 But at least we can vote in for those people to put
18 them in and we can vote against them to put them out. So
19 you can't do that with Judge Kogan.
20 COMMISSIONER RILEY: Let me ask one more question,
21 having given me the definition from a legal perspective,
22 of fundamental right meaning compelling state interest.
23 Do we not have a compelling state interest to educate our
24 children and if we have that, why not make it clearer in
25 putting this provision in this sentence in the
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1 Constitution?
2 COMMISSIONER LANGLEY: If you want to turn over the
3 funding of education to the courts, do it, that is what
4 that would do. I don't want to do that. I would rather
5 go fuss at my Senator or my Representative or whatever
6 rather than depend on some judge who is never going to
7 answer to me and come back with a court-ordered taxation,
8 that's got to be the worst kind.
9 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
10 COMMISSIONER EVANS-JONES: Commissioner Langley, it
11 is 5:00 and I'm kind of tired. I think all of us older
12 folks kind of get that way at times. But anyway, what I
13 want to know is did you vote for the measure yesterday on
14 education?
15 (Off-the-record comment by Commissioner Langley.)
16 COMMISSIONER EVANS-JONES: If you had been here would
17 you have?
18 (Off-the-record comment by Commissioner Langley.)
19 COMMISSIONER EVANS-JONES: Well, I guess what I'm
20 trying to find out then from somebody is it was almost
21 unanimous if I remember, I think one vote, wasn't it,
22 Commissioner Riley?
23 COMMISSIONER RILEY: Three to 1. And everyone who
24 was here, commissioner Langley was not here, everyone
25 voted for it except Commissioner Evans.
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1 COMMISSIONER EVANS-JONES: Well, I guess what I want
2 somebody to explain to me is what's the difference between
3 what we did yesterday and I know this is stronger, I mean,
4 this is a fundamental right. Did what we do yesterday,
5 would that create as many problems with the court system
6 as what they are saying today? Somebody help me.
7 CHAIRMAN DOUGLASS: I think everybody wants to answer
8 that. But the answer is, if you adopt this, it goes much
9 further than what we did because what we did was -- as a
10 statement of the public policy of the state is -- and then
11 went forward with what was said. And it was specifically
12 understood that this would not make that a fundamental
13 right which would ensure that each person had that right
14 and that was brought out in the debate that it would, in
15 effect, put the Legislature on notice that the people
16 adopted that as the fundamental policy, what was this that
17 proposal.
18 And the reason I asked the question I did earlier is
19 because this one now says that education is a fundamental
20 right. And there is a significant legal difference
21 between that and what we have now and what we would have
22 under the other amendment. And Commissioner Langley, I
23 think, has made that point very well, that the -- when you
24 say it is a fundamental right, when you get to court, you
25 have an entirely different issue than where that's not the
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1 case.
2 And so far the courts in Florida have not held that
3 education is a fundamental right. Now they had an issue
4 about whether or not there was adequate funding, which was
5 a 4-3 decision that they've deferred to the Legislature.
6 If I'm wrong, I'll certainly be happy to be corrected and
7 I'm sure the lawyers can correct me. Who wants to try?
8 COMMISSIONER EVANS-JONES: I'm not a lawyer, I'm
9 still asking questions.
10 CHAIRMAN DOUGLASS: I'll let somebody else answer the
11 rest of them.
12 COMMISSIONER EVANS-JONES: I think, I know for a
13 fact, everybody in this room is sincerely concerned with
14 the education system in Florida as Commissioner Marshall
15 has said. And I think we are deeply troubled with what we
16 have. I don't want the courts to run the school system
17 any more than some of these, Commissioner Langley and
18 Commissioner Morsani.
19 I do want the Legislature and the public to know that
20 we do care and we are not satisfied with the he education
21 that we are getting. So I guess what I'm saying is I
22 don't know which is the better way for us to go and I
23 think yesterday, you know, maybe was the best. I don't
24 know. I'm confused.
25 CHAIRMAN DOUGLASS: Excuse me, Commissioner Sundberg,
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1 I have overlooked you long enough.
2 COMMISSIONER SUNDBERG: I'm pretty hard to overlook.
3 Mr. Chairman, and I'm going to try to put this in
4 perspective, what does fundamental right mean. It seems
5 to me it has this significance. First of all, this body,
6 by putting this on the ballot, is saying to the people of
7 Florida, Do you believe that the education of our children
8 should be a fundamental right? Yes. One that if it is
9 not fulfilled is enforceable in a court of law?
10 Now that seems to be a bogeyman around here all of a
11 sudden. But, you know, that's a pretty good concept that
12 when people have rights that they are being deprived of
13 that you have the ability to go to a court somewhere and
14 have that right enforced.
15 But, and this goes back to, well, what's -- you know,
16 you are going to force the Legislature, and if you don't
17 like the legislators who aren't properly funding it, throw
18 them out.
19 First of all, if the people adopt this language, they
20 have said to each and every legislator because, by the
21 way, legislators take an oath just like judges do to
22 uphold the Constitution. And if the Constitution says,
23 Education is a fundamental right, and so when a legislator
24 comes to this house and the one down the hall, he or she
25 knows that of all the competing demands, and there are
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1 lots of them, and legislators have to deal every session
2 with, you know, all sorts, criminal justice system, roads,
3 the whole thing.
4 But what it tells them is you have to give education
5 when you are dealing with these competing demands, you
6 have to give education a priority because the people of
7 this state have said, like they said in 1968, We are
8 rededicating ourselves to having an educational system
9 that is fundamental in our concept of the rights that
10 people have in this state.
11 And I want to mention, if I may, this thing about
12 well, you are going, there has been -- would you believe
13 there is three lawsuits, would you, whatever. I don't
14 know if it was prescience, foresight, or what, but the
15 people -- or actually, the officials of the state of
16 Florida many years ago when even you and I were young
17 fellows, Stanley, enacted the Minimum Foundation Program
18 in Florida.
19 As a result of that, you will notice we have not had
20 any kinds of lawsuits like they have had in Texas and
21 Kansas City and other places because you know what those
22 lawsuits were about? Those lawsuits said, Hey, the more
23 prosperous school distinct sitting over here where the
24 rich folks live have this very good school system. This
25 school district over here doesn't have that kind of school
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1 system because they have districted all the poor folks in
2 that district.
3 That doesn't happen in Florida because the Minimum
4 Foundation Program that we have says when the local effort
5 leads to disparity, there is the contribution, significant
6 contribution, by state taxes to support the school system.
7 That's why we are not -- I mean, those are the kinds
8 of lawsuits that you read about in the paper is because
9 the federal courts have been called about to say these
10 people are being deprived of equal protection of the law.
11 They have a lousy school system because they are poor and
12 they are districted into a poor district. They're rich
13 and they have a better one. And what the district courts
14 are doing, what the federal courts are doing, is saying,
15 Okay, you have got to do what, in effect, our minimum
16 foundation does now, is to say, You are going to support
17 this poor system so it is on a parity with the richer
18 system.
19 So I suggest to you we are not talking about turning
20 the education system of the state over to the courts. The
21 courts won't have anything to do with the curriculum, and
22 how will the courts decide this? They will decide like
23 they decide other issues where you are talking about
24 adequate, you know. They are going to take testimony and
25 there will be people who will come in, presumably experts
295
1 who will offer that kind of testimony. You are not
2 talking about them taking over a school system.
3 And Commissioner Morsani, and I understand the
4 concerns, the fiscal concerns, are we giving somebody a
5 blank check and, you know, can we afford this? Well, I
6 suggest to you that we can't afford not to. Because in
7 today's world, unless our children who then become our
8 adults in this state, are able to compete in the market,
9 as industry progresses in the technological way it has,
10 and unless companies, corporations are convinced that
11 first of all they are going to have an intelligent labor
12 force, and, secondly, they are convinced that their
13 executives and their workers are convinced that their
14 children are going to get an adequate education in this
15 state, they are not going to come here and build the
16 plants and enhance the economy of this state. We can't
17 afford not to do precisely what you are being asked to do
18 here.
19 CHAIRMAN DOUGLASS: Commissioner Thompson.
20 COMISSIONER THOMPSON: Yes, sir, Mr. Chairman, and
21 members. Let me just take a minute and tell you why I'm
22 going to vote against this proposal. I certainly was in
23 favor of the proposal of Mr. Mills yesterday as amended
24 because I think it's a smart thing for us to do and
25 particularly based on the public hearings that we've had
296
1 and the concerns that we've had to express on no uncertain
2 terms and to give the people the opportunity to express on
3 no uncertain terms that education is a priority in our
4 state.
5 When I served in the Legislature, and I served there
6 12 years, I guess you could say -- and I said this in
7 interviews after I got out -- dealing with education was
8 the most frustrating thing that I did while I was there.
9 And it's the thing that I don't think me and the people
10 that I worked with had very much impact on, I'll be honest
11 with you, especially K through 12 education. I think we
12 probably had a better impact on higher education but it's
13 easier because it's so much smaller and there's not nearly
14 the problems involved.
15 And I kept harking them back to a conversation I had
16 with an older gentleman who was the superintendent of
17 public construction in one of my counties when I first
18 ran. I went in to kind of get his blessing to, you know,
19 to run and to see if I could get his support.
20 And one of the things that he told me is, he said,
21 Remember this, this is all you'll ever hear from the
22 education community and I'm part of it. Nothing will
23 solve our problems but more money and bigger buildings.
24 And from that day forward, every session of the Florida
25 Legislature, that's all I ever saw or heard from the
297
1 education community. If you'll just give us more money
2 and bigger buildings, we'll solve all the problems that
3 are coming at us.
4 And during that time, I was a participant, and I'll
5 plead guilty to this, I was a participant in raising a lot
6 of tax dollars and infusing it into the public education
7 system. And at the end of my career there, I don't
8 believe that we had made an awful lot of difference even
9 though we tried real hard and we tried to -- we began some
10 programs that I hope over the long-range will help.
11 The problem is that just an infusion of money into
12 education is not going to help it. And we found that out
13 as we've moved along through there and we've tried some
14 different things. Now, it's good to say that, you know,
15 you may not go to court. It's good to say that if you do,
16 you know, it may not be all that bad. But there is one
17 thing nobody has said and that is all these lawsuits are
18 not about -- they don't sue you to say you ought to pass
19 merit pay so that a teacher is judged and paid based on
20 what he or she gets as a result.
21 In other words, when that fifth grade class starts,
22 they take a series of standard tests. When they finish
23 the fifth grade, they take a series of standard tests, and
24 if they don't do what they ought to do, the teacher gets
25 so much money, nobody ever sues about that. Nobody ever
298
1 sues about anything but money, putting more money in the
2 system.
3 And what happens is, as one of my colleagues in the
4 Legislature often told us is, the money then goes to, by
5 and large, the salaries of people who have been teaching
6 10 years, 15 years, 20 years. And so you're going to pay
7 them more money to do exactly what they've been doing.
8 None of them want to take a test as far as competency in
9 their own areas. And don't misunderstand me, I'm not
10 against teachers by any stretch. I am telling you what I
11 received and the information that I received when I was in
12 public office.
13 So you never get a lawsuit about that. Nobody ever
14 sues in the federal court to say, Florida, you're
15 inadequate because you don't test your teachers properly.
16 They don't ever do that. They sue to get more money and
17 bigger buildings. That's what they sue about.
18 And so the question here is, do you think by moving
19 from the Mills' amendment that we all worked up and said,
20 This is a real strong statement, the public is going to
21 make a very strong statement, does it make a difference if
22 you move to a fundamental right? If it doesn't, it ought
23 not do it. If it does and it's going to put us in court
24 and the controversy is going to be more money or bigger
25 buildings, I submit to you we ought not to do it and I
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1 don't want to take the chance and I don't think you do
2 either. Thank you.
3 CHAIRMAN DOUGLASS: All right. Any further
4 discussion? Commissioner Lowndes?
5 COMMISSIONER LOWNDES: I have an amendment on the
6 desk which I'd like to propose.
7 CHAIRMAN DOUGLASS: Amendment on the desk by
8 Commissioner Lowndes. Read the amendment.
9 READING CLERK: By Commissioner Lowndes on Page 1,
10 Lines 13 and 14, delete "each resident" of this state and
11 insert "each child" in the state.
12 CHAIRMAN DOUGLASS: All right. Commissioner Lowndes?
13 COMMISSIONER LOWNDES: This amendment simply limits
14 the application of this proposed decision of the
15 Constitution to children and not to anybody else but
16 children.
17 CHAIRMAN DOUGLASS: Very well. All in favor of the
18 amendment say aye. Opposed, like sign.
19 (Verbal vote taken.)
20 CHAIRMAN DOUGLASS: It is an amendment. The
21 amendment carries. Now we revert to the proposal as
22 amended. I think we've had plenty of debate unless
23 somebody wants to close. Commissioner -- which one of you
24 wants to close?
25 Commissioner Brochin?
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1 COMMISSIONER BROCHIN: You know, we, two hours ago,
2 talked about public financing and the question was asked,
3 How are we going to enforce that? I think you asked that,
4 Commissioner Barkdull. Commissioner Connor said, Well,
5 we'll go to the courts. We passed amendment after
6 amendment after amendment in this chamber where the remedy
7 is to go to the courts. And now, when it gets to
8 education, we don't want to go there. This is not an
9 amendment about funding.
10 This is an amendment that goes to the people of this
11 state to say that education of our children is the most
12 high priority we can place and it is something we want
13 stated in our document, in our Constitution, that makes it
14 so every Legislature, every judge, every governor knows it
15 and will enforce it. And if they don't, you work it out
16 until they do and we demand that as a people. We demand
17 that from our state.
18 Commissioner Connor spoke eloquently when he talked
19 about partial-birth abortions. He asked us to look inside
20 ourselves in terms of our values and what is important.
21 And I can't think of anything more important than a
22 child's education. And if we're fearful of putting that
23 in a document that constitutes us, then we haven't clearly
24 articulated our values. If it opens up Pandora's box, let
25 it open. If it opens up litigation, let it be opened.
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1 But there cannot be anything more fundamental to us than
2 the education of our people.
3 Thomas Jefferson said -- if I can find his quote --
4 If a nation expects to be ignorant and free, it expects
5 what never was and never will be. And the time has come,
6 I suggest, to put your fears aside about a fundamental
7 right. I articulated for you all of the fundamental
8 rights that exist in our Constitution and the State has
9 done just fine. Litigation has not brought us down.
10 And this will not bring us down, it will make us a
11 better state in our Constitution when we say and we tell
12 every elected, appointed official that our education is
13 the most fundamental right to our children. And when we
14 go forward in the next 20 years with all our proposals
15 about what to do with the educational system, we can be
16 able to say that we all go in this together and that every
17 child will have an equal opportunity to pursue that
18 education because he has or she has this very basic and
19 fundamental right.
20 So I don't shy away from the fear of what this will
21 bring. I actually believe this is what the people want.
22 And when you give them an opportunity to put this in that
23 document, which is constitutional in nature, I'm very
24 convinced they are going to approve it. So I would urge
25 you to vote for it.
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1 CHAIRMAN DOUGLASS: All right. Unlock the machine.
2 Let's vote. Has everybody voted?
3 (Vote taken and recorded electronically.)
4 CHAIRMAN DOUGLASS: Unlock the machine.
5 READING CLERK: Fourteen yeas, 9 nays, Mr. Chairman.
6 CHAIRMAN DOUGLASS: The next proposal is No. 74 by
7 Commissioner Langley. Would you read it, please?
8 READING CLERK: Proposal 74, a proposal to revise
9 Article V, Section 10, Florida Constitution; providing for
10 the election of justices of the Supreme Court and judges
11 of a district court of appeal. Providing for public
12 financing for judicial elections.
13 CHAIRMAN DOUGLASS: Commissioner Langley?
14 COMMISSIONER LANGLEY: I'd like to take the privilege
15 of withdrawing that from further consideration.
16 CHAIRMAN DOUGLASS: Without objection, it is
17 withdrawn. The next proposal is 173 by Commissioner
18 Riley. Please read it, please.
19 READING CLERK: Committee substitute for Proposal
20 No. 173, a proposal to revise Article VIII, Section 1,
21 Florida Constitution; authorizing counties to elect county
22 officers in nonpartisan elections, providing procedures.
23 CHAIRMAN DOUGLASS: Commissioner Riley?
24 COMMISSIONER RILEY: There should be an amendment to
25 this. Is this what is being passed out now?
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1 CHAIRMAN DOUGLASS: Amendment on the desk?
2 COMMISSIONER RILEY: There is an amendment that's
3 already been done. I don't know if it's been passed out
4 or not.
5 CHAIRMAN DOUGLASS: Yes, it's being passed out I
6 think.
7 COMMISSIONER RILEY: And as they are passing it out,
8 I'll explain what the amendment is which is to limit
9 this --
10 CHAIRMAN DOUGLASS: You move the amendment that's on
11 the desk?
12 COMMISSIONER RILEY: I do.
13 CHAIRMAN DOUGLASS: All right. Can you read the
14 amendment?
15 READING CLERK: It's not on the desk, Mr. Chairman.
16 CHAIRMAN DOUGLASS: Oh, what you're passing out is
17 not the amendment? Oh, this is the actual committee
18 substitute that's being passed out and the amendment is to
19 this; is that correct, Commissioner Riley?
20 (Pause.)
21 CHAIRMAN DOUGLASS: You've got the amendment. Read
22 the amendment. This first thing I've got is the committee
23 substitute which is what we're acting on. And now there's
24 an amendment on the desk which I've asked to be read.
25 Read the amendment by Commissioner Riley.
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1 READING CLERK: By Commissioner Riley on Page 2, Line
2 7 and 8, delete those lines and insert, Paragraph 2, any
3 county may exercise the option to elect the county
4 officers enumerated in this subsection in a nonpartisan
5 election by either the filing.
6 CHAIRMAN DOUGLASS: All right. Proceed on the
7 amendment.
8 COMMISSIONER RILEY: To clarify the amendment, what
9 this means is, that this would only apply to county
10 offices of sheriff, tax collector, property appraiser,
11 supervisor of elections, and clerk of county court. It
12 does not apply to county commissioners. It does not apply
13 to the school board, only those offices.
14 CHAIRMAN DOUGLASS: All right. Proceed with your --
15 oh, all in favor of the amendment say aye. Opposed.
16 (Verbal vote taken.)
17 CHAIRMAN DOUGLASS: Amendment is adopted now to the
18 proposal as amended.
19 COMMISSIONER RILEY: The proposal gives counties an
20 option at the election of the voters in that county to
21 make these particular offices nonpartisan. It's a choice
22 of the voters. It can be put on the ballot only under the
23 two provisions listed in this and this was a public
24 proposal that was brought to us around the state of
25 Florida and I would like to see it -- I would like to see
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1 it passed by this body and give the local electorates an
2 option to have nonpartisan elections.
3 CHAIRMAN DOUGLASS: All right. Anybody want to be
4 heard on this? Commissioner Henderson?
5 COMMISSIONER HENDERSON: I guess a question to -- I'm
6 confused. Does it or does it -- I guess this is only for
7 non-charter counties; is that right?
8 COMMISSIONER RILEY: That's correct. Charter
9 counties, as I understand it, already have this option. A
10 majority of the counties in the state of Florida -- and I
11 don't have the exact numbers, maybe someone here can help
12 me on that -- the majority of the counties are non-charter
13 counties.
14 CHAIRMAN DOUGLASS: Big majority.
15 COMMISSIONER HENDERSON: Most of them are
16 non-charter. But most of the people of the state live in
17 charter counties. Now does this apply to county
18 commissioners or not?
19 COMMISSIONER RILEY: No.
20 COMMISSIONER HENDERSON: Why?
21 CHAIRMAN DOUGLASS: She just amended it out.
22 COMMISSIONER HENDERSON: Well, I don't understand
23 why.
24 CHAIRMAN DOUGLASS: While you were talking to
25 Commissioner Langley, she amended out county commissioners
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1 and the school board and enumerated who was covered, which
2 basically were the elected county officials like the
3 sheriff, the clerk and --
4 COMMISSIONER RILEY: The constitutional officers is
5 what I would call them but I don't know if that's a
6 professional term or not.
7 COMMISSIONER HENDERSON: I guess I don't understand
8 why you would make a distinction between county
9 commissioners and other constitutional officers for this
10 purpose.
11 COMMISSIONER RILEY: Well, you're welcome to make an
12 amendment to add them back in, Commissioner Henderson, but
13 basically I don't want the county commissioners on my
14 back. And I have talked to county commissioners, they
15 prefer, I think, mostly partisan elections. However, I
16 don't see a supervisor of election, a sheriff and the
17 other offices listed here as partisan offices. It's an
18 opinion as to whether or not county commissioners should
19 be in here. I've chosen to take them out. Anyone who
20 would like to make an amendment to put them back in,
21 they're welcome to.
22 CHAIRMAN DOUGLASS: Commissioner Nabors?
23 COMMISSIONER NABORS: May I ask a question?
24 COMMISSIONER RILEY: Yes, you may.
25 COMMISSIONER NABORS: Commissioner Riley, would you
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1 believe, at least the way I read this, if you had a
2 charter community, and the charter was silent as to the
3 nonpartisan election that this would apply to county
4 charter as well, not that there is anything wrong with
5 that, but it would.
6 COMMISSIONER RILEY: I guess I would read it like
7 that. I'm from a non-charter county so I'm not that
8 familiar with charter counties. My understanding was that
9 charter counties had this option. It might be that some
10 charters have it and some--
11 COMMISSIONER NABORS: Would you believe it depends on
12 what the charter says? And if the charter is silent, then
13 this would apply to a charter county.
14 COMMISSIONER RILEY: Yes, it would then.
15 CHAIRMAN DOUGLAS: Now, Commissioner Ford-Coates who
16 is one of those that would be affected.
17 COMMISSIONER FORD-COATES: Well, no, actually not
18 because I'm from a charter county.
19 CHAIRMAN DOUGLASS: Very good. But it's not silent,
20 right?
21 COMMISSIONER FORD-COATES: Right. Actually, it is
22 silent. Commissioner Riley, did you have testimony -- I
23 guess this is another one of those issues -- I'm kind of
24 surprised since it's an Article VIII issue that affects
25 local government, I'm kind of surprised the Local
308
1 Government Committee didn't have a chance to kind of
2 absorb this. Was there testimony from local government as
3 to how the county officers felt about this, et cetera?
4 COMMISSIONER RILEY: There was public testimony as we
5 went around our public hearings around the state on this
6 issue. This ended up in elections and I didn't choose to
7 put it there but that's where it ended up. So it was
8 passed out of that committee yesterday.
9 COMMISSIONER FORD-COATES: So we really have not
10 heard from the county officers to see whether or not there
11 is for some reason -- I mean, I don't think I have a
12 problem with this but I really haven't given it a lot of
13 thought and would have appreciated the opportunity for
14 county officers to at least comment on it so we'd have
15 kind of a feel to see if there is a negative to it. I
16 mean, it seems fairly innocuous.
17 COMMISSIONER RILEY: It does to me too, Commissioner.
18 The only thing I can tell you is that in my own personal
19 poll, I haven't talked to any elected official or a lot of
20 folks around the state that I have asked their opinion of,
21 including elected officials within counties that are in
22 disagreement with this. And again, to remind all of you
23 as you vote on this, this doesn't do it. It only allows
24 the counties to put it on the ballot and let the voters
25 decide if they want to do it.
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1 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, I have
2 a question. Don't you think the bevy of lobbyists here
3 for each one of these jobs would have come here and told
4 us what they wanted? They knew this was on special order
5 today.
6 COMMISSIONER FORD-COATES: I think the possibility is
7 that they might not have noticed it because it didn't come
8 before local government. I think they were watching that
9 agenda a little more and that's a problem --
10 CHAIRMAN DOUGLASS: Okay. I think most lobbyists
11 watch everything.
12 COMMISSIONER FORD-COATES: We'd like to think so but,
13 you know.
14 CHAIRMAN DOUGLASS: Commissioner Barton had risen to
15 ask a question, I think. Commissioner Barton.
16 (Off-the-record comment.)
17 CHAIRMAN DOUGLASS: Do you yield?
18 COMMISSIONER FORD-COATES: Most definitely.
19 COMMISSIONER BARTON: There was no testimony from any
20 of the representatives of these officers in the county
21 speaking. I was rather surprised, frankly. I would
22 suggest that depending on where you live and the nature of
23 the politics you might get, yes, I'm in favor of it or,
24 no, I'm not. Certainly in my area, they're all in favor
25 of leaving it the status quo.
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1 But as somebody who has personally been involved in
2 the election process over a number of years, I would like
3 to remind you that the two-party system has a role and
4 that is the primary system introduces us to a variety of
5 candidates and allows us to select from each party or as
6 many parties as there may be viable the candidates to put
7 forward. They then run against each other in a process
8 that allows us to learn about them and to learn what they
9 stand for.
10 I submit to you that it's a system that has done well
11 for us for the most part and would like to see the status
12 quo left as to the constitutional officers or any others.
13 Thank you.
14 CHAIRMAN DOUGLASS: Commission Sundberg?
15 COMMISSIONER SUNDBERG: Believe it or not, I ran in
16 the last nonpartisan contested election for the Supreme
17 Court of Florida statewide.
18 CHAIRMAN DOUGLASS: And you had an opponent too,
19 didn't you?
20 COMMISSIONER SUNDBERG: That's right. I said
21 contested. And I will tell you, it is very difficult
22 to -- and I was an incumbent -- but it is very difficult
23 to organize a campaign and to really get your message out
24 to the people unless you have some organized group helping
25 you. I mean, they plan events, they make it possible.
311
1 They give you platforms. Because I will tell you, I
2 stumbled around this state from Pensacola to Key West, you
3 know, carrying my suitcase, such as it was, begging people
4 to listen to me.
5 So I'm suggesting to you, and maybe I'm simply
6 seconding what Commissioner Barton said, that it does, I
7 think, fill a needed function to have the parties. It
8 does give a structure to both the candidate and to the
9 electorate to assess the qualifications of the person
10 that's holding himself out for office. So I would be
11 opposed to this proposition.
12 CHAIRMAN DOUGLASS: Any further discussion?
13 Commissioner Henderson?
14 COMMISSIONER HENDERSON: Mr. Chairman, I don't know
15 how this affects the debate at all. We're talking about
16 old campaign experiences, Commissioner Sundberg. I guess
17 I'm confident I'm the only one in the room that served two
18 terms as a county commissioner and was elected nonpartisan
19 because in our charter enacted in 1970, it's always been
20 nonpartisan elections in Volusia County.
21 So all of our commissioners under that form of
22 government have always been nonpartisans. I don't know
23 any better. Okay. I guess it's an odd way of saying it.
24 I don't know what it's like in the other counties.
25 I can tell you, I don't think there is a Democratic
312
1 or Republican way to pave the road. I don't think there's
2 a Democratic or Republican way to put in a sewer pipe. I
3 don't think there's a Democratic or Republican way to zone
4 a house.
5 And I can tell you when we had campaigns just like I
6 guess they had in other places, and I guess, Commissioner
7 Langley, I guess the wonderful part about it is I was able
8 to actually go to Republicans and ask them for their
9 votes. They knew I had that "D" tattooed to my forehead
10 but it didn't make a difference because we were talking in
11 local government.
12 And local government, it was -- we kept it on a
13 professional plane. And I know there are a lot of
14 other -- there are other communities in the state where we
15 have nonpartisan elections. I guess what I would suggest,
16 I don't know if this is a -- I think we had a discussion
17 earlier in the session about school boards and had the
18 same kind of discussion that we ought to have a local
19 option in local communities to determine whether or not
20 school boards should be nonpartisan and I think we made a
21 decision, correct me if I'm wrong, Commissioner Marshall,
22 I think it was your proposal, we proposed that -- we
23 agreed to that; is that not true? We had school boards
24 that would give a local option for nonpartisan. We have
25 nonpartisan school boards in Volusia County too. I
313
1 guess -- and we have parties as well.
2 So I guess if -- my only recommendation here is that
3 the system can work nonpartisan. I think it works very
4 professionally nonpartisan. If you're going to do this,
5 make it across the board. If you're going to give
6 somebody a local option to do it, let them do it for all
7 of them. They clearly have the ability to do that in any
8 charter county. And if we're just trying to increase the
9 process so the people can do it in a non-charter county,
10 my suggestion would be make it across the board, give them
11 that choice.
12 CHAIRMAN DOUGLASS: Commissioner Rundle?
13 COMMISSIONER RUNDLE: Commissioner Riley, I wonder if
14 you could help me through this just a moment. I don't
15 really have any strong feelings about this one way or the
16 other and it seems to be an equity issue. So I generally
17 side with doing things that are across the board
18 equitable. But what I'm trying to understand is, I don't
19 remember hearing at any of the public hearings, I didn't
20 miss any, what problem are we fixing? Because I'm trying
21 to think of the last ballot and the items that are going
22 to go on it.
23 COMMISSIONER RILEY: And we did hear it around the
24 state. We didn't hear it as often as we heard retirement,
25 the net ban, the teachers' retirement system. You know,
314
1 this isn't an organized effort. The reason you may not
2 recognize it is because I've watered it down so. What
3 our -- what the original proposal from the public was,
4 make all county elections nonpartisan, period, flat,
5 that's it.
6 No vote of the electorate, no decision by the local
7 people. So I added that back in. In talking to some
8 other people, I then watered it down even further to the
9 consternation of my friend Commissioner Henderson,
10 evidently, and have eliminated county commissioners.
11 I see what's left then is about as innocuous as you
12 can get with some decision by 10 percent of the people as
13 noted in the proposal. They can put on the ballot for the
14 decision of the local voters whether or not they want only
15 these particular offices to be nonpartisan.
16 Let me remind you that I know in my county every
17 municipality has nonpartisan elections. Every mayor is a
18 nonpartisan election. And in my county, all the city
19 councils are nonpartisan elections. I haven't noticed
20 that they've had a great deal of difficulty in finding
21 people to support them and people to put money into their
22 campaign. In fact, it could be argued that more people
23 might put money into the campaign because they don't have
24 a partisan issue. And so they can put their money
25 wherever they want.
315
1 So if you don't recognize it, it's because I have
2 tried to take out all the thorns. And so now we have this
3 innocuous proposal that does something, it perhaps doesn't
4 do as much as the public asks us to do. I like the idea
5 that it does take it back to the electorates at the local
6 level and they decide.
7 CHAIRMAN DOUGLASS: All right, Commissioner
8 Evans-Jones.
9 COMMISSIONER EVANS-JONES: Commissioner Riley,
10 couldn't this be done legislatively?
11 COMMISSIONER RILEY: I don't think it can be done
12 legislatively because of the way the Constitution deals
13 with charter and non-charter. As I understand it, it
14 cannot be done that way.
15 COMMISSIONER EVANS-JONES: Well, I asked Commissioner
16 Sundberg and he thought it could be done legislatively.
17 COMMISSIONER RILEY: Well, Commissioner Sundberg
18 knows a great deal more about it than I do.
19 CHAIRMAN DOUGLASS: Only if the court says so.
20 COMMISSIONER EVANS-JONES: Only if the court says so
21 of course. Well, I just wondered, you know, I guess I'm
22 not sure that this does that much if we're going to just
23 have a few proposals to present to the public. Maybe we
24 should address it legislatively.
25 CHAIRMAN DOUGLASS: We're approaching the witching
316
1 hour. Can't we vote on this or are we through?
2 COMMISSIONER RILEY: Commissioner Nabors is for it
3 I'm sure.
4 COMMISSIONER NABORS: Real quick question.
5 Commissioner Riley, I've never been on the Supreme Court.
6 Would you believe me this could be done by general law
7 because charter counties could have such power of local
8 self-government not inconsistent with general law so it
9 could be done by general law?
10 COMMISSIONER RILEY: I would still recommend that we
11 pass the proposal.
12 CHAIRMAN DOUGLASS: All right. Are we ready to vote?
13 Unlock the machine.
14 (Vote taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: Lock the machine and announce the
16 vote.
17 READING CLERK: Ten yeas, 15 nays, Mr. Chairman.
18 CHAIRMAN DOUGLASS: All right. Tell you what, we've
19 got one more we could take up and that is committee
20 substitute for Proposal 184 by Commissioner Mills and the
21 Committee on Ethics and Elections which relates to
22 providing that the Legislature shall prohibit undue
23 influence and other improper conduct in connection with
24 elections.
25 Since we have such a short time, Commissioner
317
1 Barkdull, do you have any suggestions as to whether or not
2 we proceed or do you want to proceed, Commissioner Mills?
3 COMMISSIONER BARKDULL: I'd like to know what
4 Commissioner Mills would like to do. Do you want to
5 proceed with it?
6 COMMISSIONER MILLS: Yes, Mr. Chairman, I think this
7 one came out unanimously --
8 CHAIRMAN DOUGLASS: Read the proposal.
9 READING CLERK: Committee substitute for Proposal
10 No. 184, a proposal to revise Article VI, Section 1,
11 Florida Constitution; providing that the Legislature shall
12 prohibit certain conduct in connection with elections.
13 CHAIRMAN DOUGLASS: Commissioner Barkdull, if you
14 could hold your announcement just a minute and let him
15 make a presentation here.
16 COMMISSIONER MILLS: Mr. Chairman, I think I can do
17 this relatively briefly. One of the issues that we heard
18 a great deal about in the public testimony is public faith
19 in the election process. I think we actually have put
20 together a very good election package so far including
21 access, public financing, et cetera. This concerns
22 honesty in the election process and that is if someone is
23 guilty of undue influence, bribery, fraud, deceit,
24 uttering or publishing falsehoods, et cetera, as defined
25 in here, as defined in the statutes, the Legislature
318
1 should provide for appropriate penalties including removal
2 from office and removal from office is what is
3 constitutionally needed here because, A, it would be
4 difficult for the Legislature, I think, to do this.
5 B, right now, misconduct during elections, if they
6 are only misdemeanors, would not result necessarily in
7 removal from office. I have the faith that the
8 Legislature will be able to craft this in a way that will
9 be fair but perhaps would not craft it at all if we did
10 not send it through the people.
11 Just to let you know, this did pass unanimously
12 through the Ethics and Elections Committee which includes
13 Commissioners Kogan, Freidin, Brochin, Corr, Planas, and
14 West. To show what I would consider -- and Commissioner
15 Barton -- to show that this was carefully considered by a
16 wide range of individuals, a wide range of intelligent,
17 thoughtful people.
18 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
19 COMMISSIONER EVANS-JONES: I guess I have the same
20 question. Can this not be done legislatively,
21 Commissioner Mills?
22 COMMISSIONER MILLS: Not exactly sure that it would
23 be.
24 COMMISSIONER EVANS-JONES: I understand that. But it
25 could be.
319
1 COMMISSIONER MILLS: Could it be done, possibly. And
2 to me, also, this rounds out the elections package. I
3 mean, if we're talking about putting things together,
4 there was a series of election package issues which make
5 sense which respond to the public's request. I think this
6 is one of them as well.
7 CHAIRMAN DOUGLASS: I have a question. Doesn't the
8 idea that you can publish someone in this way for uttering
9 or publishing a falsehood about opposing a candidate and
10 so on, don't you have some First Amendment problems with
11 the right to campaign because I think under the libel
12 laws, civil laws, for example, you can lie all you want to
13 if it's a public figure pretty much. Unless you can prove
14 malice, you can't even recover damages. And this would be
15 rising to a criminal penalty.
16 COMMISSIONER MILLS: Well, Mr. Chairman, you're
17 exactly right. We had a discussion of that yesterday and
18 Commissioner Freidin being a good First Amendment scholar,
19 helped us out. This is as amended. I think she removed
20 the statements "libel" and "slander." And does this take
21 away our First Amendment right based on candidacy, no, as
22 long as it is within it. But, knowing fraud, some of the
23 examples -- I guess my most extreme example that I can
24 recall in terms of lying was a female candidate for the
25 Legislature that was accused of being a man.
320
1 CHAIRMAN DOUGLASS: I don't want to get into that,
2 commissioner Freidin.
3 COMMISSIONER MILLS: Neither do I. But as
4 Commissioner Freidin said, what greater insult could there
5 be?
6 CHAIRMAN DOUGLASS: On the other hand, what greater
7 compliment could there be? Just depends on which way
8 you're looking. It is late in the day. Commissioner
9 Langley.
10 COMMISSIONER LANGLEY: Well, I wanted to add a little
11 levity. Commissioner Thompson and I were just talking.
12 One of our old friends, Billy Joe Rish, from Mt. Dora used
13 to have a saying, You know, they tell a lot of lies on me,
14 but they can't prove but a few of them.
15 (Laughter.)
16 CHAIRMAN DOUGLASS: I think what everybody is trying
17 to get by here, we get a little concerned when you start
18 setting up rather vague standards for speech.
19 COMMISSIONER MILLS: Mr. Chairman, these are
20 standards, many of which are defined. You can't impinge a
21 First Amendment right --
22 CHAIRMAN DOUGLASS: I'm not sure it's like yelling
23 "fire" in a theater.
24 Commissioner Sundberg.
25 COMMISSIONER SUNDBERG: I have a question of the
321
1 proponent. Commissioner Mills -- two questions
2 actually -- the first is, this is more stringent than the
3 libel law, is it not, because presumably, there would be a
4 public person if they're involved in the campaign and it's
5 not only knowing it's false, libel would also include with
6 a reckless disregard for the truth of it, correct? And
7 that's not --
8 COMMISSIONER MILLS: Yes, and you would be. But, as
9 you know, if you are uttering even a falsehood in a First
10 Amendment protected context, it's not going to apply.
11 COMMISSIONER SUNDBERG: The other thing is though,
12 what do you have in mind with the phrase "and other
13 improper conduct in connection with elections"?
14 COMMISSIONER MILLS: Well, in the spirit of late
15 afternoon amendments --
16 COMMISSIONER SUNDBERG: I'm sorry, that was too hard
17 a question.
18 COMMISSIONER MILLS: No, what do I have in mind, if
19 you have in mind taking it out, that's fine.
20 CHAIRMAN DOUGLASS: We'll entertain a motion to TP
21 this. We are approaching 6:00 and we've got to have
22 announcements and you are going to like a couple of these
23 announcements.
24 The first one I'm going to make, before I call on
25 Commissioner Barkdull is, appoint a select committee to
322
1 report back on the initiative propositions chaired by
2 Commissioner Freidin and members Commissioners Corr,
3 Sundberg and Rundle and they can -- we can notice a
4 meeting for tomorrow morning at 9:30 in Room 301. And
5 they are going to report back at our next meeting.
6 And now, for the good news from Commissioner
7 Barkdull. He never gives us good news, but he is today.
8 COMMISSIONER BARKDULL: Because of the hard work you
9 did today and the Chairman removing nine items off the
10 calendar at the last go-around, we will have no session
11 tomorrow. I have a series of motions.
12 First, I move that Item No. 23 that's on
13 reconsideration be carried over to the next session.
14 CHAIRMAN DOUGLASS: All right. Without objection,
15 it's carried over.
16 COMMISSIONER BARKDULL: Anybody have any matters to
17 be withdrawn? I would like to withdraw 154 relating to
18 legislators' right to interfere with constitutional
19 initiatives.
20 CHAIRMAN DOUGLASS: All right. No. 154 without
21 objection is withdrawn.
22 COMMISSIONER BARKDULL: I'd like to defer to
23 Commissioner Thompson as chairman of Executive Committee
24 for a motion.
25 CHAIRMAN DOUGLASS: Commissioner Thompson, you're
323
1 recognized.
2 COMISSIONER THOMPSON: I'm chairman of the
3 Legislature committee and we had several proposals
4 yesterday. But because people were at other committee
5 meetings, we never did get a quorum at one time.
6 So I want to move to waive the rules and withdraw
7 Proposal No. 134, which is length of session by a
8 marshall; Proposal No. 90, which is legislative immunity
9 by Hawkes; Proposal 105, which is term limits by
10 Commissioner Planas; Proposal 150 regarding the
11 Legislature by Scott; and Proposal 179, veto Legislature
12 by Thompson, and Proposal 183, conversion of Constitution
13 provisions in the general law by Brochin, all withdrawn
14 from the Legislative Committee.
15 CHAIRMAN DOUGLASS: Now, if we're going to do it as a
16 package, you're certain that all of the people who
17 sponsored those want them withdrawn?
18 COMMISSIONER BARKDULL: No, he's not withdrawing
19 them, he's withdrawing them from committee to go on the
20 calendar.
21 CHAIRMAN DOUGLASS: Oh, you're putting them on the
22 calendar. I thought you were getting rid of them
23 altogether.
24 COMISSIONER THOMPSON: We're just making them
25 available for the calendar.
324
1 CHAIRMAN DOUGLASS: So you're getting rid of them
2 from the committee, not from the rest of us?
3 COMISSIONER THOMPSON: So we're going only to have
4 one, just for everybody's benefit, one more package and
5 that's going to be the apportionment issue. And we'll try
6 to bring that out at the next meeting.
7 CHAIRMAN DOUGLASS: Very well. Then those will be
8 moved to the calendar. Commissioner Barkdull.
9 COMMISSIONER BARKDULL: I would move that the
10 Legislative Committee be authorized to continue business
11 through Monday the 26th because their time has expired.
12 CHAIRMAN DOUGLASS: Without objection, it will be
13 done. Are there any other committees that need to --
14 COMMISSIONER BARKDULL: Well, we have a select
15 committee on Article V which is already -- has no
16 termination at this point and it's set also on Monday the
17 26th, I believe. The Declaration of Rights Committee is
18 meeting this afternoon, Room 301, and there will be no
19 Rules Committee meeting tonight. And if there is nothing
20 else to come before the body, I move we recess --
21 CHAIRMAN DOUGLASS: We do -- Commissioner Mills?
22 COMMISSIONER MILLS: Mr. Chairman there were several
23 members that expressed concerns about Proposal 91 by
24 Commissioner Hawkes. I told Commissioner Hawkes this and
25 Commissioner Thompson has talked to me. I would move to
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1 reconsider the vote by which Proposal 91 passed and leave
2 the -- this is relating to pollution control devices --
3 CHAIRMAN DOUGLASS: That was yesterday, so it had to
4 be made today, correct?
5 COMMISSIONER MILLS: Right. So I'm just making a
6 motion to reconsider and leave that pending. I talked to
7 Commissioner Hawkes about this. There will be --
8 CHAIRMAN DOUGLASS: Without objection, it will remain
9 pending on reconsideration until the next meeting. Do we
10 have to vote on it?
11 Declaration of Rights Committee meets in Room 309.
12 Hold it just a minute. All right. They were trying to
13 say you didn't vote on the prevailing side and I told them
14 I remembered you did. So it's all right. They were
15 wrong. He was on the prevailing side. He's moved to
16 reconsider. It's going to be carried over until the next
17 meeting. Commissioner Corr.
18 COMMISSIONER CORR: Thank you, Mr. Chairman. Please
19 withdraw Proposal 117 and Proposal 165. The Executive
20 Committee has come up with substitutes for these so these
21 can be withdrawn.
22 CHAIRMAN DOUGLASS: Proposals 117 and 165, without
23 objection, are withdrawn. Now, Commissioner Barkdull --
24 anything that passed today is subject to reconsideration
25 in our next meeting.
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1 COMMISSIONER BARKDULL: Which would be Monday the
2 26th.
3 CHAIRMAN DOUGLASS: Right. So you can still make
4 your motions on Monday.
5 COMMISSIONER BARKDULL: All right. I move that we
6 now recess until the hour of 1:00 p.m. on Monday,
7 January 26th.
8 CHAIRMAN DOUGLASS: All right. Without objection,
9 we're doing it. Incidentally, thank you-all for staying.
10 This has been a pretty hard session and probably we pushed
11 a little hard but we're getting an extra day off because
12 of it. And, Commissioner Kogan, we will try not to tire
13 you out next time. I'm kidding you.
14 (Session adjourned at 6:00 p.m., to be continued on
15 January 26th, 1998.)
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1 CERTIFICATE
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
6 MONA L. WHIDDON, Court Reporters, certify that we were
authorized to and did stenographically report the foregoing
7 proceedings and that the transcript is a true and complete
record of our stenographic notes.
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9 DATED this ______ day of ____________, 1998.
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12 JULIE L. DOHERTY, RPR
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14 _________________________________
KRISTEN L. BENTLEY
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17 MONA L. WHIDDON
COURT REPORTERS
18 DIVISION OF ADMINISTRATIVE HEARINGS
1230 APALACHEE PARKWAY
19 TALLAHASSEE, FLORIDA 32399-3060
(850) 488-9675
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