Ask Bob: Can the Legislature amend Vermont's Constitution without taking it to the people?
Lawmakers this winter gave their final approval to a proposed Constitutional amendment, known as Proposal Five, that guarantees the “right to personal reproductive liberties.”
This proposal prompted a process question from a VPR listener for one of our “Ask Bob” segments with VPR senior political reporter Bob Kinzel. Suzanne Wooten of Woodstock asked, “Can the Vermont Legislature enshrine a law into our Constitution without first taking it to the people?”
VPR’s Mitch Wertlieb spoke with Kinzel about constitutional amendments. Their conversation below has been edited and condensed for clarity.
Mitch Wertlieb: So, Bob, how exactly does the constitutional amendment process work? I mean, is there a role for members of the public to weigh in on these kind of issues?
Bob Kinzel: Mitch, there absolutely is. So to address Suzanne's concerns: The final stage of this process is a statewide referendum that will take place in November. And this is a very important part of the amendment process because there have been a few times when voters have rejected a proposal. This happened back in 1974, when roughly 52% of voters said "no" to a four-year term for governor. It also happened in 1986, with the defeat of a proposed Vermont Equal Rights Amendment by roughly the same margin.
So let's step back and take a look at how this whole process works. One, the proposed amendment must be introduced in the Senate. Two, It has to get 20 votes in the Senate to advance to the House. Once it's in the House, it just needs a simple majority to pass. And the House is not allowed to change this amendment in any way. If it passes, the House sponsors must wait for a new Legislature to be elected, then it starts the process all over again. Except this time in the Senate, it just needs a simple majority to pass. The same is true for the House. Now, once it passes these legislative requirements it's placed before voters in a statewide referendum. It definitely goes to voters for their consideration. And if a majority of voters support it, it then becomes part of the Vermont Constitution.
I had a chance to talk with Vermont historian and constitutional expert Paul Gillies about this issue. He told me that this lengthy process reflects the fact that amending the Constitution is a much more serious matter than just passing a law.
The fundamental laws are not supposed to be changed on a regular basis. It should be hard. That was the original idea.
“It's in the nature of the fundamental law," Gillies said. "The fundamental laws are not supposed to be changed on a regular basis. It should be hard. That was the original idea.”
Let's follow the course of Proposal Five to show how it all works. It was introduced in the Senate on Feb. 12, 2019. On April 4, 2019, it passed the Senate by a vote of 28 to two. I asked Paul Gillies why the initial threshold for passage was a two-thirds vote.
“I think it's to prevent frivolous ideas from passing by a mere majority. It's a gruesome process, but it's supposed to be,” he said.
And Mitch, the House considered Proposal Five on May 7, 2019, passed it on a vote of 106 to 38. And it was on its way to be considered by another legislature.
So again, if the amendment receives at least 20 votes in the Senate, then it goes to the House for its consideration. But House members do not have the ability to amend the proposal, as they do with all the legislation that comes over from the Senate. Right?
That's exactly right. And as Paul Gillies told me, this situation does upset some House members.
“You know," he said. "I'm sure it's an unusual experience for legislators not to be able to touch it, because it's not in the nature of legislation to leave something alone.”
So Mitch, it really shows that the role of the House is quite different from the Senate in the entire constitutional process.
And as you mentioned earlier, Bob, the process to amend the Vermont Constitution also requires the approval of two separately elected legislatures. So, there is a general election in between these votes. Why was this provision added, basically, to have the proposal reviewed a second time?
Mitch, that is a great question. Paul Gillies told me the second vote in the Legislature is really viewed as a safeguard in case that first vote was on a very controversial issue.
“If something was so controversial that it would be troubling to people, and they found that their representative voted for it, they might replace that person," he said. "So, I think it's a half step toward public approval.”
Mitch, following Proposal Five, it received its second vote in the Senate on April 4, 2021, on a vote of 26 to four. It was approved for the second time in the House just this past February on a vote of 107 to 41. So that sets the stage for the November referendum vote.
You know, some states have moved to have statewide referenda questions on their ballot, it seems like, every election. California and Massachusetts come to mind. There have been efforts to implement this kind of system in Vermont. In fact, there have been a number of proposed constitutional amendments to put this process in place, but they've all failed. Paul Gillies explains why:
“The Supreme Court suggested that it was unconstitutional to give out the power to the people of one legislation. The Constitution could be violated by it because it says the Legislature is the primary legislative body," he said.
Mitch, I should mention that a non-binding referendum question did lead to the creation of the Vermont Lottery in 1976. But it's a process that's almost never used.
Given the complex process that is used to amend the Vermont Constitution, how often, Bob, has this process been used since 1791, when Vermont became the 14th state in the nation?
Mitch, my research shows there have been 202 constitutional amendments introduced over the years. Only 30 made it all the way to the statewide referendum level. Twenty-eight were approved; two were rejected — that was the four-year term and the Vermont Equal Rights Amendment. And I also discovered that Vermont has the shortest constitution of any state in the country.
Well, Bob, the consideration of Proposal Five, which “guarantees the right to reproductive liberties,” is an issue that is taking place in other parts of the country. A number of states are passing laws to restrict a woman's access to an abortion and the U.S. Supreme Court is also expected to rule on the issue with this summer. Do you think this means that there will be a fair amount of national attention on Proposal Five here in Vermont, around the country?
Absolutely, Mitch, I think there's going to be a lot of attention. As you mentioned, about two dozen states are looking at this issue using the legislative process. But Vermont's the only state to address this issue by amending its Constitution. And Vermont is one of the very few states to consider ways to guarantee personal reproductive rights, while most other states are looking at efforts to restrict these rights. So as a result, I think a number of national organizations will be actively involved in this campaign in Vermont this fall. I expect we'll see a lot of ads, both for and against this proposal, leading up to the statewide referendum question in November.