 ThinkTek Hawaii. Civil engagement lives here. Aloha and talk. Welcome to Talk Story with John Wahey. Again, we have a great show for you. I think you'll find this interesting. One of the hot topics of this season is whether or not the state of Hawaii ought to have a constitutional convention. The last time we had one was in 1978. And since then, whenever the question was on the ballot, it would be rejected. So here we are in 2018 with another opportunity to decide whether or not we want a constitutional convention. So to help me with this issue, we have our special guest today, Chad Blair, who is the editor of the Politics and Opinion of the Civil Beat. That's right. Thank you, Governor. Which, by the way, is probably the leading political media. I don't know what you call it, peace. Thank you. In the state of Hawaii. You know, certainly politics and opinion take up a lot of our online pages. It's a nonprofit. Anybody can go on there. They don't have to pay to read our content. I find that really nice. Yeah, so do I. And it's founded by Pierre Omidyar, the publisher of eBay, who lives here with his wife and children. See, that's really interesting. Someday we ought to have a conversation with somebody about all the people who find Hawaii a great place to live without any publicity, without anything. They just come in and sort of live here and walk among us. Definitely. We cover other things. We cover the legislature, the city council, office of Hawaiian affairs, education, the environment, police accountability. But particularly during election season, we really ramp up. And that is our entire focus. So now that the primary is over, we're looking ahead to the general election. And one of the issues that I just mentioned will be the constitutional convention. Now, why I find a civil beat unique on this subject is that most of the informed, I guess, what would you call it, opinion makers in the state of Hawaii has sort of stayed a little back from answering that question. But, you know, you are just you just went right ahead. It will be and decided that as far as you're concerned, editorially, you are spousing that we have a constitutional convention. We are. And it's for a couple of reasons. One reason is that we've actually pulled it. We have surveyed voters and back in December, two thirds of the people that we spoke to, registered voters in the state of Hawaii who plan to vote, said they'd like to have a concon. The same thing in May. The numbers went down a little bit, but still pretty healthy majority. So that's one reason. Another reason is a number of people that are sit on our Ed board are from the mainland or have worked on the mainland in states like California and Oregon and Washington state, fairly progressive states, fairly advanced liberally, if you will, politically. And there was a sense of frustration watching our own legislature not move on some issues that we thought they should move on. Fantastic. And I'll give you an example. A medical marijuana, should it be a rather recreational marijuana? We already have medical marijuana, but it took us forever to get up those dispensary sets. Yeah, you would think with many people would consider a young legislator. That would have been kind of a no brainer. Probably even from your time, there was probably a recreational or decriminalization bill, but it never gets heard or if it does, it goes nowhere. So that's one thing we thought, well, if the legislature is not going to deal with this, why not have a concon consider that? Now, some may say that's not a serious an issue. Another issue is maybe we ought to have referendum initiative and recall. Okay, back in 1978, that came up, right? Those were the, well, there were the main issues in terms of public involvement. And you the pro con. Right. And it was, I think, one, a form of, I was a member of their convention. And one form of it that almost passed, lost by, I think it was a tie. Wow. It was an absolute, it was a tie. An actual vote. It didn't even go to the voters and it didn't make it out of the delegates. Never made it out of the convention. It was the kind of a cutting issue between the two factions, really. Although that's not a good way to do it. But so okay. Well, here's our thought. That issue has also come up at the legislature, nearly ever session. It never gets heard, initiative, referendum and recall. You think to California is probably being the most prominent state. Of course, that's where Greg Davis was recalled and Arnold Schwarzenegger got in for that special session. But there's also a referendum. There is initiative. And so you'll see a ballot process in California, which all sorts of questions go be for the voters. Well, you know one of the things about the California Constitution, it's about that thick. I mean, this is a little exaggeration, but as a result of initiative referendum. But our feeling is, if the legislature, who are the appointed delegates, the elected delegates, the people that represent us throughout the state of Hawaii, if they're not going to move on legislation that we think is important, why don't we have a con con, vote for delegates to go in and do that as well? I can't help but recalling when you tell me this, John Kennedy's book. So I forgot what it was, but it was profiles encourage profiles encourage where it was the legislative duty sometimes to disagree with the with the populace. How does that fit in? I understand that. And having said this, here's another issue that we have seen go before the legislature seems to be every session or every other session, medical aid and dying. Well, lo and behold, the legislature actually passed that this past session. That was a kind of a, you know, that was a little bit of progressive. No question. In fact, I even wrote a column for civil beat giving credit to the leadership of the House and Senate, the chambers as a whole for voting finally to put that into law. Now it's going to be the law. It is the law. I think it goes into effect in 2019. But that took forever. There's been some other progressive things that came out of this past session. But generally, even though Hawaii is a blue state, often our legislature has been fairly conservative at least in recent decades. You know, it's, it's a really interesting observation. And in fact, I think, I think you wrote an article about that. Quite possibly. You know, and which I found very, very popular, provoking actually. So I mean, look back to the 1970s. You had the prepaid health care act. Well, we, we pride ourselves in the Democrats used to pride themselves, especially the 70s and 80s of being the first in the nation equal rights amendment, even though we don't have it at the federal level, abortion rights for women. I don't know if that was before Roe v. Wade, but it was. So that's really, in so many ways, Hawaii was fairly progressive, certainly in its environmental laws. A lot of that came out of the labor laws. Absolutely. All of that. And then all of a sudden it seemed like the more democratic we became, the more conservative we became. It is. And so we feel that, look, what happened to that? What happened to that idealism? What happened to wrestling with these issues, even though they are challenging, even though they may turn off some voters and people fear that they may not be reelected? We feel that that is what a democracy is all about. And maybe it's no coincidence that our voter turnout is as low as it is. One argument maybe for Con Con is the fact that the other alternative process for amending the Constitution is to actually have the legislature propose an amendment. Right. And we actually do have a constitutional way of... It is. And there is a ballot measure and a constitutional amendment question on the ballot in November leveling a surcharge of oil and extra tax on investment properties, properties that cost more than a million dollars. And that would go to schools. And this was the initiative of the State Teachers Association. You know, another reason why we're going out on front on the Con Con, because we started this before the primary happened is, frankly, there aren't a lot of races that are going to be very competitive in the fall. And the Con Con question and the constitutional amendment question on taxes for schools, a few OHA races, a few other races here and there. Might be the only interesting... Pretty much. As you well know, by and large, the primaries are big races. Well, I found it very interesting that when the legislature, that most of the cutback amendments to our state constitution, in other words, the more conservative amendments, like the marriage, there was an amendment actually that made it possible for the legislature to define what constitute marriage before they eventually went out and passed... And the irony that our court, our High Supreme Court was the first in the nation back in 1993. Right. We said, look, unless you can find a reason... I mean, basically, it's discrimination against gay couples. They were denied the right. By the way, I appointed that justice just so that... Levinson. Steve Levinson, I believe, was the author of that. And unless the legislature could come up with a compelling reason, in other words, to pass, to amend the constitution, to give them the right to limit marriage between one man and one woman, then you could not deny marriage to gay couples. I find it interesting that that seems to exist, that the cutbacks, that the conservative amendments... But it took forever. I mean, remember, we had reciprocal beneficiaries, and then we had civil unions. And finally, give Neal Abakrami some credit, he ordered the legislature into session, 2013, and lo and behold, after hours of agonizing testimony, they did enact a same-sex marriage. Well, same thing with medical marijuana. That's exact. But why did it take so long? Again, why was it ahead of the curve? Well, I think that's an argument for a constitutional convention. The idea that it seems that the people, when they get together, have a more progressive vision... That is our argument. ...of the future than the establishment, or the legislative establishment. And I think there's some data, actually, to support that point of view. So in that sense, you might be on the right side of history, but what I don't... What I find less compelling is the issues themselves that seem to be coming up. They're all old stuff. Now, maybe that's not bad, but 40 years we've been debating initiative and referendum, and it never passes. Not even in the prior conventions. But is there anything new? Is there anything out there that is so compelling that we ought to have... Because the legal women voters, I believe that's their argument against the constitutional convention. There is a concern, and this is an answer to your second question, is that maybe it could get... unintended consequences could come from a con con. Because we were talking about California earlier, and all the ballot questions they have, the proposals that go before voters, it could backfire. I mean, remember back in 1978 was the proposition where they cut back on the taxes, they've had troubles funding the schools, they've gone back and forth, and it could be a step forward and a step backward, and that's the concern that can happen here. I know collective bargaining rights, which came from the 1968 con con. I'm sure the public sector unions will be very concerned that a con con this time around might touch that very important part of our law. You know, it's interesting though, but again, whenever we bring up, whenever we make these arguments, there are really two sides to it. I mean, the idea of having a citizen's convention is attractive in itself. I mean, democracy is messy. I mean, you know, look at who we ended up with as president. I mean, you know, who would have... You promised we weren't going to go down that route. No, I'm not going to go down that way. What new could come out of this convention? I think one possibility that we've discussed, and we've actually editorialized on, why is the legislature exempt from the state's sunshine law that doesn't apply to other agencies of government? And that's something that the legislature itself passed that law. In other words, they themselves are keeping the public in the dark on many of the things that they are allowed to do behind closed doors. That's something that a con con could come together and say, no, the sunshine law should apply to the state legislature. Or the opposite. Oh, and the opposite in this sense, that it applies, it doesn't apply to the legislature, but it applies to every other deliberative body, city constitution. We would argue that you ought to have that cover the legislature. Right. And so, you know, it seems to me like there's a kind of a hypocrisy. That's the way we feel. Here's another one, term limits. Now, while I personally don't support term limits, I believe that that's the voter's job. If they want someone out, they should vote them out. But we do have term limits for all the county mayors, the county prosecutors, the county council. The governors? The governors, the lieutenant governor. In fact, it was the 78 con con that had the term limits for governor and LG. Well, what if lawmakers were suddenly faced, and I mean specifically the state house and senate, if they were faced with term limits, might that change the way they do their jobs? If they do that, oh, I'm not going to get into the verb. Will it make it better or will it make it worse? We would argue that maybe it would make it better because you would not get in there and be ensconced, be so influenced by all those campaign donations that are coming from special interests, that maybe you would actually go in and say, look, I've got eight years. You know, actually, actually, I think that if you really research the issue, one of the reasons why some of those things don't pass in Hawaii, who has been the California example, where they do have term limits, for example, and it actually seems to work the other way where people start looking for a job immediately, very quickly after they get elected and they end up becoming much more susceptible to special interests. These are the kinds of arguments. What I find it was always attracted me about having a constitutional convention is the ability to argue and to, and if we like what we now have, the ability to re-justify it. You know, I think the process may be even more important than the individual issue. Well, one of the things about a process, and of course, I was just in high school at the time, but the new leadership that came out of the 788 Con Con, it's not only yourself, but a Carol Fukunaga, Jim Sean, Alessi Hara, a number of people, oh, Walter Riddie, people that would become leaders or anti-Frenchy De Soto, who would later chair OHA, right? And you had a sort of a breeding ground for new fresh leadership coming in with some idealism, and we think that could be, when you talk about argument, what a wonderful opportunity to get them all in the same room and have them talking about ideas to change this government. Or to justify it. Or to justify it. We're going to come right back, folks, for more on whether or not we should have a constitutional convention. And if we have time, slip a few other issues in, since we have been able to grab the political editor of the Civil Bee. So we'll be right back. And welcome back to Talk Story with John Wahee and our special guest, the editor of Politics and Public Opinion at Civil Bee, Chad Blair. And by the way, folks, call on in if you want to. In fact, we would encourage you to. The number is 808-374-2014. And I would tell you how to tweet, but that's something that's beyond. And I'm not going to go where I said it wasn't good. It's all right. Yeah, the process of the conca. You know, I just find that has always been compelling to me because there is a way for direct citizen participation. But maybe you should let the folks at home know how a amendment actually passes. This is not something that where people get together, they raise their hand and it's done. No, we should explain, first of all, that most people probably living in Hawaii today might not have been eligible voters back in 1978, right? 1978, 1978, right. No matter what comes out of the concon, every single amendment has to go before the voters. In the case of 78, every single one of them was improved, including the establishment of the office of non-affairs. It was approved by the voters. There were, I think, a number, over a hundred. In fact, we were such an activist constitutional convention that one of the arguments against ever having one again, you know, it's really funny for me. Two activists? Yeah. The first two, well, the first thing that happened right after we made the amendments, we took it to the voters, they approved it, was the legislature passed the constitutional amendment, changing the ratification process, upping the number of votes that you would need in order to pass the constitutional convention. And to us, this is perplexing. And what this means to voters that are going to be looking on November 6th on the concon question is, if you leave that question blank, if you don't put in your X or your check mark, it's a no. It's a no vote, which is just silly to us, but it's because the legislature made it. I think the rule said, basically, that you need to have one more than 50%. 50 plus one, yeah. In terms of the actual vote, but that total vote for a positive vote has to be more than 50%. So that's why an education campaign really needs to be stressed for the concon in particular. Common cause Hawaii, which is not taking a position per se and whether to have a concon has said this is their biggest concern, or at least one of them, that people understand not only what that vote might mean, but how a concon would work. Because it actually would amount to three elections. You would have to have, well, certainly you'd have to have the first vote to pass, to agree to have a concon. You'd have to have a second one in order to elect the delegates, like you, back in 1978. And then you'd have to have a third vote in order to ratify or to vote against anything that came out of that concon. That's a lot of votes. And it's quite a standard. It's almost, it's very difficult. It's a high bar. I tell my friends that for those of you that don't like a concon, don't, you know, unhappy with it, I don't know whether anybody could actually meet that standard. You know, in a major way, anyway. Every election we have constitutional amendments on the ballot, it seems like, and very few of them pass right now. And those that pass tend to be emotional at the moment. You know, like the anti-gay marriage amendment that passed. Back in 1998, exactly. So that's one of our concerns. I think another concern is we didn't have super PACs back in 1978. We didn't have Citizens United approved by the U.S. Supreme Court a couple years ago. We didn't have the ability to use dark money coming from sometimes who knows where to influence decisions like we did back then. And we're very concerned that that could really, I mean, can you imagine all the television commercials, all the mailers at the mailbox, all the use of social media to get out the word. And that is a concern, particularly on certain interests that don't want certain constitutional amendments enacted. You know, it's sort of interesting, but the opposition, one of the major groups opposed to Initiative Referendum was the, I guess you would call them the welfare groups, the poor, the social... Social justice groups. Social justice groups and the rest. And the reason was that, that they were afraid that poor people wouldn't have the resources to pass amendments or law, actually, in the case of Referendum and Initiative, wouldn't have the ability to take advantage of that, but people with money would. And the particular issues had to do with zoning. Where, and I think history shows that initially, like Queens Beach, where, for example, on this island, initially people get together, they downzone the place, and all of a sudden the landowners get together and it's up zoned. And that happened on Kauai as well. But the fear of, I think, of outside money is really real. Another thing that would be of concern, and you have all people know this, you have said as much at a forum regarding a possible concon this year, what might happen to the Office of Hawaiian Affairs? Is it possible that that might be impacted in a negative way? That would actually hurt the way OHA operates and the way it serves its beneficiaries? On the other side, some might say that you could use it to maybe secure that those seated land revenues where they did stay at the amount that a judge recently said they should be at. Well, there are things that we could change about the Constitution, no doubt. So, there is a fear of tinkering here and there that might go overboard, but if the legislature isn't going to do it, then this is the forum where it can happen. It's the only forum. Is the legislature even capable of handling those types of issues? I don't think so when the judge said that it looks like OHA should get, or the Department of Hawaiian Homeland is another example. $28 million dollars. Right. I mean the courts have their jurisdiction, the legislature has its jurisdiction, and I'm not going to wade into that, but if there's a dispute on who controls things and you disagree with whatever comes out, a con con might be the area. Yeah, because otherwise what you would have is two institutions really just playing this off against themselves. Right. A GHHL has its own challenges because it goes back to the 1920s and the U.S. Congress being involved and then statehood. But OHA, of course, was created in 1978. What I find interesting about all of this is that is the way public opinion has drifted over the issue of con con, actually in my case for the past 40 years, and right after the Constitutional Convention of 1978, as I said, the legislature changed the standard saying we're never going to have another runaway convention. And we haven't. And we haven't. What's interesting about that, though, is that for the first 20 years or so, people like myself are saying we should have one. We should have one. This document was never meant to be perfect. And for the most part, the general public voting it down, voting it down. And yet in this day and age, it seems like the public seems pretty much after 40 years, maybe it's worth a try. Maybe, as you say, a lot of people weren't even around. Right. And it is so interesting to see the establishment that, in a sense, sort of made sure that there was no other con con ever, but took a position that there shouldn't be. Now are saying we need to protect this Constitution. Right. We need to protect it. We need to do everything for it. But as you know, a Constitution, at least this is my argument. I'm not a strict interpreter of the Constitution. I see it as a living document. I know that's different when Antoinette Scalia believes in some of the more conservative justices. But I believe it is an amendable document. The Bill of Rights, including the First Amendment, was something that came later. It's the First Amendment of the Constitution. And we have amended what, up to 27, I forget what the figure is, 26, 27 times at the federal level. It was a mistake now and then. Prohibition, for example, was the wrong way to vote. But the women's right to vote, giving people 18 years of age. Well, 14, 15, 16 amendments. The most important amendments. The 13th coming out of the Civil War, exactly. So that just shows you an example at the federal level. Here at the state level, I think that shows you the possibility of what can be done. The danger, if you have a prohibition, but the opportunity to make it a more just and equitable society. I think, and I have to confess, my own personal bias on all of this is I don't know what we should do. And which is unusual for me, because I've been an advocate of having one. And people are trying to get you, actually, to get off the fence. Yeah, they are, they are. But it is a wonderful opportunity for the citizens to appreciate their own government. I don't know if I would have had any hesitation at all. Were it not for the fact that, you know, I see what's happening on the national level and I tell myself, maybe this is not a good time. In other words, that people seem to be not afraid to be almost un-American in their biases and espousing it in one hand. And on the other hand, everybody's apathetic and nobody shows up to vote. Yeah, particularly in this state. Right. Well, across the country, actually, except that one good thing about your favorite, your favorite person who we will not talk about is Donald Trump, is that he seems to be getting people involved, at least some types of people. We'll see. I think the midterms will almost certainly be its own referendum on the Trump administration's first two years in office. We'll see if the House stays in control by the Republicans. It looks like the Democrats might take it back. And the Senate, it's a closer battle. But I think that is the big concern. The thing about the Trump administration, the person, the big elephant in the room that I don't want to talk about, but will anyway, is it is remarkable how the dynamic changes sometimes literally by the hour or by the second, by the tweet, if you will. Well, by the flag. You could be talking about something in the morning and by noon, it's something else. And then by six o'clock, it's something else. And today alone, on the day that we are here, the flag goes down for John McCain. The flag goes back up and then the flag goes back down. And it's the speed of which these things are happening are astounding. But a Hong Kong might be a chance. 20 years ago, if you had a child like you would seriously be considering giving them some kind of medication. Slow them down. Slow them down. But, you know, okay, here's the last thing. Consideration for people regarding the constitutional convention. Folks, if there was no convention in 1978, there would have been no Governor Wahey. So, you know, take that for what it's worth. And thank you for joining us. I hope that all of you take very seriously the issue of whether or not Hawaii needs to have another constitutional convention.