While a proposed amendment to the U.S. Constitution can take years to gain the approval of three-quarters of the nation’s state legislatures, any citizen or group can move to amend Ohio’s constitution by gathering enough signatures for a ballot initiative and letting the state’s voters decide for themselves.
Ohio is one of 26 states with some form of “initiative” process that allows citizens, not just politicians, to propose and change laws. Ohioans can “initiate” a statute or constitutional amendment by gathering a required number of petition signatures. That can be anywhere from 3 to 10 percent of the votes cast for governor in the last election, depending on the type of measure being proposed.
The fate of the ballot issue is then decided directly by a majority of voters in a statewide vote, says Steven Steinglass, dean emeritus of the Cleveland-Marshall College of Law of Cleveland State University and the former senior policy advisor to the Ohio Constitutional Modernization Commission, an advisory group that met from 2013 to 2017 on ways to improve the state constitution. Since the creation of the constitutional initiative process during a state constitutional convention in 1912, Ohioans have used it 71 times — with 19 amendments approved and 52 rejected.
Notable constitutional amendments initiated in Ohio through direct citizen action include:
- In 1936, voters banned sales taxes on the purchase of grocery foods.
- In 1949, voters banned voting for a party’s entire slate of candidates with a single pull of the voting booth lever.
- In 1992, three separate initiatives were approved limiting the terms of Ohio’s congressional representatives, its state legislators, and executive branch officers (other than the governor who was already term-limited).
- In 1997, voters repealed a law passed by the state legislature that allowed citizens to register on Election Day.
But Ohio’s form of “direct democracy” also opened the door for private companies to change the laws for their own economic gain, including the creation of state-backed monopolies.
“The incentives are great because there’s just so much money to be made,” says Herb Asher, a professor of political science at Ohio State University and a former member of the modernization commission.
A committee of the commission helped formulate a remedy to the problem in 2015 when state legislators introduced a constitutional amendment making it more difficult for private interests to create monopolies through the initiative process. But that was only after Ohioans had passed Issue 3 in 2009, a constitutional amendment that granted monopoly control of gambling casinos in just four locations in Ohio.
Back then, Ohio’s legislators were still mostly opposed to legalizing casino gambling, even though nearly every state surrounding Ohio, except Kentucky, had already taken the plunge. State legislators in 2009 were taking their cue from Ohio voters, who had defeated four earlier casino proposals in ballot initiatives over the previous two decades, all of them sponsored and heavily promoted by the gaming industry.
But the Great Recession that began in late 2008 changed the playing field, leaving nearly 11 percent of Ohioans unemployed by November 2009. The timing was perfect for a pro-casino group that called itself “The Jobs and Growth Committee to Promote Issue 3” — a partnership between Penn Ventures LLC, a subsidiary of Penn National Gaming Inc., and Rock Ohio Ventures LLC, a group led by Dan Gilbert, owner of the Cleveland Cavaliers.
The companies gathered 850,000 signatures to place Issue 3 on the November 2009 ballot and pumped $50 million into a statewide advertising campaign. The ads touted that casinos would create 20,000 jobs in Ohio and generate $651 million in annual tax revenues for Ohio’s counties, cities and school districts. Voters approved Issue 3 by a margin of 53 percent to 47 percent.
But the amendment was a guarantee of a monopoly for the ballot sponsors and set in legal stone the four downtown locations for the casinos — Columbus, Cleveland, Cincinnati, and Toledo. Columbus officials and the majority of Columbus voters objected to the plan, in part because it would place a casino in the city’s already-crowded Arena District. As with any constitutional amendment in Ohio, changing the location would require another constitutional amendment to reverse the first.
Did Issue 3 live up to its campaign promises to Ohioans? A 2012 Policy Matters Ohio analysis found that the four casinos generated just $227 million for Ohio’s counties and cities — about a third of what was promised — and made no significant financial contribution to its schools. In 2014, The Cincinnati Enquirer found the casino properties had created more than 14,000 jobs but that 9,600 of them were temporary construction jobs.
Ohio voters learned their lesson in time for a 2015 ballot initiative that would have legalized the use of marijuana in the state for anyone over 21 but also would have created a cartel with exclusive rights to commercially grow the drug. Despite heavy promotion of the measure by Responsible Ohio, a group of private investors behind the proposed cartel, Ohioans turned it down with a whopping 64 percent majority vote.
On that same ballot in 2015 was Issue 2, the reform measure aimed at preventing constitutionally backed monopolies in Ohio. After squeaking by with a vote of 51 percent to 49 percent, Issue 2 gave the Ohio Ballot Board the authority to determine if a ballot initiative would create a cartel or monopoly or give a particular business special tax treatment. If so, the sponsors of the amendment would have to secure passage of two ballot questions — one specifically asking Ohio voters to approve their monopoly — before it could become law.
“Now that we have that in the constitution, it’s very, very hard for anyone who wants to manufacture for themselves in the bedrock of our constitution a monopoly on widgets or anything else,” says Mike Curtin, a former state legislator and editor of The Columbus Dispatch who was a member of the modernization commission.
Private companies aren’t the only organizations to take advantage of Ohio’s initiative process. The Humane Society of the United States, the giant non-profit animal advocacy group, had already secured passage of an initiated statute in California on the care and housing of farm livestock and was setting its sights in 2009 to do the same in Ohio with a constitutional amendment. The initiative would be backed with a multi-million-dollar ad campaign.
“Can you imagine the emotional impact of that?” Asher asks. “All the ads showing pigs jammed into tiny cages and chickens smooshed together?” The Ohio Farm Bureau “knew if they didn’t make certain changes to our laws, the humane society would take it out of their hands.”
To head off a constitutional amendment over which they had no control, the farm bureau and other agricultural lobbyists approached state legislators with its own set of animal care guidelines to be enforced by a new state agency, the Ohio Livestock Care Standards Board. With assurances that any complaints could be taken to the standards board, the Humane Society agreed to withdraw its ballot issue in Ohio.
Ohio citizens also have a process, known as statutory initiative, for citizens to initiate new laws without amending the constitution. It’s seldom used, however, because it requires a similar effort to gather petition signatures and persuade voters at the polls, but the resulting statute can be modified or reversed by the Ohio legislature after its passage.
Instead, Ohioans have relied far more often on constitutional amendments, which can only be reversed with another initiated amendment, Steinglass says. To encourage greater use of the statutory initiative, a committee of the commission recommended creating a three-year safe harbor during which an initiated statute could only be changed or repealed by state legislators with a two-thirds vote. Another committee recommendation was to make passage of constitutional amendments more difficult by requiring a 55 percent majority vote.
The full commission did not approve either proposal and time ran out as the General Assembly killed the commission in June 2017, four years before its original sunset date.
Unlike previous movements to reform Ohio’s constitution, such as the constitutional convention in 1912 or the constitutional revision commission in the 1970s, legislators rather than private citizens dominated the 32-member modernization commission of 2013–2017, Steinglass says. None of the commission’s recommendations, even those that were unanimously approved, were placed before voters by the state legislature.
Even so, the commission “did a lot of good research and left a lot of material behind on the issues they thought were important and added their insights to them,” Steinglass says. “It may be a real treasure trove for future legislators and citizens who want to modernize our state constitution.”
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