Recapture representative democracy by booting two judges
On the morning of July 7 when people first heard about the dead-of-night pay raise, everyone asked, “How could they do such a thing?”
Since then, people everywhere continue to ask, “Doesn’t our Constitution prohibit unvouchered expenses? Doesn’t our Constitution prohibit mid-term pay raises? Doesn’t our Constitution require proposed laws to be debated and considered in the light of day?” Sure it does. So how could they do such a thing with no public debate, no public hearings, and literally no chance for taxpayers to know what was happening until it was too late?
There is a simple answer: Pennsylvania’s Supreme Court has told the governor and the General Assembly that such insults to representative democracy are OK.
This year’s retention election on Nov. 8 gives Pennsylvania voters the chance to say, “No! Stealth legislation is not OK!” by removing Justices Sandra Schultz Newman and Russell Nigro from the court.
The essence of this election is whether we agree with how these justices have interpreted our Constitution.
Have their rulings protected us from the abuses of stealth legislation, or have their rulings permitted those abuses?
Our Constitution has many provisions that are supposed to protect us. Two important ones are the “original purpose rule” and the “three-day rule.”
The original purpose rule says that once a proposed law is introduced, it can’t be changed into something unrelated to its original purpose.
The three-day rule says that proposed laws have to be considered on three separate days in the House and three separate days in the Senate.
If properly enforced, these rules can protect citizens from bait-and-switch tactics that prevent us from knowing what our government is doing with enough time to try to stop it or change it.
The 2002 case of Pennsylvania School Boards Association v. Commonwealth Association of School Administrators (PSBA v. CASA) is a clear example.
A bill that had been considered for eight months in the House and Senate proposed to change how three small state-owned schools were managed.
But on one day, the bill was amended to govern collective bargaining and binding arbitration of public school administrators. Both the House and Senate passed the bill one day later.
Did they change the subject of the original bill? Did they allow enough time for the people affected to know what was happening?
The Philadelphia County Court of Common Pleas didn’t think so. It declared the law unconstitutional, ruling “there was no reference whatsoever in the legislation … to any subject even remotely related to the arbitration of labor disputes involving school administrators.”
But our Supreme Court, including Justices Newman and Nigro, reversed the lower court.
Now fast forward to the 4th of July weekend in 2004. When they knew no one was paying attention, the governor and legislature stripped every word out of a two-page bill and substituted 146 pages of completely new language, then passed it in a matter of hours.
Fast forward again to June 22, 2005, when our Supreme Court, citing PSBA v. CASA, ruled that there was no problem with how the legislature passed the gambling law.
Now fast forward just 15 days to July 7, when Gov. Rendell and the General Assembly followed the exact same process with the pay raise.
If our Supreme Court had upheld the lower court in PSBA v. CASA, it could have prevented the scandal of how the gambling law and the pay raise were enacted.
Gov. Rendell and the General Assembly would have known that the people’s right to participate in making laws would be enforced.
Instead, our Supreme Court, including Justices Newman and Nigro, has denied us that right, allowing us to be treated like little more than walking wallets both now and in the future.
What will they do next?
Harrisburg has been talking lately about taxing food, clothing and other things that are now exempt from the sales tax.
Under our Supreme Court’s rulings, there’s nothing to stop Gov. Rendell and the General Assembly from imposing new taxes in the dead of night, without public hearings or public debate.
So maybe that’s next. Or maybe it’s any of a hundred other things. One thing for sure, they no longer have to tell us until it’s all over but the shouting.
Since the court won’t protect us, the only way we can protect ourselves is to remove from office those who refuse to safeguard our right to a true democratic process.
We should begin by removing Justices Newman and Nigro on Nov. 8.
Timothy Potts is a former director of communication for the Pennsylvania House Democratic Caucus.
He lives in Carlisle.