The Wrap: DeSantis’s clumsy move to protect state constitution forces groups to hedge bets ahead of July 1 deadline

by | Jun 27, 2021

Every weekend, we take a look at the news stories shaping the conversations in Florida’s business, policy and political worlds. Here’s this weekend’s Capitolist wrap-up, which we call “The Wrap.”

Ham-handed move to block bad ballot initiatives causes fantasy sports group and others to hedge their bets

Earlier this month, Florida Realtors put up $5 million in a campaign that will ask voters to enshrine a new amendment in the state constitution. They want to protect hundreds of millions of dollars from being routinely swiped out of a trust fund by state lawmakers who repurpose the funds for special projects, and this year, those lawmakers made the swipes automatic. No wonder the Realtors aren’t happy.

Last week, another campaign, Florida Education Champions, which has less to do with education and more to do with opening up sports betting venues beyond the recently legalized Seminole Tribe of Florida’s Hard Rock Digital sports betting app, seek to add an amendment of their own to the Florida constitution. The initiative is largely backed by fantasy sports betting platforms Draft Kings and FanDuel.

A number of other groups, like those described above, are all in a race against time. Next Thursday, July 1, marks the date when a new law takes effect that restricts campaign contributions for the signature-gathering phase of the amendment process to just $3,000 from each entity. That’s why some fat checks are being cut now to fund their respective campaigns ahead of the looming deadline.

Yet many legal scholars believe the money moves are unnecessary. They say that the new restrictions, championed by the conservative Florida State Senator Ray Rodrigues and signed into law by Governor Ron DeSantis, will ultimately be ruled unconstitutional based on prior case law. In recent years, the United States Supreme Court famously ruled in favor of Citizens United (see: Citizens United vs. SEC), a landmark case celebrated by conservatives and progressives alike, including the ACLU, in which the Court held that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations and committees.

So why would a legislature filled with some of Florida’s most conservative leaders, and a governor who is considered one of the brightest conservative stars in the nation, support a law that so blatantly defies the legal opinions of conservative justices like Clarence Thomas and the late Antonin Scalia?

The answer, it seems, is that our conservative Florida leaders were trying to protect the constitution from becoming cemented in place by too many immutable amendments that make the document less nimble and able to adapt when needed.

Every election cycle voters are asked to make difficult choices about the candidates that represent them. But voters are also more and more frequently asked to make far-reaching decisions about complex issues in the form of constitutional amendments. This shift away from a representative republic and towards direct democracy is not necessarily a good thing. Special interest groups spend millions of dollars to boil the vastly complex controversies into 30-second television ads, or seven-second sound bites on the local news. The goal is to force voters into making monumental decisions based on knee-jerk emotions.

Whether it’s legalizing marijuana for medical use, budgeting hundreds of millions for complex modifications to waterways around the Everglades, or to set the state’s minimum wage at a certain dollar figure, there are valid arguments on both sides of every issue, and mistakes can easily be made through the emotional manipulation of voters. That’s why proponents argue that a representative republic, in which lawmakers are chosen to study complex issues and make informed decisions on our behalf, typically works better than direct democracy.

And that’s also why constitutional amendments require a supermajority of 60 percent before they are passed, and a supermajority is also needed to remove them. Like a well-tied knot, some mistakes are much harder to undo than they are to put into place.

So while the intent of Senator Rodrigues, his colleagues in the legislature, and Governor DeSantis may have been to protect the state constitution, there are some who believe the new law is tantamount to banning political speech, and accordingly, is doing more harm than good. From the Federalist Society to the ACLU, a broad range of legal scholars have long opposed banning political speech as a method for reducing the influence of money in politics. Florida’s conservative leaders, while well-intentioned, have chosen a clumsy mechanism to address the problem, and one risks the favorable outcome of Citizens United in order to achieve an otherwise noble goal.

Amusingly, Florida’s legacy media aren’t sure what to think of the new law. They’ve long complained about money in politics. Now, when Republicans in Tallahassee take aggressive steps to combat it, the media have contorted themselves to accuse them of bad intentions instead of giving them the benefit of the doubt.

In the past, the state’s increasingly progressive media outlets have described big corporations as “deep-pocketed dark money donors,” and framed their efforts in the most sinister and negative light possible.

For example, the Orlando Sentinel, Tampa Bay Times, and Miami Herald have all warned readers to beware of petition signature gatherers funded by “secret cash from mystery groups.” But now, when Republican lawmakers agreed with them this cycle and decided to close the loophole, those same media outlets called the restrictions an “anti-John Morgan amendment,” after the progressive Orlando super-lawyer who helped fund a number of successful, albeit liberal, ballot initiatives in recent years, including medical marijuana, felon voting rights, and raising the minimum wage to $15 per hour.

It seems Florida’s legacy media outlets are only concerned about money in politics when the cash is deployed against issues they support, and those same outlets turn a blind eye when the money is on their side.

Rodrigues and DeSantis have at least demonstrated that the steady flow of new constitutional amendments is another one of those complex issues with valid arguments on both sides. And anyone trying to get a constitutional amendment on the 2022 ballot would be wise to hedge their bets ahead of the July 1st contribution deadline.


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