Legislators mull end run around governor: Constitutional amendments

Jan. 27—For Sen. Jerry Ortiz y Pino, it's now or never.

This year's 30-day session will be the last for the longtime lawmaker, who is championing one of the most talked-about proposals at the Capitol: a constitutional amendment to commandeer the state's hapless child welfare agency from the executive branch and place it under the oversight of a three-member independent commission.

The Albuquerque Democrat said he opted to take "the constitutional amendment route" not only to give voters a voice at the ballot but also to sidestep Gov. Michelle Lujan Grisham, a powerful force not known for easily giving up control.

"The governor, I think, would probably — I don't know for sure — but I imagine she would veto a bill," said Ortiz y Pino, adding he "certainly" wouldn't get a message from the governor to place such a proposal on the Legislature's agenda this year as required during 30-day sessions, which are technically supposed to be focused on the state budget.

Whether it's a 30- or 60-day session, constitutional amendments provide lawmakers the opportunity for an end run around the executive branch — and, for that matter, the legislative process, although they do require two-thirds vote from each chamber of the Legislature to make it onto the ballot.

Attempting to place a constitutional amendment on the ballot is an increasingly attractive option for lawmakers frustrated by the push-and-pull of the conventional process — and of course, the cudgel a New Mexico governor holds in the form of a veto. Think of it as the legislative version of a Hail Mary pass in football — a chance to score when all else seems lost.

"It's a way to get around the governor," acknowledged Sen. Greg Nibert, R-Roswell, who noted his past efforts to limit an executive's powers during emergencies have been thwarted.

The remedy? Introduce a joint resolution that, if successful, could become a constitutional amendment to be decided upon by voters.

As of Friday, lawmakers had introduced more than two dozen proposed constitutional amendments this session, from eliminating so-called pocket vetoes that allow a governor to kill a bill simply by taking no action, to creating an independent redistricting commission that would help draw voting boundaries.

And House Republicans introduced a measure earlier this week that would limit a sitting governor's power to call for an emergency order without legislative approval, a measure not unlike those Nibert had sponsored in the past.

Though their popularity seems to be accelerating in recent years, constitutional amendments have long been part of the fabric of the Legislature: Since 2000, lawmakers have introduced more than 600 constitutional amendments.

But they don't have a great rate of success. Fewer than 50 have passed in all those years, according to data compiled by the Legislative Council Services library.

While some lawmakers use constitutional amendments as a maneuver to elude the executive, the majority cannot be accomplished in the form of a bill, said Sen. Moe Maestas, D-Albuquerque.

"Constitutional amendments may be a check on executive power, but they're not done to sidestep any particular Governor if they can't be accomplished statutorily," Maestas wrote in an email. "The only example of a [constitutional amendment] that could have been done statutorily but would never get a Governor's signature was the creation of the independent public defender department."

Former state Rep. Damon Ely, D-Albuquerque, said constitutional amendments should "never be used to bypass a governor."

"You do it because you feel like the [state] constitution needs to be changed," said Ely, who has teamed with Nibert in the past to introduce constitutional amendments to limit a governor's emergency-order powers.

"I get it — you don't want to go through the governor. That is not the reason to run it," Ely added.

Allen Sánchez, executive director of the New Mexico Conference of Catholic Bishops, said it's critical to gauge voters when considering a constitutional amendment.

"The key is starting with the public and polling the public because the debate on a constitutional amendment is, 'Is the issue worthy of a public debate on the ballot?' That's the center of the debate in the Legislature," said Sánchez, who for well over a decade championed a constitutional amendment to approve an increase in annual withdrawals from the state's Land Grant Permanent Fund to pay for early childhood education programs.

The power of a constitutional amendment, Sánchez said, is "it's one of the clearest ways of having a law on the books that is directly from the will of the people — not a representative or senator trying to figure out what the constituent wants but letting the constituent vote on it."

In other words, a constitutional amendment makes New Mexicans, not politicians, the decision-makers.

"This is the will of the people, not the business of the governor," Sánchez said.

While any governor has the ability to formally oppose or support a constitutional amendment, he acknowledged it "helps" if a governor is behind the effort, as Lujan Grisham was with the proposed amendment to fund early childhood education programs.

"Increasing the distribution from the permanent school fund, which was a decade-long struggle, had to be approved by the voters," wrote Maestas. "This early childhood [constitutional amendment] took a shift in how lawmakers approach state government as it relates to the future. State government took a cultural shift by not saving money for the next generation of poor kids but rather the confidence to spend money today to not have poor kids in the future."

Sánchez said some proposed constitutional amendments — like the one House Republicans are pushing this year to limit the power of the governor during an emergency situation — can deal with "managing the governor."

"Should the governor dictate what the Legislature should work on in a 30-day session?" he asked, suggesting lawmakers could propose changing that constitutional provision through a ballot question as well. On Friday, a House committee approved two joint resolutions calling for a constitutional amendment to do just that.

Brian Sanderoff, a well-respected Albuquerque pollster and political analyst, called voters the "gatekeeper" for amending the constitution.

"Some voters are not familiar with proposed constitutional amendments until they see it for the first time on the ballot," he said. "Therefore, ballot language is critical in influencing the outcome of these amendments."

Sanderoff said the constitutional amendment process can be used as a tool by the Legislature to bypass a governor's wishes because it's the voters who have the ultimate say.

"Governors rarely support legislation that would limit their authority, thus the Legislature could use the constitutional amendment process to limit the powers of a governor since the governor does not sign off on proposed constitutional amendments," he said.

Republicans, greatly outnumbered by Democrats in both the House and Senate, acknowledge their chances to override a veto by Lujan Grisham are almost nil. With that as the backdrop, Nibert said, they worked to gain passage of a constitutional amendment as well as advocate for a traditional bill.

"We've not overridden one veto in the entire term of this administration," he said. "We recognized that it would be unlikely for us to get a bill actually signed into law in that climate, so we took a two-pronged approach on that."

Nibert noted a constitutional amendment requires many lawmakers' buy-in. In other words, members of the majority party who may — or may not — want to join with their political opponents.

"They have to go through the committee process and then they go to the floor," he said, adding both chambers have to approve it by the necessary two-thirds vote.

That's no easy task. But if it happens, he said, "then it would be put on the ballot and then the people of New Mexico would have to decide whether that measure is desirable or not."

Follow Daniel J. Chacón on Twitter @danieljchacon.