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TALLAHASSEE - Though he never sought elected office, Chesterfield Smith left a political legacy for governors and senators to envy. Gov. LeRoy Collins had struggled heroically but in vain to replace an obsolete Constitution that had been written in 1885 by unreconstructed Confederates who intended a dysfunctional government. It was Smith who, as chair of the first Constitution Revision Commission, finally got the job done.
But in one respect, as we shall see, he did it a bit too well.
What has proved to be the best provision of the Constitution of 1968 provided for revision commissions every 20 years so that the Constitution might never go stale again. These commissions propose amendments directly to the voters. Having seen how the Legislature's ruling rural bloc had stymied Collins over fair reapportionment and other reforms, Smith meant to see that the Legislature would never have such a stranglehold again.
"We didn't know exactly how the Legislature might get at odds with the people in the future," he said in retrospect, "but we knew there had to be some way."
The Legislature itself had to approve this, and it was something of a miracle that it did. The House and Senate were flush with new members who owed their seats to the reapportionment that federal courts had ordered, and who hadn't been in office long enough to become as jaded and jealous of power as the famously nicknamed "Pork Chop Gang" had been.
Smith also cajoled his commission and then the Legislature into providing the people with power to amend the Constitution by the initiative process. He repented that reform long before his death at the age of 85 last week.
It was being misused, as he saw it, for purposes too trivial to deserve a place in the Constitution. In 1994, voters rejected the third of three expensively promoted casino gambling initiatives that had made it to the ballot, but ratified a net ban initiative promoted by recreational anglers. Early the next year, Tallahassee lawyer Richard McFarlain, a Smith protege, wrote to Gov. Lawton Chiles asking him to fix "this mess." He sent Smith a copy.
"You are dead right," Smith replied. "It is a mess, and I played a major role in creating the mess . . . If I had to do it over again, I would do exactly as you have suggested."
McFarlain's suggestion was to limit the initiative to the making of laws that the Legislature could amend or repeal after two years.
"It never occurred to us that there would be expensive paid solicitations," Smith said. ". . . I now think we made it too lenient."
Eight years and another governor later, nothing has happened to hamper initiatives. There are legislators who share Gov. Jeb Bush's distaste for the class size and high-speed rail initiatives, but few of them care to face campaign attacks accusing them of disrespecting the people's power.
Only one bill made it to the floor of either house this year, and that was defeated in the Senate April 30 with 17 votes for, 21 against - far short of the 24 needed to pass a constitutional amendment.
That may have had as much to do with the sponsor as with the subject. Sponsor Anna Cowin, R-Leesburg, more conservative than most of her fellow Republicans, has a hard time getting bills passed. But on that occasion, she had an idea that deserved to live to fight another day.
Cowin's proposal was to allow on the ballot only an initiative that in the opinion of the Florida Supreme Court "either seeks to alter, amend, or repeal an existing article or amendment to the constitution, address a fundamental right of a citizen of this state, or seeks to create, implement or otherwise change a basic structure of the state government."
Such a standard would have accommodated the successful initiatives for term limits, ethics in government and a university system board of governors, but not the smoking and net bans, the bullet train or pregnant pigs. The class size amendment would have been a close call.
All but two of the 14 Democrats opposed Cowin. Republicans, meanwhile, didn't care for giving so much discretion to the court.
"This is not about purifying the process, this is about the strainer you use to purify the process, and whether the Supreme Court ought to do that," said Sen. Alex Villalobos, R-Miami.
The bill might have passed with the addition of an alternative provision allowing initiatives to make ordinary laws, as McFarlain had proposed eight years ago. As Sen. Debbie Wasserman-Schultz, D-Weston, put it: "This is an occasion where a whole loaf is the only thing that would be acceptable. Half a loaf would do serious damage to democracy." But nobody attempted to amend it. With only three days left in the session and no similar bill in the House, it was at best a dress rehearsal for another debate next year.
Messy as it may be, the initiative appears to have been written with indelible ink. But it needs to be and could be refined. If the "whole loaf" were on the Legislature's table next year, I think Chesterfield Smith would approve.