Voters added seven amendments to the Texas Constitution yesterday. Adding amendments is standard operating procedure for the Texas Legislature: The document, which was ratified in 1876, now has almost 500 amendments.
That's the question sent in to KUT's ATXplained project, which answers questions from our audience. Just hours after the addition of the new amendments, Caroline Ring asked:
"Can y’all explain WHY the 7 constitutional amendments had to be amendments? Why couldn’t the legislature just pass regular laws?"
There are a couple reasons: One reason focuses on the mechanics of law and the constitution; the other focuses on politics.
Making it legal
Let's start with the mechanics of law and the constitution. If the state constitution says something is unconstitutional, passing a law doesn't make it constitutional. You've got to change the constitution.
Hugh Brady, a professor at the University of Texas School of Law, heads up the school's legislative lawyering clinic. He says what was put in the original constitution is why the entire state has to vote on things like credit union raffles.
"When it was written in 1876, there was a prohibition on gambling," Brady says. Proposition 5, which allows sports teams to conduct raffles, and Proposition 7, which allows credit unions to award random prizes, are considered gambling in Texas. "The voters had to approve them otherwise they would have been illegal."
Same thing goes for Prop 2, which makes it easier for homeowners to take out a home equity loan. Those loans were illegal until the late 1990s. As part of the compromise to make them legal, home equity loan consumer protections were added to the constitution so they would be more permanent and not subject to the whims of lawmakers.
When there's not a constitutional conflict, there might still be a reason lawmakers want voter approval, for instance, if a proposition costs money. In case you didn't know, the Texas Legislature hates to spend money.
A few years back, lawmakers passed propositions to raise money for water infrastructure projects and to shift around state revenue to pay for transportation needs, like highways.
The water projects proposition had about $2 billion in bonds attached. The state constitution says lawmakers can't sell that much in bonds, so they needed an amendment to do it.
Lawmakers could have used the regular budget process and spent state money to do the same thing. They didn't, because either raising state taxes to pay for it or using the state's multibillion-dollar rainy day fund was politically untenable.
Making all of Texas vote to spend that money also takes some of the blame off lawmakers, Brady notes.
"It is a way for the Legislature to say, 'We didn't add to the debt that you must now pay off with taxes,'" he says. "'You voted to tax yourself.'"
"And I think that's a pretty compelling argument for legislators to make when they're challenged at the Rotary Club or the chamber of commerce as to why state taxes are so high," he adds.
So, there you go, Caroline Ring. A question answered in two parts.
1. If something is unconstitutional, you must amend the constitution to make it right.
2. Getting voters to approve of legislative action, especially if it involves spending money, provides political cover.