After Tim White and I reported last week on RIDOT’s proposal to put tollbooths on I-95, former state Rep. David Segal wrote in to point out that this isn’t the first time Rhode Island and the federal government have been at odds over the state’s desire to toll a road – and last time, it almost stopped us from ratifying the U.S. Constitution.

Here’s Wikipedia’s version of the story (emphasis mine):

Before the Constitution was drafted, the 13 colonies operated under the Articles of Confederation, created by the Second Continental Congress. The national government that operated under the Articles of Confederation was too weak to adequately regulate the various conflicts that arose between the states. These divides included a dispute between Maryland and Virginia over the Potomac River and Rhode Island’s imposing taxes on all traffic passing through it on the post road that linked all the states. As the Articles of Confederation could only be amended by unanimous vote of the states, any state had effective veto power over any proposed change. In addition, the Articles gave the weak federal government no taxing power: it was wholly dependent on the states for its money, and had no power to force delinquent states to pay.

On January 21, 1786, the Virginia Legislature, following James Madison’s recommendation, invited all the states to send delegates to Annapolis, Maryland to discuss ways to reduce these interstate conflicts. At what came to be known as the Annapolis Convention, the few state delegates in attendance endorsed a motion that called for all states to meet in Philadelphia on May 14, 1787 to discuss ways to improve the Articles of Confederation in a “Grand Convention.” Rhode Island, fearing that the Convention would work to its disadvantage, boycotted the Convention entirely in hopes of preventing any change to the Articles. When the Constitution was presented to the United States of America, Rhode Island refused to ratify it.

That’s not the only reason 92% of Rhode Islanders originally voted against ratification – the General Assembly defied the Founding Fathers’ instructions and held a referendum on the document, which angry Federalists boycotted; the state eventually approved it by the narrowest margin the country. But it shows the question of how to tax Rhode Island’s roadways has always been a vexing one around here.

One thing the Boston Post Road of the 1780s didn’t have was E-ZPass. But the electronic toll system brings its own problems, since some cars breeze through without paying. And the man who’d be in charge of RIDOT’s proposed I-95 tolls says that’s why RITBA pulled up the gates on the Pell Bridge, The New York Times reports:

In Rhode Island, David Darlington, the chairman of the board of directors for the state’s Turnpike and Bridge Authority, said he still remembered when former Gov. Donald L. Carcieri raised and lowered a baseball bat in front of him to protest a gated E-ZPass system being introduced at the Claiborne Pell Bridge in 2009.

But Mr. Darlington said the governor was more accepting when he learned how much money was being lost to toll cheats: of every 100 cars, about three to four were not paying their tolls before the authority introduced the gated system. Mr. Darlington said the agency was still considering having open-road tolling by the summer of 2012 because it was so much more convenient for drivers. Given the agency’s past experience, it is understandably cautious.

“We as an agency have to pay our bills,” Mr. Darlington said. “One of the big factors in all of that is how do we make up for the evaders so that we don’t lose revenue.”

In his column today, The Pawtucket Times’ Jim Baron included this nugget that was news to me:

While we are at it, take away the paid health care for the General Assembly. The General Assembly is always moaning about being a part time legislature and they must have day jobs as well. Correct, so why are they burdening the taxpayers with their health insurance costs? That should come from their real jobs. Believe it or not, we would have to amend the state constitution to take away legislators’ paid health benefits. Of course, if that notion could get anywhere near a ballot, it would pass in a landslide. It’s a tiny dollar amount, but if we are going to cut fat and waste out of the budget, that seems like a place to start.

Health insurance for legislators is in the constitution? This I needed to see for myself.

Lo and behold, there it is in Article VI, Section 3 of the state constitution:

Senators and representatives shall receive the same health insurance benefits as full-time state employees.

That seems like a weirdly specific thing to mandate in the supreme law of the land. I did a quick check of the U.S. Constitution, and as far as I can tell all it says about lawmaker compensation (other than the 27th Amendment) is the following:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.

So the federal constitution gives wide discretion to Congress to set its members’ compensation as it sees fit, while the General Assembly gets quite specific instructions (including dollar amounts and COLAs).

Back in 2007, the Projo’s Kathy Gregg noted that lawmakers, unlike other state workers, don’t contribute any of their salaries toward the cost of their health insurance premiums:

House Speaker William J. Murphy and Senate President Joseph A. Montalbano both take this position: the state Constitution entitles the part-time lawmakers to the same health benefits as full-time state employees, but says nothing about having them pay for it. …

Most full-time state employees in Rhode Island are required to pay a portion of their salaries or a percentage of the premiums for their health benefits. …

Asked last week why lawmakers alone should be spared [co-pays], Murphy issued this statement: “In 1994, the voters approved an amendment to the Rhode Island Constitution that provided health insurance benefits for Representatives and Senators. I am a firm believer that the members of the Legislature are entitled to these fully paid health benefits as established by the voters.” …

Why not legislators too?

House spokesman Larry Berman elaborated on Murphy’s thinking: “At the time of the vote in 1994 when this was changed, there was no co-share and there is no provision in the Constitution that discusses a co-share.”

Montalbano agrees with “the interpretation of the Constitution that says: if you want to change the law as to our compensation, which includes health benefits, you have to change the Constitution.”

I’m no lawyer, but that seems like a stretch on Larry’s part. Again, all the constitution says is:

Senators and representatives shall receive the same health insurance benefits as full-time state employees.

There’s nothing about co-pays one way or the other, and nothing about pegging the rules to the situation at the time of the amendment’s passage. I bet if they really wanted to implement co-pays, they could present a credible case to the Supreme Court.

Was anybody around for this debate back in 1994? Why was this put into the constitution in the first place?

(photo: King for Treasurer campaign)

A WPRO-led Facebook campaign is trying to rally support for the recall of Gov. Lincoln Chafee, who took office two months ago, GoLo reported over the weekend. I was asked about the same possibility on Twitter the other day.

Rhode Island is indeed one of the 18 states where recall elections are allowed, but it’s unlikely the radio station’s effort to undo last November’s gubernatorial result will amount to anything – and not just because only two governors have been recalled in all of U.S. history.

Rhode Island’s recall provision was added to the state constitution fairly recently, in 1992, according to Conley and Flanders’ book. But the framers set out pretty limited criteria for what constitutes a recallable offense: basically, a general officer needs to commit a crime or violate the Code of Ethics. And you can’t recall officeholders during the first six months or the last years of their terms.

So Chafee couldn’t be recalled until July at the earliest – and then, again, only if he “has been indicted or informed against for a felony, convicted of a misdemeanor,” or if “a finding of probable cause of violation of the Code of Ethics has been made by the Ethics Commission” against him.

The Code of Ethics “contains a lot, but most of it has to do with financial conflicts of interest,” Common Cause Rhode Island’s John Marion told me – so waffling on casinos or going soft on immigration probably won’t cut it.

Rhode Island’s constitution does contain another option for booting an official outside the usual electoral process: impeachment, a process most famously used against two Supreme Court chief justices, Joseph Bevilacqua in 1986 and his successor Thomas Fay in 1993. (The General Assembly even subpoenaed alleged Mafia boss “Junior” Patriarca to testify against Bevilacqua, who quickly resigned.)

The constitution says the governor or any other general officer can be impeached if he or she is is “found incapacitated or guilty of the commission of a felony or crime of moral turpitude, misfeasance or malfeasance in office.”

Somehow, I don’t see two-thirds of the Rhode Island House voting to impeach Chafee, nor two-thirds of the Senate voting to remove him from office. But now you can impress people at cocktail parties with your newfound knowledge of local constitutional law.

(And thank you to Common Cause for letting me examine its copy of Conley/Flanders’ $165 tome; don’t worry, donors, the frugal Mr. Marion bought it used.)

thanks but no thanks

The United States Constitution. Just hearing the name of our magnificent founding document causes Americans to swell with pride as we marvel at its wisdom, its language, its vision.

Unless, apparently, you were an 18th-century Rhode Islander.

Gordon S. Wood, Brown University’s eminent history professor, has a long essay in the latest issue of The New Republic which takes a look at how the fight over whether to ratify the Constitution played out among average Americans. “Nothing before had ever engaged such a large proportion of Americans as did the debates over the Constitution,” he notes.

Buried in Wood’s piece, though, was this nugget I never knew (emphasis mine):

Since Maier wishes to recover as closely as possible the way ratification happened, she frames her history as a chronological narrative of the process, which began in November 1787 and lasted until the summer of 1788. … After much debate, Massachusetts ratified in early February, 187 to 168, and proposed amendments. At the end of February the New Hampshire convention adjourned without ratifying. A month later the citizens of Rhode Island voted directly to reject the Constitution, 2,708 to 237.

So about 92% of Rhode Island voters said no to the Constitution. That’s pretty decisive.

In fact, the state was so down on the idea of a stronger federal government that we didn’t even send anybody to the Constitutional Convention in Philadelphia. We didn’t actually ratify the thing until May 1790, when George Washington had already been president for more than a year.

But the lopsided vote against the Constitution is also a bit misleading, because the document’s local supporters actually boycotted the referendum, which was opposed by the Founding Fathers. Here’s the story from the General Assembly’s official history:

The state’s individualism, its democratic localism, and its tradition of autonomy caused it to resist the centralizing tendencies of the federal Constitution. This opposition was intensified when an agrarian-debtor revolt in support of the issuance of paper money placed the parochial Country party in power from 1786 through 1790. This political faction, led by South Kingstown’s Jonathan Hazard, was suspicious of the power and the cost of a government too far removed from the grass-roots level, and so it declined to dispatch delegates to the Philadelphia Convention of 1787, which drafted the United States Constitution. Then, when that document was presented to the states for ratification, Hazard’s faction delayed (and nearly prevented) Rhode Island’s approval.

In the period between September 1787 and January 1790, the rural-dominated General Assembly rejected no fewer than eleven attempts by the representatives from the mercantile communities to convene a state ratifying convention. Instead, the Assembly defied the instructions of the Founding Fathers and conducted a popular referendum on the Constitution. That election, which was boycotted by the supporters of stronger union (called Federalists), rejected the Constitution by a vote of 2,708 to 237.

Finally, in mid-January 1790, more than eight months after George Washington’s inauguration as first president of the United States, the Country party reluctantly called the required convention, but it took two separate sessions – one in South Kingstown (March 1-6) and the second in Newport (May 24-29) – before approval was obtained. The ratification tally – 34 in favor and 32 opposed – was the narrowest of any state, and a favorable result was obtained only because four Antifederalists either absented themselves or abstained from voting.

Such an ornery little state. Sort of puts all the talk about regionalizing local services and merging Central Falls with Pawtucket in perspective, doesn’t it?

Then again, Massachusetts and Connecticut waited until 1939 – a century and a half – to ratify the Bill of Rights. Bonus fact: Rhode Island still hasn’t ratified the 16th Amendment, the one that allows Congress to levy an income tax. Take that, IRS.