November 20, 2017

Florida, High-Speed Rail, and the Perils of Policymaking by Constitution

State constitutions can affect fiscal policy either by acting as fiscal restraints that limit the scope of government or by imposing fiscal pressures that expand or place demands on government. One concern with using state constitutions to place demands on government is that those demands are often inflexible, limiting the ability of policymakers to adapt as voter preferences or circumstances change. In this piece, we will focus on a high-speed rail plan in Florida to illustrate the perils of policymaking by constitution.

The Florida Monorail Amendment

In 2000, Florida voters narrowly approved the Florida Monorail Amendment to the state constitution. The provision required the state to initiate construction of a high-speed rail system no later than November 1, 2003. The amendment read,

To reduce traffic congestion and provide alternatives to the traveling public, it is hereby declared to be in the public interest that a high speed ground transportation system consisting of a monorail, fixed guideway or magnetic levitation system, capable of speeds in excess of 120 miles per hour, be developed and operated in the State of Florida to provide high speed ground transportation by innovative, efficient and effective technologies consisting of dedicated rails or guideways separated from motor vehicular traffic that will link the five largest urban areas of the State as determined by the Legislature and provide for access to existing air and ground transportation facilities and services. The Legislature, the Cabinet and the Governor are hereby directed to proceed with the development of such a system by the State and/or by a private entity pursuant to state approval and authorization, including the acquisition of right-of-way, the financing of design and construction of the system, and the operation of the system, as provided by specific appropriation and by law, with construction to begin on or before November 1, 2003.

This amendment clearly stipulated that Florida’s government begin the construction of a high-speed rail system by November 1, 2003, and that the system have certain features (link five cities and provide access to existing air and ground transportation services). By placing the system into the constitution, high-speed rail became privileged over other, non-constitutionally-mandated government programs. In addition, this commitment was in essence open-ended, as there was no limit on costs included in the amendment.

Moreover, the demand was inflexible. If this were a piece of legislation, the legislature could simply modify, eliminate, or delay the program if private-sector funding didn’t materialize or if tax increases or spending cuts needed to make the system viable were infeasible. The amendment also did not allow for exigencies such as changes in state economic conditions. The only way to alter the program was through constitutional change—the route ultimately chosen (more on that later).

The passage of the amendment spurred extensive debate over how much high-speed rail would cost and who would bear those costs, since neither was specified in the amendment. There was “no credible evidence” that such a system could be “self-sufficient,” meaning that additional taxpayer funding would be needed and would have to come from spending cuts in other areas or higher taxes (perhaps through debt financing, which is just delayed taxation). As long as high-speed rail is in the state constitution, “the state is locked into paying for [high-speed rail], whether it can afford to or not.”

Some might argue that this inflexibility is a feature, not a bug, of the constitutional amendment. High-speed rail has been a legislative focus in Florida since 1976, when the state legislature requested that a study be conducted to determine whether a route between Daytona Beach and St. Petersburg was viable. But none of the many attempts over the past few decades to support high-speed rail really succeeded until the 2000 referendum. As one analysis concluded, “Without institutional buy-in for a project, as well as the authority and responsibility to identify, gather, and manage funding, and the responsibility for and capability of seeing a project through, many HSR projects fail as soon as the key supporter or visionary leaves. Indeed, this frustration led Florida voters to approve the constitutional amendment requiring the building of HSR.”

This argument, however, creates a slippery slope, as similar concerns could be raised by advocates for any proposed government program that fails to muster legislative support. David Primo, in discussing why policy issues are better managed as part of the legislative process, has written, “once one goes down the road of managing the allocation of spending through state constitutions, it is difficult to know where to stop.”

Reforms to Florida’s Initiative Process

In part owing to the high-speed rail experience, Florida has reformed its initiative process in three ways. First, opponents of high-speed rail successfully placed an amendment on the same 2000 ballot as high-speed rail that would require the legislature to create a public cost estimate associated with amendments proposed via the initiative process, in an effort to better inform voters about the fiscal consequences of their votes. The amendment was successful.

Second, in 2004, voters passed an amendment requiring proposed amendments to get approved for the ballot by February 1st of a general election year, as a way to make sure there is sufficient debate over a proposal’s merits. (As the head of Florida’s Chamber of Commerce told a reporter, the high-speed rail proposal “popped up 91 days ahead of the 2000 election.”)

Third, in 2004, voters approved an amendment to the constitution mandating a 60 percent supermajority of voters casting ballots on the measure in order for amendments to be approved. The only other states requiring a supermajority to approve constitutional amendments are New Hampshire and Colorado, which recently began requiring 55 percent supermajorities to add to the constitution while still maintaining a simple majority requirement for repealing a provision of the constitution.

None of these reforms can completely prevent fiscal pressures from making their way into state constitutions, but they do make it more difficult. They may, of course, have the side effect of preventing measures that would impose fiscal restraints from being placed in state constitutions as well. However, given that many fiscal restraints are ineffective or have unintended consequences, this may be an acceptable trade-off.

What Other States Can Learn from Florida

Other states, regardless of whether they have an initiative process for amendments, can learn from Florida’s experience about the perils of inserting policy into state constitutions. First, prioritizing one set of policies (those in constitutions) over others (those outside of constitutions) limits legislative flexibility if voter preferences or priorities change. In fact, the very reason high-speed rail had difficulty gaining traction without an amendment—that there lacked a consistent champion for it—is perhaps the best evidence that support for a government-driven high-speed rail was far from intense. And yet, legislators may have needed to make cuts in other areas, like education and health care, in order to fund high-speed rail.

Second, economic, fiscal, or other circumstances may change, especially with regard to infrastructure, as New York State’s history shows. When New York’s 1846 constitution was written, the state’s finances were weighed down partly because it had spent so much on the construction of its canal system. This experience led to a new constitutional debt limit. Nevertheless, believing in the canal system’s economic importance, the state doubled down in its new 1846 constitution, going so far as to protect state canals from being sold off or otherwise disposed of. Traffic peaked on the Erie Canal in the mid-1800s, but then declined as railroads and, later, highways and the St. Lawrence Seaway rendered the canal a “historical curiosity.” Canal protections remain in New York’s constitution, and canal maintenance remains a drag on state finances.

The constitution won’t protect high-speed rail in Florida in the same way, as voters decided in 2004 to repeal the high-speed rail amendment, thereby returning high-speed rail to the realm of a statutory policy area. Over a decade later, high-speed rail is slated to become a reality in Florida with the privately funded Brightline high-speed rail system that initially will connect West Palm Beach and Ft. Lauderdale, with plans to include Miami and Orlando in the coming months and years. Whether the program survives ultimately will be decided by economics and politics, not by the state’s constitution.